Senate Bill sb1368c1

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    Florida Senate - 2005                           CS for SB 1368

    By the Committee on Judiciary; and Senator Aronberg





    590-1743-05

  1                      A bill to be entitled

  2         An act relating to disclaimer of property

  3         interests; creating the Florida Uniform

  4         Disclaimer of Property Interests Act; creating

  5         s. 739.101, F.S.; providing a short title;

  6         creating s. 739.102, F.S.; defining terms;

  7         creating s. 739.103, F.S.; providing the scope

  8         of the act; creating s. 739.104, F.S.;

  9         prescribing general provisions relating to

10         persons' powers to disclaim an interest in or

11         power over property; creating s. 739.201, F.S.;

12         prescribing rules applicable to a disclaimer of

13         an interest in property; creating s. 739.202,

14         F.S.; prescribing rules applicable to a

15         disclaimer of rights of survivorship in jointly

16         held property; creating s. 739.203, F.S.;

17         prescribing rules applicable to a disclaimer of

18         interests in property held as tenancy by the

19         entirety; creating s. 739.204, F.S.;

20         prescribing the effect of a disclaimer of

21         interest by a trustee; creating s. 739.205,

22         F.S.; prescribing rules with respect to a

23         disclaimer of the power of appointment or other

24         power not held in a fiduciary capacity;

25         creating s. 739.206, F.S.; prescribing rules

26         with respect to a disclaimer by the appointee,

27         object, or taker in default of the exercise of

28         power of appointment; creating s. 739.207,

29         F.S.; prescribing rules with respect to the

30         disclaimer of power held in a fiduciary

31         capacity; creating s. 739.301, F.S.; providing

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 1         guidelines for delivering or filing a

 2         disclaimer; creating s. 739.401, F.S.;

 3         providing when a disclaimer is permitted;

 4         creating s. 739.402, F.S.; providing when a

 5         disclaimer is barred or limited; creating s.

 6         739.501, F.S.; prescribing the effect of a

 7         tax-qualified disclaimer; creating s. 739.601,

 8         F.S.; providing for recording a disclaimer

 9         relating to real estate; creating s. 739.701,

10         F.S.; prescribing the application to existing

11         relationships; amending s. 731.201, F.S.;

12         providing applicability of certain definitions

13         to the act; repealing s. 689.21, F.S., relating

14         to disclaimer of interests in property passing

15         under certain nontestamentary instruments or

16         under certain powers of appointment; repealing

17         s. 732.801, F.S., relating to disclaimer of

18         interests in property passing by will or

19         intestate succession or under certain powers of

20         appointment; providing an effective date.

21  

22  Be It Enacted by the Legislature of the State of Florida:

23  

24         Section 1.  Chapter 739, Florida Statutes, consisting

25  of sections 739.101, 739.102, 739.103, 739.104, 739.201,

26  739.202, 739.203, 739.204, 739.205, 739.206, 739.207, 739.301,

27  739.401, 739.402, 739.501, 739.601, and 739.701, Florida

28  Statutes, is created to read:

29         739.101  Short title.--This chapter may be cited as the

30  "Florida Uniform Disclaimer of Property Interests Act."

31  

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 1         739.102  Definitions.--As used in this chapter, the

 2  term:

 3         (1)  "Benefactor" means the creator of the interest

 4  that is subject to a disclaimer.

 5         (2)  "Beneficiary designation" means an instrument,

 6  other than an instrument creating or amending a trust, naming

 7  the beneficiary of:

 8         (a)  An annuity or insurance policy;

 9         (b)  An account with a designation for payment on

10  death;

11         (c)  A security registered in beneficiary form;

12         (d)  A pension, profit-sharing, retirement, or other

13  employment-related benefit plan; or

14         (e)  Any other nonprobate transfer at death.

15         (3)  "Disclaimant" means the person to whom a

16  disclaimed interest or power would have passed had the

17  disclaimer not been made.

18         (4)  "Disclaimed interest" means the interest that

19  would have passed to the disclaimant had the disclaimer not

20  been made.

21         (5)  "Disclaimer" means the refusal to accept an

22  interest in or power over property. The term includes a

23  renunciation.

24         (6)  "Fiduciary" means a personal representative,

25  trustee, agent acting under a power of attorney, guardian, or

26  other person authorized to act as a fiduciary with respect to

27  the property of another person.

28         (7)  "Future interest" means an interest that takes

29  effect in possession or enjoyment, if at all, later than the

30  time of its creation.

31  

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 1         (8)  "Insolvent" means that the sum of a person's debts

 2  is greater than all of the person's assets at fair valuation.

 3  A person is presumed to be "insolvent" if the person is

 4  generally not paying his or her debts as they become due.

 5         (9)  "Jointly held property" means property held in the

 6  names of two or more persons under an arrangement in which all

 7  holders have concurrent interests and under which the last

 8  surviving holder is entitled to the whole of the property.

 9  Jointly held property does not include property held as

10  tenants by the entirety.

11         (10)  "Person" includes individuals, ascertained and

12  unascertained, living or not living, whether entitled to an

13  interest by right of intestacy or otherwise; a government,

14  governmental subdivision, agency, or instrumentality; and a

15  public corporation.

16         (11)  "Time of distribution" means the time when a

17  disclaimed interest would have taken effect in possession or

18  enjoyment.

19         (12)  "Trust" means:

20         (a)  An express trust (including an honorary trust or a

21  trust under s. 737.116), charitable or noncharitable, with

22  additions thereto, whenever and however created; and

23         (b)  A trust created pursuant to a statute, judgment,

24  or decree which requires the trust be administered in the

25  manner of an express trust.

26  

27  As used in this chapter, the term "trust" does not include a

28  constructive trust or a resulting trust.

29         739.103  Scope.--This chapter applies to disclaimers of

30  any interest in or power over property, whenever created.

31  Except as provided in s. 739.701, this chapter is the

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 1  exclusive means by which a disclaimer may be made under

 2  Florida law.

 3         739.104  Power to disclaim; general requirements; when

 4  irrevocable.--

 5         (1)  A person may disclaim, in whole or in part,

 6  conditionally or unconditionally, any interest in or power

 7  over property, including a power or appointment. A person may

 8  disclaim the interest or power even if its creator imposed a

 9  spendthrift provision or similar restriction on transfer or a

10  restriction or limitation on the right to disclaim. A

11  disclaimer shall be unconditional unless the disclaimant

12  explicitly provides otherwise in the disclaimer.

13         (2)  With court approval, a fiduciary may disclaim, in

14  whole or part, any interest in or power over property,

15  including a power of appointment. Without court approval, a

16  fiduciary may disclaim, in whole or in part, any interest in

17  or power over property, including a power of appointment, if

18  and to the extent that the instrument creating the fiduciary

19  relationship explicitly grants the fiduciary the right to

20  disclaim. In the absence of a court-appointed guardian,

21  notwithstanding anything in chapter 744 to the contrary,

22  without court approval, a natural guardian under s. 744.301

23  may disclaim on behalf of a minor child of the natural

24  guardian, in whole or in part, any interest in or power over

25  property, including a power of appointment, which the minor

26  child is to receive solely as a result of another disclaimer,

27  but only if the disclaimed interest or power does not pass to

28  or for the benefit of the natural guardian as a result of the

29  disclaimer.

30         (3)  To be effective, a disclaimer must be in writing,

31  declare the writing as a disclaimer, describe the interest or

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 1  power disclaimed, and be signed by the person making the

 2  disclaimer and witnessed and acknowledged in the manner

 3  provided for deeds of real estate to be recorded in this

 4  state. In addition, for a disclaimer to be effective, an

 5  original of the disclaimer must be delivered or filed in the

 6  manner provided in s. 739.301.

 7         (4)  A partial disclaimer may be expressed as a

 8  fraction, percentage, monetary amount, term of years,

 9  limitation of a power, or any other interest or estate in the

10  property.

11         (5)  A disclaimer becomes irrevocable when any

12  conditions to which the disclaimant has made the disclaimer

13  subject are satisfied and when the disclaimer is delivered or

14  filed pursuant to s. 739.301 or it becomes effective as

15  provided in ss. 739.201-739.207, whichever occurs later.

16         (6)  A disclaimer made under this chapter is not a

17  transfer, assignment, or release.

18         739.201  Disclaimer of interest in property.--Except

19  for a disclaimer governed by s. 739.202, s. 739.203, or s.

20  739.204, the following rules apply to a disclaimer of an

21  interest in property:

22         (1)  The disclaimer takes effect as of the time the

23  instrument creating the interest becomes irrevocable or, if

24  the interest arose under the law of intestate succession, as

25  of the time of the intestate's death.

26         (2)  The disclaimed interest passes according to any

27  provision in the instrument creating the interest providing

28  explicitly for the disposition of the interest, should it be

29  disclaimed, or of disclaimed interests in general.

30         (3)  If the instrument does not contain a provision

31  described in subsection (2), the following rules apply:

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 1         (a)  If the disclaimant is an individual, the

 2  disclaimed interest passes as if the disclaimant had died

 3  immediately before the interest was created, unless under the

 4  governing instrument or other applicable law the disclaimed

 5  interest is contingent on surviving to the time of

 6  distribution, in which case the disclaimed interest passes as

 7  if the disclaimant had died immediately before the time for

 8  distribution.  However, if, by law or under the governing

 9  instrument, the descendants of the disclaimant would share in

10  the disclaimed interest by any method of representation had

11  the disclaimant died before the time of distribution, the

12  disclaimed interest passes only to the descendants of the

13  disclaimant who survive the time of distribution.  For

14  purposes of this subsection, a disclaimed interest is created

15  at the death of the benefactor or such earlier time, if any,

16  that the benefactor's transfer of the interest is a completed

17  gift for federal gift tax purposes.  Also for purposes of this

18  subsection, a disclaimed interest in a trust described in s.

19  733.707(3) shall pass as if the interest had been created

20  under a will.

21         (b)  If the disclaimant is not an individual, the

22  disclaimed interest passes as if the disclaimant did not

23  exist.

24         (c)  Upon the disclaimer of a preceding interest, a

25  future interest held by a person other than the disclaimant

26  takes effect as if the disclaimant had died or ceased to exist

27  immediately before the time of distribution, but a future

28  interest held by the disclaimant is not accelerated in

29  possession or enjoyment as a result of the disclaimer.

30         739.202  Disclaimer of rights of survivorship in

31  jointly held property.--

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 1         (1)  Upon the death of a holder of jointly held

 2  property:

 3         (a)  If, during the deceased holder's lifetime, the

 4  deceased holder could have unilaterally regained a portion of

 5  the property attributable to the deceased holder's

 6  contributions without the consent of any other holder, another

 7  holder may disclaim, in whole or in part, a fractional share

 8  of that portion of the property attributable to the deceased

 9  holder's contributions determined by dividing the number one

10  by the number of joint holders alive immediately after the

11  death of the holder to whose death the disclaimer relates.

12         (b)  For all other jointly held property, another

13  holder may disclaim, in whole or in part, a fraction of the

14  whole of the property the numerator of which is one and the

15  denominator of which is the product of the number of joint

16  holders alive immediately before the death of the holder to

17  whose death the disclaimer relates multiplied by the number of

18  joint holders alive immediately after the death of the holder

19  to whose death the disclaimer relates.

20         (2)  A disclaimer under subsection (1) takes effect as

21  of the death of the holder of jointly held property to whose

22  death the disclaimer relates.

23         (3)  An interest in jointly held property disclaimed by

24  a surviving holder of the property passes as if the

25  disclaimant predeceased the holder to whose death the

26  disclaimer relates.

27         739.203  Disclaimer of property held as tenancy by the

28  entirety.--

29         (1)  The survivorship interest in property held as a

30  tenancy by the entirety to which the survivor succeeds by

31  operation of law upon the death of the co-tenant may be

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 1  disclaimed as provided in this chapter. For purposes of this

 2  chapter only, the deceased tenant's interest in property held

 3  as a tenancy by the entirety shall be deemed to be an

 4  undivided one-half interest.

 5         (2)  A disclaimer under subsection (1) takes effect as

 6  of the death of the deceased tenant to whose death the

 7  disclaimer relates.

 8         (3)  The survivorship interest in property held as a

 9  tenancy by the entirety disclaimed by the surviving tenant

10  passes as if the disclaimant had predeceased the tenant to

11  whose death the disclaimer relates.

12         (4)  A disclaimer of an interest in real property held

13  as tenants by the entirety does not cause the disclaimed

14  interest to be homestead property for purposes of descent and

15  distribution under ss. 732.401 and 732.4015.

16         739.204  Disclaimer of interest by trustee.--If a

17  trustee having the power to disclaim under the instrument

18  creating the fiduciary relationship or pursuant to court order

19  disclaims an interest in property that otherwise would have

20  become trust property, the interest does not become trust

21  property.

22         739.205  Disclaimer of power of appointment or other

23  power not held in a fiduciary capacity.--If a holder disclaims

24  a power of appointment or other power not held in a fiduciary

25  capacity, the following rules apply:

26         (1)  If the holder has not exercised the power, the

27  disclaimer takes effect as of the time the instrument creating

28  the power becomes irrevocable.

29         (2)  If the holder has exercised the power and the

30  disclaimer is of a power other than a presently exercisable

31  

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 1  general power of appointment, the disclaimer takes effect

 2  immediately after the last exercise of the power.

 3         (3)  The instrument creating the power is construed as

 4  if the power expired when the disclaimer became effective.

 5         739.206  Disclaimer by appointee, object, or taker in

 6  default of exercise of power of appointment.--

 7         (1)  A disclaimer of an interest in property by an

 8  appointee of a power of appointment takes effect as of the

 9  time the instrument by which the holder exercises the power

10  becomes irrevocable.

11         (2)  A disclaimer of an interest in property by an

12  object, or taker in default of an exercise of a power of

13  appointment, takes effect as of the time the instrument

14  creating the power becomes irrevocable.

15         739.207  Disclaimer of power held in fiduciary

16  capacity.--

17         (1)  If a fiduciary disclaims a power held in a

18  fiduciary capacity which has not been exercised, the

19  disclaimer takes effect as of the time the instrument creating

20  the power becomes irrevocable.

21         (2)  If a fiduciary disclaims a power held in a

22  fiduciary capacity which has been exercised, the disclaimer

23  takes effect immediately after the last exercise of the power.

24         (3)  A disclaimer under this section is effective as to

25  another fiduciary if the disclaimer so provides and the

26  fiduciary disclaiming has the authority to bind the estate,

27  trust, or other person for whom the fiduciary is acting.

28         739.301  Delivery or filing.--

29         (1)  Subject to subsections (2) through (12), delivery

30  of a disclaimer may be effected by personal delivery,

31  first-class mail, or any other method that results in its

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 1  receipt. A disclaimer sent by first-class mail shall be deemed

 2  to have been delivered on the date it is postmarked. Delivery

 3  by any other method shall be effective upon receipt by the

 4  person to whom the disclaimer is to be delivered under this

 5  section.

 6         (2)  In the case of a disclaimer of an interest created

 7  under the law of intestate succession or an interest created

 8  by will, other than an interest in a testamentary trust:

 9         (a)  The disclaimer must be delivered to the personal

10  representative of the decedent's estate; or

11         (b)  If no personal representative is serving when the

12  disclaimer is sought to be delivered, the disclaimer must be

13  filed with the clerk of the court in any county where venue of

14  administration would be proper.

15         (3)  In the case of a disclaimer of an interest in a

16  testamentary trust:

17         (a)  The disclaimer must be delivered to the trustee

18  serving when the disclaimer is delivered or, if no trustee is

19  then serving, to the personal representative of the decedent's

20  estate; or

21         (b)  If no personal representative is serving when the

22  disclaimer is sought to be delivered, the disclaimer must be

23  filed with the clerk of the court in any county where venue of

24  administration of the decedent's estate would be proper.

25         (4)  In the case of a disclaimer of an interest in an

26  inter vivos trust:

27         (a)  The disclaimer must be delivered to the trustee

28  serving when the disclaimer is delivered;

29         (b)  If no trustee is then serving, it must be filed

30  with the clerk of the court in any county where the filing of

31  a notice of trust would be proper; or

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 1         (c)  If the disclaimer is made before the time the

 2  instrument creating the trust becomes irrevocable, the

 3  disclaimer must be delivered to the grantor of the revocable

 4  trust or the transferor of the interest or to such person's

 5  legal representative.

 6         (5)  In the case of a disclaimer of an interest created

 7  by a beneficiary designation made before the time the

 8  designation becomes irrevocable, the disclaimer must be

 9  delivered to the person making the beneficiary designation or

10  to such person's legal representative.

11         (6)  In the case of a disclaimer of an interest created

12  by a beneficiary designation made after the time the

13  designation becomes irrevocable, the disclaimer must be

14  delivered to the person obligated to distribute the interest.

15         (7)  In the case of a disclaimer by a surviving holder

16  of jointly held property, or by the surviving tenant in

17  property held as a tenancy by the entirety, the disclaimer

18  must be delivered to the person to whom the disclaimed

19  interest passes or, if such person cannot reasonably be

20  located by the disclaimant, the disclaimer must be delivered

21  as provided in subsection (2).

22         (8)  In the case of a disclaimer by an object, or taker

23  in default of exercise, of a power of appointment at any time

24  after the power was created:

25         (a)  The disclaimer must be delivered to the holder of

26  the power or to the fiduciary acting under the instrument that

27  created the power; or

28         (b)  If no fiduciary is serving when the disclaimer is

29  sought to be delivered, the disclaimer must be filed with a

30  court having authority to appoint the fiduciary.

31  

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 1         (9)  In the case of a disclaimer by an appointee of a

 2  nonfiduciary power of appointment:

 3         (a)  The disclaimer must be delivered to the holder,

 4  the personal representative of the holder's estate, or the

 5  fiduciary under the instrument that created the power; or

 6         (b)  If no fiduciary is serving when the disclaimer is

 7  sought to be delivered, the disclaimer must be filed with a

 8  court having authority to appoint the fiduciary.

 9         (10)  In the case of a disclaimer by a fiduciary of a

10  power over a trust or estate, the disclaimer must be delivered

11  as provided in subsection (2), subsection (3), or subsection

12  (4) as if the power disclaimed were an interest in property.

13         (11)  In the case of a disclaimer of a power

14  exercisable by an agent, other than a power exercisable by a

15  fiduciary over a trust or estate, the disclaimer must be

16  delivered to the principal or the principal's representative.

17         (12)  Notwithstanding subsection (1), delivery of a

18  disclaimer of an interest in or relating to real estate shall

19  be presumed upon the recording of the disclaimer in the office

20  of the clerk of the court of the county or counties where the

21  real estate is located.

22         (13)  A fiduciary or other person having custody of the

23  disclaimed interest is not liable for any otherwise proper

24  distribution or other disposition made without actual notice

25  of the disclaimer or, if the disclaimer is barred under s.

26  739.402, for any otherwise proper distribution or other

27  disposition made in reliance on the disclaimer, if the

28  distribution or disposition is made without actual knowledge

29  of the facts constituting the bar of the right to disclaim.

30         739.401  When disclaimer is permitted.--A disclaimer

31  may be made at any time unless barred under s. 739.402.

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 1         739.402  When disclaimer is barred or limited.--

 2         (1)  A disclaimer is barred by a written waiver of the

 3  right to disclaim.

 4         (2)  A disclaimer of an interest in property is barred

 5  if any of the following events occur before the disclaimer

 6  becomes effective:

 7         (a)  The disclaimer accepts the interest sought to be

 8  disclaimed;

 9         (b)  The disclaimant voluntarily assigns, conveys,

10  encumbers, pledges, or transfers the interest sought to be

11  disclaimed or contracts to do so;

12         (c)  The interest sought to be disclaimed is sold

13  pursuant to a judicial sale; or

14         (d)  The disclaimant is insolvent when the disclaimer

15  becomes irrevocable.

16         (3)  A disclaimer, in whole or in part, of the future

17  exercise of a power held in a fiduciary capacity is not barred

18  by its previous exercise.

19         (4)  A disclaimer, in whole or in part, of the future

20  exercise of a power not held in a fiduciary capacity is not

21  barred by its previous exercise unless the power is

22  exercisable in favor of the disclaimant.

23         (5)  A disclaimer of an interest in, or a power over,

24  property which is barred by this section is ineffective.

25         739.501  Tax-qualified disclaimer.--Notwithstanding any

26  other provision of this chapter, if, as a result of a

27  disclaimer or transfer, the disclaimed or transferred interest

28  is treated pursuant to the provisions of s. 2518 of the

29  Internal Revenue Code of 1986 as never having been transferred

30  to the disclaimant, the disclaimer or transfer is effective as

31  a disclaimer under this chapter.

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 1         739.601  Recording of disclaimer relating to real

 2  estate.--

 3         (1)  A disclaimer of an interest in or relating to real

 4  estate does not provide constructive notice to all persons

 5  unless the disclaimer contains a legal description of the real

 6  estate to which the disclaimer relates and unless the

 7  disclaimer is filed for recording in the office of the clerk

 8  of the court in the county or counties where the real estate

 9  is located.

10         (2)  An effective disclaimer meeting the requirements

11  of subsection (1) constitutes constructive notice to all

12  persons from the time of filing. Failure to record the

13  disclaimer does not affect its validity as between the

14  disclaimant and persons to whom the property interest or power

15  passes by reason of the disclaimer.

16         739.701  Application to existing relationships.--Except

17  as otherwise provided in s. 739.402, an interest in or power

18  over property existing on July 1, 2005, as to which the time

19  for delivering or filing a disclaimer under laws superseded by

20  this chapter has not expired, may be disclaimed after July 1,

21  2005.

22         Section 2.  Section 731.201, Florida Statutes, is

23  amended to read:

24         731.201  General definitions.--Subject to additional

25  definitions in subsequent chapters that are applicable to

26  specific chapters or parts, and unless the context otherwise

27  requires, in this code, in s. 409.9101, and in chapters 737,

28  738, 739, and 744, the term:

29         (1)  "Authenticated," when referring to copies of

30  documents or judicial proceedings required to be filed with

31  the court under this code, means shall mean a certified copy

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 1  or a copy authenticated according to the Federal Rules of

 2  Civil Procedure.

 3         (2)  "Beneficiary" means heir at law in an intestate

 4  estate and devisee in a testate estate. The term "beneficiary"

 5  does not apply to an heir at law or a devisee after that

 6  person's interest in the estate has been satisfied. In the

 7  case of a devise to an existing trust or trustee, or to a

 8  trust or trustee described by will, the trustee is a

 9  beneficiary of the estate. Except as otherwise provided in

10  this subsection, the beneficiary of the trust is not a

11  beneficiary of the estate of which that trust or the trustee

12  of that trust is a beneficiary. However, if each trustee is

13  also a personal representative of the estate, the beneficiary

14  or beneficiaries of the trust as defined in s. 737.303(4)(b)

15  shall be regarded as a beneficiary of the estate.

16         (3)  "Child" includes a person entitled to take as a

17  child under this code by intestate succession from the parent

18  whose relationship is involved, and excludes any person who is

19  only a stepchild, a foster child, a grandchild, or a more

20  remote descendant.

21         (4)  "Claim" means a liability of the decedent, whether

22  arising in contract, tort, or otherwise, and funeral expense.

23  The term does not include an expense of administration or

24  estate, inheritance, succession, or other death taxes.

25         (5)  "Clerk" means the clerk or deputy clerk of the

26  court.

27         (6)  "Court" means the circuit court.

28         (7)  "Curator" means a person appointed by the court to

29  take charge of the estate of a decedent until letters are

30  issued.

31  

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 1         (8)  "Devise," when used as a noun, means a

 2  testamentary disposition of real or personal property and,

 3  when used as a verb, means to dispose of real or personal

 4  property by will or trust.  The term includes "gift," "give,"

 5  "bequeath," "bequest," and "legacy."  A devise is subject to

 6  charges for debts, expenses, and taxes as provided in this

 7  code, the will, or the trust.

 8         (9)  "Devisee" means a person designated in a will or

 9  trust to receive a devise. Except as otherwise provided in

10  this subsection, in the case of a devise to an existing trust

11  or trustee, or to a trust or trustee of a trust described by

12  will, the trust or trustee, rather than the beneficiaries of

13  the trust, is the devisee. However, if each trustee is also a

14  personal representative of the estate, the beneficiary or

15  beneficiaries of the trust as defined in s. 737.303(4)(b)

16  shall be regarded as a devisee.

17         (10)  "Distributee" means a person who has received

18  estate property from a personal representative or other

19  fiduciary other than as a creditor or purchaser. A

20  testamentary trustee is a distributee only to the extent of

21  distributed assets or increments to them remaining in the

22  trustee's hands.  A beneficiary of a testamentary trust to

23  whom the trustee has distributed property received from a

24  personal representative is a distributee. For purposes of this

25  provision, "testamentary trustee" includes a trustee to whom

26  assets are transferred by will, to the extent of the devised

27  assets.

28         (11)  "Domicile" means a person's usual place of

29  dwelling and shall be synonymous with residence.

30         (12)  "Estate" means the property of a decedent that is

31  the subject of administration.

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    Florida Senate - 2005                           CS for SB 1368
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 1         (13)  "Exempt property" means the property of a

 2  decedent's estate which is described in s. 732.402.

 3         (14)  "File" means to file with the court or clerk.

 4         (15)  "Foreign personal representative" means a

 5  personal representative of another state or a foreign country.

 6         (16)  "Formal notice" means formal notice under the

 7  Florida Probate Rules.

 8         (17)  "Grantor" means one who creates or adds to a

 9  trust and includes "settlor" or "trustor" and a testator who

10  creates or adds to a trust.

11         (18)  "Heirs" or "heirs at law" means those persons,

12  including the surviving spouse, who are entitled under the

13  statutes of intestate succession to the property of a

14  decedent.

15         (19)  "Incompetent" means a minor or a person

16  adjudicated incompetent.

17         (20)  "Informal notice" or "notice" means informal

18  notice under the Florida Probate Rules.

19         (21)  "Interested person" means any person who may

20  reasonably be expected to be affected by the outcome of the

21  particular proceeding involved. In any proceeding affecting

22  the estate or the rights of a beneficiary in the estate, the

23  personal representative of the estate shall be deemed to be an

24  interested person. In any proceeding affecting the expenses of

25  the administration and obligations of a decedent's estate, or

26  any claims described in s. 733.702(1), the trustee of a trust

27  described in s. 733.707(3) is an interested person in the

28  administration of the grantor's estate. The term does not

29  include a beneficiary who has received complete distribution.

30  The meaning, as it relates to particular persons, may vary

31  from time to time and must be determined according to the

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 1  particular purpose of, and matter involved in, any

 2  proceedings.

 3         (22)  "Letters" means authority granted by the court to

 4  the personal representative to act on behalf of the estate of

 5  the decedent and refers to what has been known as letters

 6  testamentary and letters of administration. All letters shall

 7  be designated "letters of administration."

 8         (23)  "Other state" means any state of the United

 9  States other than Florida and includes the District of

10  Columbia, the Commonwealth of Puerto Rico, and any territory

11  or possession subject to the legislative authority of the

12  United States.

13         (24)  "Parent" excludes any person who is only a

14  stepparent, foster parent, or grandparent.

15         (25)  "Personal representative" means the fiduciary

16  appointed by the court to administer the estate and refers to

17  what has been known as an administrator, administrator cum

18  testamento annexo, administrator de bonis non, ancillary

19  administrator, ancillary executor, or executor.

20         (26)  "Petition" means a written request to the court

21  for an order.

22         (27)  "Probate of will" means all steps necessary to

23  establish the validity of a will and to admit a will to

24  probate.

25         (28)  "Property" means both real and personal property

26  or any interest in it and anything that may be the subject of

27  ownership.

28         (29)  "Protected homestead" means the property

29  described in s. 4(a)(1), Art. X of the State Constitution on

30  which at the death of the owner the exemption inures to the

31  owner's surviving spouse or heirs under s. 4(b), Art. X of the

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 1  State Constitution. For purposes of the code, real property

 2  owned as tenants by the entirety is not protected homestead.

 3         (30)  "Residence" means a person's place of dwelling.

 4         (31)  "Residuary devise" means a devise of the assets

 5  of the estate which remain after the provision for any devise

 6  which is to be satisfied by reference to a specific property

 7  or type of property, fund, sum, or statutory amount.  If the

 8  will contains no devise which is to be satisfied by reference

 9  to a specific property or type of property, fund, sum, or

10  statutory amount, "residuary devise" or "residue" means a

11  devise of all assets remaining after satisfying the

12  obligations of the estate.

13         (32)  "Security" means a security as defined in s.

14  517.021.

15         (33)  "Security interest" means a security interest as

16  defined in s. 671.201.

17         (34)  "Trust" means an express trust, private or

18  charitable, with additions to it, wherever and however

19  created.  It also includes a trust created or determined by a

20  judgment or decree under which the trust is to be administered

21  in the manner of an express trust. "Trust" excludes other

22  constructive trusts, and it excludes resulting trusts;

23  conservatorships; custodial arrangements pursuant to the

24  Florida Uniform Transfers to Minors Act; business trusts

25  providing for certificates to be issued to beneficiaries;

26  common trust funds; land trusts under s. 689.05; trusts

27  created by the form of the account or by the deposit agreement

28  at a financial institution; voting trusts; security

29  arrangements; liquidation trusts; trusts for the primary

30  purpose of paying debts, dividends, interest, salaries, wages,

31  profits, pensions, or employee benefits of any kind; and any

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    Florida Senate - 2005                           CS for SB 1368
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 1  arrangement under which a person is nominee or escrowee for

 2  another.

 3         (35)  "Trustee" includes an original, additional,

 4  surviving, or successor trustee, whether or not appointed or

 5  confirmed by court.

 6         (36)  "Will" means an instrument, including a codicil,

 7  executed by a person in the manner prescribed by this code,

 8  which disposes of the person's property on or after his or her

 9  death and includes an instrument which merely appoints a

10  personal representative or revokes or revises another will.

11         Section 3.  Sections 689.21 and 732.801, Florida

12  Statutes, are repealed.

13         Section 4.  This act shall take effect July 1, 2005.

14  

15          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
16                         Senate Bill 1368

17                                 

18  The committee substitute makes the following changes to the
    underlying bill:
19  
    --   Revises a provision designed to assure that disclaimers
20       of vested future interests in testamentary substitutes,
         such as revocable trusts, will qualify for federal tax
21       purposes where it is unclear under Florida law that such
         interests are subject to devise by the possessor; and
22  
    --   Makes a technical correction.
23  

24  

25  

26  

27  

28  

29  

30  

31  

                                  21

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