Florida Senate - 2010 SB 1544
By Senator Joyner
18-00562D-10 20101544__
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
4 durable power of attorney; amending s. 655.935, F.S.;
5 imposing additional duties on the lessor of a safe
6 deposit box relating to the contents of the box when
7 the lessee has died; authorizing the lessor to charge
8 fees for performing such duties; amending s. 731.110,
9 F.S.; revising requirements relating to filing a
10 caveat; providing that a caveat may be filed before or
11 after a person’s death; providing for the expiration
12 of the caveat; amending s. 731.201, F.S.; revising the
13 definitions of “formal notice” and “informal notice”;
14 amending s. 731.301, F.S.; clarifying provisions
15 relating to notice; amending s. 732.2125, F.S.;
16 clarifying a provision relating to the right of
17 election; amending s. 732.401, F.S.; providing that a
18 decedent’s spouse may elect to take an interest in a
19 homestead as a tenant in common rather than a life
20 estate; providing procedures and forms for filing
21 notice of such election; providing that such election
22 is irrevocable; providing for the allocation of
23 expenses relating to the homestead; specifying that
24 the interests of the decedent’s descendants in the
25 homestead may not be divested if the spouse’s interest
26 is disclaimed; amending s. 732.4015, F.S.; providing
27 that if a spouse’s interest in a homestead has been
28 disclaimed, the disclaimed interest passes in
29 accordance with ch. 739, F.S.; creating s. 732.4017,
30 F.S.; providing for the inter vivios transfer of
31 homestead property; providing limitations; amending s.
32 732.608, F.S.; clarifying provisions relating to which
33 laws apply when determining intestate succession in
34 certain circumstances; creating s. 732.805, F.S.;
35 denying certain rights or benefits to a surviving
36 spouse who procured a marriage by fraud, duress, or
37 undue influence; providing procedures for challenging
38 a surviving spouse; providing for the award of costs
39 and fees; providing a time limitation on bringing such
40 actions; amending s. 733.2123, F.S.; deleting the
41 requirement for attaching a copy of a will to a notice
42 of a petition for administration; amending s. 733.608,
43 F.S.; specifying the manner for serving notice of the
44 personal representative’s lien for expenditures and
45 obligations incurred; amending s. 735.203, F.S.;
46 clarifying provisions relating to providing notice for
47 a petition for summary administration; amending s.
48 736.1102, F.S.; clarifying provisions relating to
49 which laws apply when determining intestate succession
50 in certain circumstances; amending s. 744.444, F.S.;
51 conforming provisions to changes made by the act;
52 providing an effective date.
53
54 Be It Enacted by the Legislature of the State of Florida:
55
56 Section 1. Section 655.934, Florida Statutes, is amended to
57 read:
58 655.934 Effect of lessee’s death or incapacity.—If a lessor
59 without knowledge of the death or of an order determining the
60 incapacity of the lessee deals with the lessee’s agent in
61 accordance with a written power of attorney or a durable family
62 power of attorney signed by such lessee, the transaction binds
63 the lessee’s estate and the lessee.
64 Section 2. Section 655.935, Florida Statutes, is amended to
65 read:
66 655.935 Search procedure on death of lessee.—If
67 satisfactory proof of the death of the lessee is presented, a
68 lessor shall permit the person named in a court order for that
69 the purpose, or if no order has been served upon the lessor, the
70 spouse, a parent, an adult descendant, or a person named as a
71 personal representative in a copy of a purported will produced
72 by such person, to open and examine the contents of a safe
73 deposit box leased or coleased by a decedent, or any documents
74 delivered by a decedent for safekeeping, in the presence of an
75 officer of the lessor.; and the lessor,
76 (1) If so requested by such person, the lessor shall remove
77 and deliver only shall deliver:
78 (a)(1) Any writing purporting to be a will of the decedent,
79 to the court having probate jurisdiction in the county in which
80 the financial institution is located.
81 (b)(2) Any writing purporting to be a deed to a burial plot
82 or to give burial instructions, to the person making the request
83 for a search.
84 (c)(3) Any document purporting to be an insurance policy on
85 the life of the decedent, to the beneficiary named therein.
86 (2) The officer of the lessor shall make a complete copy of
87 any document removed and delivered pursuant to this section and
88 place that copy, together with a memorandum of delivery
89 identifying the name of the officer, the person to whom the
90 document was delivered, the purported relationship of the person
91 to whom the document was delivered, and the date of delivery, in
92 the safe-deposit box leased or coleased by the decedent.
93 (3) The lessor may charge reasonable fees to cover costs
94 incurred pursuant to this section.
95 (4) No other contents may be removed pursuant to this
96 section. Access granted pursuant to this section is shall not be
97 considered the initial opening of the safe-deposit box pursuant
98 to s. 733.6065 by a personal representative appointed by a court
99 in this state.
100 Section 3. Section 731.110, Florida Statutes, is amended to
101 read:
102 731.110 Caveat; proceedings.—
103 (1) Any interested person, including a creditor, who is
104 apprehensive that an estate, either testate or intestate, will
105 be administered or that a will may be admitted to probate
106 without that the person’s knowledge may file a caveat with the
107 court. The caveat of the interested person, other than a
108 creditor, may be filed before or after the death of the person
109 for whom the estate will be, or is being, administered. The
110 caveat of a creditor may be filed only after the person’s death.
111 (2) A caveat shall contain the decedent’s social security
112 number, last known residence address, and date of birth, if they
113 are known, as identification, a statement of the interest of the
114 caveator in the estate, the name and specific residence address
115 of the caveator, and, If the caveator, other than a state
116 agency, is a nonresident and is not represented by an attorney
117 admitted to practice in this state who has signed the caveat
118 nonresident of the county, the caveator must designate
119 additional name and specific residence address of some person
120 residing in the county in which the caveat is filed, or office
121 address of a member of The Florida Bar residing in Florida,
122 designated as the agent of the caveator, upon whom service may
123 be made; however, if the caveator is represented by an attorney
124 admitted to practice in this state who has signed the caveat, it
125 is not necessary to designate a resident agent.
126 (3) If When a caveat has been filed by an interested person
127 other than a creditor, the court may shall not admit a will of
128 the decedent to probate or appoint a personal representative
129 until formal notice of the petition for administration has been
130 served on the caveator or the caveator’s designated agent by
131 formal notice and the caveator has had the opportunity to
132 participate in proceedings on the petition, as provided by the
133 Florida Probate Rules.
134 (4) A caveat filed before the death of the person for whom
135 the estate will be administered expires 2 years after filing.
136 Section 4. Subsections (18) and (22) of section 731.201,
137 Florida Statutes, are amended to read:
138 731.201 General definitions.—Subject to additional
139 definitions in subsequent chapters that are applicable to
140 specific chapters or parts, and unless the context otherwise
141 requires, in this code, in s. 409.9101, and in chapters 736,
142 738, 739, and 744, the term:
143 (18) “Formal notice” means a form of formal notice that is
144 described in and served by a method of services provided under
145 rule 5.040(a) of the Florida Probate Rules.
146 (22) “Informal notice” or “notice” means a method of
147 service for pleadings or papers as provided informal notice
148 under rule 5.040(b) of the Florida Probate Rules.
149 Section 5. Section 731.301, Florida Statutes, is amended to
150 read:
151 731.301 Notice.—
152 (1) If When notice to an interested person of a petition or
153 other proceeding is required, the notice shall be given to the
154 interested person or that person’s attorney as provided in the
155 code or the Florida Probate Rules.
156 (2) In a probate proceeding, formal notice is shall be
157 sufficient to acquire jurisdiction over the person receiving
158 formal notice to the extent of the person’s interest in the
159 estate or in the decedent’s protected homestead.
160 (3) Persons given proper notice of a any proceeding are
161 shall be bound by all orders entered in that proceeding.
162 Section 6. Subsection (2) of section 732.2125, Florida
163 Statutes, is amended to read:
164 732.2125 Right of election; by whom exercisable.—The right
165 of election may be exercised:
166 (2) With approval of the court having jurisdiction of the
167 probate proceeding by an attorney in fact or a guardian of the
168 property of the surviving spouse. Before approving the election,
169 the court shall determine that the election is in as the best
170 interests of the surviving spouse, during the spouse’s probable
171 lifetime, require.
172 Section 7. Section 732.401, Florida Statutes, is amended to
173 read:
174 732.401 Descent of homestead.—
175 (1) If not devised as authorized permitted by law and the
176 Florida constitution, the homestead shall descend in the same
177 manner as other intestate property; but if the decedent is
178 survived by a spouse and one or more descendants, the surviving
179 spouse shall take a life estate in the homestead, with a vested
180 remainder to the descendants in being at the time of the
181 decedent’s death per stirpes.
182 (2) In lieu of a life estate under subsection (1), the
183 surviving spouse may elect to take an undivided one-half
184 interest in the homestead as a tenant in common, with the
185 remaining undivided one-half interest vesting in the decedent’s
186 descendants in being at the time of the decedent’s death, per
187 stirpes.
188 (a) The right of election may be exercised:
189 1. By the surviving spouse; or
190 2. With the approval of a court having jurisdiction of the
191 real property, by an attorney in fact or guardian of the
192 property of the surviving spouse. Before approving the election,
193 the court shall determine that the election is in the best
194 interests of the surviving spouse during the spouse’s probable
195 lifetime.
196 (b) The election must be made within 6 months after the
197 decedent’s death and during the surviving spouse’s lifetime. The
198 time for making the election may not be extended except as
199 provided in paragraph (c).
200 (c) A petition by an attorney in fact or guardian of the
201 property for approval to make the election tolls the time for
202 making the election until 6 months after the decedent’s death or
203 30 days after the rendition of an order authorizing the
204 election, whichever occurs last.
205 (d) Once made, the election is irrevocable.
206 (e) The election shall be made by filing a notice of
207 election containing the legal description of the homestead
208 property for recording in the official record books of the
209 county or counties where the homestead property is located. The
210 notice must be in substantially the following form:
211
212 ELECTION OF SURVIVING SPOUSE
213 TO TAKE A ONE-HALF INTEREST OF
214 DECEDENT’S INTEREST IN HOMESTEAD PROPERTY
215
216 STATE OF............
217 COUNTY OF............
218
219 1. The decedent, ______________, died on ______________. On
220 the date of the decedent’s death, The decedent was married to
221 ________________, who survived the decedent.
222 2. At the time of the decedent’s death, the decedent owned
223 an interest in real property that the affiant believes to be
224 homestead property described in s. 14, Article X of the State
225 Constitution, that real property being in _________County,
226 Florida, and described as: ...(description of homestead
227 property)....
228 3. Affiant elects to take one-half of decedent’s interest
229 in the homestead as a tenant in common in lieu of a life estate.
230 4. If affiant is not the surviving spouse, affiant is the
231 surviving spouse’s attorney in fact or guardian of the property
232 and an order has been rendered by a court having jurisdiction of
233 the real property authorizing the undersigned to make this
234 election.
235
236 ................
237 ...(Affiant)...
238
239 Sworn to (or affirmed) and subscribed before me this .... day of
240 ...(month)..., ...(year)..., by ...(affiant)...
241
242 ...(Signature of Notary Public-State of Florida)...
243
244 ...(Print, Type, or Stamp Commissioned Name of Notary Public)...
245
246 Personally Known OR Produced Identification
247 ...(Type of Identification Produced)...
248
249 (3) Unless and until an election is made under subsection
250 (2), expenses relating to the ownership of the homestead shall
251 be allocated between the surviving spouse, as life tenant, and
252 the decedent’s descendants, as remaindermen, in accordance with
253 chapter 738. If an election is made, expenses relating to the
254 ownership of the homestead shall be allocated between the
255 surviving spouse and the descendants as tenants in common in
256 proportion to their respective shares, effective as of the date
257 the election is filed for recording.
258 (4) If the surviving spouse’s life estate created in
259 subsection (1) is disclaimed pursuant to chapter 739, the
260 interests of the decedent’s descendants may not be divested.
261 (5)(2) This section does Subsection (1) shall not apply to
262 property that the decedent and the surviving spouse owned in
263 tenancy by the entireties or joint tenancy with rights of
264 survivorship as tenants by the entirety.
265 Section 8. Subsection (3) is added to section 732.4015,
266 Florida Statutes, to read:
267 732.4015 Devise of homestead.—
268 (3) If an interest in homestead has been devised to the
269 surviving spouse as authorized by law and the constitution, and
270 the surviving spouse’s interest is disclaimed, the disclaimed
271 interest shall pass in accordance with chapter 739.
272 Section 9. Section 732.4017, Florida Statutes, is created
273 to read:
274 732.4017 Inter vivos transfer of homestead property.—
275 (1) If the owner of homestead property transfers an
276 interest in that property, including a transfer in trust, with
277 or without consideration, to one or more persons during the
278 owner’s lifetime, the transfer is not a devise for purposes of
279 s. 731.201(10) or s. 732.4015, and the interest transferred does
280 not descend as provided in s. 732.401 if the transferor fails to
281 retain a power, held in any capacity, acting alone or in
282 conjunction with any other person, to revoke or revest that
283 interest in the transferor.
284 (2) As used in this section, the term “transfer in trust”
285 refers to a trust under which the transferor of the homestead
286 property, alone or in conjunction with another person, does not
287 possess a right of revocation as that term is defined in s.
288 733.707(3)(e). A power possessed by the transferor which is
289 exercisable during the transferor’s lifetime to alter the
290 beneficial use and enjoyment of the interest within a class of
291 beneficiaries identified only in the trust instrument is not a
292 right of revocation if the power may not be exercised in favor
293 of the transferor, the transferor’s creditors, the transferor’s
294 estate, or the creditors of the transferor’s estate or exercised
295 to discharge the transferor’s legal obligations. This subsection
296 does not create an inference that a power not described in this
297 subsection is a power to revoke or revest an interest in the
298 transferor.
299 (3) The transfer of an interest in homestead property
300 described in subsection (1) may not be treated as a devise of
301 that interest even if:
302 (a) The transferor retains a separate legal or equitable
303 interest in the homestead property, directly or indirectly
304 through a trust or other arrangement such as a term of years,
305 life estate, reversion, possibility of reverter, or fractional
306 fee interest;
307 (b) The interest transferred does not become a possessory
308 interest until a date certain or upon a specified event, the
309 occurrence or nonoccurrence of which does not constitute a power
310 held by the transferor to revoke or revest the interest in the
311 transferor, including, without limitation, the death of the
312 transferor; or
313 (c) The interest transferred is subject to divestment,
314 expiration, or lapse upon a date certain or upon a specified
315 event, the occurrence or nonoccurrence of which does not
316 constitute a power held by the transferor to revoke or revest
317 the interest in the transferor, including, without limitation,
318 survival of the transferor.
319 (4) It is the intent of the Legislature that this section
320 clarify existing law.
321 Section 10. Section 732.608, Florida Statutes, is amended
322 to read:
323 732.608 Construction of generic terms.—The laws used to
324 determine paternity and Adopted persons and persons born out of
325 wedlock are included in class gift terminology and terms of
326 relationship, in accordance with rules for determining
327 relationships for the purposes of intestate succession apply
328 when determining whether class gift terminology and terms of
329 relationship include adopted persons and persons born out-of
330 wedlock.
331 Section 11. Section 732.805, Florida Statutes, is created
332 to read:
333 732.805 Spousal rights procured by fraud, duress, or undue
334 influence.—
335 (1) A surviving spouse who is found to have procured a
336 marriage to the decedent by fraud, duress, or undue influence is
337 not entitled to any of the following rights or benefits that
338 inure solely by virtue of the marriage or the person’s status as
339 surviving spouse of the decedent unless both spouses
340 subsequently ratified the marriage:
341 (a) Any rights or benefits under the Florida Probate Code,
342 including, but not limited to, entitlement to elective share or
343 family allowance; preference in appointment as personal
344 representative; inheritance by intestacy, homestead, or exempt
345 property; or inheritance as a pretermitted spouse.
346 (b) Any rights or benefits under a bond, life insurance
347 policy, or other contractual arrangement if the decedent is the
348 principal obligee or the person upon whose life the policy is
349 issued, unless the surviving spouse is provided for by name,
350 whether or not designated as the spouse, in the bond, life
351 insurance policy, or other contractual arrangement.
352 (c) Any rights or benefits under a will, trust, or power of
353 appointment, unless the surviving spouse is provided for by
354 name, whether or not designated as the spouse, in the will,
355 trust, or power of appointment.
356 (d) Any immunity from the presumption of undue influence
357 that a surviving spouse may have under state law.
358 (2) Any of the rights or benefits listed in paragraphs
359 (1)(a)-(c) which would have passed solely by virtue of the
360 marriage to a surviving spouse who is found to have procured the
361 marriage by fraud, duress, or undue influence shall pass as if
362 the spouse had predeceased the decedent.
363 (3) A challenge to a surviving spouse’s rights under this
364 section may be maintained as a defense, objection, or cause of
365 action by any interested person after the death of the decedent
366 in any proceeding in which the fact of marriage may be directly
367 or indirectly material.
368 (4) The contestant has the burden of establishing, by a
369 preponderance of the evidence, that the marriage was procured by
370 fraud, duress, or undue influence. If ratification of the
371 marriage is raised as a defense, the surviving spouse has the
372 burden of establishing, by a preponderance of the evidence, the
373 subsequent ratification by both spouses.
374 (5) In all actions brought under this section, the court
375 shall award taxable costs as in chancery actions, including
376 attorney’s fees. When awarding taxable costs and attorney’s
377 fees, the court may direct payment from a party’s interest, if
378 any, in the estate, or enter a judgment that may be satisfied
379 from other property of the party, or both.
380 (6) An insurance company, bank, or other obligor making
381 payment according to the terms of its policy or obligation is
382 not liable by reason of this section unless, before payment, it
383 received at its home office or principal address written notice
384 of a claim pursuant to this section.
385 (7) The rights and remedies granted in this section are in
386 addition to any other rights or remedies a person may have at
387 law or equity.
388 (8) Unless sooner barred by adjudication, estoppel, or a
389 provision of the Florida Probate Code or Florida Probate Rules,
390 an interested person is barred from bringing an action under
391 this section unless the action is commenced within 4 years after
392 the decedent’s date of death. A cause of action under this
393 section accrues on the decedent’s date of death.
394 Section 12. Section 733.2123, Florida Statutes, is amended
395 to read:
396 733.2123 Adjudication before issuance of letters.—A
397 petitioner may serve formal notice of the petition for
398 administration on interested persons. A copy of the will offered
399 for probate shall be attached to the notice. A No person who is
400 served with such formal notice before of the petition for
401 administration prior to the issuance of letters or who has
402 waived notice may not challenge the validity of the will,
403 testacy of the decedent, qualifications of the personal
404 representative, venue, or jurisdiction of the court, except in
405 the proceedings before issuance of letters.
406 Section 13. Subsection (4) of section 733.608, Florida
407 Statutes, is amended to read:
408 733.608 General power of the personal representative.—
409 (4) The personal representative’s lien shall attach to the
410 property and take priority as of the date and time a notice of
411 that lien is recorded in the official records of the county
412 where that property is located, and the lien may secure
413 expenditures and obligations incurred, including, but not
414 limited to, fees and costs made before or after recording the
415 notice. The notice of lien may be recorded before adjudicating
416 prior to the adjudication of the amount of the debt. The notice
417 of lien also shall also be filed in the probate proceeding, but
418 failure to do so does shall not affect the validity of the lien.
419 A copy of the notice of lien shall be served in the manner
420 provided for service of by formal notice upon each person
421 appearing to have an interest in the property. The notice of
422 lien must shall state:
423 (a) The name and address of the personal representative and
424 the personal representative’s attorney;
425 (b) The legal description of the property;
426 (c) The name of the decedent and also, to the extent known
427 to the personal representative, the name and address of each
428 person appearing to have an interest in the property; and
429 (d) That the personal representative has expended or is
430 obligated to expend funds to preserve, maintain, insure, and
431 protect the property and that the lien stands as security for
432 recovery of those expenditures and obligations incurred,
433 including, but not limited to, fees and costs.
434
435 Substantial compliance with the foregoing provisions renders
436 shall render the notice in comportment with this section.
437 Section 14. Subsections (1) and (3) of section 735.203,
438 Florida Statutes, are amended to read:
439 735.203 Petition for summary administration.—
440 (1) A petition for summary administration may be filed by
441 any beneficiary or person nominated as personal representative
442 in the decedent’s will offered for probate. The petition must be
443 signed and verified by the surviving spouse, if any, and any
444 beneficiaries except that the joinder in a petition for summary
445 administration is not required of a beneficiary who will receive
446 a full distributive share under the proposed distribution.
447 However, formal notice of the petition must be served on a Any
448 beneficiary not joining in shall be served by formal notice with
449 the petition.
450 (3) If each trustee of a trust that is a beneficiary of the
451 estate of the deceased person is also a petitioner, formal
452 notice of the petition for summary administration shall be
453 served on each qualified beneficiary of the trust as defined in
454 s. 736.0103 shall be served by formal notice with the petition
455 for summary administration unless joinder in, or consent to, the
456 petition is obtained from each qualified beneficiary of the
457 trust.
458 Section 15. Section 736.1102, Florida Statutes, is amended
459 to read:
460 736.1102 Construction of generic terms.—The laws used to
461 determine paternity and Adopted persons and persons born out of
462 wedlock are included in class gift terminology and terms of
463 relationship, in accordance with rules for determining
464 relationships for the purposes of intestate succession apply
465 when determining whether class gift terminology and terms of
466 relationship include adopted persons and persons born out of
467 wedlock.
468 Section 16. Subsection (9) of section 744.444, Florida
469 Statutes, is amended to read:
470 744.444 Power of guardian without court approval.—Without
471 obtaining court approval, a plenary guardian of the property, or
472 a limited guardian of the property within the powers granted by
473 the order appointing the guardian or an approved annual or
474 amended guardianship report, may:
475 (9) Elect whether to dissent from a will under the
476 provisions of s. 732.2125(2), seek approval to make an election
477 in accordance with s. 732.401, or assert any other right or
478 choice available to a surviving spouse in the administration of
479 a decedent’s estate.
480 Section 17. This act shall take effect October 1, 2010.