HB 1237

1	A bill to be entitled
2	An act relating to probate procedures; amending s.
3	655.934, F.S.; updating terminology relating to a durable
4	power of attorney; amending s. 655.935, F.S.; imposing
5	additional duties on the lessor of a safe-deposit box
6	relating to the contents of the box when the lessee has
7	died; authorizing the lessor to charge fees for performing
8	such duties; amending s. 731.110, F.S.; revising
9	requirements relating to filing a caveat; providing that a
10	caveat may be filed before or after a person's death;
11	providing for the expiration of the caveat; amending s.
12	731.201, F.S.; revising the definitions of "formal notice"
13	and "informal notice"; amending s. 731.301, F.S.; revising
14	provisions relating to notice; amending s. 732.2125, F.S.;
15	revising a provision relating to the right of election;
16	amending s. 732.401, F.S.; providing that a decedent's
17	spouse may elect to take an interest in a homestead as a
18	tenant in common rather than a life estate; providing
19	procedures and forms for filing notice of such election;
20	providing that such election is irrevocable; providing for
21	the allocation of expenses relating to the homestead;
22	specifying that the interests of the decedent's
23	descendants in the homestead may not be divested if the
24	spouse's interest is disclaimed; amending s. 732.4015,
25	F.S.; providing that if a spouse's interest in a homestead
26	has been disclaimed, the disclaimed interest passes in
27	accordance with ch. 739, F.S.; creating s. 732.4017, F.S.;
28	providing for the inter vivos transfer of homestead
29	property; providing limitations; amending s. 732.608,
30	F.S.; revising provisions relating to which laws apply
31	when determining intestate succession in certain
32	circumstances; creating s. 732.805, F.S.; denying certain
33	rights or benefits to a surviving spouse who procured a
34	marriage by fraud, duress, or undue influence; providing
35	procedures for challenging a surviving spouse; providing
36	for the award of costs and fees; providing a time
37	limitation on bringing such actions; amending s. 733.2123,
38	F.S.; deleting the requirement for attaching a copy of a
39	will to a notice of a petition for administration;
40	amending s. 733.608, F.S.; specifying the manner for
41	serving notice of the personal representative's lien for
42	expenditures and obligations incurred; amending s.
43	735.203, F.S.; revising provisions relating to providing
44	notice for a petition for summary administration; amending
45	s. 736.1102, F.S.; clarifying provisions relating to which
46	laws apply when determining intestate succession in
47	certain circumstances; amending s. 744.444, F.S.;
48	conforming provisions to changes made by the act;
49	providing an effective date.
50
51	Be It Enacted by the Legislature of the State of Florida:
52
53	Section 1.  Section 655.934, Florida Statutes, is amended
54	to read:
55	655.934  Effect of lessee's death or incapacity.-If a
56	lessor without knowledge of the death or of an order determining
57	the incapacity of the lessee deals with the lessee's agent in
58	accordance with a written power of attorney or a durable family
59	power of attorney signed by such lessee, the transaction binds
60	the lessee's estate and the lessee.
61	Section 2.  Section 655.935, Florida Statutes, is amended
62	to read:
63	655.935  Search procedure on death of lessee.-If
64	satisfactory proof of the death of the lessee is presented, a
65	lessor shall permit the person named in a court order for that
66	the purpose, or if no order has been served upon the lessor, the
67	spouse, a parent, an adult descendant, or a person named as a
68	personal representative in a copy of a purported will produced
69	by such person, to open and examine the contents of a safe-
70	deposit box leased or coleased by a decedent, or any documents
71	delivered by a decedent for safekeeping, in the presence of an
72	officer of the lessor.; and the lessor,
73	(1)  If so requested by such person, the lessor shall
74	remove and deliver only shall deliver:
75	(a)(1)  Any writing purporting to be a will of the
76	decedent, to the court having probate jurisdiction in the county
77	in which the financial institution is located.
78	(b)(2)  Any writing purporting to be a deed to a burial
79	plot or to give burial instructions, to the person making the
80	request for a search.
81	(c)(3)  Any document purporting to be an insurance policy
82	on the life of the decedent, to the beneficiary named therein.
83	(2)  The officer of the lessor shall make a complete copy
84	of any document removed and delivered pursuant to this section
85	and place that copy, together with a memorandum of delivery
86	identifying the name of the officer, the person to whom the
87	document was delivered, the purported relationship of the person
88	to whom the document was delivered, and the date of delivery, in
89	the safe-deposit box leased or coleased by the decedent.
90	(3)  The lessor may charge reasonable fees to cover costs
91	incurred pursuant to this section.
92	(4)  No other contents may be removed pursuant to this
93	section. Access granted pursuant to this section is shall not be
94	considered the initial opening of the safe-deposit box pursuant
95	to s. 733.6065 by a personal representative appointed by a court
96
97	Section 3.  Section 731.110, Florida Statutes, is amended
98	to read:
99	731.110  Caveat; proceedings.-
100	(1)  Any interested person, including a creditor, who is
101	apprehensive that an estate, either testate or intestate, will
102	be administered or that a will may be admitted to probate
103	without that the person's knowledge may file a caveat with the
104	court. The caveat of the interested person, other than a
105	creditor, may be filed before or after the death of the person
106	for whom the estate will be, or is being, administered. The
107	caveat of a creditor may be filed only after the person's death.
108	(2)  A caveat shall contain the decedent's social security
109	number, last known residence address, and date of birth, if they
110	are known, as identification, a statement of the interest of the
111	caveator in the estate, the name and specific residence address
112	of the caveator, and, If the caveator, other than a state
113	agency, is a nonresident and is not represented by an attorney
114	admitted to practice in this state who has signed the caveat
115	nonresident of the county, the caveator must designate
116	additional name and specific residence address of some person
117	residing in the county in which the caveat is filed, or office
118	address of a member of The Florida Bar residing in Florida,
119	designated as the agent of the caveator, upon whom service may
120	be made; however, if the caveator is represented by an attorney
121	admitted to practice in this state who has signed the caveat, it
122	is not necessary to designate a resident agent.
123	(3)  If When a caveat has been filed by an interested
124	person other than a creditor, the court may shall not admit a
125	will of the decedent to probate or appoint a personal
126	representative until formal notice of the petition for
127	administration has been served on the caveator or the caveator's
128	designated agent by formal notice and the caveator has had the
129	opportunity to participate in proceedings on the petition, as
130	provided by the Florida Probate Rules.
131	(4)  A caveat filed before the death of the person for whom
132	the estate will be administered expires 2 years after filing.
133	Section 4.  Subsections (18) and (22) of section 731.201,
134	Florida Statutes, are amended to read:
135	731.201  General definitions.-Subject to additional
136	definitions in subsequent chapters that are applicable to
137	specific chapters or parts, and unless the context otherwise
138	requires, in this code, in s. 409.9101, and in chapters 736,
139	738, 739, and 744, the term:
140	(18)  "Formal notice" means a form of formal notice that is
141	described in and served by a method of services provided under
142	rule 5.040(a) of the Florida Probate Rules.
143	(22)  "Informal notice" or "notice" means a method of
144	service for pleadings or papers as provided informal notice
145	under rule 5.040(b) of the Florida Probate Rules.
146	Section 5.  Section 731.301, Florida Statutes, is amended
147	to read:
148	731.301  Notice.-
149	(1)  If When notice to an interested person of a petition
150	or other proceeding is required, the notice shall be given to
151	the interested person or that person's attorney as provided in
152	the code or the Florida Probate Rules.
153	(2)  In a probate proceeding, formal notice is shall be
154	sufficient to acquire jurisdiction over the person receiving
155	formal notice to the extent of the person's interest in the
156	estate or in the decedent's protected homestead.
157	(3)  Persons given proper notice of a any proceeding are
158	shall be bound by all orders entered in that proceeding.
159	Section 6.  Subsection (2) of section 732.2125, Florida
160	Statutes, is amended to read:
161	732.2125  Right of election; by whom exercisable.-The right
162	of election may be exercised:
163	(2)  With approval of the court having jurisdiction of the
164	probate proceeding by an attorney in fact or a guardian of the
165	property of the surviving spouse. Before approving the election,
166	the court shall determine that the election is in as the best
167	interests of the surviving spouse, during the spouse's probable
168	lifetime, require.
169	Section 7.  Section 732.401, Florida Statutes, is amended
170	to read:
171	732.401  Descent of homestead.-
172	(1)  If not devised as authorized permitted by law and the
173	Florida constitution, the homestead shall descend in the same
174	manner as other intestate property; but if the decedent is
175	survived by a spouse and one or more descendants, the surviving
176	spouse shall take a life estate in the homestead, with a vested
177	remainder to the descendants in being at the time of the
178	decedent's death per stirpes.
179	(2)  In lieu of a life estate under subsection (1), the
180	surviving spouse may elect to take an undivided one-half
181	interest in the homestead as a tenant in common, with the
182	remaining undivided one-half interest vesting in the decedent's
183	descendants in being at the time of the decedent's death, per
184	stirpes.
185	(a)  The right of election may be exercised:
186	1.  By the surviving spouse; or
187	2.  With the approval of a court having jurisdiction of the
188	real property, by an attorney in fact or guardian of the
189	property of the surviving spouse. Before approving the election,
190	the court shall determine that the election is in the best
191	interests of the surviving spouse during the spouse's probable
192	lifetime.
193	(b)  The election must be made within 6 months after the
194	decedent's death and during the surviving spouse's lifetime. The
195	time for making the election may not be extended except as
196	provided in paragraph (c).
197	(c)  A petition by an attorney in fact or guardian of the
198	property for approval to make the election tolls the time for
199	making the election until 6 months after the decedent's death or
200	30 days after the rendition of an order authorizing the
201	election, whichever occurs last.
202	(d)  Once made, the election is irrevocable.
203	(e)  The election shall be made by filing a notice of
204	election containing the legal description of the homestead
205	property for recording in the official record books of the
206	county or counties where the homestead property is located. The
207	notice must be in substantially the following form:
208
209	ELECTION OF SURVIVING SPOUSE
210	TO TAKE A ONE-HALF INTEREST OF
211	DECEDENT'S INTEREST IN HOMESTEAD PROPERTY
212
213	STATE OF............
214	COUNTY OF............
215
216	1.  The decedent, ______________, died on ______________.
217	On the date of the decedent's death, The decedent was married to
218	________________, who survived the decedent.
219	2.  At the time of the decedent's death, the decedent owned
220	an interest in real property that the affiant believes to be
221	homestead property described in s. 14, Article X of the State
222	Constitution, that real property being in _________County,
223	Florida, and described as: ...(description of homestead
224	property)....
225	3.  Affiant elects to take one-half of decedent's interest
226	in the homestead as a tenant in common in lieu of a life estate.
227	4.  If affiant is not the surviving spouse, affiant is the
228	surviving spouse's attorney in fact or guardian of the property
229	and an order has been rendered by a court having jurisdiction of
230	the real property authorizing the undersigned to make this
231	election.
232
233	................
234	...(Affiant)...
235
236	Sworn to (or affirmed) and subscribed before me this .... day of
237	...(month)..., ...(year)..., by ...(affiant)...
238
239	...(Signature of Notary Public-State of Florida)...
240
241	...(Print, Type, or Stamp Commissioned Name of Notary Public)...
242
243	Personally Known OR Produced Identification
244	...(Type of Identification Produced)...
245
246	(3)  Unless and until an election is made under subsection
247	(2), expenses relating to the ownership of the homestead shall
248	be allocated between the surviving spouse, as life tenant, and
249	the decedent's descendants, as remaindermen, in accordance with
250	chapter 738. If an election is made, expenses relating to the
251	ownership of the homestead shall be allocated between the
252	surviving spouse and the descendants as tenants in common in
253	proportion to their respective shares, effective as of the date
254	the election is filed for recording.
255	(4)  If the surviving spouse's life estate created in
256	subsection (1) is disclaimed pursuant to chapter 739, the
257	interests of the decedent's descendants may not be divested.
258	(5)(2)  This section does Subsection (1) shall not apply to
259	property that the decedent and the surviving spouse owned in
260	tenancy by the entireties or joint tenancy with rights of
261	survivorship as tenants by the entirety.
262	Section 8.  Subsection (3) is added to section 732.4015,
263	Florida Statutes, to read:
264	732.4015  Devise of homestead.-
265	(3)  If an interest in homestead has been devised to the
266	surviving spouse as authorized by law and the constitution, and
267	the surviving spouse's interest is disclaimed, the disclaimed
268	interest shall pass in accordance with chapter 739.
269	Section 9.  Section 732.4017, Florida Statutes, is created
270	to read:
271	732.4017  Inter vivos transfer of homestead property.-
272	(1)  If the owner of homestead property transfers an
273	interest in that property, including a transfer in trust, with
274	or without consideration, to one or more persons during the
275	owner's lifetime, the transfer is not a devise for purposes of
276	s. 731.201(10) or s. 732.4015, and the interest transferred does
277	not descend as provided in s. 732.401 if the transferor fails to
278	retain a power, held in any capacity, acting alone or in
279	conjunction with any other person, to revoke or revest that
280	interest in the transferor.
281	(2)  As used in this section, the term "transfer in trust"
282	refers to a trust under which the transferor of the homestead
283	property, alone or in conjunction with another person, does not
284	possess a right of revocation as that term is defined in s.
285	733.707(3)(e). A power possessed by the transferor which is
286	exercisable during the transferor's lifetime to alter the
287	beneficial use and enjoyment of the interest within a class of
288	beneficiaries identified only in the trust instrument is not a
289	right of revocation if the power may not be exercised in favor
290	of the transferor, the transferor's creditors, the transferor's
291	estate, or the creditors of the transferor's estate or exercised
292	to discharge the transferor's legal obligations. This subsection
293	does not create an inference that a power not described in this
294	subsection is a power to revoke or revest an interest in the
295	transferor.
296	(3)  The transfer of an interest in homestead property
297	described in subsection (1) may not be treated as a devise of
298	that interest even if:
299	(a)  The transferor retains a separate legal or equitable
300	interest in the homestead property, directly or indirectly
301	through a trust or other arrangement such as a term of years,
302	life estate, reversion, possibility of reverter, or fractional
303	fee interest;
304	(b)  The interest transferred does not become a possessory
305	interest until a date certain or upon a specified event, the
306	occurrence or nonoccurrence of which does not constitute a power
307	held by the transferor to revoke or revest the interest in the
308	transferor, including, without limitation, the death of the
309	transferor; or
310	(c)  The interest transferred is subject to divestment,
311	expiration, or lapse upon a date certain or upon a specified
312	event, the occurrence or nonoccurrence of which does not
313	constitute a power held by the transferor to revoke or revest
314	the interest in the transferor, including, without limitation,
315	survival of the transferor.
316	(4)  It is the intent of the Legislature that this section
317	clarify existing law.
318	Section 10.  Section 732.608, Florida Statutes, is amended
319	to read:
320	732.608  Construction of generic terms.-The laws used to
321	determine paternity and Adopted persons and persons born out of
322	wedlock are included in class gift terminology and terms of
323	relationship, in accordance with rules for determining
324	relationships for the purposes of intestate succession apply
325	when determining whether class gift terminology and terms of
326	relationship include adopted persons and persons born out-of-
327	wedlock.
328	Section 11.  Section 732.805, Florida Statutes, is created
329	to read:
330	732.805  Spousal rights procured by fraud, duress, or undue
331	influence.-
332	(1)  A surviving spouse who is found to have procured a
333	marriage to the decedent by fraud, duress, or undue influence is
334	not entitled to any of the following rights or benefits that
335	inure solely by virtue of the marriage or the person's status as
336	surviving spouse of the decedent unless both spouses
337	subsequently ratified the marriage:
338	(a)  Any rights or benefits under the Florida Probate Code,
339	including, but not limited to, entitlement to elective share or
340	family allowance; preference in appointment as personal
341	representative; inheritance by intestacy, homestead, or exempt
342	property; or inheritance as a pretermitted spouse.
343	(b)  Any rights or benefits under a bond, life insurance
344	policy, or other contractual arrangement if the decedent is the
345	principal obligee or the person upon whose life the policy is
346	issued, unless the surviving spouse is provided for by name,
347	whether or not designated as the spouse, in the bond, life
348	insurance policy, or other contractual arrangement.
349	(c)  Any rights or benefits under a will, trust, or power
350	of appointment, unless the surviving spouse is provided for by
351	name, whether or not designated as the spouse, in the will,
352	trust, or power of appointment.
353	(d)  Any immunity from the presumption of undue influence
354	that a surviving spouse may have under state law.
355	(2)  Any of the rights or benefits listed in paragraphs
356	(1)(a)-(c) which would have passed solely by virtue of the
357	marriage to a surviving spouse who is found to have procured the
358	marriage by fraud, duress, or undue influence shall pass as if
359	the spouse had predeceased the decedent.
360	(3)  A challenge to a surviving spouse's rights under this
361	section may be maintained as a defense, objection, or cause of
362	action by any interested person after the death of the decedent
363	in any proceeding in which the fact of marriage may be directly
364	or indirectly material.
365	(4)  The contestant has the burden of establishing, by a
366	preponderance of the evidence, that the marriage was procured by
367	fraud, duress, or undue influence. If ratification of the
368	marriage is raised as a defense, the surviving spouse has the
369	burden of establishing, by a preponderance of the evidence, the
370	subsequent ratification by both spouses.
371	(5)  In all actions brought under this section, the court
372	shall award taxable costs as in chancery actions, including
373	attorney's fees. When awarding taxable costs and attorney's
374	fees, the court may direct payment from a party's interest, if
375	any, in the estate, or enter a judgment that may be satisfied
376	from other property of the party, or both.
377	(6)  An insurance company, bank, or other obligor making
378	payment according to the terms of its policy or obligation is
379	not liable by reason of this section unless, before payment, it
380	received at its home office or principal address written notice
381	of a claim pursuant to this section.
382	(7)  The rights and remedies granted in this section are in
383	addition to any other rights or remedies a person may have at
384	law or equity.
385	(8)  Unless sooner barred by adjudication, estoppel, or a
386	provision of the Florida Probate Code or Florida Probate Rules,
387	an interested person is barred from bringing an action under
388	this section unless the action is commenced within 4 years after
389	the decedent's date of death. A cause of action under this
390	section accrues on the decedent's date of death.
391	Section 12.  Section 733.2123, Florida Statutes, is amended
392	to read:
393	733.2123  Adjudication before issuance of letters.-A
394	petitioner may serve formal notice of the petition for
395	administration on interested persons. A copy of the will offered
396	for probate shall be attached to the notice. A No person who is
397	served with such formal notice before of the petition for
398	administration prior to the issuance of letters or who has
399	waived notice may not challenge the validity of the will,
400	testacy of the decedent, qualifications of the personal
401	representative, venue, or jurisdiction of the court, except in
402	the proceedings before issuance of letters.
403	Section 13.  Subsection (4) of section 733.608, Florida
404	Statutes, is amended to read:
405	733.608  General power of the personal representative.-
406	(4)  The personal representative's lien shall attach to the
407	property and take priority as of the date and time a notice of
408	that lien is recorded in the official records of the county
409	where that property is located, and the lien may secure
410	expenditures and obligations incurred, including, but not
411	limited to, fees and costs made before or after recording the
412	notice. The notice of lien may be recorded before adjudicating
413	prior to the adjudication of the amount of the debt. The notice
414	of lien also shall also be filed in the probate proceeding, but
415	failure to do so does shall not affect the validity of the lien.
416	A copy of the notice of lien shall be served in the manner
417	provided for service of by formal notice upon each person
418	appearing to have an interest in the property. The notice of
419	lien must shall state:
420	(a)  The name and address of the personal representative
421	and the personal representative's attorney;
422	(b)  The legal description of the property;
423	(c)  The name of the decedent and also, to the extent known
424	to the personal representative, the name and address of each
425	person appearing to have an interest in the property; and
426	(d)  That the personal representative has expended or is
427	obligated to expend funds to preserve, maintain, insure, and
428	protect the property and that the lien stands as security for
429	recovery of those expenditures and obligations incurred,
430	including, but not limited to, fees and costs.
431
432	Substantial compliance with the foregoing provisions renders
433	shall render the notice in comportment with this section.
434	Section 14.  Subsections (1) and (3) of section 735.203,
435	Florida Statutes, are amended to read:
436	735.203  Petition for summary administration.-
437	(1)  A petition for summary administration may be filed by
438	any beneficiary or person nominated as personal representative
439	in the decedent's will offered for probate. The petition must be
440	signed and verified by the surviving spouse, if any, and any
441	beneficiaries except that the joinder in a petition for summary
442	administration is not required of a beneficiary who will receive
443	a full distributive share under the proposed distribution.
444	However, formal notice of the petition must be served on a Any
445	beneficiary not joining in shall be served by formal notice with
446	the petition.
447	(3)  If each trustee of a trust that is a beneficiary of
448	the estate of the deceased person is also a petitioner, formal
449	notice of the petition for summary administration shall be
450	served on each qualified beneficiary of the trust as defined in
451	s. 736.0103 shall be served by formal notice with the petition
452	for summary administration unless joinder in, or consent to, the
453	petition is obtained from each qualified beneficiary of the
454	trust.
455	Section 15.  Section 736.1102, Florida Statutes, is amended
456	to read:
457	736.1102  Construction of generic terms.-The laws used to
458	determine paternity and Adopted persons and persons born out of
459	wedlock are included in class gift terminology and terms of
460	relationship, in accordance with rules for determining
461	relationships for the purposes of intestate succession apply
462	when determining whether class gift terminology and terms of
463	relationship include adopted persons and persons born out of
464	wedlock.
465	Section 16.  Subsection (9) of section 744.444, Florida
466	Statutes, is amended to read:
467	744.444  Power of guardian without court approval.-Without
468	obtaining court approval, a plenary guardian of the property, or
469	a limited guardian of the property within the powers granted by
470	the order appointing the guardian or an approved annual or
471	amended guardianship report, may:
472	(9)  Elect whether to dissent from a will under the
473	provisions of s. 732.2125(2), seek approval to make an election
474	in accordance with s. 732.401, or assert any other right or
475	choice available to a surviving spouse in the administration of
476	a decedent's estate.
477	Section 17.  This act shall take effect October 1, 2010.

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