HB 599

1
A bill to be entitled
2An act relating to administration of estates; amending s.
3731.201, F.S.; revising definitions; amending s. 732.108,
4F.S.; providing for nonapplication of certain limitations
5of actions provisions to certain paternity determinations;
6amending s. 732.2025, F.S.; revising a definition;
7amending s. 732.2045, F.S.; expanding an exclusion from
8application of certain provisions of law; amending s.
9732.2075, F.S.; revising provisions for satisfaction of an
10elective share; providing additional requirements;
11amending s. 732.2085, F.S.; correcting a cross-reference;
12amending s. 732.2135, F.S.; revising criteria for time of
13an election; providing for award of attorney fees and
14costs for elections made in bad faith; amending s.
15732.402, F.S.; revising criteria for certain household
16items, motor vehicles, and tuition programs as exempt
17property; amending s. 733.201, F.S.; revising a criterion
18for proof of wills to conform; amending s. 733.504, F.S.;
19revising a criterion for removal of a personal
20representative to conform; amending s. 733.602, F.S.;
21removing a cross-reference; amending s. 735.203, F.S.;
22revising requirements for a petition for summary
23administration; amending s. 739.102, F.S.; revising a
24definition; amending s. 739.104, F.S.; excluding from
25court approval certain disclaimers of interests in
26property; amending s. 739.201, F.S.; providing an
27additional rule applicable to disclaimers of interests in
28property ;amending s. 739.207, F.S.; limiting a criterion
29for effectiveness of a disclaimer of power held in a
30fiduciary capacity; amending s. 739.402, F.S.; correcting
31terminology; amending s. 739.501, F.S.; preserving
32application of certain provisions to effectiveness of
33certain disclaimers or transfers; amending ss. 660.417,
34736.0802, and 895.02, F.S.; correcting cross-references to
35conform; providing an effective date.
36
37Be It Enacted by the Legislature of the State of Florida:
38
39     Section 1.  Subsection (21) of section 731.201, Florida
40Statutes, is amended, subsections (25) through (39) of that
41section are renumbered as subsections (26) through (40),
42respectively, and a new subsection (25) is added to that
43section, to read:
44     731.201  General definitions.--Subject to additional
45definitions in subsequent chapters that are applicable to
46specific chapters or parts, and unless the context otherwise
47requires, in this code, in s. 409.9101, and in chapters 736,
48738, 739, and 744, the term:
49     (21)  "Incapacitated" "Incompetent" means a judicial
50determination that a person lacks the capacity to manage at
51least some of the person's property or to meet at least some of
52the person's essential health and safety requirements. A minor
53shall be treated as being incapacitated or a person adjudicated
54incompetent.
55     (25)  "Minor" means a person under 18 years of age whose
56disabilities have not been removed by marriage or otherwise.
57     Section 2.  Paragraph (b) of subsection (2) of section
58732.108, Florida Statutes, is amended to read:
59     732.108  Adopted persons and persons born out of wedlock.--
60     (2)  For the purpose of intestate succession in cases not
61covered by subsection (1), a person born out of wedlock is a
62descendant of his or her mother and is one of the natural
63kindred of all members of the mother's family. The person is
64also a descendant of his or her father and is one of the natural
65kindred of all members of the father's family, if:
66     (b)  The paternity of the father is established by an
67adjudication before or after the death of the father. Chapter 95
68shall not apply in determining heirs in a probate proceeding
69under this paragraph.
70     Section 3.  Subsection (10) of section 732.2025, Florida
71Statutes, is amended to read:
72     732.2025  Definitions.--As used in ss. 732.2025-732.2155,
73the term:
74     (10)  "Transfer in satisfaction of the elective share"
75means an irrevocable transfer by the decedent during life to an
76elective share trust.
77     Section 4.  Paragraph (f) of subsection (1) of section
78732.2045, Florida Statutes, is amended to read:
79     732.2045  Exclusions and overlapping application.--
80     (1)  EXCLUSIONS.--Section 732.2035 does not apply to:
81     (f)  The decedent's one-half of the property to which ss.
82732.216-732.228, or any similar provisions of law of another
83state, apply and real property that is community property under
84the laws of the jurisdiction where it is located.
85     Section 5.  Section 732.2075, Florida Statutes, is amended
86to read:
87     732.2075  Sources from which elective share payable;
88abatement.--
89     (1)  Unless otherwise provided in the decedent's will or,
90in the absence of a provision in the decedent's will, in a trust
91referred to in the decedent's will, the following are applied
92first to satisfy the elective share:
93     (a)  Property interests included in the elective estate
94that pass or have passed to or for the benefit of the surviving
95spouse, including interests that are contingent upon making the
96election, but only to the extent that such contingent interests
97do not diminish other property interests that would be applied
98to satisfy the elective share in the absence of the contingent
99interests. To the extent paid to or for the benefit of the
100surviving spouse, the proceeds of any term or other policy of
101insurance on the decedent's life if, at the time of decedent's
102death, the policy was owned by any person other than the
103surviving spouse.
104     (b)  To the extent paid to or for the benefit of the
105surviving spouse, amounts payable under any plan or arrangement
106described in s. 732.2035(7).
107     (c)  To the extent paid to or for the benefit of the
108surviving spouse, the decedent's one-half of any property
109described in s. 732.2045(1)(f).
110     (d)  To the extent paid to or for the benefit of the
111surviving spouse, the proceeds of any term or other policy of
112insurance on the decedent's life if, at the time of decedent's
113death, the policy was owned by any person other than the
114surviving spouse.
115     (e)(d)  Property held for the benefit of the surviving
116spouse in a qualifying special needs trust.
117     (e)  Property interests included in the elective estate
118that pass or have passed to or for the benefit of the surviving
119spouse, including interests that are contingent upon making the
120election, but only to the extent that such contingent interests
121do not diminish other property interests that would be applied
122to satisfy the elective share in the absence of the contingent
123interests.
124     (f)  Property interests that would have satisfied the
125elective share under any preceding paragraph of this subsection
126but were disclaimed.
127     (2)  If, after the application of subsection (1), the
128elective share is not fully satisfied, the unsatisfied balance
129shall be allocated entirely to one class of apportioned among
130the direct recipients of the remaining elective estate and
131apportioned among those recipients, and if the elective share
132amount is not fully satisfied, to the next class of direct
133recipients, in the following order of priority, until the
134elective share amount is satisfied:
135     (a)  Class 1.--The decedent's probate estate and revocable
136trusts.
137     (b)  Class 2.--Recipients of property interests, other than
138protected charitable interests, included in the elective estate
139under s. 732.2035(2), (3), or (6) and, to the extent the
140decedent had at the time of death the power to designate the
141recipient of the property, property interests, other than
142protected charitable interests, included under s. 732.2035(5)
143and (7).
144     (c)  Class 3.--Recipients of all other property interests,
145other than protected charitable interests, included in the
146elective estate.
147     (d)  Class 4.--Recipients of protected charitable lead
148interests, but only to the extent and at such times that
149contribution is permitted without disqualifying the charitable
150interest in that property for a deduction under the United
151States gift tax laws.
152
153For purposes of this subsection, a protected charitable interest
154is any interest for which a charitable deduction with respect to
155the transfer of the property was allowed or allowable to the
156decedent or the decedent's spouse under the United States gift
157or income tax laws. A protected charitable lead interest is a
158protected charitable interest where one or more deductible
159interests in charity precede some other nondeductible interest
160or interests in the property.
161     (3)  If, after the application of subsections (1) and (2),
162the elective share amount is not fully satisfied, the additional
163amount due to the surviving spouse shall be determined and
164satisfied as follows:
165     (a)  The remaining unsatisfied balance shall be satisfied
166from property described in paragraphs (1)(a) and (b) which
167passes or which has passed in a trust in which the surviving
168spouse has a beneficial interest, other than an elective share
169trust or a qualified special needs trust.
170     (b)  In determining the amount of the remaining unsatisfied
171balance, the effect, if any, of any change caused by the
172operation of this subsection in the value of the spouse's
173beneficial interests in property described in paragraphs (1)(a)
174and (b) shall be taken into account, including, if necessary,
175further recalculations of the value of those beneficial
176interests.
177     (c)  If there is more than one trust to which this
178subsection could apply, unless otherwise provided in the
179decedent's will or, in the absence of a provision in the
180decedent's will, in a trust referred to in the decedent's will,
181the unsatisfied balance shall be apportioned pro rata to all
182such trusts in proportion to the value, as determined under s.
183732.2095(2)(d), of the surviving spouse's beneficial interests
184in the trusts.
185     (4)  If, after the application of subsections (1), (2), and
186(3), the elective share is not fully satisfied, any remaining
187unsatisfied balance shall be satisfied from direct recipients of
188protected charitable lead interests, but only to the extent and
189at such times that contribution is permitted without
190disqualifying the charitable interest in that property for a
191deduction under the United States gift tax laws. For purposes of
192this subsection, a protected charitable lead interest is a
193protected charitable interest as defined in subsection (2) in
194which one or more deductible interests in charity precede some
195other nondeductible interest or interests in the property.
196     (5)(3)  The contribution required of the decedent's probate
197estate and revocable trusts may be made in cash or in kind. In
198the application of this subsection, subsections (6) (4) and (7)
199(5) are to be applied to charge contribution for the elective
200share to the beneficiaries of the probate estate and revocable
201trusts as if all beneficiaries were taking under a common
202governing instrument.
203     (6)(4)  Unless otherwise provided in the decedent's will
204or, in the absence of a provision in the decedent's will, in a
205trust referred to in the decedent's will, any amount to be
206satisfied from the decedent's probate estate, other than from
207property passing to an inter vivos trust, shall be paid from the
208assets of the probate estate in the order prescribed in s.
209733.805.
210     (7)(5)  Unless otherwise provided in the trust instrument
211or, in the decedent's will if there is no provision in the trust
212instrument, any amount to be satisfied from trust property shall
213be paid from the assets of the trust in the order provided for
214claims under s. 736.05053(2) and (3). A direction in the
215decedent's will is effective only for revocable trusts.
216     Section 6.  Paragraph (a) of subsection (1) of section
217732.2085, Florida Statutes, is amended to read:
218     732.2085  Liability of direct recipients and
219beneficiaries.--
220     (1)  Only direct recipients of property included in the
221elective estate and the beneficiaries of the decedent's probate
222estate or of any trust that is a direct recipient, are liable to
223contribute toward satisfaction of the elective share.
224     (a)  Within each of the classes described in s.
225732.2075(2)(b) and, (c), and (d), each direct recipient is
226liable in an amount equal to the value, as determined under s.
227732.2055, of the proportional part of the liability for all
228members of the class.
229     Section 7.  Subsection (3) of section 732.2135, Florida
230Statutes, is amended, and subsection (5) is added to that
231section, to read:
232     732.2135  Time of election; extensions; withdrawal.--
233     (3)  The surviving spouse or an attorney in fact, guardian
234of the property, or personal representative of the surviving
235spouse may withdraw an election at any time within on or before
236the earlier of the date that is 8 months after the date of the
237decedent's death and before the court's or the date of a court
238order of contribution. If an election is withdrawn, the court
239may assess attorney's fees and costs against the surviving
240spouse or the surviving spouse's estate.
241     (5)  If the court determines that an election is made or
242pursued in bad faith, the court may assess attorney's fees and
243costs against the surviving spouse or the surviving spouse's
244estate.
245     Section 8.  Subsection (2) of section 732.402, Florida
246Statutes, is amended to read:
247     732.402  Exempt property.--
248     (2)  Exempt property shall consist of:
249     (a)  Household furniture, furnishings, and appliances in
250the decedent's usual place of abode up to a net value of $20,000
251$10,000 as of the date of death.
252     (b)  Two motor vehicles as defined in s. 316.003(21), which
253do not, individually as to either such motor vehicle, have a
254gross vehicle weight in excess of 15,000 pounds, All automobiles
255held in the decedent's name and regularly used by the decedent
256or members of the decedent's immediate family as their personal
257motor vehicles automobiles.
258     (c)  All qualified tuition programs authorized by s. 529 of
259the Internal Revenue Code of 1986, as amended, including, but
260not limited to, the Florida Prepaid College Trust Fund advance
261payment contracts under s. 1009.98 and the Florida Prepaid
262College Trust Fund participation agreements under s. 1009.981
263Stanley G. Tate Florida Prepaid College Program contracts
264purchased and Florida College Savings agreements established
265under part IV of chapter 1009.
266     (d)  All benefits paid pursuant to s. 112.1915.
267     Section 9.  Subsection (3) of section 733.201, Florida
268Statutes, is amended to read:
269     733.201  Proof of wills.--
270     (3)  If it appears to the court that the attesting
271witnesses cannot be found or that they have become incapacitated
272incompetent after the execution of the will or their testimony
273cannot be obtained within a reasonable time, a will may be
274admitted to probate upon the oath of the personal representative
275nominated by the will as provided in subsection (2), whether or
276not the nominated personal representative is interested in the
277estate, or upon the oath of any person having no interest in the
278estate under the will stating that the person believes the
279writing exhibited to be the true last will of the decedent.
280     Section 10.  Subsection (1) of section 733.504, Florida
281Statutes, is amended to read:
282     733.504  Removal of personal representative; causes for
283removal.--A personal representative may be removed and the
284letters revoked for any of the following causes, and the removal
285shall be in addition to any penalties prescribed by law:
286     (1)  Adjudication that the personal representative is
287incapacitated of incompetency.
288     Section 11.  Subsection (1) of section 733.602, Florida
289Statutes, is amended to read:
290     733.602  General duties.--
291     (1)  A personal representative is a fiduciary who shall
292observe the standards of care applicable to trustees as
293described by part VII of chapter 736. A personal representative
294is under a duty to settle and distribute the estate of the
295decedent in accordance with the terms of the decedent's will and
296this code as expeditiously and efficiently as is consistent with
297the best interests of the estate. A personal representative
298shall use the authority conferred by this code, the authority in
299the will, if any, and the authority of any order of the court,
300for the best interests of interested persons, including
301creditors.
302     Section 12.  Section 735.203, Florida Statutes, is amended
303to read:
304     735.203  Petition for summary administration.--
305     (1)  A petition for summary administration may be filed by
306any beneficiary or person nominated as personal representative
307in the decedent's will offered for probate. The petition must be
308signed and verified by the surviving spouse, if any, and any
309beneficiaries except that the joinder in a petition for summary
310administration is not required of a beneficiary who will receive
311full distributive share under the proposed distribution. Any
312beneficiary not joining shall be served by formal notice with
313the petition.
314     (2)  If a person named in subsection (1) has died, is
315incapacitated, or is a minor, or has conveyed or transferred all
316interest in the property of the estate, then, as to that person,
317the petition must be signed and verified certified by:
318     (a)  The personal representative, if any, of a deceased
319person or, if none, the surviving spouse, if any, and the
320beneficiaries;
321     (b)  The guardian of an incapacitated person or a minor; or
322     (c)  The grantee or transferee of any of them shall be
323authorized to sign and verify the petition instead of the
324beneficiary or surviving spouse.
325     (3)  If each trustee of a trust that is a beneficiary of
326the estate of the deceased person is also a petitioner, each
327qualified beneficiary of the trust as defined in s. 736.0103
328shall be served by formal notice with the petition for summary
329administration unless joinder in, or consent to, the petition is
330obtained from each qualified beneficiary of the trust. The
331joinder in, or consent to, a petition for summary administration
332is not required of a beneficiary who will receive full
333distributive share under the proposed distribution. Any
334beneficiary not joining or consenting shall receive formal
335notice of the petition.
336     Section 13.  Subsection (8) of section 739.102, Florida
337Statutes, is amended to read:
338     739.102  Definitions.--As used in this chapter, the term:
339     (8)  "Insolvent" means, solely for purposes of this
340chapter, that the sum of a person's debts is greater than all of
341the person's assets at fair valuation and that. A person is
342presumed to be "insolvent" if the person is generally not paying
343his or her debts as they become due. For purposes of this
344subsection, the term "assets" has the same meaning as that
345provided in s. 726.102.
346     Section 14.  Subsection (2) of section 739.104, Florida
347Statutes, is amended to read:
348     739.104  Power to disclaim; general requirements; when
349irrevocable.--
350     (2)  With court approval, a fiduciary may disclaim, in
351whole or part, any interest in or power over property, including
352a power of appointment, except that a disclaimer of a power
353arising under s. 739.201(4) does not require court approval.
354Without court approval, a fiduciary may disclaim, in whole or in
355part, any interest in or power over property, including a power
356of appointment, if and to the extent that the instrument
357creating the fiduciary relationship explicitly grants the
358fiduciary the right to disclaim. In the absence of a court-
359appointed guardian, notwithstanding anything in chapter 744 to
360the contrary, without court approval, a natural guardian under
361s. 744.301 may disclaim on behalf of a minor child of the
362natural guardian, in whole or in part, any interest in or power
363over property, including a power of appointment, which the minor
364child is to receive solely as a result of another disclaimer,
365but only if the disclaimed interest or power does not pass to or
366for the benefit of the natural guardian as a result of the
367disclaimer.
368     Section 15.  Subsection (4) is added to section 739.201,
369Florida Statutes, to read:
370     739.201  Disclaimer of interest in property.--Except for a
371disclaimer governed by s. 739.202, s. 739.203, or s. 739.204,
372the following rules apply to a disclaimer of an interest in
373property:
374     (4)  In the case of a disclaimer of property over which the
375disclaimant has a power, in a fiduciary or nonfiduciary
376capacity, to direct the beneficial enjoyment of the disclaimed
377property, unless the disclaimer specifically provides to the
378contrary with reference to this subsection, the disclaimant
379shall also be deemed to have disclaimed that power unless the
380power is limited by an ascertainable standard, as defined in s.
381736.0103, as in effect when the disclaimer becomes irrevocable.
382     Section 16.  Subsection (3) of section 739.207, Florida
383Statutes, is amended to read:
384     739.207  Disclaimer of power held in fiduciary capacity.--
385     (3)  A disclaimer under this section is effective as to
386another fiduciary if the disclaimer so provides and the
387fiduciary disclaiming has the authority to bind the estate,
388trust, or other person for whom the fiduciary is acting, except
389that a disclaimer of a fiduciary power arising under s.
390739.201(4) shall bind only the disclaiming fiduciary.
391     Section 17.  Subsection (2) of section 739.402, Florida
392Statutes, is amended to read:
393     739.402  When disclaimer is barred or limited.--
394     (2)  A disclaimer of an interest in property is barred if
395any of the following events occur before the disclaimer becomes
396effective:
397     (a)  The disclaimant disclaimer accepts the interest sought
398to be disclaimed;
399     (b)  The disclaimant voluntarily assigns, conveys,
400encumbers, pledges, or transfers the interest sought to be
401disclaimed or contracts to do so;
402     (c)  The interest sought to be disclaimed is sold pursuant
403to a judicial sale; or
404     (d)  The disclaimant is insolvent when the disclaimer
405becomes irrevocable.
406     Section 18.  Section 739.501, Florida Statutes, is amended
407to read:
408     739.501  Tax-qualified disclaimer.--Notwithstanding any
409other provision of this chapter other than s. 739.402, if, as a
410result of a disclaimer or transfer, the disclaimed or
411transferred interest is treated pursuant to the provisions of s.
4122518 of the Internal Revenue Code of 1986 as never having been
413transferred to the disclaimant, the disclaimer or transfer is
414effective as a disclaimer under this chapter.
415     Section 19.  Paragraph (b) of subsection (3) of section
416660.417, Florida Statutes, is amended to read:
417     660.417  Investment of fiduciary funds in investment
418instruments; permissible activity under certain circumstances;
419limitations.--
420     (3)  The fact that such bank or trust company or an
421affiliate of the bank or trust company owns or controls
422investment instruments shall not preclude the bank or trust
423company acting as a fiduciary from investing or reinvesting in
424such investment instruments, provided such investment
425instruments:
426     (b)  When sold to accounts for which the bank or trust
427company is acting as a trustee of a trust as defined in s.
428731.201(37):
429     1.  Are available for sale to accounts of other customers;
430and
431     2.  If sold to other customers, are not sold to the trust
432accounts upon terms that are less favorable to the buyer than
433the terms upon which they are normally sold to the other
434customers.
435     Section 20.  Paragraph (f) of subsection (5) of section
436736.0802, Florida Statutes, is amended to read:
437     736.0802  Duty of loyalty.--
438     (5)
439     (f)1.  The trustee of a trust as defined described in s.
440731.201(37) may request authority to invest in investment
441instruments described in this subsection other than a qualified
442investment instrument, by providing to all qualified
443beneficiaries a written request containing the following:
444     a.  The name, telephone number, street address, and mailing
445address of the trustee and of any individuals who may be
446contacted for further information.
447     b.  A statement that the investment or investments cannot
448be made without the consent of a majority of each class of the
449qualified beneficiaries.
450     c.  A statement that, if a majority of each class of
451qualified beneficiaries consent, the trustee will have the right
452to make investments in investment instruments, as defined in s.
453660.25(6), which are owned or controlled by the trustee or its
454affiliate, or from which the trustee or its affiliate receives
455compensation for providing services in a capacity other than as
456trustee, that such investment instruments may include investment
457instruments sold primarily to trust accounts, and that the
458trustee or its affiliate may receive fees in addition to the
459trustee's compensation for administering the trust.
460     d.  A statement that the consent may be withdrawn
461prospectively at any time by written notice given by a majority
462of any class of the qualified beneficiaries.
463
464A statement by the trustee is not delivered if the statement is
465accompanied by another written communication other than a
466written communication by the trustee that refers only to the
467statement.
468     2.  For purposes of paragraph (e) and this paragraph:
469     a.  "Majority of the qualified beneficiaries" means:
470     (I)  If at the time the determination is made there are one
471or more beneficiaries as described in s. 736.0103(14)(c), at
472least a majority in interest of the beneficiaries described in
473s. 736.0103(14)(a), at least a majority in interest of the
474beneficiaries described in s. 736.0103(14)(b), and at least a
475majority in interest of the beneficiaries described in s.
476736.0103(14)(c), if the interests of the beneficiaries are
477reasonably ascertainable; otherwise, a majority in number of
478each such class; or
479     (II)  If there is no beneficiary as described in s.
480736.0103(14)(c), at least a majority in interest of the
481beneficiaries described in s. 736.0103(14)(a) and at least a
482majority in interest of the beneficiaries described in s.
483736.0103(14)(b), if the interests of the beneficiaries are
484reasonably ascertainable; otherwise, a majority in number of
485each such class.
486     b.  "Qualified investment instrument" means a mutual fund,
487common trust fund, or money market fund described in and
488governed by s. 736.0816(3).
489     c.  An irrevocable trust is created upon execution of the
490trust instrument. If a trust that was revocable when created
491thereafter becomes irrevocable, the irrevocable trust is created
492when the right of revocation terminates.
493     Section 21.  Subsection (10) of section 895.02, Florida
494Statutes, is amended to read:
495     895.02  Definitions.--As used in ss. 895.01-895.08, the
496term:
497     (10)  "Trustee" means any of the following:
498     (a)  Any person acting as trustee pursuant to a trust
499established under s. 689.07 or s. 689.071 in which the trustee
500holds legal or record title to real property.
501     (b)  Any person who holds legal or record title to real
502property in which any other person has a beneficial interest.
503     (c)  Any successor trustee or trustees to any or all of the
504foregoing persons.
505
506However, the term "trustee" does not include any person
507appointed or acting as a personal representative as defined in
508s. 731.201(27) or appointed or acting as a trustee of any
509testamentary trust or as a trustee of any indenture of trust
510under which any bonds have been or are to be issued.
511     Section 22.  This act shall take effect October 1, 2009.


CODING: Words stricken are deletions; words underlined are additions.