1 | A bill to be entitled |
2 | An act relating to disclaimers of property interests; |
3 | creating the Florida Uniform Disclaimer of Property |
4 | Interests Act; creating s. 739.101, F.S.; providing a |
5 | short title; creating s. 739.102, F.S.; defining terms; |
6 | creating s. 739.103, F.S.; providing the scope of the act; |
7 | creating s. 739.104, F.S.; prescribing general provisions |
8 | relating to persons' powers to disclaim an interest in or |
9 | power over property; creating s. 739.201, F.S.; |
10 | prescribing rules applicable to a disclaimer of an |
11 | interest in property; creating s. 739.202, F.S.; |
12 | prescribing rules applicable to a disclaimer of rights of |
13 | survivorship in jointly held property; creating s. |
14 | 739.203, F.S.; prescribing rules applicable to a |
15 | disclaimer of interests in property held as tenancy by the |
16 | entirety; creating s. 739.204, F.S.; prescribing the |
17 | effect of a disclaimer of interest by a trustee; creating |
18 | s. 739.205, F.S.; prescribing rules with respect to a |
19 | disclaimer of the power of appointment or other power not |
20 | held in a fiduciary capacity; creating s. 739.206, F.S.; |
21 | prescribing rules with respect to a disclaimer by the |
22 | appointee, object, or taker in default of the exercise of |
23 | power of appointment; creating s. 739.207, F.S.; |
24 | prescribing rules with respect to the disclaimer of power |
25 | held in a fiduciary capacity; creating s. 739.301, F.S.; |
26 | providing guidelines for delivering or filing a |
27 | disclaimer; creating s. 739.401, F.S.; providing when a |
28 | disclaimer is permitted; creating s. 739.402, F.S.; |
29 | providing when a disclaimer is barred or limited; creating |
30 | s. 739.501, F.S.; prescribing the effect of a tax- |
31 | qualified disclaimer; creating s. 739.601, F.S.; providing |
32 | for recording a disclaimer relating to real estate; |
33 | creating s. 739.701, F.S.; prescribing the application to |
34 | existing relationships; amending s. 731.201, F.S.; |
35 | providing applicability of certain definitions to the act; |
36 | amending ss. 121.091 and 710.121, F.S., to conform; |
37 | repealing s. 689.21, F.S., relating to disclaimer of |
38 | interests in property passing under certain |
39 | nontestamentary instruments or under certain powers of |
40 | appointment; repealing s. 732.801, F.S., relating to |
41 | disclaimer of interests in property passing by will or |
42 | intestate succession or under certain powers of |
43 | appointment; providing an effective date. |
44 |
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45 | Be It Enacted by the Legislature of the State of Florida: |
46 |
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47 | Section 1. Chapter 739, Florida Statutes, consisting of |
48 | sections 739.101, 739.102, 739.103, 739.104, 739.201, 739.202, |
49 | 739.203, 739.204, 739.205, 739.206, 739.207, 739.301, 739.401, |
50 | 739.402, 739.501, 739.601, and 739.701, Florida Statutes, is |
51 | created to read: |
52 | 739.101 Short title.--This chapter may be cited as the |
53 | "Florida Uniform Disclaimer of Property Interests Act." |
54 | 739.102 Definitions.--As used in this chapter, the term: |
55 | (1) "Benefactor" means the creator of the interest that is |
56 | subject to a disclaimer. |
57 | (2) "Beneficiary designation" means an instrument, other |
58 | than an instrument creating or amending a trust, naming the |
59 | beneficiary of: |
60 | (a) An annuity or insurance policy; |
61 | (b) An account with a designation for payment on death; |
62 | (c) A security registered in beneficiary form; |
63 | (d) A pension, profit-sharing, retirement, or other |
64 | employment-related benefit plan; or |
65 | (e) Any other nonprobate transfer at death. |
66 | (3) "Disclaimant" means the person to whom a disclaimed |
67 | interest or power would have passed had the disclaimer not been |
68 | made. |
69 | (4) "Disclaimed interest" means the interest that would |
70 | have passed to the disclaimant had the disclaimer not been made. |
71 | (5) "Disclaimer" means the refusal to accept an interest |
72 | in or power over property. The term includes a renunciation. |
73 | (6) "Fiduciary" means a personal representative, trustee, |
74 | agent acting under a power of attorney, guardian, or other |
75 | person authorized to act as a fiduciary with respect to the |
76 | property of another person. |
77 | (7) "Future interest" means an interest that takes effect |
78 | in possession or enjoyment, if at all, later than the time of |
79 | its creation. |
80 | (8) "Insolvent" means that the sum of a person's debts is |
81 | greater than all of the person's assets at fair valuation. A |
82 | person is presumed to be "insolvent" if the person is generally |
83 | not paying his or her debts as they become due. |
84 | (9) "Jointly held property" means property held in the |
85 | names of two or more persons under an arrangement in which all |
86 | holders have concurrent interests and under which the last |
87 | surviving holder is entitled to the whole of the property. |
88 | Jointly held property does not include property held as tenants |
89 | by the entirety. |
90 | (10) "Person" includes individuals, ascertained and |
91 | unascertained, living or not living, whether entitled to an |
92 | interest by right of intestacy or otherwise; a government, |
93 | governmental subdivision, agency, or instrumentality; and a |
94 | public corporation. |
95 | (11) "Time of distribution" means the time when a |
96 | disclaimed interest would have taken effect in possession or |
97 | enjoyment. |
98 | (12) "Trust" means: |
99 | (a) An express trust, including an honorary trust or a |
100 | trust under s. 737.116, charitable or noncharitable, with |
101 | additions thereto, whenever and however created. |
102 | (b) A trust created pursuant to a law, judgment, or decree |
103 | which requires the trust be administered in the manner of an |
104 | express trust. |
105 |
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106 | As used in this chapter, the term "trust" does not include a |
107 | constructive trust or a resulting trust. |
108 | 739.103 Scope.--This chapter applies to disclaimers of any |
109 | interest in or power over property, whenever created. Except as |
110 | provided in s. 739.701, this chapter is the exclusive means by |
111 | which a disclaimer may be made under the laws of this state. |
112 | 739.104 Power to disclaim; general requirements; when |
113 | irrevocable.-- |
114 | (1) A person may disclaim, in whole or in part, |
115 | conditionally or unconditionally, any interest in or power over |
116 | property, including a power of appointment. A person may |
117 | disclaim the interest or power even if its creator imposed a |
118 | spendthrift provision or similar restriction on transfer or a |
119 | restriction or limitation on the right to disclaim. A disclaimer |
120 | shall be unconditional unless the disclaimant explicitly |
121 | provides otherwise in the disclaimer. |
122 | (2) With court approval, a fiduciary may disclaim, in |
123 | whole or part, any interest in or power over property, including |
124 | a power of appointment. Without court approval, a fiduciary may |
125 | disclaim, in whole or in part, any interest in or power over |
126 | property, including a power of appointment, if and to the extent |
127 | that the instrument creating the fiduciary relationship |
128 | explicitly grants the fiduciary the right to disclaim. In the |
129 | absence of a court-appointed guardian, notwithstanding anything |
130 | in chapter 744 to the contrary, without court approval, a |
131 | natural guardian under s. 744.301 may disclaim on behalf of a |
132 | minor child of the natural guardian, in whole or in part, any |
133 | interest in or power over property, including a power of |
134 | appointment, which the minor child is to receive solely as a |
135 | result of another disclaimer, but only if the disclaimed |
136 | interest or power does not pass to or for the benefit of the |
137 | natural guardian as a result of the disclaimer. |
138 | (3) To be effective, a disclaimer must be in writing, |
139 | declare the writing as a disclaimer, describe the interest or |
140 | power disclaimed, and be signed by the person making the |
141 | disclaimer and witnessed and acknowledged in the manner provided |
142 | for deeds of real estate to be recorded in this state. In |
143 | addition, for a disclaimer to be effective, an original of the |
144 | disclaimer must be delivered or filed in the manner provided in |
145 | s. 739.301. |
146 | (4) A partial disclaimer may be expressed as a fraction, |
147 | percentage, monetary amount, term of years, limitation of a |
148 | power, or any other interest or estate in the property. |
149 | (5) A disclaimer becomes irrevocable when any conditions |
150 | to which the disclaimant has made the disclaimer subject are |
151 | satisfied and when the disclaimer is delivered or filed pursuant |
152 | to s. 739.301 or it becomes effective as provided in ss. |
153 | 739.201-739.207, whichever occurs later. |
154 | (6) A disclaimer made under this chapter is not a |
155 | transfer, assignment, or release. |
156 | 739.201 Disclaimer of interest in property.--Except for a |
157 | disclaimer governed by s. 739.202, s. 739.203, or s. 739.204, |
158 | the following rules apply to a disclaimer of an interest in |
159 | property: |
160 | (1) The disclaimer takes effect as of the time the |
161 | instrument creating the interest becomes irrevocable or, if the |
162 | interest arose under the law of intestate succession, as of the |
163 | time of the intestate's death. |
164 | (2) The disclaimed interest passes according to any |
165 | provision in the instrument creating the interest providing |
166 | explicitly for the disposition of the interest, should it be |
167 | disclaimed, or of disclaimed interests in general. |
168 | (3) If the instrument does not contain a provision |
169 | described in subsection (2), the following rules apply: |
170 | (a) If the disclaimant is an individual, the disclaimed |
171 | interest passes as if the disclaimant has predeceased the |
172 | benefactor, unless the disclaimed interest is a remainder |
173 | contingent on surviving to the time of distribution, in which |
174 | case the disclaimed interest passes as if the disclaimant had |
175 | died immediately before the time for distribution. However, if, |
176 | by law or under the instrument, the descendants of the |
177 | disclaimant would share in the disclaimed interest by any method |
178 | of representation had the disclaimant died before the time of |
179 | distribution, the disclaimed interest passes only to the |
180 | descendants of the disclaimant surviving at the time of |
181 | distribution. |
182 | (b) If the disclaimant is not an individual, the |
183 | disclaimed interest passes as if the disclaimant did not exist. |
184 | (c) Upon the disclaimer of a preceding interest, a future |
185 | interest held by a person other than the disclaimant takes |
186 | effect as if the disclaimant had died or ceased to exist |
187 | immediately before the time of distribution, but a future |
188 | interest held by the disclaimant is not accelerated in |
189 | possession or enjoyment as a result of the disclaimer. |
190 | 739.202 Disclaimer of rights of survivorship in jointly |
191 | held property.-- |
192 | (1) Upon the death of a holder of jointly held property: |
193 | (a) If, during the deceased holder's lifetime, the |
194 | deceased holder could have unilaterally regained a portion of |
195 | the property attributable to the deceased holder's contributions |
196 | without the consent of any other holder, another holder may |
197 | disclaim, in whole or in part, a fractional share of that |
198 | portion of the property attributable to the deceased holder's |
199 | contributions determined by dividing the number one by the |
200 | number of joint holders alive immediately after the death of the |
201 | holder to whose death the disclaimer relates. |
202 | (b) For all other jointly held property, another holder |
203 | may disclaim, in whole or in part, a fraction of the whole of |
204 | the property the numerator of which is one and the denominator |
205 | of which is the product of the number of joint holders alive |
206 | immediately before the death of the holder to whose death the |
207 | disclaimer relates multiplied by the number of joint holders |
208 | alive immediately after the death of the holder to whose death |
209 | the disclaimer relates. |
210 | (2) A disclaimer under subsection (1) takes effect as of |
211 | the death of the holder of jointly held property to whose death |
212 | the disclaimer relates. |
213 | (3) An interest in jointly held property disclaimed by a |
214 | surviving holder of the property passes as if the disclaimant |
215 | predeceased the holder to whose death the disclaimer relates. |
216 | 739.203 Disclaimer of property held as tenancy by the |
217 | entirety.-- |
218 | (1) The survivorship interest in property held as a |
219 | tenancy by the entirety to which the survivor succeeds by |
220 | operation of law upon the death of the co-tenant may be |
221 | disclaimed as provided in this chapter. For purposes of this |
222 | chapter only, the deceased tenant's interest in property held as |
223 | a tenancy by the entirety shall be deemed to be an undivided |
224 | one-half interest. |
225 | (2) A disclaimer under subsection (1) takes effect as of |
226 | the death of the deceased tenant to whose death the disclaimer |
227 | relates. |
228 | (3) The survivorship interest in property held as a |
229 | tenancy by the entirety disclaimed by the surviving tenant |
230 | passes as if the disclaimant had predeceased the tenant to whose |
231 | death the disclaimer relates. |
232 | (4) A disclaimer of an interest in real property held as |
233 | tenants by the entirety does not cause the disclaimed interest |
234 | to be homestead property for purposes of descent and |
235 | distribution under ss. 732.401 and 732.4015. |
236 | 739.204 Disclaimer of interest by trustee.--If a trustee |
237 | having the power to disclaim under the instrument creating the |
238 | fiduciary relationship or pursuant to court order disclaims an |
239 | interest in property that otherwise would have become trust |
240 | property, the interest does not become trust property. |
241 | 739.205 Disclaimer of power of appointment or other power |
242 | not held in a fiduciary capacity.--If a holder disclaims a power |
243 | of appointment or other power not held in a fiduciary capacity, |
244 | the following rules apply: |
245 | (1) If the holder has not exercised the power, the |
246 | disclaimer takes effect as of the time the instrument creating |
247 | the power becomes irrevocable. |
248 | (2) If the holder has exercised the power and the |
249 | disclaimer is of a power other than a presently exercisable |
250 | general power of appointment, the disclaimer takes effect |
251 | immediately after the last exercise of the power. |
252 | (3) The instrument creating the power is construed as if |
253 | the power expired when the disclaimer became effective. |
254 | 739.206 Disclaimer by appointee, object, or taker in |
255 | default of exercise of power of appointment.-- |
256 | (1) A disclaimer of an interest in property by an |
257 | appointee of a power of appointment takes effect as of the time |
258 | the instrument by which the holder exercises the power becomes |
259 | irrevocable. |
260 | (2) A disclaimer of an interest in property by an object, |
261 | or taker in default of an exercise of a power of appointment, |
262 | takes effect as of the time the instrument creating the power |
263 | becomes irrevocable. |
264 | 739.207 Disclaimer of power held in fiduciary capacity.-- |
265 | (1) If a fiduciary disclaims a power held in a fiduciary |
266 | capacity which has not been exercised, the disclaimer takes |
267 | effect as of the time the instrument creating the power becomes |
268 | irrevocable. |
269 | (2) If a fiduciary disclaims a power held in a fiduciary |
270 | capacity which has been exercised, the disclaimer takes effect |
271 | immediately after the last exercise of the power. |
272 | (3) A disclaimer under this section is effective as to |
273 | another fiduciary if the disclaimer so provides and the |
274 | fiduciary disclaiming has the authority to bind the estate, |
275 | trust, or other person for whom the fiduciary is acting. |
276 | 739.301 Delivery or filing.-- |
277 | (1) Subject to subsections (2) through (12), delivery of a |
278 | disclaimer may be effected by personal delivery, first-class |
279 | mail, or any other method that results in its receipt. A |
280 | disclaimer sent by first-class mail shall be deemed to have been |
281 | delivered on the date it is postmarked. Delivery by any other |
282 | method shall be effective upon receipt by the person to whom the |
283 | disclaimer is to be delivered under this section. |
284 | (2) In the case of a disclaimer of an interest created |
285 | under the law of intestate succession or an interest created by |
286 | will, other than an interest in a testamentary trust: |
287 | (a) The disclaimer must be delivered to the personal |
288 | representative of the decedent's estate; or |
289 | (b) If no personal representative is serving when the |
290 | disclaimer is sought to be delivered, the disclaimer must be |
291 | filed with the clerk of the court in any county where venue of |
292 | administration would be proper. |
293 | (3) In the case of a disclaimer of an interest in a |
294 | testamentary trust: |
295 | (a) The disclaimer must be delivered to the trustee |
296 | serving when the disclaimer is delivered or, if no trustee is |
297 | then serving, to the personal representative of the decedent's |
298 | estate; or |
299 | (b) If no personal representative is serving when the |
300 | disclaimer is sought to be delivered, the disclaimer must be |
301 | filed with the clerk of the court in any county where venue of |
302 | administration of the decedent's estate would be proper. |
303 | (4) In the case of a disclaimer of an interest in an inter |
304 | vivos trust: |
305 | (a) The disclaimer must be delivered to the trustee |
306 | serving when the disclaimer is delivered; |
307 | (b) If no trustee is then serving, it must be filed with |
308 | the clerk of the court in any county where the filing of a |
309 | notice of trust would be proper; or |
310 | (c) If the disclaimer is made before the time the |
311 | instrument creating the trust becomes irrevocable, the |
312 | disclaimer must be delivered to the grantor of the revocable |
313 | trust or the transferor of the interest or to such person's |
314 | legal representative. |
315 | (5) In the case of a disclaimer of an interest created by |
316 | a beneficiary designation made before the time the designation |
317 | becomes irrevocable, the disclaimer must be delivered to the |
318 | person making the beneficiary designation or to such person's |
319 | legal representative. |
320 | (6) In the case of a disclaimer of an interest created by |
321 | a beneficiary designation made after the time the designation |
322 | becomes irrevocable, the disclaimer must be delivered to the |
323 | person obligated to distribute the interest. |
324 | (7) In the case of a disclaimer by a surviving holder of |
325 | jointly held property, or by the surviving tenant in property |
326 | held as a tenancy by the entirety, the disclaimer must be |
327 | delivered to the person to whom the disclaimed interest passes |
328 | or, if such person cannot reasonably be located by the |
329 | disclaimant, the disclaimer must be delivered as provided in |
330 | subsection (2). |
331 | (8) In the case of a disclaimer by an object, or taker in |
332 | default of exercise, of a power of appointment at any time after |
333 | the power was created: |
334 | (a) The disclaimer must be delivered to the holder of the |
335 | power or to the fiduciary acting under the instrument that |
336 | created the power; or |
337 | (b) If no fiduciary is serving when the disclaimer is |
338 | sought to be delivered, the disclaimer must be filed with a |
339 | court having authority to appoint the fiduciary. |
340 | (9) In the case of a disclaimer by an appointee of a |
341 | nonfiduciary power of appointment: |
342 | (a) The disclaimer must be delivered to the holder, the |
343 | personal representative of the holder's estate, or the fiduciary |
344 | under the instrument that created the power; or |
345 | (b) If no fiduciary is serving when the disclaimer is |
346 | sought to be delivered, the disclaimer must be filed with a |
347 | court having authority to appoint the fiduciary. |
348 | (10) In the case of a disclaimer by a fiduciary of a power |
349 | over a trust or estate, the disclaimer must be delivered as |
350 | provided in subsection (2), subsection (3), or subsection (4) as |
351 | if the power disclaimed were an interest in property. |
352 | (11) In the case of a disclaimer of a power exercisable by |
353 | an agent, other than a power exercisable by a fiduciary over a |
354 | trust or estate, the disclaimer must be delivered to the |
355 | principal or the principal's representative. |
356 | (12) Notwithstanding subsection (1), delivery of a |
357 | disclaimer of an interest in or relating to real estate shall be |
358 | presumed upon the recording of the disclaimer in the office of |
359 | the clerk of the court of the county or counties where the real |
360 | estate is located. |
361 | (13) A fiduciary or other person having custody of the |
362 | disclaimed interest is not liable for any otherwise proper |
363 | distribution or other disposition made without actual notice of |
364 | the disclaimer or, if the disclaimer is barred under s. 739.402, |
365 | for any otherwise proper distribution or other disposition made |
366 | in reliance on the disclaimer, if the distribution or |
367 | disposition is made without actual knowledge of the facts |
368 | constituting the bar of the right to disclaim. |
369 | 739.401 When disclaimer is permitted.--A disclaimer may be |
370 | made at any time unless barred under s. 739.402. |
371 | 739.402 When disclaimer is barred or limited.-- |
372 | (1) A disclaimer is barred by a written waiver of the |
373 | right to disclaim. |
374 | (2) A disclaimer of an interest in property is barred if |
375 | any of the following events occurs before the disclaimer becomes |
376 | effective: |
377 | (a) The disclaimer accepts the interest sought to be |
378 | disclaimed; |
379 | (b) The disclaimant voluntarily assigns, conveys, |
380 | encumbers, pledges, or transfers the interest sought to be |
381 | disclaimed or contracts to do so; |
382 | (c) The interest sought to be disclaimed is sold pursuant |
383 | to a judicial sale; or |
384 | (d) The disclaimant is insolvent when the disclaimer |
385 | becomes irrevocable. |
386 | (3) A disclaimer, in whole or in part, of the future |
387 | exercise of a power held in a fiduciary capacity is not barred |
388 | by its previous exercise. |
389 | (4) A disclaimer, in whole or in part, of the future |
390 | exercise of a power not held in a fiduciary capacity is not |
391 | barred by its previous exercise unless the power is exercisable |
392 | in favor of the disclaimant. |
393 | (5) A disclaimer of an interest in, or a power over, |
394 | property which is barred by this section is ineffective. |
395 | 739.501 Tax-qualified disclaimer.--Notwithstanding any |
396 | other provision of this chapter, if, as a result of a disclaimer |
397 | or transfer, the disclaimed or transferred interest is treated |
398 | pursuant to the provisions of s. 2518 of the Internal Revenue |
399 | Code of 1986 as never having been transferred to the |
400 | disclaimant, the disclaimer or transfer is effective as a |
401 | disclaimer under this chapter. |
402 | 739.601 Recording of disclaimer relating to real estate.-- |
403 | (1) A disclaimer of an interest in or relating to real |
404 | estate does not provide constructive notice to all persons |
405 | unless the disclaimer contains a legal description of the real |
406 | estate to which the disclaimer relates and unless the disclaimer |
407 | is filed for recording in the office of the clerk of the court |
408 | in the county or counties where the real estate is located. |
409 | (2) An effective disclaimer meeting the requirements of |
410 | subsection (1) constitutes constructive notice to all persons |
411 | from the time of filing. Failure to record the disclaimer does |
412 | not affect its validity as between the disclaimant and persons |
413 | to whom the property interest or power passes by reason of the |
414 | disclaimer. |
415 | 739.701 Application to existing relationships.--Except as |
416 | otherwise provided in s. 739.402, an interest in or power over |
417 | property existing on July 1, 2005, as to which the time for |
418 | delivering or filing a disclaimer under laws superseded by this |
419 | chapter has not expired, may be disclaimed after July 1, 2005. |
420 | Section 2. Section 731.201, Florida Statutes, is amended |
421 | to read: |
422 | 731.201 General definitions.--Subject to additional |
423 | definitions in subsequent chapters that are applicable to |
424 | specific chapters or parts, and unless the context otherwise |
425 | requires, in this code, in s. 409.9101, and in chapters 737, |
426 | 738, 739, and 744, the term: |
427 | (1) "Authenticated," when referring to copies of documents |
428 | or judicial proceedings required to be filed with the court |
429 | under this code, means shall mean a certified copy or a copy |
430 | authenticated according to the Federal Rules of Civil Procedure. |
431 | (2) "Beneficiary" means heir at law in an intestate estate |
432 | and devisee in a testate estate. The term "beneficiary" does not |
433 | apply to an heir at law or a devisee after that person's |
434 | interest in the estate has been satisfied. In the case of a |
435 | devise to an existing trust or trustee, or to a trust or trustee |
436 | described by will, the trustee is a beneficiary of the estate. |
437 | Except as otherwise provided in this subsection, the beneficiary |
438 | of the trust is not a beneficiary of the estate of which that |
439 | trust or the trustee of that trust is a beneficiary. However, if |
440 | each trustee is also a personal representative of the estate, |
441 | the beneficiary or beneficiaries of the trust as defined in s. |
442 | 737.303(4)(b) shall be regarded as a beneficiary of the estate. |
443 | (3) "Child" includes a person entitled to take as a child |
444 | under this code by intestate succession from the parent whose |
445 | relationship is involved, and excludes any person who is only a |
446 | stepchild, a foster child, a grandchild, or a more remote |
447 | descendant. |
448 | (4) "Claim" means a liability of the decedent, whether |
449 | arising in contract, tort, or otherwise, and funeral expense. |
450 | The term does not include an expense of administration or |
451 | estate, inheritance, succession, or other death taxes. |
452 | (5) "Clerk" means the clerk or deputy clerk of the court. |
453 | (6) "Court" means the circuit court. |
454 | (7) "Curator" means a person appointed by the court to |
455 | take charge of the estate of a decedent until letters are |
456 | issued. |
457 | (8) "Devise," when used as a noun, means a testamentary |
458 | disposition of real or personal property and, when used as a |
459 | verb, means to dispose of real or personal property by will or |
460 | trust. The term includes "gift," "give," "bequeath," "bequest," |
461 | and "legacy." A devise is subject to charges for debts, |
462 | expenses, and taxes as provided in this code, the will, or the |
463 | trust. |
464 | (9) "Devisee" means a person designated in a will or trust |
465 | to receive a devise. Except as otherwise provided in this |
466 | subsection, in the case of a devise to an existing trust or |
467 | trustee, or to a trust or trustee of a trust described by will, |
468 | the trust or trustee, rather than the beneficiaries of the |
469 | trust, is the devisee. However, if each trustee is also a |
470 | personal representative of the estate, the beneficiary or |
471 | beneficiaries of the trust as defined in s. 737.303(4)(b) shall |
472 | be regarded as a devisee. |
473 | (10) "Distributee" means a person who has received estate |
474 | property from a personal representative or other fiduciary other |
475 | than as a creditor or purchaser. A testamentary trustee is a |
476 | distributee only to the extent of distributed assets or |
477 | increments to them remaining in the trustee's hands. A |
478 | beneficiary of a testamentary trust to whom the trustee has |
479 | distributed property received from a personal representative is |
480 | a distributee. For purposes of this provision, "testamentary |
481 | trustee" includes a trustee to whom assets are transferred by |
482 | will, to the extent of the devised assets. |
483 | (11) "Domicile" means a person's usual place of dwelling |
484 | and shall be synonymous with residence. |
485 | (12) "Estate" means the property of a decedent that is the |
486 | subject of administration. |
487 | (13) "Exempt property" means the property of a decedent's |
488 | estate which is described in s. 732.402. |
489 | (14) "File" means to file with the court or clerk. |
490 | (15) "Foreign personal representative" means a personal |
491 | representative of another state or a foreign country. |
492 | (16) "Formal notice" means formal notice under the Florida |
493 | Probate Rules. |
494 | (17) "Grantor" means one who creates or adds to a trust |
495 | and includes "settlor" or "trustor" and a testator who creates |
496 | or adds to a trust. |
497 | (18) "Heirs" or "heirs at law" means those persons, |
498 | including the surviving spouse, who are entitled under the |
499 | statutes of intestate succession to the property of a decedent. |
500 | (19) "Incompetent" means a minor or a person adjudicated |
501 | incompetent. |
502 | (20) "Informal notice" or "notice" means informal notice |
503 | under the Florida Probate Rules. |
504 | (21) "Interested person" means any person who may |
505 | reasonably be expected to be affected by the outcome of the |
506 | particular proceeding involved. In any proceeding affecting the |
507 | estate or the rights of a beneficiary in the estate, the |
508 | personal representative of the estate shall be deemed to be an |
509 | interested person. In any proceeding affecting the expenses of |
510 | the administration and obligations of a decedent's estate, or |
511 | any claims described in s. 733.702(1), the trustee of a trust |
512 | described in s. 733.707(3) is an interested person in the |
513 | administration of the grantor's estate. The term does not |
514 | include a beneficiary who has received complete distribution. |
515 | The meaning, as it relates to particular persons, may vary from |
516 | time to time and must be determined according to the particular |
517 | purpose of, and matter involved in, any proceedings. |
518 | (22) "Letters" means authority granted by the court to the |
519 | personal representative to act on behalf of the estate of the |
520 | decedent and refers to what has been known as letters |
521 | testamentary and letters of administration. All letters shall be |
522 | designated "letters of administration." |
523 | (23) "Other state" means any state of the United States |
524 | other than Florida and includes the District of Columbia, the |
525 | Commonwealth of Puerto Rico, and any territory or possession |
526 | subject to the legislative authority of the United States. |
527 | (24) "Parent" excludes any person who is only a |
528 | stepparent, foster parent, or grandparent. |
529 | (25) "Personal representative" means the fiduciary |
530 | appointed by the court to administer the estate and refers to |
531 | what has been known as an administrator, administrator cum |
532 | testamento annexo, administrator de bonis non, ancillary |
533 | administrator, ancillary executor, or executor. |
534 | (26) "Petition" means a written request to the court for |
535 | an order. |
536 | (27) "Probate of will" means all steps necessary to |
537 | establish the validity of a will and to admit a will to probate. |
538 | (28) "Property" means both real and personal property or |
539 | any interest in it and anything that may be the subject of |
540 | ownership. |
541 | (29) "Protected homestead" means the property described in |
542 | s. 4(a)(1), Art. X of the State Constitution on which at the |
543 | death of the owner the exemption inures to the owner's surviving |
544 | spouse or heirs under s. 4(b), Art. X of the State Constitution. |
545 | For purposes of the code, real property owned as tenants by the |
546 | entirety is not protected homestead. |
547 | (30) "Residence" means a person's place of dwelling. |
548 | (31) "Residuary devise" means a devise of the assets of |
549 | the estate which remain after the provision for any devise which |
550 | is to be satisfied by reference to a specific property or type |
551 | of property, fund, sum, or statutory amount. If the will |
552 | contains no devise which is to be satisfied by reference to a |
553 | specific property or type of property, fund, sum, or statutory |
554 | amount, "residuary devise" or "residue" means a devise of all |
555 | assets remaining after satisfying the obligations of the estate. |
556 | (32) "Security" means a security as defined in s. 517.021. |
557 | (33) "Security interest" means a security interest as |
558 | defined in s. 671.201. |
559 | (34) "Trust" means an express trust, private or |
560 | charitable, with additions to it, wherever and however created. |
561 | It also includes a trust created or determined by a judgment or |
562 | decree under which the trust is to be administered in the manner |
563 | of an express trust. "Trust" excludes other constructive trusts, |
564 | and it excludes resulting trusts; conservatorships; custodial |
565 | arrangements pursuant to the Florida Uniform Transfers to Minors |
566 | Act; business trusts providing for certificates to be issued to |
567 | beneficiaries; common trust funds; land trusts under s. 689.05; |
568 | trusts created by the form of the account or by the deposit |
569 | agreement at a financial institution; voting trusts; security |
570 | arrangements; liquidation trusts; trusts for the primary purpose |
571 | of paying debts, dividends, interest, salaries, wages, profits, |
572 | pensions, or employee benefits of any kind; and any arrangement |
573 | under which a person is nominee or escrowee for another. |
574 | (35) "Trustee" includes an original, additional, |
575 | surviving, or successor trustee, whether or not appointed or |
576 | confirmed by court. |
577 | (36) "Will" means an instrument, including a codicil, |
578 | executed by a person in the manner prescribed by this code, |
579 | which disposes of the person's property on or after his or her |
580 | death and includes an instrument which merely appoints a |
581 | personal representative or revokes or revises another will. |
582 | Section 3. Paragraph (b) of subsection (8) of section |
583 | 121.091, Florida Statutes, is amended to read: |
584 | 121.091 Benefits payable under the system.--Benefits may |
585 | not be paid under this section unless the member has terminated |
586 | employment as provided in s. 121.021(39)(a) or begun |
587 | participation in the Deferred Retirement Option Program as |
588 | provided in subsection (13), and a proper application has been |
589 | filed in the manner prescribed by the department. The department |
590 | may cancel an application for retirement benefits when the |
591 | member or beneficiary fails to timely provide the information |
592 | and documents required by this chapter and the department's |
593 | rules. The department shall adopt rules establishing procedures |
594 | for application for retirement benefits and for the cancellation |
595 | of such application when the required information or documents |
596 | are not received. |
597 | (8) DESIGNATION OF BENEFICIARIES.-- |
598 | (b) A designated beneficiary of a retirement account for |
599 | whom there is a monetary interest may disclaim his or her |
600 | monetary interest as provided in chapter 739 s. 689.21, and in |
601 | accordance with division rules governing such disclaimers. Such |
602 | disclaimer must be filed within 24 months after the event that |
603 | created the interest, that is, the death of the member or |
604 | annuitant. |
605 | Section 4. Subsection (1) of section 710.121, Florida |
606 | Statutes, is amended to read: |
607 | 710.121 Renunciation, resignation, death, or removal of |
608 | custodian; designation of successor custodian.-- |
609 | (1) A person nominated under s. 710.104 or designated |
610 | under s. 710.111 as custodian may decline to serve by delivering |
611 | a valid disclaimer under chapter 739 s. 689.21 to the person who |
612 | made the nomination or to the transferor or the transferor's |
613 | legal representative. If the event giving rise to a transfer has |
614 | not occurred and no substitute custodian able, willing, and |
615 | eligible to serve was nominated under s. 710.104, the person who |
616 | made the nomination may nominate a substitute custodian under s. |
617 | 710.104; otherwise, the transferor or the transferor's legal |
618 | representative shall designate a substitute custodian at the |
619 | time of the transfer, in either case from among the persons |
620 | eligible to serve as custodian for that kind of property under |
621 | s. 710.111(1). The custodian so designated has the rights of a |
622 | successor custodian. |
623 | Section 5. Sections 689.21 and 732.801, Florida Statutes, |
624 | are repealed. |
625 | Section 6. This act shall take effect July 1, 2005. |