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Amendment CaShTmL-192000.HTM
                                                  SENATE AMENDMENT
    Bill No. CS for SB 402
    Amendment No. ___   Barcode 192000
                            CHAMBER ACTION
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11  Senator Burt moved the following amendment:
12  
13         Senate Amendment (with title amendment) 
14         Delete everything after the enacting clause
15  
16  and insert:  
17         Section 1.  Paragraphs (b) and (c) of subsection (1) of
18  section 63.172, Florida Statutes, are amended to read:
19         63.172  Effect of judgment of adoption.--
20         (1)  A judgment of adoption, whether entered by a court
21  of this state, another state, or of any other place, has the
22  following effect:
23         (b)  It terminates all legal relationships between the
24  adopted person and the adopted person's relatives, including
25  the birth parents, except a birth parent who is a petitioner
26  or who is married to a petitioner, so that the adopted person
27  thereafter is a stranger to his or her former relatives for
28  all purposes, including inheritance and the interpretation or
29  construction of documents, statutes, and instruments, whether
30  executed before or after entry of the adoption judgment, that
31  do not expressly include the adopted person by name or by some
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    4:59 PM   05/02/01                               s0402.ju16.2g

SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 designation not based on a parent and child or blood 2 relationship, except that rights of inheritance shall be as 3 provided in the Florida Probate Code. 4 (c) Except for rights of inheritance, it creates the 5 relationship between the adopted person and the petitioner and 6 all relatives of the petitioner that would have existed if the 7 adopted person were a blood descendant of the petitioner born 8 within wedlock. This relationship shall be created for all 9 purposes, including inheritance and applicability of statutes, 10 documents, and instruments, whether executed before or after 11 entry of the adoption judgment, that do not expressly exclude 12 an adopted person from their operation or effect. 13 Section 2. Section 409.9101, Florida Statutes, is 14 amended to read: 15 409.9101 Recovery for payments made on behalf of 16 Medicaid-eligible persons.-- 17 (1) This section may be cited as the "Medicaid Estate 18 Recovery Act." 19 (2) It is the intent of the Legislature by this 20 section to supplement Medicaid funds that are used to provide 21 medical services to eligible persons. Medicaid estate recovery 22 shall generally be accomplished by the agency through the 23 filing a statement of claim claims against the estate of a 24 estates of deceased Medicaid recipient recipients as provided 25 in part VII of chapter 733. Recovery The recoveries shall be 26 made pursuant to federal authority in s. 13612 of the Omnibus 27 Budget Reconciliation Act of 1993, which amends s. 1917(b)(1) 28 of the Social Security Act, 42 U.S.C. s. 1396p(b)(1). 29 (3) Pursuant to s. 733.212(4)(a), the personal 30 representative of the estate of the decedent shall serve the 31 agency with a copy of the notice of administration of the 2 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 estate within 3 months after the first publication of the 2 notice, unless the agency has already filed a claim pursuant 3 to this section. 4 (3)(4) The acceptance of public medical assistance, as 5 defined by Title XIX (Medicaid) of the Social Security Act, 6 including mandatory and optional supplemental payments under 7 the Social Security Act, shall create a debt to claim, as 8 defined in s. 731.201, in favor of the agency in as an 9 interested person as defined in s. 731.201. The claim amount 10 is calculated as the total amount paid to or for the benefit 11 of the recipient for medical assistance on behalf of the 12 recipient after the recipient he or she reached 55 years of 13 age. Payment of benefits to a person under the age of 55 years 14 does not create a debt. Upon filing of a statement of claim in 15 the probate proceeding, the agency shall be an interested 16 person as defined in s. 731.201 to the same extent as other 17 estate claimants There is no claim under this section against 18 estates of recipients who had not yet reached 55 years of age. 19 (4)(5) At the time of filing the claim, The agency may 20 reserve the right to amend the claim as a matter of right up 21 to 1 year after the last date medical services were rendered 22 to the decedent amounts based on medical claims submitted by 23 providers subsequent to the agency's initial claim 24 calculation. 25 (5)(6) The claim of the agency shall be the current 26 total allowable amount of Medicaid payments as denoted in the 27 agency's provider payment processing system at the time the 28 agency's claim or amendment is filed. The agency's provider 29 processing system reports shall be admissible as prima facie 30 evidence in substantiating the agency's claim. 31 (7) The claim of the agency under this section shall 3 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 constitute a Class 3 claim under s. 733.707(1)(c), as provided 2 in s. 414.28(1). 3 (6)(8) The debt claim created under this section shall 4 not be enforced if the recipient is survived by: 5 (a) A spouse; 6 (b) A child or children under 21 years of age; or 7 (c) A child or children who are blind or permanently 8 and totally disabled pursuant to the eligibility requirements 9 of Title XIX of the Social Security Act. 10 (7)(9) In accordance with s. 4, Art. X of the State 11 Constitution, No debt claim under this section shall be 12 enforced against any property that is determined to be exempt 13 from the claims of creditors under the constitution or laws of 14 this state the homestead of the deceased Medicaid recipient 15 and is determined to be exempt from the claims of creditors of 16 the deceased Medicaid recipient. 17 (8)(10) The agency shall not recover from an estate if 18 doing so would cause undue hardship for the qualified heirs, 19 as defined in s. 731.201. The personal representative of an 20 estate and any heir may request that the agency waive recovery 21 of any or all of the debt when recovery would create a 22 hardship. A hardship does not exist solely because recovery 23 will prevent any heirs from receiving an anticipated 24 inheritance. The following criteria shall be considered by the 25 agency in reviewing a hardship request: 26 (a) The heir: 27 1. Currently resides in the residence of the decedent; 28 2. Resided there at the time of the death of the 29 decedent; 30 3. Has made the residence his or her primary residence 31 for the 12 months immediately preceding the death of the 4 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 decedent; and 2 4. Owns no other residence; 3 (b) The heir would be deprived of food, clothing, 4 shelter, or medical care necessary for the maintenance of life 5 or health; 6 (c) The heir can document that he or she provided 7 full-time care to the recipient which delayed the recipient's 8 entry into a nursing home. The heir must be either the 9 decedent's sibling or the son or daughter of the decedent and 10 must have resided with the recipient for at least 1 year prior 11 to the recipient's death; or 12 (d) The cost involved in the sale of the property 13 would be equal to or greater than the value of the property. 14 (9)(11) Instances arise in Medicaid estate-recovery 15 cases where the assets include a settlement of a claim against 16 a liable third party. The agency's claim under s. 409.910 must 17 be satisfied prior to including the settlement proceeds as 18 estate assets. The remaining settlement proceeds shall be 19 included in the estate and be available to satisfy the 20 Medicaid estate-recovery claim. The Medicaid estate-recovery 21 share shall be one-half of the settlement proceeds included in 22 the estate. Nothing in this subsection is intended to limit 23 the agency's rights against other assets in the estate not 24 related to the settlement. However, in no circumstances shall 25 the agency's recovery exceed the total amount of Medicaid 26 medical assistance provided to the recipient. 27 (10)(12) In instances where there are no liquid assets 28 to satisfy the Medicaid estate-recovery claim, if there is 29 nonexempt personal property or nonhomestead real property 30 which is not protected homestead and the costs of sale will 31 not exceed the proceeds, the property shall be sold to satisfy 5 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 the Medicaid estate-recovery claim. Real property shall not be 2 transferred to the agency in any instance. 3 (11)(13) The agency is authorized to adopt rules to 4 implement the provisions of this section. 5 Section 3. Section 655.936, Florida Statutes, is 6 amended to read: 7 655.936 Delivery of safe-deposit box contents or 8 property held in safekeeping to personal representative.-- 9 (1) Subject to the provisions of subsection (3), the 10 lessor shall immediately deliver to a resident personal 11 representative, upon presentation of a certified copy of his 12 or her letters of authority, all property deposited with it by 13 the decedent for safekeeping, and shall grant the resident 14 personal representative access to any safe-deposit box in the 15 decedent's name and permit him or her to remove from such box 16 any part or all of the contents thereof. 17 (2) If a foreign personal representative of a deceased 18 lessee has been appointed by a court of any other state, a 19 lessor may, at its discretion, after 3 months from the 20 issuance to such foreign personal representative of his or her 21 letters of authority, deliver to such foreign personal 22 representative all properties deposited with it for 23 safekeeping and the contents of any safe-deposit box in the 24 name of the decedent if at such time the lessor has not 25 received written notice of the appointment of a personal 26 representative in this state, and such delivery is a valid 27 discharge of the lessor for all property or contents so 28 delivered. Such foreign personal representative shall furnish 29 the lessor with an affidavit setting forth facts showing the 30 domicile of the deceased lessee to be other than this state 31 and stating that there are no unpaid creditors of the deceased 6 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 lessee in this state, together with a certified copy of his or 2 her letters of authority. A lessor making delivery pursuant 3 to this subsection shall maintain in its files a receipt 4 executed by such foreign personal representative which 5 itemizes in detail all property so delivered. 6 (3) Notwithstanding the provisions of subsection (1), 7 after the death of a lessee of a safe-deposit box, the lessor 8 shall permit the initial opening of the safe-deposit box and 9 the removal of the contents of the safe-deposit box and the 10 removal of the contents of the safe-deposit box in accordance 11 with s. 733.6065. 12 (4)(3) A lessor is not liable for damages or penalty 13 by reason of any delivery made pursuant to this section. 14 (4) Notwithstanding other provisions of this section, 15 the initial opening of any safe-deposit box of the decedent 16 must be conducted in the presence of an employee of the 17 institution where the box is located and the personal 18 representative. The inventory of the contents of the box also 19 must be conducted in the presence of the employee and the 20 personal representative, each of whom must verify the contents 21 of the box by signing a copy of the inventory. The personal 22 representative shall file the safe-deposit box inventory with 23 the court within 10 days after the box is opened. 24 Section 4. Section 731.005, Florida Statutes, is 25 amended to read: 26 731.005 Short title.--Chapters 731-735 shall be known 27 and may be cited as the Florida Probate Code and herein 28 referred to as "the "code" in this act. 29 Section 5. Section 731.011, Florida Statutes, is 30 amended to read: 31 731.011 Determination of substantive rights; 7 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 procedures.--The code became Florida Probate Code shall become 2 effective on January 1, 1976. The substantive rights of all 3 persons that have vested prior to January 1, 1976, shall be 4 determined as provided in former chapters 731-737 and 744-746 5 as they existed prior to January 1, 1976. The procedures for 6 the enforcement of vested substantive rights that have vested 7 before January 1, 1976, shall be as provided in the Florida 8 Probate Rules this code. 9 Section 6. Section 731.104, Florida Statutes, is 10 amended to read: 11 731.104 Verification of documents.--When verification 12 of a document is required in this code or by rule, the 13 document filed shall include an oath or affirmation as 14 provided in the Florida Probate Rules or the following 15 statement: "Under penalties of perjury, I declare that I have 16 read the foregoing, and the facts alleged are true, to the 17 best of my knowledge and belief." Any person who shall 18 willfully includes include a false statement in the document 19 shall be guilty of perjury and upon conviction shall be 20 punished accordingly. 21 Section 7. Section 731.106, Florida Statutes, is 22 amended to read: 23 731.106 Assets of nondomiciliaries.-- 24 (1) For purposes of aiding the determination 25 concerning location of assets that may be relevant in cases 26 involving nondomiciliaries, A debt in favor of a 27 nondomiciliary, other than one evidenced by investment or 28 commercial paper or other instrument, is located in the county 29 where the debtor resides or, if the debtor is not a person 30 other than an individual, at the place where the debtor has 31 its principal office. Commercial paper, investment paper, and 8 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 other instruments are located where the instrument is at the 2 time of death. 3 (2) When a nonresident decedent, whether or not who is 4 a citizen of the United States, or a citizen or subject of a 5 foreign country provides by in her or his will that the 6 testamentary disposition of her or his tangible or intangible 7 personal property having a situs within this state, or of her 8 or his real property in this state, shall be construed and 9 regulated by the laws of this state, the validity and effect 10 of the dispositions shall be determined by Florida law. The 11 court may, and in the case of a decedent who was at the time 12 of death a resident of a foreign country the court shall, 13 direct the personal representative appointed in this state to 14 make distribution directly to those designated by the 15 decedent's will as beneficiaries of the tangible or intangible 16 property or to the persons entitled to receive the decedent's 17 personal estate under the laws of the decedent's domicile, as 18 the case may be. 19 Section 8. Section 731.107, Florida Statutes, is 20 repealed: 21 731.107 Adversary proceedings.--The rules of civil 22 procedure shall be applied in any adversary proceeding in 23 probate. 24 Section 9. Section 731.110, Florida Statutes, is 25 amended to read: 26 731.110 Caveat; proceedings.-- 27 (1) Any person, including a creditor, who If any 28 creditor of the estate of a decedent is apprehensive that an 29 estate, either testate or intestate, will be administered 30 without the creditor's knowledge, or if any person other than 31 a creditor is apprehensive that an estate may be administered, 9 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 or that a will may be admitted to probate, without the 2 person's knowledge, he or she may file a caveat with the 3 court. 4 (2) A No caveat shall contain be effective unless it 5 contains the decedent's social security number, last known 6 residence address, and or date of birth, if they are known, as 7 an identification number, a statement of the interest of the 8 caveator in the estate, the name and specific residence 9 address of the caveator, and, if the caveator, other than a 10 state agency, is a nonresident of the county, the additional 11 name and specific residence address of some person residing in 12 the county, or office address of a member of The Florida Bar 13 residing in Florida, designated as the agent of the caveator, 14 upon whom service may be made. 15 Section 10. Section 731.111, Florida Statutes, is 16 repealed: 17 731.111 Notice to creditors.-- 18 (1) When a notice to creditors is required, a notice 19 shall be published once a week for 2 consecutive weeks, two 20 publications being sufficient, in a newspaper published in the 21 county in which the estate is administered or, if there is no 22 newspaper published in the county, in a newspaper of general 23 circulation in that county. Proof of publication shall be 24 filed. The notice shall notify all persons having claims or 25 demands against the estate to file their claims with the clerk 26 within the time periods set forth in s. 733.702 with respect 27 to notice of administration, or be forever barred. The notice 28 shall contain the name of the decedent, the file number of the 29 estate, the designation and address of the court in which the 30 proceedings are pending, the name and address of the person 31 causing the notice to be published, and the name and address 10 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 of his or her attorney, and state the date of first 2 publication. 3 (2) Notwithstanding the provisions of subsection (1), 4 the Department of Revenue is not barred from filing a claim 5 against the estate of a decedent for taxes due under chapter 6 199 after the expiration of the time for filing claims 7 provided in subsection (1), provided the department files its 8 claim within 30 days after the service of the inventory or 9 federal estate tax return on the department as provided in s. 10 198.13, whichever shall last occur. Additionally, in the event 11 that the information contained therein is amended or 12 supplemented, the department has the right to file its claim 13 or amend a previously filed claim within 30 days after the 14 service of such information. 15 Section 11. Section 731.201, Florida Statutes, is 16 amended to read: 17 731.201 General definitions.--Subject to additional 18 definitions in subsequent chapters that are applicable to 19 specific chapters or parts, and unless the context otherwise 20 requires, in this code, in s. 409.9101, and in chapters 737, 21 738, and 744: 22 (1) "Authenticated," when referring to copies of 23 documents or judicial proceedings required to be filed with 24 the court under this code, shall mean a certified copy or a 25 copy authenticated according to the Federal Rules of Civil 26 Procedure 28 U.S.C. s. 1733 or s. 1741. 27 (2) "Beneficiary" means heir at law, in an intestate 28 estate, and devisee, in a testate estate. The term 29 "beneficiary" does not apply to an heir at law or a devisee 30 after that person's his or her interest in the estate has been 31 satisfied. In the case of a devise to an existing trust or 11 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 trustee, or to a trust or trustee described by will, in the 2 absence of a conflict of interest of the trust, the trustee is 3 a beneficiary of the estate. An owner of a beneficial interest 4 in the trust is a beneficiary of the trust and is, in the 5 absence of a conflict of interest of the trust, not a 6 beneficiary of the estate. 7 (3) "Child" includes a person entitled to take as a 8 child under this code by intestate succession from the parent 9 whose relationship is involved, and excludes any person who is 10 only a stepchild, a foster child, a grandchild, or a more 11 remote descendant. 12 (4) "Claim Claims" means a liability liabilities of 13 the decedent, whether arising in contract, tort, or otherwise, 14 and funeral expense expenses. The term does not include an 15 expense expenses of administration or estate, inheritance, 16 succession, or other death taxes. 17 (5) "Clerk" means the clerk or deputy clerk of the 18 court. 19 (6) "Court" means the circuit court. 20 (7) "Curator" means a person appointed by the court to 21 take charge of the estate of a decedent until letters are 22 issued. 23 (8) "Devise," when used as a noun, means a 24 testamentary disposition of real or personal property and, 25 when used as a verb, means to dispose of real or personal 26 property by will or trust. The term includes "gift," "give," 27 "bequeath," "bequest," and "legacy." A devise is subject to 28 charges for debts, expenses, and taxes as provided in this 29 code, or in the will, or the trust. 30 (9) "Devisee" means a person designated in a will or 31 trust to receive a devise. In the case of a devise to an 12 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 existing trust or trustee, or to a trustee of a trust 2 described by will, the trust or trustee is the devisee. The 3 beneficiaries of the trust are not devisees. 4 (10) "Distributee" means a person who has received 5 estate property from a personal representative or other 6 fiduciary other than as a creditor or purchaser. A 7 testamentary trustee is a distributee only to the extent of 8 distributed assets or increments to them remaining in the 9 trustee's his or her hands. A beneficiary of a testamentary 10 trust to whom the trustee has distributed property received 11 from a personal representative is a distributee. For purposes 12 of this provision, "testamentary trustee" includes a trustee 13 to whom assets are transferred by will, to the extent of the 14 devised assets. 15 (11) "Domicile" means shall be a person's usual place 16 of dwelling and shall be synonymous with "residence." 17 (12) "Estate" means the property of a decedent that is 18 the subject of administration. 19 (13) "Exempt property" means the property of a 20 decedent's estate which is described in s. 732.402. 21 (14) "File" means to file with the court or clerk. 22 (15) "Foreign personal representative" means a 23 personal representative of another state or a foreign country. 24 (16) "Formal notice" means formal notice under the 25 Florida Probate Rules s. 731.301(1). 26 (17) "Grantor" means one who creates or adds to a 27 trust and includes "settlor" or "trustor" and a testator who 28 creates or adds to a trust. 29 (18) "Heirs" or "heirs at law" means those persons, 30 including the surviving spouse, who are entitled under the 31 statutes of intestate succession to the property of a 13 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 decedent. 2 (19) "Incompetent" means a minor or a person 3 adjudicated incompetent. 4 (20) "Informal notice" or "notice" means informal 5 notice under the Florida Probate Rules s. 731.301(2). 6 (21) "Interested person" means any person who may 7 reasonably be expected to be affected by the outcome of the 8 particular proceeding involved. In any proceeding affecting 9 the estate or the rights of a beneficiary in the estate, the 10 personal representative of the estate shall be deemed to be an 11 interested person. In any proceeding affecting the expenses 12 of the administration and obligations of a decedent's estate 13 of the estate, or any claims described in s. 733.702(1), the 14 trustee of a trust described in s. 733.707(3) is an interested 15 person in the administration of the grantor's estate. The 16 term does not include a beneficiary an heir at law or a 17 devisee who has received complete his or her distribution. 18 The meaning, as it relates to particular persons, may vary 19 from time to time and must be determined according to the 20 particular purpose of, and matter involved in, any 21 proceedings. 22 (22) "Letters" means authority granted by the court to 23 the personal representative to act on behalf of the estate of 24 the decedent and refers to what has been known as letters 25 testamentary and letters of administration. All letters shall 26 be designated "letters of administration." 27 (23) "Other state" means any state of the United 28 States other than Florida and includes the District of 29 Columbia, the Commonwealth of Puerto Rico, and any territory 30 or possession subject to the legislative authority of the 31 United States. 14 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 (24) "Parent" excludes any person who is only a 2 stepparent, foster parent, or grandparent. 3 (25) "Personal representative" means the fiduciary 4 appointed by the court to administer the estate and refers to 5 what has been known as an administrator, administrator cum 6 testamento annexo, administrator de bonis non, ancillary 7 administrator, ancillary executor, or executor. 8 (26) "Petition" means a written request to the court 9 for an order. 10 (27) "Probate of will" means all steps necessary to 11 establish the validity of a will and to admit a will to 12 probate. 13 (28) "Property" means both real and personal property 14 or any interest in it and anything that may be the subject of 15 ownership. 16 (29) "Protected homestead" means the property 17 described in s. 4(a)(1), Art. X of the State Constitution 18 which at the death of the owner the exemption inures to the 19 owner's surviving spouse or heirs under s. 4(b), Art. X of the 20 State Constitution. For purposes of the code, real property 21 owned as tenants by the entirety is not protected homestead. 22 (30)(29) "Residence" means a person's usual place of 23 dwelling. and is synonymous with "domicile." 24 (31)(30) "Residuary devise" means a devise of the 25 assets of the estate which remain after the provision for any 26 devise which is to be satisfied by reference to a specific 27 property or type of property, fund, sum, or statutory amount. 28 If the will contains no devise which is to be satisfied by 29 reference to a specific property or type of property, fund, 30 sum, or statutory amount, "residuary devise" or "residue" 31 means a devise of all assets remaining after satisfying the 15 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 obligations of the estate. 2 (32)(31) "Security" means a security as defined in s. 3 517.021. 4 (33)(32) "Security interest" means a security interest 5 as defined in s. 671.201. 6 (34)(33) "Trust" means an express trust, private or 7 charitable, with additions to it, wherever and however 8 created. It also includes a trust created or determined by a 9 judgment or decree under which the trust is to be administered 10 in the manner of an express trust. "Trust" excludes other 11 constructive trusts, and it excludes resulting trusts; 12 conservatorships; personal representatives; custodial 13 arrangements pursuant to the Florida Uniform Transfers Gifts 14 to Minors Act; business trusts providing for certificates to 15 be issued to beneficiaries; common trust funds; land trusts 16 under s. 689.05; trusts created by the form of the account or 17 by the deposit agreement at a financial institution; voting 18 trusts; security arrangements; liquidation trusts; trusts for 19 the primary purpose of paying debts, dividends, interest, 20 salaries, wages, profits, pensions, or employee benefits of 21 any kind; and any arrangement under which a person is nominee 22 or escrowee for another. 23 (35)(34) "Trustee" includes an original, additional, 24 surviving, or successor trustee, whether or not appointed or 25 confirmed by court. 26 (36)(35) "Will" means an instrument, including a 27 codicil, executed by a person in the manner prescribed by this 28 code, which disposes of the person's property on or after his 29 or her death and includes an instrument which merely appoints 30 a personal representative or revokes or revises another will. 31 Section 12. Section 731.301, Florida Statutes, is 16 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 amended to read: 2 731.301 Notice; method and time; proof.-- 3 (1) FORMAL NOTICE.-- 4 (a) When formal notice to an interested person of a 5 petition or other proceeding is required, the notice shall be 6 given to the petitioner shall serve a copy of the petition to 7 any interested person or that person's her or his attorney as 8 provided in the Florida Probate Rules, if the interested 9 person has appeared by attorney or requested that notice be 10 sent to her or his attorney. The petition shall be served: 11 1. By any form of mail or by any commercial delivery 12 service approved by the chief judge of each judicial circuit, 13 requiring a signed receipt, as follows: 14 a. On the interested person's attorney of record, if 15 any, or to the post-office address given in her or his demand 16 for notice, if any; 17 b. On an individual, other than an incompetent, by 18 mailing a copy to the individual's dwelling house or usual 19 place of abode or to the place where she or he regularly 20 conducts her or his business or profession; 21 c. On an incompetent person, by mailing a copy to the 22 incompetent, to the person having custody of the incompetent, 23 and to any legal guardian of the incompetent, at their 24 respective dwelling houses, usual places of abode, or regular 25 places of business or profession; 26 d. On a corporation, by mailing a copy to the 27 corporation at its last known address; or 28 2. As provided in chapter 48; or 29 3. In the circumstances provided in chapter 49, in the 30 manner provided therein. 31 (b) If there is no answer served on the petitioner 17 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 within 20 days from the service of the petition, the petition 2 shall be considered ex parte. If an answer is served, a 3 hearing shall be set and reasonable notice given. 4 (c) If service is made under subparagraph (a)2. or 5 subparagraph (a)3., proof shall be made as provided in chapter 6 48 or chapter 49. If service is made by mail under 7 subparagraph (a)1., proof shall be by a verified statement of 8 the person mailing service who shall attach the signed receipt 9 or other evidence satisfactory to the court that delivery was 10 made to, or refused by, the addressee or the addressee's 11 agent. 12 (2)(d) Formal notice shall be sufficient to acquire 13 jurisdiction over the person receiving formal notice to the 14 extent of the person's interest in the estate. 15 (2) INFORMAL NOTICE.-- 16 (a) When informal notice of a petition or other 17 proceeding is required or permitted, it shall be served on the 18 person or the person's attorney as provided in the Florida 19 Rules of Civil Procedure relating to service of pleadings. 20 (b) Proof of service shall be made by filing an 21 attorney's certificate of service or, if filed by a person who 22 is not a member of The Florida Bar, by a verified statement. 23 (3) EFFECT OF NOTICE.--Persons given notice of any 24 proceeding petition shall be bound by all orders entered in 25 that proceeding on the petition. 26 (4) INFORMAL NOTICE REQUIRED.--Unless otherwise 27 specifically provided, informal notice of every petition 28 affecting property rights or interests must be given to 29 interested persons. 30 Section 13. Section 731.303, Florida Statutes, is 31 amended to read: 18 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 731.303 Representation.--In proceedings involving 2 estates of decedents or trusts, the following apply: 3 (1) Interests to be affected shall be described in 4 pleadings that give information by name or class, by reference 5 to the instrument creating the interests, or in another 6 appropriate manner. 7 (1)(2) Persons are bound by orders binding others in 8 the following cases: 9 (a) Orders binding the sole holder or all coholders of 10 a power of revocation or a general, special, or limited power 11 of appointment, including one in the form of a power of 12 amendment or revocation to the extent that the power has not 13 become unexercisable in fact, bind all persons to the extent 14 that their interests, as persons who may take by virtue of the 15 exercise or nonexercise of the power, are subject to the 16 power. 17 (b) To the extent there is no conflict of interest 18 between them or among the persons represented: 19 1. Orders binding a guardian of the property bind the 20 ward whose estate he or she controls. 21 2. Orders binding a trustee bind beneficiaries of the 22 trust in proceedings to probate a will, in establishing or 23 adding to a trust, in reviewing the acts or accounts of a 24 prior fiduciary, and in proceedings involving creditors or 25 other third parties. 26 3. Orders binding a personal representative bind 27 persons interested in the undistributed assets of a decedent's 28 estate, in actions or proceedings by or against the estate. 29 (c) An unborn or unascertained person, or a minor or 30 any other person under a legal disability, who is not 31 otherwise represented is bound by an order to the extent that 19 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 person's his or her interest is represented by another party 2 having the same or greater quality of interest in the 3 proceeding. 4 (2)(3) Orders binding a guardian of the person shall 5 not bind the ward. 6 (3)(4) Notice is required as follows: 7 (a) Notice as prescribed by the Florida Probate Rules 8 s. 731.301 shall be given to every interested person, or to 9 one who can bind the interested person as described in 10 paragraph (1)(2)(a) or paragraph (1)(2)(b). Notice may be 11 given both to the interested person and to another who can 12 bind him or her. 13 (b) Notice is given to unborn or unascertained persons 14 who are not represented pursuant to paragraph (1)(2)(a) or 15 paragraph (1)(2)(b) by giving notice to all known persons 16 whose interests in the proceedings are the same as, or of a 17 greater quality than, those of the unborn or unascertained 18 persons. 19 (4)(5) If the court determines that representation of 20 the interest would otherwise be inadequate, the court may, at 21 any time, appoint a guardian ad litem to represent the 22 interests of an incapacitated incompetent person, an unborn or 23 unascertained person, a minor or any other person otherwise 24 under a legal disability, or a person whose identity or 25 address is unknown. If not precluded by conflict of interest, 26 a guardian ad litem may be appointed to represent several 27 persons or interests. 28 (5)(6) Agreements, waivers, consents, approvals, 29 accounts, or other statements that fully disclose the matters 30 that which are the subject of the such accounts or statements 31 and that bind the sole holder or all coholders of a general, 20 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 special, or limited power of appointment, including a power of 2 amendment or revocation to the extent that the power has not 3 become unexercisable in fact, bind all persons to the extent 4 that their interests, as persons who may take by virtue of the 5 exercise or nonexercise of the power, are subject to the 6 power. 7 Section 14. Subsection (2) of section 732.101, Florida 8 Statutes, is amended to read: 9 732.101 Intestate estate.-- 10 (2) The decedent's death is the event that vests the 11 heirs' right to the decedent's intestate property. 12 Section 15. Section 732.102, Florida Statutes, is 13 amended to read: 14 732.102 Spouse's share of intestate estate Share of 15 spouse.-- 16 (1) The intestate share of the surviving spouse is: 17 (1)(a) If there is no surviving lineal descendant of 18 the decedent, the entire intestate estate. 19 (2)(b) If there are surviving lineal descendants of 20 the decedent, all of whom are also lineal descendants of the 21 surviving spouse also, the first $60,000 $20,000 of the 22 intestate estate, plus one-half of the balance of the 23 intestate estate. Property allocated hereunder to the 24 surviving spouse to satisfy the $60,000 $20,000 shall be 25 valued at the fair market value on the date of distribution 26 the decedent's death. 27 (3)(c) If there are surviving lineal descendants, one 28 or more of whom are not lineal descendants of the surviving 29 spouse, one-half of the intestate estate. 30 (2) The court shall allot the property to which the 31 spouse is entitled, treating all beneficiaries equitably. 21 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 Section 16. Paragraph (c) of subsection (4) and 2 subsection (5) of section 732.103, Florida Statutes, are 3 amended to read: 4 732.103 Share of other heirs.--The part of the 5 intestate estate not passing to the surviving spouse under s. 6 732.102, or the entire intestate estate if there is no 7 surviving spouse, descends as follows: 8 (4) If there is none of the foregoing, the estate 9 shall be divided, one-half of which shall go to the decedent's 10 paternal, and the other half to the decedent's maternal, 11 kindred in the following order: 12 (c) If there is either no paternal kindred or if there 13 is no maternal kindred, the estate shall go to such of the 14 other kindred who as shall survive, in the order stated above 15 aforesaid. 16 (5) If there is no kindred of either part, the whole 17 of the such property shall go to the kindred of the last 18 deceased spouse of the decedent as if the deceased spouse had 19 survived the decedent and then died intestate entitled to the 20 estate. 21 Section 17. Section 732.107, Florida Statutes, is 22 amended to read: 23 732.107 Escheat.-- 24 (1) When a person dies leaving an estate dies without 25 being survived by any person entitled to a part of it, that 26 part the property shall escheat to the state. 27 (2)(a) In this event, or when doubt exists about the 28 existence of any person entitled to the estate, the personal 29 representative shall institute a proceeding for the 30 determination of beneficiaries, as provided in this code, 31 within 1 year after letters have been issued to him or her, 22 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 and notice shall be served on the Department of Legal Affairs. 2 If the personal representative fails to institute the 3 proceeding within the time fixed, it may be instituted by the 4 Department of Legal Affairs. 5 (b) On or before January 15 of each year, each court 6 shall furnish to the department a list of all estates being 7 administered in which no person appears to be entitled to the 8 property and the personal representative has not instituted a 9 proceeding for the determination of beneficiaries. 10 (3) If the court determines that there is no person 11 entitled to the estate and that the estate escheats, the 12 Property that escheats shall be sold as provided in the 13 Florida Probate Rules and the proceeds paid to the Treasurer 14 of the state and deposited by him or her in the State School 15 Fund within a reasonable time to be fixed by the court. 16 (3)(4) At any time within 10 years after the payment 17 to the Treasurer granting of letters, a person claiming to be 18 entitled to the proceeds estate of the decedent may petition 19 to reopen the administration to and assert entitlement his or 20 her rights to the proceeds escheated property. If the claimant 21 is entitled to any of the estate of the decedent, the court 22 shall fix the amount to which he or she is entitled, and it 23 shall be repaid to him or her with interest at the legal rate 24 by the officials charged with the disbursement of state school 25 funds. If no claim is timely asserted within the time fixed, 26 the title of the state's rights to state to the property and 27 the proceeds shall become absolute. 28 (4)(5) The Department of Legal Affairs shall represent 29 the state in all proceedings concerning escheated estates. 30 (5)(6)(a) If a person entitled to the proceeds funds 31 assigns the his or her rights to receive payment to an 23 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 attorney, Florida-certified public accountant, or private 2 investigative agency which is duly licensed to do business in 3 this state pursuant to a written agreement with that such 4 person, the Department of Banking and Finance is authorized to 5 make distribution in accordance with the such assignment. 6 (b) Payments made to an attorney, Florida-certified 7 public accountant, or private investigative agency shall be 8 promptly deposited into a trust or escrow account which is 9 regularly maintained by the attorney, Florida-certified public 10 accountant, or private investigative agency in a financial 11 institution authorized to accept such deposits and located in 12 this state. 13 (c) Distribution by the attorney, Florida-certified 14 public accountant, or private investigative agency to the 15 person entitled to the proceeds funds shall be made within 10 16 days following final credit of the deposit into the trust or 17 escrow account at the financial institution, unless a party to 18 the agreement protests the in writing such distribution in 19 writing before it is made. 20 (d) The department shall not be civilly or criminally 21 liable for any proceeds funds distributed pursuant to this 22 subsection, provided such distribution is made in good faith. 23 (7) Except as herein provided, escheated estates shall 24 be administered as other estates. 25 Section 18. Section 732.1101, Florida Statutes, is 26 amended to read: 27 732.1101 Aliens.--Aliens shall have the same rights of 28 inheritance as citizens No person is disqualified to take as 29 an heir because he or she, or a person through whom he or she 30 claims, is, or has been, an alien. 31 Section 19. Effective October 1, 2001, subsection (8) 24 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 of section 732.2025, Florida Statutes, is amended to read: 2 732.2025 Definitions.--As used in ss. 3 732.2025-732.2155, the term: 4 (8) "Qualifying special needs trust" or "supplemental 5 needs trust" means a trust established for a an ill or 6 disabled surviving spouse with court approval before or after 7 a decedent's death for such incapacitated surviving spouse, 8 if, commencing on the decedent's death: 9 (a) The income and principal are distributable to or 10 for the benefit of the spouse for life in the discretion of 11 one or more trustees less than half of whom are ineligible 12 family trustees. For purposes of this paragraph, ineligible 13 family trustees include the decedent's grandparents and any 14 descendants of the decedent's grandparents who are not also 15 descendants of the surviving spouse; and 16 (b) During the spouse's life, no person other than the 17 spouse has the power to distribute income or principal to 18 anyone other than the spouse. 19 20 (c) The requirement for court approval and the limitation on 21 ineligible family trustees shall not apply if the aggregate 22 value of all the trust property as of the applicable valuation 23 date in all a qualifying special needs trusts for the spouse 24 trust is less than $100,000. For purposes of this subsection, 25 value is determined on the "applicable valuation date" as 26 defined in s. 732.2095(1)(a). 27 Section 20. Effective October 1, 2001, subsection (2) 28 and paragraph (a) of subsection (5) of section 732.2035, 29 Florida Statutes, are amended to read: 30 732.2035 Property entering into elective 31 estate.--Except as provided in s. 732.2045, the elective 25 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 estate consists of the sum of the values as determined under 2 s. 732.2055 of the following property interests: 3 (2) The decedent's ownership interest in accounts or 4 securities registered in "Pay On Death," "Transfer On Death," 5 "In Trust For," or coownership with right of survivorship 6 form. For this purpose, "decedent's ownership interest" 7 means, in the case of accounts or securities held in tenancy 8 by the entirety, one-half of the value of the account or 9 security, and in all other cases, that portion of the accounts 10 or securities which the decedent had, immediately before 11 death, the right to withdraw or use without the duty to 12 account to any person. 13 (5)(a) That portion of property, other than property 14 described in subsection (3), subsection (4), or subsection 15 (7), transferred by the decedent to the extent that at the 16 time of the decedent's death: 17 1. The decedent possessed the right to, or in fact 18 enjoyed the possession or use of, the income or principal of 19 the property; or 20 2. The principal of the property could, in the 21 discretion of any person other than the spouse of the 22 decedent, be distributed or appointed to or for the benefit of 23 the decedent. 24 25 In the application of this subsection, a right to payments 26 under a commercial or private from an annuity, an annuity 27 trust, a unitrust, or under a similar contractual arrangement 28 shall be treated as a right to that portion of the income of 29 the property necessary to equal the annuity, unitrust, or 30 other contractual payment. 31 Section 21. Effective October 1, 2001, subsection (1) 26 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 of section 732.2045, Florida Statutes, is amended to read: 2 732.2045 Exclusions and overlapping application.-- 3 (1) EXCLUSIONS.--Section 732.2035 does not apply to: 4 (a) Except as provided in s. 732.2155(4), any transfer 5 of property by the decedent to the extent the transfer is 6 irrevocable before the effective date of this subsection or 7 after that date but before the date of the decedent's marriage 8 to the surviving spouse. 9 (b) Any transfer of property by the decedent to the 10 extent the decedent received adequate consideration in money 11 or money's worth for the transfer. 12 (c) Any transfer of property by the decedent made with 13 the written consent of the decedent's spouse. For this 14 purpose, spousal consent to split-gift treatment under the 15 United States gift tax laws does not constitute written 16 consent to the transfer by the decedent. 17 (d) The proceeds of any policy of insurance on the 18 decedent's life in excess of the net cash surrender value of 19 the policy whether payable to the decedent's estate, a trust, 20 or in any other manner. 21 (e) Any policy of insurance on the decedent's life 22 maintained pursuant to a court order. 23 (f) The decedent's one-half of the property to which 24 ss. 732.216-732.228 apply and real property that is community 25 property under the laws of the jurisdiction where it is 26 located. 27 (g) Property held in a qualifying special needs trust 28 on the date of the decedent's death. 29 (h) Property included in the gross estate of the 30 decedent for federal estate tax purposes solely because the 31 decedent possessed a general power of appointment. 27 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 (i) Property which constitutes the protected homestead 2 of the decedent whether held by the decedent or by a trust at 3 the decedent's death. 4 Section 22. Effective October 1, 2001, paragraph (a) 5 of subsection (5) of section 732.2055, Florida Statutes, is 6 amended to read: 7 732.2055 Valuation of the elective estate.--For 8 purposes of s. 732.2035, "value" means: 9 (5) In the case of all other property, the fair market 10 value of the property on the date of the decedent's death, 11 computed after deducting from the total value of the property: 12 (a) All claims, other than claims for funeral 13 expenses, paid or payable from the elective estate; and 14 Section 23. Effective October 1, 2001, subsection (2) 15 of section 732.2075, Florida Statutes, is amended to read: 16 732.2075 Sources from which elective share payable; 17 abatement.-- 18 (2) If, after the application of subsection (1), the 19 elective share is not fully satisfied, the unsatisfied balance 20 shall be apportioned among the direct recipients of the 21 remaining elective estate in the following order of priority: 22 (a) Class 1.--The decedent's probate estate and 23 revocable trusts. 24 (b) Class 2.--Recipients of property interests, other 25 than protected charitable interests, included in the elective 26 estate under s. 732.2035(2), (3), or (6) and, to the extent 27 the decedent had at the time of death the power to designate 28 the recipient of the property, property interests, other than 29 protected charitable interests, included under s. 732.2035(5) 30 and (7). 31 (c) Class 3.--Recipients of all other property 28 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 interests, other than protected charitable interests, included 2 in the elective estate except interests for which a charitable 3 deduction with respect to the transfer of the property was 4 allowed or allowable to the decedent or the decedent's spouse 5 under the United States gift tax laws. 6 (d) Class 4.--Recipients of protected charitable lead 7 interests, but only to the extent and at such times that 8 contribution is permitted without disqualifying the charitable 9 interest in that property for a deduction under the United 10 States gift tax laws. 11 12 For purposes of this subsection, a protected charitable 13 interest is any interest for which a charitable deduction with 14 respect to the transfer of the property was allowed or 15 allowable to the decedent or the decedent's spouse under the 16 United States gift tax laws. A protected charitable lead 17 interest is a protected charitable interest where one or more 18 deductible interests in charity precede some other 19 nondeductible interest or interests in the property. 20 Section 24. Effective October 1, 2001, paragraph (a) 21 of subsection (1) and paragraph (a) of subsection (3) of 22 section 732.2085, Florida Statutes, are amended to read: 23 732.2085 Liability of direct recipients and 24 beneficiaries.-- 25 (1) Only direct recipients of property included in the 26 elective estate and the beneficiaries of the decedent's 27 probate estate or of any trust that is a direct recipient, are 28 liable to contribute toward satisfaction of the elective 29 share. 30 (a) Within each of the classes described in s. 31 732.2075(2)(b), and (c), and (d), each direct recipient is 29 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 liable in an amount equal to the value, as determined under s. 2 732.2055, of the proportional part of the liability for all 3 members of the class. 4 (3) If a person pays the value of the property on the 5 date of a sale or exchange or contributes all of the property 6 received, as provided in paragraph (2)(b): 7 (a) No further contribution toward satisfaction of the 8 elective share shall be required with respect to that such 9 property. 10 Section 25. Effective October 1, 2001, paragraph (a) 11 of subsection (1) and paragraph (d) of subsection (2) of 12 section 732.2095, Florida Statutes, are amended to read: 13 732.2095 Valuation of property used to satisfy 14 elective share.-- 15 (1) DEFINITIONS.--As used in this section, the term: 16 (a) "Applicable valuation date" means: 17 1. In the case of transfers in satisfaction of the 18 elective share, the date of the decedent's death. 19 2. In the case of property held in a qualifying 20 special needs trust on the date of the decedent's death, the 21 date of the decedent's death. 22 3. In the case of other property irrevocably 23 transferred to or for the benefit of the surviving spouse 24 during the decedent's life, the date of the transfer. 25 4. In the case of property distributed to the 26 surviving spouse by the personal representative, the date of 27 distribution. 28 5. Except as provided in subparagraphs 1., 2., and 3., 29 in the case of property passing in trust for the surviving 30 spouse, the date or dates the trust is funded in satisfaction 31 of the elective share. 30 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 6. In the case of property described in s. 732.2035(2) 2 or (3) or (4), the date of the decedent's death. 3 7. In the case of proceeds of any policy of insurance 4 payable to the surviving spouse, the date of the decedent's 5 death. 6 8. In the case of amounts payable to the surviving 7 spouse under any plan or arrangement described in s. 8 732.2035(7), the date of the decedent's death. 9 9. In all other cases, the date of the decedent's 10 death or the date the surviving spouse first comes into 11 possession of the property, whichever occurs later. 12 (2) Except as provided in this subsection, the value 13 of property for purposes of s. 732.2075 is the fair market 14 value of the property on the applicable valuation date. 15 (d) If the surviving spouse has an interest in a trust 16 that does not meet the requirements of either an elective 17 share trust or a qualifying special needs trust, the value of 18 the spouse's interest is the transfer tax value of the 19 interest on the applicable valuation date; however, the 20 aggregate value of all of the spouse's interests in the trust 21 shall not exceed one-half of the value of the trust principal 22 on the applicable valuation date. 23 Section 26. Effective October 1, 2001, section 24 732.2105, Florida Statutes, is amended to read: 25 732.2105 Effect of election on other interests.-- 26 (1) The elective share shall be in addition to 27 homestead, exempt property, and allowances as provided in part 28 IV. 29 (2) If an election is filed, the balance of the 30 elective estate, after the application of s. 732.2145(1), 31 shall be administered as though the surviving spouse had 31 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 predeceased the decedent. 2 Section 27. Effective October 1, 2001, subsection (2) 3 of section 732.2125, Florida Statutes, is amended to read: 4 732.2125 Right of election; by whom exercisable.--The 5 right of election may be exercised: 6 (2) With approval of the court having jurisdiction of 7 the probate proceeding by an attorney in fact or a guardian of 8 the property of the surviving spouse, with approval of the 9 court having jurisdiction of the probate proceeding. The court 10 shall determine the election as the best interests of the 11 surviving spouse, during the spouse's probable lifetime, 12 require. 13 Section 28. Effective October 1, 2001, section 14 732.2135, Florida Statutes, is amended to read: 15 732.2135 Time of election; extensions; withdrawal.-- 16 (1) Except as provided in subsection (2), the election 17 must be filed within the earlier of 6 months of the date of 18 service of a copy of the first publication of notice of 19 administration on the surviving spouse, or an attorney in fact 20 or guardian of the property of the surviving spouse, or 2 21 years after the date of the decedent's death. 22 (2) Within the period provided in subsection (1), the 23 surviving spouse or an attorney in fact or guardian of the 24 property of the surviving spouse may petition the court for an 25 extension of time for making an election. After notice and 26 hearing, the court For good cause shown the court may extend 27 the time for election. If the court grants the petition for an 28 extension, the election must be filed within the time allowed 29 by the extension. 30 (3) The surviving spouse or an attorney in fact, 31 guardian of the property, or personal representative of the 32 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 surviving spouse may withdraw an election at any time within 8 2 months of the decedent's death and before the court's order of 3 contribution. If an election is withdrawn, the court may 4 assess attorney's fees and costs against the surviving spouse 5 or the surviving spouse's estate. 6 (4) A petition for an extension of the time for making 7 the election or for approval to make the election shall toll 8 the time for making the election. 9 Section 29. Effective October 1, 2001, subsections (1) 10 and (4) of section 732.2145, Florida Statutes, are amended to 11 read: 12 732.2145 Order of contribution; personal 13 representative's duty to collect contribution.-- 14 (1) The court shall determine the elective share and 15 shall order contribution. All Contributions shall are to bear 16 interest at the statutory rate provided in s. 55.03(1) 17 beginning 90 days after from the date of the order of 18 contribution. The order of contribution is prima facie correct 19 in proceedings in any court or jurisdiction. 20 (4) Nothing in this section limits the independent 21 right of the surviving spouse to collect the elective share as 22 provided in the order of contribution, and that right is 23 hereby conferred. If the surviving spouse brings an action to 24 enforce the an order of contribution, the judgment shall 25 include the surviving spouse's costs and reasonable attorney's 26 fees. 27 Section 30. Effective October 1, 2001, subsection (4) 28 of section 732.2155, Florida Statutes, is amended, and 29 subsection (6) is added to said section, to read: 30 732.2155 Effective date; effect of prior waivers; 31 transition rules. 33 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 (4) Notwithstanding anything in s. 732.2045(1)(a) to 2 the contrary, any trust created by the decedent before the 3 effective date of ss. 732.201-732.2145 this section that meets 4 the requirements of an elective share trust is treated as if 5 the decedent created the trust after the effective date of 6 these sections this subsection and in satisfaction of the 7 elective share. 8 (6) Sections 732.201-732.2155 do not affect any 9 interest in property held, as of the decedent's death, in a 10 trust, whether revocable or irrevocable, if: 11 (a) The property was an asset of the trust at all 12 times between October 1, 1999 and the date of the decedent's 13 death; 14 (b) The decedent was not married to the decedent's 15 surviving spouse when the property was transferred to the 16 trust; and 17 (c) The property was a nonmarital asset as defined in 18 s. 61.075 immediately prior to the decedent's death. 19 Section 31. Subsection (2) of section 732.218, Florida 20 Statutes, is amended to read: 21 732.218 Rebuttable presumptions.--In determining 22 whether ss. 732.216-732.228 apply to specific property, the 23 following rebuttable presumptions apply: 24 (2) Real property located in this state, other than 25 homestead and real property held as tenants by the entirety 26 and homestead, and personal property wherever located acquired 27 by a married person while domiciled in a jurisdiction under 28 whose laws property could not then be acquired as community 29 property and title to which was taken in a form which created 30 rights of survivorship are presumed not to be property to 31 which these sections do not apply. 34 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 Section 32. Section 732.219, Florida Statutes, is 2 amended to read: 3 732.219 Disposition upon death.--Upon the death of a 4 married person, one-half of the property to which ss. 5 732.216-732.228 apply is the property of the surviving spouse 6 and is not subject to testamentary disposition by the decedent 7 or distribution under the laws of succession of this state. 8 One-half of that property is the property of the decedent and 9 is subject to testamentary disposition or distribution under 10 the laws of succession of this state. The decedent's one-half 11 of that the property is not in the elected estate subject to 12 the surviving spouse's right to elect against the will. 13 Section 33. Section 732.221, Florida Statutes, is 14 amended to read: 15 732.221 Perfection of title of personal representative 16 or beneficiary, heir, or devisee.--If the title to any 17 property to which ss. 732.216-732.228 apply is held by the 18 surviving spouse at the time of the decedent's death, the 19 personal representative or a beneficiary an heir or devisee of 20 the decedent may institute an action to perfect title to the 21 property. The personal representative has no fiduciary duty 22 to discover whether any property held by the surviving spouse 23 is property to which ss. 732.216-732.228 these sections apply, 24 unless a written demand is made by a beneficiary an heir, 25 devisee, or creditor of the decedent within 3 6 months after 26 service of a copy the first publication of the notice of 27 administration on the beneficiary or by a creditor within 3 28 months after the first publication of the notice to creditors. 29 Section 34. Subsections (1) and (2) of section 30 732.222, Florida Statutes, are amended to read: 31 732.222 Purchaser for value or lender.-- 35 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 (1) If a surviving spouse has apparent title to 2 property to which ss. 732.216-732.228 apply, a purchaser for 3 value or a lender taking a security interest in the property 4 takes the his or her interest in the property free of any 5 rights of the personal representative or a beneficiary an heir 6 or devisee of the decedent. 7 (2) If a personal representative or a beneficiary an 8 heir or devisee of the decedent has apparent title to property 9 to which ss. 732.216-732.228 apply, a purchaser for value or a 10 lender taking a security interest in the property takes that 11 his or her interest in the property free of any rights of the 12 surviving spouse. 13 Section 35. Section 732.223, Florida Statutes, is 14 amended to read: 15 732.223 Perfection of title of surviving spouse.--If 16 the title to any property to which ss. 732.216-732.228 apply 17 was held by the decedent at the time of the decedent's his or 18 her death, title of the surviving spouse may be perfected by 19 an order of the probate court or by execution of an instrument 20 by the personal representative or the beneficiaries heirs or 21 devisees of the decedent with the approval of the probate 22 court. The probate court in which the decedent's estate is 23 being administered has no duty to discover whether property 24 held by the decedent is property to which ss. 732.216-732.228 25 apply. The personal representative has no duty to discover 26 whether property held by the decedent is property to which ss. 27 732.216-732.228 apply unless a written demand is made by the 28 surviving spouse or the spouse's successor in interest within 29 3 6 months after service of a copy of the first publication of 30 the notice of administration on the surviving spouse or the 31 spouse's successor in interest. 36 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 Section 36. Section 732.302, Florida Statutes, is 2 amended to read: 3 732.302 Pretermitted children.--When a testator omits 4 to provide by in his or her will for any of his or her 5 children born or adopted after making the will and the child 6 has not received a part of the testator's property equivalent 7 to a child's part by way of advancement, the child shall 8 receive a share of the estate equal in value to that which the 9 child he or she would have received if the testator had died 10 intestate, unless: 11 (1) It appears from the will that the omission was 12 intentional; or 13 (2) The testator had one or more children when the 14 will was executed and devised substantially all the estate to 15 the other parent of the pretermitted child and that other 16 parent survived the testator and is entitled to take under the 17 will. 18 19 The share of the estate that is assigned to the pretermitted 20 child shall be obtained in accordance with s. 733.805. 21 Section 37. Section 732.401, Florida Statutes, is 22 amended to read: 23 732.401 Descent of homestead.-- 24 (1) If not devised as permitted by law and the Florida 25 Constitution, the homestead shall descend in the same manner 26 as other intestate property; but if the decedent is survived 27 by a spouse and lineal descendants, the surviving spouse shall 28 take a life estate in the homestead, with a vested remainder 29 to the lineal descendants in being at the time of the 30 decedent's death per stirpes. 31 (2) Subsection (1) shall not apply to If the decedent 37 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 was domiciled in Florida and resided on real property that the 2 decedent and the surviving spouse owned as tenants by the 3 entirety, the real property shall not be homestead property. 4 Section 38. Subsection (2) of section 732.4015, 5 Florida Statutes, is amended to read: 6 732.4015 Devise of homestead.-- 7 (2) For the purposes of subsection (1), the term: 8 (a) "Owner" includes the grantor settlor of a trust 9 described in s. 733.707(3) that is evidenced by a written 10 instrument which is in existence at the time of the grantor's 11 settlor's death as if the interest held in trust was owned by 12 the grantor pursuant to which the settlor retained the right 13 either alone or in conjunction with any other person to amend 14 or revoke the trust at any time before his or her death. 15 (b) "Devise" includes a disposition by trust of that 16 portion of the trust estate which, if titled in the name of 17 the grantor settlor of the trust, would be the grantor's 18 settlor's homestead. 19 Section 39. Subsections (4) and (6) of section 20 732.402, Florida Statutes, are amended, and subsection (7) is 21 added to said section, to read: 22 732.402 Exempt property.-- 23 (4) Exempt property shall be in addition to protected 24 homestead, statutory entitlements, and any property passing 25 under to the surviving spouse or heirs of the decedent under 26 s. 4, Art. X of the State Constitution or the decedent's will, 27 or by intestate succession, elective share, or family 28 allowance. 29 (6) Persons entitled to exempt property shall be 30 deemed to have waived their rights under this section unless a 31 petition for determination of exempt property is filed by or 38 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 on behalf of the persons entitled to the exempt property 2 within 4 months after the date of service the first 3 publication of the notice of administration or within 40 days 4 from the date of termination of any proceeding involving the 5 construction, admission to probate, or validity of the will or 6 involving any other matter affecting any part of the estate 7 subject to this section. 8 (7) Property determined as exempt under this section 9 shall be excluded from the value of the estate before 10 residuary, intestate, or pretermitted or elective shares are 11 determined. 12 Section 40. Section 732.403, Florida Statutes, is 13 amended to read: 14 732.403 Family allowance.--In addition to protected 15 homestead and statutory entitlements exempt property, if the 16 decedent was domiciled in Florida at the time of death, the 17 surviving spouse and the decedent's lineal heirs whom the 18 decedent was supporting or was obligated to support or who 19 were in fact being supported by him or her are entitled to a 20 reasonable allowance in money out of the estate for their 21 maintenance during administration. After notice and hearing, 22 The court may order this allowance to be paid as a lump sum or 23 in periodic installments. The allowance shall not exceed a 24 total of $18,000 $6,000. It shall be paid to the surviving 25 spouse, if living, for the use of the spouse and dependent 26 lineal heirs. If the surviving spouse is not living, it shall 27 be paid to the lineal heirs or to the persons having their 28 care and custody. If any lineal heir is not living with the 29 surviving spouse, the allowance may be made partly to the 30 lineal heir or his or her guardian or other person having the 31 lineal heir's care and custody and partly to the surviving 39 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 spouse, as the needs of the dependent lineal heir and the 2 surviving spouse appear. The family allowance shall have the 3 priority established by s. 733.707. The family allowance is 4 not chargeable against any benefit or share otherwise passing 5 to the surviving spouse or to the dependent lineal heirs by 6 intestate succession, elective share, or the will of the 7 decedent, unless the will otherwise provides. The death of any 8 person entitled to a family allowance terminates the his or 9 her right to that the part of the allowance not paid. For 10 purposes of this section, the term "lineal heir" or "lineal 11 heirs" means lineal ascendants and lineal descendants of the 12 decedent. 13 Section 41. Section 732.501, Florida Statutes, is 14 amended to read: 15 732.501 Who may make a will.--Any person who is of 16 sound mind and who is either 18 or more years of age or an 17 emancipated minor 18 or more years of age who is of sound mind 18 may make a will. 19 Section 42. Paragraph (a) of subsection (1) and 20 subsection (2) of section 732.502, Florida Statutes, are 21 amended to read: 22 732.502 Execution of wills.--Every will must be in 23 writing and executed as follows: 24 (1)(a) Testator's signature.-- 25 1. The testator must sign the will at the end; or 26 2. The testator's name must be subscribed at the end 27 of the will by some other person in the testator's presence 28 and by the testator's his or her direction. 29 (2) Any will, other than a holographic or nuncupative 30 will, executed by a nonresident of Florida, either before or 31 after this law takes effect, is valid as a will in this state 40 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 if valid under the laws of the state or country where the will 2 was executed testator was at the time of execution. A will in 3 the testator's handwriting that has been executed in 4 accordance with subsection (1) shall not be considered a 5 holographic will. 6 Section 43. Section 732.503, Florida Statutes, is 7 amended to read: 8 732.503 Self-proof of will.-- 9 (1) A will or codicil executed in conformity with s. 10 732.502(1) and (2) may be made self-proved at the time of its 11 execution or at any subsequent date by the acknowledgment of 12 it by the testator and the affidavits of the witnesses, each 13 made before an officer authorized to administer oaths and 14 evidenced by the officer's certificate attached to or 15 following the will, in substantially the following form: 16 17 STATE OF FLORIDA 18 COUNTY OF .... 19 I, , declare to the officer taking my 20 acknowledgment of this instrument, and to the subscribing 21 witnesses, that I signed this instrument as my will. 22 23 24 ________________________ 25 Testator 26 27 We, and , have been sworn by the 28 officer signing below, and declare to that officer on our 29 oaths that the testator declared the instrument to be the 30 testator's will and signed it in our presence and that we each 31 signed the instrument as a witness in the presence of the 41 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 testator and of each other. 2 3 4 ________________________ 5 Witness 6 7 ________________________ 8 Witness 9 10 Acknowledged and subscribed before me by the testator, 11 (type or print testator's name), who is personally known to me 12 or who has produced (state type of identification - see s. 13 117.05(5)(b)2.) as identification, and sworn to and subscribed 14 before me by the witnesses, (type or print name of first 15 witness) who is personally known to me or who has produced 16 (state type of identification - see s. 117.05(5)(b)2.) as 17 identification and (type or print name of second witness) who 18 is personally known to me or who has produced (state type of 19 identification - see s. 117.05(5)(b)2.) as identification, and 20 subscribed by me in the presence of the testator and the 21 subscribing witnesses, all on (date). 22 (Signature of Officer) 23 (Print, type, or stamp commissioned name and affix official 24 seal) 25 26 (2) A will or codicil made self-proved under former 27 law, or executed in another state and made self-proved under 28 the laws of that state, shall be considered as self-proved 29 under this section. 30 31 STATE OF .... 42 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 COUNTY OF .... 2 We, ...., ...., and .... the testator and the 3 witnesses, respectively, whose names are signed to the 4 attached or foregoing instrument, having been sworn, declared 5 to the undersigned officer that the testator, in the presence 6 of witnesses, signed the instrument as the testator's last 7 will (codicil), that the testator (signed) (or directed 8 another to sign for him or her), and that each of the 9 witnesses, in the presence of the testator and in the presence 10 of each other, signed the will as a witness. 11 ...(Testator)... 12 ...(Witness)... 13 ...(Witness)... 14 Subscribed and sworn to before me by ...., the testator 15 who is personally known to me or who has produced ...(type of 16 identification)... as identification, and by ...., a witness 17 who is personally known to me or who has produced ...(type of 18 identification)... as identification, and by ...., a witness 19 who is personally known to me or who has produced ...(type of 20 identification)... as identification, on ...., ...(year).... 21 ...(Signature of Notary Public)... 22 ...(Print, type, or stamp commissioned name of Notary 23 Public)... 24 25 Section 44. Section 732.505, Florida Statutes, is 26 amended to read: 27 732.505 Revocation by writing.--A will or codicil, or 28 any part of either, is revoked: 29 (1) By a subsequent inconsistent will or codicil, even 30 though the subsequent inconsistent will or codicil does not 31 expressly revoke all previous wills or codicils, but the 43 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 revocation extends only so far as the inconsistency exists. 2 (2) By a subsequent written will, codicil, or other 3 writing executed with the same formalities required for the 4 execution of wills declaring the revocation, if the same 5 formalities required for the execution of wills are observed 6 in the execution of the will, codicil, or other writing. 7 Section 45. Section 732.507, Florida Statutes, is 8 amended to read: 9 732.507 Effect of subsequent marriage, birth, or 10 dissolution of marriage.-- 11 (1) Neither subsequent marriage, nor subsequent 12 marriage and birth, nor or adoption of lineal descendants 13 shall revoke the prior will of any person, but the 14 pretermitted child or spouse shall inherit as set forth in ss. 15 732.301 and 732.302, regardless of the prior will. 16 (2) Any provision provisions of a will executed by a 17 married person that, which provision affects the spouse of 18 that person, shall become void upon the divorce of that person 19 or upon the dissolution or annulment of the marriage. After 20 the dissolution, divorce, or annulment, the any such will 21 shall be administered and construed as if the former spouse 22 had died at the time of the dissolution, divorce, or annulment 23 of the marriage, unless the will or the dissolution or divorce 24 judgment expressly provides otherwise. 25 Section 46. Paragraph (d) of subsection (2) and 26 subsections (3) and (6) of section 732.513, Florida Statutes, 27 are amended to read: 28 732.513 Devises to trustee.-- 29 (2) The devise shall not be invalid for any or all of 30 the following reasons: 31 (d) Because the only res of the trust is the possible 44 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 expectancy of receiving, as a named beneficiary, a devise 2 under a will or death benefits as described in s. 733.808, and 3 even though the testator or other person has reserved any or 4 all rights of ownership in the such death benefit policy, 5 contract, or plan, including the right to change the 6 beneficiary. 7 (3) The devise shall dispose of property under the 8 terms of the instrument that created the trust as previously 9 or subsequently theretofore or thereafter amended. 10 (6) This section shall be cumulative to all laws 11 touching upon the subject matter. 12 Section 47. Section 732.514, Florida Statutes, is 13 amended to read: 14 732.514 Vesting of devises.--The death of the testator 15 is the event that vests the right to devises unless the 16 testator in the his or her will has provided that some other 17 event must happen before a devise vests shall vest. 18 Section 48. Section 732.515, Florida Statutes, is 19 amended to read: 20 732.515 Separate writing identifying devises of 21 tangible property.--A will may refer to a written statement or 22 list referred to in the decedent's will shall to dispose of 23 items of tangible personal property, other than property used 24 in trade or business, not otherwise specifically disposed of 25 by the will, other than money and property used in trade or 26 business. To be admissible under this section as evidence of 27 the intended disposition, the writing must be signed by the 28 testator and must describe the items and the devisees with 29 reasonable certainty. The writing may be referred to as one 30 in existence at the time of the testator's death. It may be 31 prepared before or after the execution of the will. It may be 45 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 altered by the testator after its preparation. It may be a 2 writing that has no significance apart from its effect upon 3 the dispositions made by the will. If more than one otherwise 4 effective writing exists, then, to the extent of any conflict 5 among the writings, the provisions of the most recent writing 6 revoke the inconsistent provisions of each prior writing. 7 Section 49. Subsection (1) of section 732.6005, 8 Florida Statutes, is amended to read: 9 732.6005 Rules of construction and intention.-- 10 (1) The intention of the testator as expressed in the 11 his or her will controls the legal effect of the testator's 12 dispositions. The rules of construction expressed in this 13 part shall apply unless a contrary intention is indicated by 14 the will. 15 Section 50. Section 732.601, Florida Statutes, is 16 amended to read: 17 732.601 Simultaneous Death Law.--Unless a contrary 18 intention appears in the governing instrument: 19 (1) When title to property or its devolution depends 20 on priority of death and there is insufficient evidence that 21 the persons have died otherwise than simultaneously, the 22 property of each person shall be disposed of as if that person 23 he or she had survived, except as provided otherwise in this 24 law. 25 (2) When two or more beneficiaries are designated to 26 take successively by reason of survivorship under another 27 person's disposition of property and there is insufficient 28 evidence that the beneficiaries died otherwise than 29 simultaneously, the property thus disposed of shall be divided 30 into as many equal parts as there are successive beneficiaries 31 and the parts shall be distributed to those who would have 46 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 taken if each designated beneficiary had survived. 2 (3) When there is insufficient evidence that two joint 3 tenants or tenants by the entirety died otherwise than 4 simultaneously, the property so held shall be distributed 5 one-half as if one had survived and one-half as if the other 6 had survived. If there are more than two joint tenants and all 7 of them so died, the property thus distributed shall be in the 8 proportion that one bears to the whole number of joint 9 tenants. 10 (4) When the insured and the beneficiary in a policy 11 of life or accident insurance have died and there is 12 insufficient evidence that they died otherwise than 13 simultaneously, the proceeds of the policy shall be 14 distributed as if the insured had survived the beneficiary. 15 (5) This law shall not apply in the case of wills, 16 living trusts, deeds, or contracts of insurance in which 17 provision has been made for distribution of property different 18 from the provisions of this law. 19 Section 51. Section 732.603, Florida Statutes, is 20 amended to read: 21 732.603 Antilapse; deceased devisee; class 22 gifts.--Unless a contrary intention appears in the will: 23 (1) If a devisee or a beneficiary of a trust created 24 by a will who is a grandparent, or a lineal descendant of a 25 grandparent, of the testator: 26 (a) Is dead at the time of the execution of the will 27 or at the termination of a trust interest created by a will, 28 (b) Fails to survive the testator, or 29 (c) Is required by the will to be treated as having if 30 he or she predeceased the testator, 31 47 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 then the descendants of the devisee or beneficiary take per 2 stirpes in place of the deceased devisee or beneficiary. A 3 person who would have been a devisee under a class gift if 4 that person he or she had survived the testator shall be a 5 devisee for purposes of this section whether that person died 6 his or her death occurred before or after the execution of the 7 will. 8 (2) If a devisee or a beneficiary of a trust created 9 by a will who is not a grandparent, or a descendant of a 10 grandparent, of the testator: 11 (a) Is dead at the time of the execution of the will 12 or at the termination of a trust interest created in a will, 13 (b) Fails to survive the testator, or 14 (c) Is required by the will to be treated as having if 15 he or she predeceased the testator, 16 17 then the testamentary disposition to the devisee or 18 beneficiary shall lapse unless an intention to substitute 19 another in his or her place appears in the will. 20 Section 52. Subsection (2) of section 732.604, Florida 21 Statutes, is amended to read: 22 732.604 Failure of testamentary provision.-- 23 (2) Except as provided in s. 732.603, if the residue 24 is devised to two or more persons and the devise to share of 25 one of the residuary devisees fails for any reason, that 26 devise his or her share passes to the other residuary devisee, 27 or to the other residuary devisees in proportion to their 28 interests in the residue. 29 Section 53. Section 732.605, Florida Statutes, is 30 amended to read: 31 732.605 Change in securities; accessions; 48 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 nonademption.-- 2 (1) If the testator intended a specific devise of 3 certain securities rather than their equivalent value, the 4 specific devisee is entitled only to: 5 (a) As much of the devised securities as is a part of 6 the estate at the time of the testator's death. 7 (b) Any additional or other securities of the same 8 entity owned by the testator because of action initiated by 9 the entity, excluding any acquired by exercise of purchase 10 options. 11 (c) Securities of another entity owned by the testator 12 as a result of a merger, consolidation, reorganization, or 13 other similar action initiated by the entity. 14 (d) Securities of the same entity acquired as a result 15 of a plan of reinvestment. 16 (2) Distributions before death with respect to of a 17 specifically devised security, whether in cash or otherwise, 18 which are not provided for in subsection (1) are not part of 19 the specific devise. 20 Section 54. Subsection (1) and paragraph (d) of 21 subsection (2) of section 732.606, Florida Statutes, are 22 amended to read: 23 732.606 Nonademption of specific devises in certain 24 cases; sale by guardian of the property; unpaid proceeds of 25 sale, condemnation, or insurance.-- 26 (1) If specifically devised property is sold by a 27 guardian of the property for the care and maintenance of the 28 ward or if a condemnation award or insurance proceeds are paid 29 to a guardian of the property as a result of condemnation, 30 fire, or casualty, the specific devisee has the right to a 31 general pecuniary devise equal to the net sale price, the 49 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 condemnation award, or the insurance proceeds. This 2 subsection does not apply if, subsequent to the sale, 3 condemnation, or casualty, it is adjudicated that the 4 disability of the testator has ceased and the testator 5 survives the adjudication by 1 year. The right of the specific 6 devisee under this subsection is reduced by any right 7 described in he or she has under subsection (2). 8 (2) A specific devisee has the right to the remaining 9 specifically devised property and: 10 (d) Property owned by the testator at his or her death 11 as a result of foreclosure, or obtained instead of 12 foreclosure, of the security for the specifically devised 13 obligation. 14 Section 55. Subsection (1) of section 732.701, Florida 15 Statutes, is amended to read: 16 732.701 Agreements concerning succession.-- 17 (1) No agreement to make a will, to give a devise, not 18 to revoke a will, not to revoke a devise, not to make a will, 19 or not to make a devise shall be binding or enforceable unless 20 the agreement is in writing and signed by the agreeing party 21 in the presence of two attesting witnesses. Such an agreement 22 executed by a nonresident of Florida, either before or after 23 this law takes effect, is valid in this state if valid when 24 executed under the laws of the state or country where the 25 agreement was executed, whether or not the agreeing party is a 26 Florida resident at the time of death. 27 Section 56. Section 732.702, Florida Statutes, is 28 amended to read: 29 732.702 Waiver of spousal right to elect and of other 30 rights.-- 31 (1) The rights right of election of a surviving 50 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 spouse, the rights of the surviving spouse as intestate 2 successor or as a pretermitted spouse, and the rights of the 3 surviving spouse to an elective share, intestate share, 4 pretermitted share, homestead, exempt property, and family 5 allowance, and preference in appointment as personal 6 representative of an intestate estate or any of those rights 7 them, may be waived, wholly or partly, before or after 8 marriage, by a written contract, agreement, or waiver, signed 9 by the waiving party in the presence of two subscribing 10 witnesses. The requirement of witnesses shall be applicable 11 only to contracts, agreements, or waivers signed by Florida 12 residents after the effective date of this law. Any contract, 13 agreement, or waiver executed by a nonresident of Florida, 14 either before or after this law takes effect, is valid in this 15 state if valid when executed under the laws of the state or 16 country where it was executed, whether or not he or she is a 17 Florida resident at the time of death. Unless the waiver it 18 provides to the contrary, a waiver of "all rights," or 19 equivalent language, in the property or estate of a present or 20 prospective spouse, or a complete property settlement entered 21 into after, or in anticipation of, separation, dissolution of 22 marriage, or divorce, is a waiver of all rights to elective 23 share, intestate share, pretermitted share, homestead 24 property, exempt property, and family allowance, and 25 preference in appointment as personal representative of an 26 intestate estate, by the waiving party each spouse in the 27 property of the other and a renunciation by the waiving party 28 each of all benefits that would otherwise pass to the waiving 29 party either from the other by intestate succession or by the 30 provisions of any will executed before the written contract, 31 agreement, or waiver or property settlement. 51 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 (2) Each spouse shall make a fair disclosure to the 2 other of that spouse's his or her estate if the agreement, 3 contract, or waiver is executed after marriage. No disclosure 4 shall be required for an agreement, contract, or waiver 5 executed before marriage. 6 (3) No consideration other than the execution of the 7 agreement, contract, or waiver shall be necessary to its 8 validity, whether executed before or after marriage. 9 Section 57. Subsections (2), (3), (4), (5), (6), and 10 (7) of section 732.801, Florida Statutes, are amended to read: 11 732.801 Disclaimer of interests in property passing by 12 will or intestate succession or under certain powers of 13 appointment.-- 14 (2) SCOPE OF RIGHT TO DISCLAIM.-- 15 (a) A beneficiary may disclaim his or her succession 16 to any interest in property that, unless disclaimed, would 17 pass to the beneficiary: 18 1. By intestate succession or devise. 19 2. Under descent of homestead, exempt property, or 20 family allowance or under s. 222.13. 21 3. Through exercise or nonexercise of a power of 22 appointment exercisable by will. 23 4. Through testamentary exercise or nonexercise of a 24 power of appointment exercisable by either deed or will. 25 5. As beneficiary of a testamentary trust. 26 6. As a beneficiary of a testamentary gift to any 27 nontestamentary trust. 28 7. As donee of a power of appointment created by will. 29 8. By succession in any manner described in this 30 subsection to a disclaimed interest. 31 9. In any manner not specifically enumerated herein 52 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 under a testamentary instrument. 2 (b) Disclaimer may be made for a minor, incompetent, 3 incapacitated person, or deceased beneficiary by the guardian 4 or personal representative if the court having jurisdiction of 5 the estate of the minor, incompetent, incapacitated person, or 6 deceased beneficiary upon petition finds that the disclaimer: 7 1. Is in the best interests of those interested in the 8 estate of the beneficiary and of those who take the 9 beneficiary's interest by virtue of the disclaimer and 10 2. Is not detrimental to the best interests of the 11 beneficiary. 12 13 The determination shall be made on a petition filed for that 14 purpose and served on all interested persons. If ordered by 15 the court, the guardian or personal representative shall 16 execute and record the disclaimer on behalf of the beneficiary 17 within the time and in the manner in which the beneficiary 18 could disclaim if he or she were living, of legal age, and 19 competent. 20 (3) DISPOSITION OF DISCLAIMED INTERESTS.-- 21 (a) Unless the decedent or a donee of a power of 22 appointment has otherwise provided by will or other 23 appropriate instrument with reference to the possibility of a 24 disclaimer by the beneficiary, the interest disclaimed shall 25 descend, be distributed, or otherwise be disposed of in the 26 same manner as if the disclaimant had died immediately 27 preceding the death or other event that caused him or her to 28 become finally ascertained as a beneficiary and the 29 disclaimant's interest to become indefeasibly fixed both in 30 quality and quantity. The disclaimer shall relate to that 31 date for all purposes, whether recorded before or after the 53 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 death or other event. An interest in property disclaimed 2 shall never vest in the disclaimant. If the provisions of s. 3 732.603 would have been applicable had the disclaimant in fact 4 died immediately preceding the death or other event, they 5 shall be applicable to the disclaimed interest. 6 (b) Unless the his or her disclaimer instrument so 7 provides, a beneficiary who disclaims any interest that would 8 pass to him or her in any manner described in subsection (2) 9 shall not be excluded from sharing in any other interest to 10 which he or she may be entitled in any manner described in the 11 subsection, including subparagraph (2)(a)8., even though the 12 interest includes disclaimed assets by virtue of the 13 beneficiary's disclaimer. 14 (4) FORM, FILING, RECORDING, AND SERVICE OF DISCLAIMER 15 INSTRUMENTS.-- 16 (a) To be A disclaimer shall be in, a writing and 17 shall declare the disclaimer and its extent, describe the 18 interest in property disclaimed, and be executed signed, 19 witnessed, and acknowledged in the manner provided for the 20 conveyance of real property. 21 (b) A disclaimer shall be effective and irrevocable 22 when the instrument is recorded by the clerk where the estate 23 of the decedent is or has been administered. If no 24 administration has been commenced, it may be recorded 25 recording may be made with the clerk of any county where venue 26 of administration is proper. 27 (c) The person disclaiming shall deliver or mail a 28 copy of the disclaimer instrument to the personal 29 representative, trustee, or other person having legal title 30 to, or possession of, the property in which the disclaimed 31 interest exists. No representative, trustee, or other person 54 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 shall be liable for any otherwise proper distribution or other 2 disposition made without actual notice of the disclaimer or, 3 if the disclaimer is waived or barred as hereinafter provided, 4 for any otherwise proper distribution or other disposition 5 made in reliance on the disclaimer, if the distribution or 6 disposition is made without actual notice of the facts 7 constituting the waiver or bar of barring the right to 8 disclaim. 9 (5) TIME FOR RECORDING DISCLAIMER.--To be effective a 10 disclaimer shall be recorded at any time after the creation of 11 the interest, but in any event within 9 months after the event 12 giving rise to the right to disclaim, including the death of 13 the decedent; or, if the disclaimant is not finally 14 ascertained as a beneficiary or the disclaimant's interest has 15 not become indefeasibly fixed both in quality and quantity at 16 the death of the decedent, then the disclaimer shall be 17 recorded not later than 6 months after the event that would 18 cause the him or her to become finally ascertained and his or 19 her interest to become indefeasibly fixed both in quality and 20 quantity. However, a disclaimer may be effective if recorded 21 at any time after the creation of the interest, upon the 22 written consent of all interested parties as provided in s. 23 731.302. 24 (6) WAIVER OR BAR TO RIGHT TO DISCLAIM.-- 25 (a) The right to disclaim otherwise conferred by this 26 section shall be barred if the disclaimant beneficiary is 27 insolvent at the time of recording the disclaimer the event 28 giving rise to the right to disclaim and also by: 29 1. Making a voluntary assignment or transfer of, a 30 contract to assign or transfer, or an encumbrance of, an 31 interest in real or personal property. 55 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 2. Giving a written waiver of the right to disclaim 2 the succession to an interest in real or personal property. 3 3. Making any sale or other disposition of an interest 4 in real or personal property pursuant to judicial process by 5 the beneficiary before recording he or she has recorded a 6 disclaimer. 7 (b) The acceptance, assignment, transfer, encumbrance, 8 or written waiver of the right to disclaim a part of an 9 interest in property, or the sale pursuant to judicial process 10 of a part of an interest in property, shall not bar the right 11 to disclaim any other part of the interest in property. 12 (7) EFFECT OF RESTRAINTS.--The right to disclaim 13 granted by this section is shall exist irrespective of any 14 limitation imposed on the interest of the disclaimant in the 15 nature of an express or implied spendthrift provision or 16 similar restriction. 17 Section 58. Section 732.804, Florida Statutes, is 18 amended to read: 19 732.804 Provisions relating to disposition of the body 20 cremation.--Before issuance of letters, any person may carry 21 out written instructions of the decedent relating to the 22 decedent's body and funeral and burial arrangements. The fact 23 that cremation occurred pursuant to a written direction 24 provision of a will or any written contract signed by the 25 decedent that the in which he or she expressed the intent that 26 his or her body be cremated is a complete defense to a cause 27 of action against any person acting or relying on that 28 direction the personal representative or person providing the 29 services. 30 Section 59. Section 732.901, Florida Statutes, is 31 amended to read: 56 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 732.901 Production of wills.-- 2 (1) The custodian of a will must deposit the will with 3 the clerk of the court having venue of the estate of the 4 decedent within 10 days after receiving information that the 5 testator is dead. The custodian must supply the testator's 6 date of death or social security number to the clerk upon 7 deposit. Willful failure to deposit the will with the clerk 8 within the time period specified shall render the custodian 9 responsible for all costs and damages sustained by anyone if 10 the court finds that the custodian had no just or reasonable 11 cause for withholding the deposit of the will. 12 (2) Upon By petition and notice of it served on him or 13 her, the custodian of any will may be compelled to produce and 14 deposit the will as provided in subsection (1). All costs, 15 damages, and a reasonable attorney's fee shall be adjudged to 16 petitioner against the delinquent custodian if the court finds 17 that the custodian had no just or reasonable cause for failing 18 to withholding the deposit of the will. 19 Section 60. Section 732.910, Florida Statutes, is 20 renumbered as section 765.510, Florida Statutes. 21 Section 61. Section 732.911, Florida Statutes, is 22 renumbered as section 765.511, Florida Statutes. 23 Section 62. Section 732.912, Florida Statutes, is 24 renumbered as section 765.512, Florida Statutes, and amended 25 to read: 26 765.512 732.912 Persons who may make an anatomical 27 gift.-- 28 (1) Any person who may make a will may give all or 29 part of his or her body for any purpose specified in s. 30 765.510 732.910, the gift to take effect upon death. An 31 anatomical gift made by an adult donor and not revoked by the 57 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 donor as provided in s. 765.516 732.916 is irrevocable and 2 does not require the consent or concurrence of any person 3 after the donor's death. 4 (2) If the decedent has executed an agreement 5 concerning an anatomical gift, including signing an organ and 6 tissue donor card, expressing his or her wish to donate in a 7 living will or advance directive, or signifying his or her 8 intent to donate on his or her driver's license or in some 9 other written form has indicated his or her wish to make an 10 anatomical gift, and in the absence of actual notice of 11 contrary indications by the decedent, the surrogate designated 12 by the decedent pursuant to part II of chapter 765 may give 13 all or any part of the decedent's body for any purpose 14 specified in s. 765.510 732.910. 15 (3) If the decedent has not executed an agreement 16 concerning an anatomical gift or designated a surrogate 17 pursuant to part II of chapter 765 to make an anatomical gift 18 pursuant to the conditions of subsection (2), a member of one 19 of the classes of persons listed below, in the order of 20 priority stated and in the absence of actual notice of 21 contrary indications by the decedent or actual notice of 22 opposition by a member of the same or a prior class, may give 23 all or any part of the decedent's body for any purpose 24 specified in s. 765.510 732.910: 25 (a) The spouse of the decedent; 26 (b) An adult son or daughter of the decedent; 27 (c) Either parent of the decedent; 28 (d) An adult brother or sister of the decedent; 29 (e) A grandparent of the decedent; 30 (f) A guardian of the person of the decedent at the 31 time of his or her death; or 58 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 (g) A representative ad litem who shall be appointed 2 by a court of competent jurisdiction forthwith upon a petition 3 heard ex parte filed by any person, which representative ad 4 litem shall ascertain that no person of higher priority exists 5 who objects to the gift of all or any part of the decedent's 6 body and that no evidence exists of the decedent's having made 7 a communication expressing a desire that his or her body or 8 body parts not be donated upon death; 9 10 but no gift shall be made by the spouse if any adult son or 11 daughter objects, and provided that those of higher priority, 12 if they are reasonably available, have been contacted and made 13 aware of the proposed gift, and further provided that a 14 reasonable search is made to show that there would have been 15 no objection on religious grounds by the decedent. 16 (4) If the donee has actual notice of contrary 17 indications by the decedent or, in the case of a spouse making 18 the gift, an objection of an adult son or daughter or actual 19 notice that a gift by a member of a class is opposed by a 20 member of the same or a prior class, the donee shall not 21 accept the gift. 22 (5) The person authorized by subsection (3) may make 23 the gift after the decedent's death or immediately before the 24 decedent's death. 25 (6) A gift of all or part of a body authorizes any 26 examination necessary to assure medical acceptability of the 27 gift for the purposes intended. 28 (7) Once the gift has been made, the rights of the 29 donee are paramount to the rights of others, except as 30 provided by s. 765.517 732.917. 31 Section 63. Section 732.913, Florida Statutes, is 59 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 renumbered as section 765.513, Florida Statutes. 2 Section 64. Section 732.914, Florida Statutes, is 3 renumbered as section 765.514, Florida Statutes, and amended 4 to read: 5 765.514 732.914 Manner of executing anatomical 6 gifts.-- 7 (1) A gift of all or part of the body under s. 8 765.512(1) 732.912(1) may be made by will. The gift becomes 9 effective upon the death of the testator without waiting for 10 probate. If the will is not probated or if it is declared 11 invalid for testamentary purposes, the gift is nevertheless 12 valid to the extent that it has been acted upon in good faith. 13 (2)(a) A gift of all or part of the body under s. 14 765.512(1) 732.912(1) may also be made by a document other 15 than a will. The gift becomes effective upon the death of the 16 donor. The document must be signed by the donor in the 17 presence of two witnesses who shall sign the document in the 18 donor's presence. If the donor cannot sign, the document may 19 be signed for him or her at the donor's direction and in his 20 or her presence and the presence of two witnesses who must 21 sign the document in the donor's presence. Delivery of the 22 document of gift during the donor's lifetime is not necessary 23 to make the gift valid. 24 (b) The following form of written instrument shall be 25 sufficient for any person to give all or part of his or her 26 body for the purposes of this part: 27 28 UNIFORM DONOR CARD 29 30 The undersigned hereby makes this anatomical gift, if 31 medically acceptable, to take effect on death. The words and 60 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 marks below indicate my desires: 2 I give: 3 (a) .... any needed organs or parts; 4 (b) .... only the following organs or parts 5 ...[Specify the organ(s) or part(s)]... 6 for the purpose of transplantation, therapy, medical research, 7 or education; 8 (c) .... my body for anatomical study if needed. 9 Limitations or special wishes, if any: 10 ...(If applicable, list specific donee)... 11 12 Signed by the donor and the following witnesses in the 13 presence of each other: 14 15 ...(Signature of donor)... ...(Date of birth of donor)... 16 ...(Date signed)... ...(City and State)... 17 18 ...(Witness)... ...(Witness)... 19 ...(Address)... ...(Address)... 20 21 (3) The gift may be made to a donee specified by name. 22 If the donee is not specified by name, the gift may be 23 accepted by the attending physician as donee upon or following 24 the donor's death. If the gift is made to a specified donee 25 who is not available at the time and place of death, the 26 attending physician may accept the gift as donee upon or 27 following death in the absence of any expressed indication 28 that the donor desired otherwise. However, the Legislature 29 declares that the public policy of this state prohibits 30 restrictions on the possible recipients of an anatomical gift 31 on the basis of race, color, religion, sex, national origin, 61 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 age, physical handicap, health status, marital status, or 2 economic status, and such restrictions are hereby declared 3 void and unenforceable. The physician who becomes a donee 4 under this subsection shall not participate in the procedures 5 for removing or transplanting a part. 6 (4) Notwithstanding s. 765.517(2) 732.917(2), the 7 donor may designate in his or her will or other document of 8 gift the surgeon or physician to carry out the appropriate 9 procedures. In the absence of a designation or if the 10 designee is not available, the donee or other person 11 authorized to accept the gift may employ or authorize any 12 surgeon or physician for the purpose. 13 (5) Any gift by a member of a class designated in s. 14 765.512(3) 732.912(3) must be made by a document signed by 15 that person or made by that person's witnessed telephonic 16 discussion, telegraphic message, or other recorded message. 17 Section 65. Section 732.915, Florida Statutes, is 18 renumbered as section 765.515, Florida Statutes, and amended 19 to read: 20 765.515 732.915 Delivery of document; organ and tissue 21 donor registry.-- 22 (1) If a gift is made through the program established 23 by the Agency for Health Care Administration and the 24 Department of Highway Safety and Motor Vehicles under the 25 authority of s. 765.521 732.921, the completed donor 26 registration card shall be delivered to the Department of 27 Highway Safety and Motor Vehicles and processed in a manner 28 specified in subsection (4), but delivery is not necessary to 29 the validity of the gift. If the donor withdraws the gift, the 30 records of the Department of Highway Safety and Motor Vehicles 31 shall be updated to reflect such withdrawal. 62 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 (2) If a gift is not made through the program 2 established by the Agency for Health Care Administration and 3 the Department of Highway Safety and Motor Vehicles under the 4 authority of s. 765.521 732.921 and is made by the donor to a 5 specified donee, the document, other than a will, may be 6 delivered to the donee to expedite the appropriate procedures 7 immediately after death, but delivery is not necessary to the 8 validity of the gift. Such document may be deposited in any 9 hospital, bank, storage facility, or registry office that 10 accepts such documents for safekeeping or for facilitation of 11 procedures after death. 12 (3) On the request of any interested party upon or 13 after the donor's death, the person in possession shall 14 produce the document for examination. 15 (4) The Agency for Health Care Administration and the 16 Department of Highway Safety and Motor Vehicles shall develop 17 and implement an organ and tissue donor registry which shall 18 record, through electronic means, organ and tissue donation 19 documents submitted through the driver license identification 20 program or by other sources. The registry shall be maintained 21 in a manner which will allow, through electronic and 22 telephonic methods, immediate access to organ and tissue 23 donation documents 24 hours a day, 7 days a week. Hospitals, 24 organ and tissue procurement agencies, and other parties 25 identified by the agency by rule shall be allowed access 26 through coded means to the information stored in the registry. 27 Costs for the organ and tissue donor registry shall be paid 28 from the Florida Organ and Tissue Donor Education and 29 Procurement Trust Fund created by s. 765.52155 732.92155. 30 Funds deposited into the Florida Organ and Tissue Donor 31 Education and Procurement Trust Fund shall be utilized by the 63 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 Agency for Health Care Administration for maintaining the 2 organ and tissue donor registry and for organ and tissue donor 3 education. 4 Section 66. Section 732.916, Florida Statutes, is 5 renumbered as section 765.516, Florida Statutes. 6 Section 67. Section 732.917, Florida Statutes, is 7 renumbered as section 765.517, Florida Statutes, and amended 8 to read: 9 765.517 732.917 Rights and duties at death.-- 10 (1) The donee, as specified under the provisions of s. 11 765.515(2) 732.915(2), may accept or reject the gift. If the 12 donee accepts a gift of the entire body or a part of the body 13 to be used for scientific purposes other than a transplant, 14 the donee may authorize embalming and the use of the body in 15 funeral services, subject to the terms of the gift. If the 16 gift is of a part of the body, the donee shall cause the part 17 to be removed without unnecessary mutilation upon the death of 18 the donor and before or after embalming. After removal of the 19 part, custody of the remainder of the body vests in the 20 surviving spouse, next of kin, or other persons under 21 obligation to dispose of the body. 22 (2) The time of death shall be determined by a 23 physician who attends the donor at the donor's death or, if 24 there is no such physician, the physician who certifies the 25 death. After death and in the absence of other qualified 26 personnel, this physician may participate in, but shall not 27 obstruct, the procedures to preserve the donor's organs or 28 tissues and shall not be paid or reimbursed by, nor be 29 associated with or employed by, an organ procurement 30 organization, tissue bank, or eye bank. This physician shall 31 not participate in the procedures for removing or 64 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 transplanting a part. 2 (3) The organ procurement organization, tissue bank, 3 or eye bank, or hospital medical professionals under the 4 direction thereof, may perform any and all tests to evaluate 5 the deceased as a potential donor and any invasive procedures 6 on the deceased body in order to preserve the potential 7 donor's organs. These procedures do not include the surgical 8 removal of an organ or penetrating any body cavity, 9 specifically for the purpose of donation, until a properly 10 executed donor card or document is located or, if a properly 11 executed donor card or document cannot be located, a person 12 specified in s. 765.512(3) 732.912(3) has been located, has 13 been notified of the death, and has granted legal permission 14 for the donation. 15 (4) All reasonable additional expenses incurred in the 16 procedures to preserve the donor's organs or tissues shall be 17 reimbursed by the organ procurement organization, tissue bank, 18 or eye bank. 19 (5) A person who acts in good faith and without 20 negligence in accord with the terms of this part or under the 21 anatomical gift laws of another state or a foreign country is 22 not liable for damages in any civil action or subject to 23 prosecution for his or her acts in any criminal proceeding. 24 (6) The provisions of this part are subject to the 25 laws of this state prescribing powers and duties with respect 26 to autopsies. 27 Section 68. Section 732.918, Florida Statutes, is 28 renumbered as section 765.518, Florida Statutes. 29 Section 69. Section 732.9185, Florida Statutes, is 30 renumbered as section 765.5185, Florida Statutes. 31 Section 70. Section 732.919, Florida Statutes, is 65 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 renumbered as section 765.519, Florida Statutes. 2 Section 71. Section 732.921, Florida Statutes, is 3 renumbered as section 765.521, Florida Statutes, and amended 4 to read: 5 765.521 732.921 Donations as part of driver license or 6 identification card process.-- 7 (1) The Agency for Health Care Administration and the 8 Department of Highway Safety and Motor Vehicles shall develop 9 and implement a program encouraging and allowing persons to 10 make anatomical gifts as a part of the process of issuing 11 identification cards and issuing and renewing driver licenses. 12 The donor registration card distributed by the Department of 13 Highway Safety and Motor Vehicles shall include the material 14 specified by s. 765.514(2)(b) 732.914(2)(b) and may require 15 such additional information, and include such additional 16 material, as may be deemed necessary by that department. The 17 Department of Highway Safety and Motor Vehicles shall also 18 develop and implement a program to identify donors, which 19 program shall include notations on identification cards, 20 driver licenses, and driver records or such other methods as 21 the department may develop. This program shall include, after 22 an individual has completed a donor registration card, making 23 a notation on the front of the driver license or 24 identification card that clearly indicates the individual's 25 intent to donate the individual's organs or tissue. A notation 26 on an individual's driver license or identification card that 27 the individual intends to donate organs or tissues is deemed 28 sufficient to satisfy all requirements for consent to organ or 29 tissue donation. The Agency for Health Care Administration 30 shall provide the necessary supplies and forms through funds 31 appropriated from general revenue or contributions from 66 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 interested voluntary, nonprofit organizations. The Department 2 of Highway Safety and Motor Vehicles shall provide the 3 necessary recordkeeping system through funds appropriated from 4 general revenue. The Department of Highway Safety and Motor 5 Vehicles and the Agency for Health Care Administration shall 6 incur no liability in connection with the performance of any 7 acts authorized herein. 8 (2) The Department of Highway Safety and Motor 9 Vehicles, after consultation with and concurrence by the 10 Agency for Health Care Administration, shall adopt rules to 11 implement the provisions of this section according to the 12 provisions of chapter 120. 13 (3) Funds expended by the Agency for Health Care 14 Administration to carry out the intent of this section shall 15 not be taken from any funds appropriated for patient care. 16 Section 72. Section 732.9215, Florida Statutes, is 17 renumbered as section 765.5215, Florida Statutes. 18 Section 73. Section 732.92155, Florida Statutes, is 19 renumbered as section 765.52155, Florida Statutes. 20 Section 74. Section 732.9216, Florida Statutes, is 21 renumbered as section 765.5216, Florida Statutes. 22 Section 75. Section 732.922, Florida Statutes, is 23 renumbered as section 765.522, Florida Statutes, and amended 24 to read: 25 765.522 732.922 Duty of certain hospital 26 administrators; liability of hospital administrators, organ 27 procurement organizations, eye banks, and tissue banks.-- 28 (1) When used in this section, "hospital" means any 29 establishment licensed under chapter 395 except psychiatric 30 and rehabilitation hospitals. 31 (2) Where, based on accepted medical standards, a 67 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 hospital patient is a suitable candidate for organ or tissue 2 donation, the hospital administrator or the hospital 3 administrator's designee shall, at or near the time of death, 4 access the organ and tissue donor registry created by s. 5 765.515(4) 732.915(4) to ascertain the existence of a donor 6 card or document executed by the decedent. In the absence of a 7 donor card, organ donation sticker or organ donation imprint 8 on a driver's license, or other properly executed document, 9 the hospital administrator or designee shall request: 10 (a) The patient's health care surrogate, as permitted 11 in s. 765.512(2) 732.912(2); or 12 (b) If the patient does not have a surrogate, or the 13 surrogate is not reasonably available, any of the persons 14 specified in s. 765.512(3) 732.912(3), in the order and manner 15 of priority stated in s. 765.512(3) 732.912(3), 16 17 to consent to the gift of all or any part of the decedent's 18 body for any purpose specified in this part. Except as 19 provided in s. 765.512 732.912, in the absence of actual 20 notice of opposition, consent need only be obtained from the 21 person or persons in the highest priority class reasonably 22 available. 23 (3) A gift made pursuant to a request required by this 24 section shall be executed pursuant to s. 765.514 732.914. 25 (4) The Agency for Health Care Administration shall 26 establish rules and guidelines concerning the education of 27 individuals who may be designated to perform the request and 28 the procedures to be used in making the request. The agency 29 is authorized to adopt rules concerning the documentation of 30 the request, where such request is made. 31 (5) There shall be no civil or criminal liability 68 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 against any organ procurement organization, eye bank, or 2 tissue bank certified under s. 381.6022, or against any 3 hospital or hospital administrator or designee, when complying 4 with the provisions of this part and the rules of the Agency 5 for Health Care Administration or when, in the exercise of 6 reasonable care, a request for organ donation is inappropriate 7 and the gift is not made according to this part and the rules 8 of the Agency for Health Care Administration. 9 (6) The hospital administrator or a designee shall, at 10 or near the time of death of a potential organ donor, directly 11 notify the affiliated Health Care Financing Administration 12 designated organ procurement organization of the potential 13 organ donor. This organ procurement organization must offer 14 any organ from such a donor first to patients on a 15 Florida-based local or state organ sharing transplant list. 16 For the purpose of this subsection, the term "transplant list" 17 includes certain categories of national or regional organ 18 sharing for patients of exceptional need or exceptional match, 19 as approved or mandated by the United Network for Organ 20 Sharing. This notification must not be made to a tissue bank 21 or eye bank in lieu of the organ procurement organization 22 unless the tissue bank or eye bank is also a Health Care 23 Financing Administration designated organ procurement 24 organization. 25 Section 76. Paragraph (h) of subsection (3) of section 26 381.004, Florida Statutes, is amended to read: 27 381.004 HIV testing.-- 28 (3) HUMAN IMMUNODEFICIENCY VIRUS TESTING; INFORMED 29 CONSENT; RESULTS; COUNSELING; CONFIDENTIALITY.-- 30 (h) Notwithstanding the provisions of paragraph (a), 31 informed consent is not required: 69 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 1. When testing for sexually transmissible diseases is 2 required by state or federal law, or by rule including the 3 following situations: 4 a. HIV testing pursuant to s. 796.08 of persons 5 convicted of prostitution or of procuring another to commit 6 prostitution. 7 b. Testing for HIV by a medical examiner in accordance 8 with s. 406.11. 9 2. Those exceptions provided for blood, plasma, 10 organs, skin, semen, or other human tissue pursuant to s. 11 381.0041. 12 3. For the performance of an HIV-related test by 13 licensed medical personnel in bona fide medical emergencies 14 when the test results are necessary for medical diagnostic 15 purposes to provide appropriate emergency care or treatment to 16 the person being tested and the patient is unable to consent, 17 as supported by documentation in the medical record. 18 Notification of test results in accordance with paragraph (c) 19 is required. 20 4. For the performance of an HIV-related test by 21 licensed medical personnel for medical diagnosis of acute 22 illness where, in the opinion of the attending physician, 23 obtaining informed consent would be detrimental to the 24 patient, as supported by documentation in the medical record, 25 and the test results are necessary for medical diagnostic 26 purposes to provide appropriate care or treatment to the 27 person being tested. Notification of test results in 28 accordance with paragraph (c) is required if it would not be 29 detrimental to the patient. This subparagraph does not 30 authorize the routine testing of patients for HIV infection 31 without informed consent. 70 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 5. When HIV testing is performed as part of an autopsy 2 for which consent was obtained pursuant to s. 872.04. 3 6. For the performance of an HIV test upon a defendant 4 pursuant to the victim's request in a prosecution for any type 5 of sexual battery where a blood sample is taken from the 6 defendant voluntarily, pursuant to court order for any 7 purpose, or pursuant to the provisions of s. 775.0877, s. 8 951.27, or s. 960.003; however, the results of any HIV test 9 performed shall be disclosed solely to the victim and the 10 defendant, except as provided in ss. 775.0877, 951.27, and 11 960.003. 12 7. When an HIV test is mandated by court order. 13 8. For epidemiological research pursuant to s. 14 381.0032, for research consistent with institutional review 15 boards created by 45 C.F.R. part 46, or for the performance of 16 an HIV-related test for the purpose of research, if the 17 testing is performed in a manner by which the identity of the 18 test subject is not known and may not be retrieved by the 19 researcher. 20 9. When human tissue is collected lawfully without the 21 consent of the donor for corneal removal as authorized by s. 22 765.5185 732.9185 or enucleation of the eyes as authorized by 23 s. 765.519 732.919. 24 10. For the performance of an HIV test upon an 25 individual who comes into contact with medical personnel in 26 such a way that a significant exposure has occurred during the 27 course of employment or within the scope of practice and where 28 a blood sample is available that was taken from that 29 individual voluntarily by medical personnel for other 30 purposes. The term "medical personnel" includes a licensed or 31 certified health care professional; an employee of a health 71 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 care professional or health care facility; employees of a 2 laboratory licensed under chapter 483; personnel of a blood 3 bank or plasma center; a medical student or other student who 4 is receiving training as a health care professional at a 5 health care facility; and a paramedic or emergency medical 6 technician certified by the department to perform life-support 7 procedures under s. 401.23. 8 a. Prior to performance of an HIV test on a 9 voluntarily obtained blood sample, the individual from whom 10 the blood was obtained shall be requested to consent to the 11 performance of the test and to the release of the results. 12 The individual's refusal to consent and all information 13 concerning the performance of an HIV test and any HIV test 14 result shall be documented only in the medical personnel's 15 record unless the individual gives written consent to entering 16 this information on the individual's medical record. 17 b. Reasonable attempts to locate the individual and to 18 obtain consent shall be made and all attempts must be 19 documented. If the individual cannot be found, an HIV test may 20 be conducted on the available blood sample. If the individual 21 does not voluntarily consent to the performance of an HIV 22 test, the individual shall be informed that an HIV test will 23 be performed, and counseling shall be furnished as provided in 24 this section. However, HIV testing shall be conducted only 25 after a licensed physician documents, in the medical record of 26 the medical personnel, that there has been a significant 27 exposure and that, in the physician's medical judgment, the 28 information is medically necessary to determine the course of 29 treatment for the medical personnel. 30 c. Costs of any HIV test of a blood sample performed 31 with or without the consent of the individual, as provided in 72 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 this subparagraph, shall be borne by the medical personnel or 2 the employer of the medical personnel. However, costs of 3 testing or treatment not directly related to the initial HIV 4 tests or costs of subsequent testing or treatment shall not be 5 borne by the medical personnel or the employer of the medical 6 personnel. 7 d. In order to utilize the provisions of this 8 subparagraph, the medical personnel must either be tested for 9 HIV pursuant to this section or provide the results of an HIV 10 test taken within 6 months prior to the significant exposure 11 if such test results are negative. 12 e. A person who receives the results of an HIV test 13 pursuant to this subparagraph shall maintain the 14 confidentiality of the information received and of the persons 15 tested. Such confidential information is exempt from s. 16 119.07(1). 17 f. If the source of the exposure will not voluntarily 18 submit to HIV testing and a blood sample is not available, the 19 medical personnel or the employer of such person acting on 20 behalf of the employee may seek a court order directing the 21 source of the exposure to submit to HIV testing. A sworn 22 statement by a physician licensed under chapter 458 or chapter 23 459 that a significant exposure has occurred and that, in the 24 physician's medical judgment, testing is medically necessary 25 to determine the course of treatment constitutes probable 26 cause for the issuance of an order by the court. The results 27 of the test shall be released to the source of the exposure 28 and to the person who experienced the exposure. 29 11. For the performance of an HIV test upon an 30 individual who comes into contact with medical personnel in 31 such a way that a significant exposure has occurred during the 73 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 course of employment or within the scope of practice of the 2 medical personnel while the medical personnel provides 3 emergency medical treatment to the individual; or who comes 4 into contact with nonmedical personnel in such a way that a 5 significant exposure has occurred while the nonmedical 6 personnel provides emergency medical assistance during a 7 medical emergency. For the purposes of this subparagraph, a 8 medical emergency means an emergency medical condition outside 9 of a hospital or health care facility that provides physician 10 care. The test may be performed only during the course of 11 treatment for the medical emergency. 12 a. An individual who is capable of providing consent 13 shall be requested to consent to an HIV test prior to the 14 testing. The individual's refusal to consent, and all 15 information concerning the performance of an HIV test and its 16 result, shall be documented only in the medical personnel's 17 record unless the individual gives written consent to entering 18 this information on the individual's medical record. 19 b. HIV testing shall be conducted only after a 20 licensed physician documents, in the medical record of the 21 medical personnel or nonmedical personnel, that there has been 22 a significant exposure and that, in the physician's medical 23 judgment, the information is medically necessary to determine 24 the course of treatment for the medical personnel or 25 nonmedical personnel. 26 c. Costs of any HIV test performed with or without the 27 consent of the individual, as provided in this subparagraph, 28 shall be borne by the medical personnel or the employer of the 29 medical personnel or nonmedical personnel. However, costs of 30 testing or treatment not directly related to the initial HIV 31 tests or costs of subsequent testing or treatment shall not be 74 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 borne by the medical personnel or the employer of the medical 2 personnel or nonmedical personnel. 3 d. In order to utilize the provisions of this 4 subparagraph, the medical personnel or nonmedical personnel 5 shall be tested for HIV pursuant to this section or shall 6 provide the results of an HIV test taken within 6 months prior 7 to the significant exposure if such test results are negative. 8 e. A person who receives the results of an HIV test 9 pursuant to this subparagraph shall maintain the 10 confidentiality of the information received and of the persons 11 tested. Such confidential information is exempt from s. 12 119.07(1). 13 f. If the source of the exposure will not voluntarily 14 submit to HIV testing and a blood sample was not obtained 15 during treatment for the medical emergency, the medical 16 personnel, the employer of the medical personnel acting on 17 behalf of the employee, or the nonmedical personnel may seek a 18 court order directing the source of the exposure to submit to 19 HIV testing. A sworn statement by a physician licensed under 20 chapter 458 or chapter 459 that a significant exposure has 21 occurred and that, in the physician's medical judgment, 22 testing is medically necessary to determine the course of 23 treatment constitutes probable cause for the issuance of an 24 order by the court. The results of the test shall be released 25 to the source of the exposure and to the person who 26 experienced the exposure. 27 12. For the performance of an HIV test by the medical 28 examiner or attending physician upon an individual who expired 29 or could not be resuscitated while receiving emergency medical 30 assistance or care and who was the source of a significant 31 exposure to medical or nonmedical personnel providing such 75 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 assistance or care. 2 a. HIV testing may be conducted only after a licensed 3 physician documents in the medical record of the medical 4 personnel or nonmedical personnel that there has been a 5 significant exposure and that, in the physician's medical 6 judgment, the information is medically necessary to determine 7 the course of treatment for the medical personnel or 8 nonmedical personnel. 9 b. Costs of any HIV test performed under this 10 subparagraph may not be charged to the deceased or to the 11 family of the deceased person. 12 c. For the provisions of this subparagraph to be 13 applicable, the medical personnel or nonmedical personnel must 14 be tested for HIV under this section or must provide the 15 results of an HIV test taken within 6 months before the 16 significant exposure if such test results are negative. 17 d. A person who receives the results of an HIV test 18 pursuant to this subparagraph shall comply with paragraph (e). 19 13. For the performance of an HIV-related test 20 medically indicated by licensed medical personnel for medical 21 diagnosis of a hospitalized infant as necessary to provide 22 appropriate care and treatment of the infant when, after a 23 reasonable attempt, a parent cannot be contacted to provide 24 consent. The medical records of the infant shall reflect the 25 reason consent of the parent was not initially obtained. Test 26 results shall be provided to the parent when the parent is 27 located. 28 14. For the performance of HIV testing conducted to 29 monitor the clinical progress of a patient previously 30 diagnosed to be HIV positive. 31 15. For the performance of repeated HIV testing 76 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 conducted to monitor possible conversion from a significant 2 exposure. 3 Section 77. Paragraph (c) of subsection (2) of section 4 381.0041, Florida Statutes, is amended to read: 5 381.0041 Donation and transfer of human tissue; 6 testing requirements.-- 7 (2) Notwithstanding the provisions of subsection (1), 8 written, informed consent to perform testing shall not be 9 required: 10 (c) When an unrevoked anatomical gift has been made 11 pursuant to s. 765.514 732.914, by will or other written 12 instrument, and the donor is deceased or incompetent. 13 Section 78. Section 733.101, Florida Statutes, is 14 amended to read: 15 733.101 Venue of probate proceedings.-- 16 (1) The venue for of probate of all wills and granting 17 of letters shall be: 18 (a) In the county in this state where the decedent was 19 domiciled had his or her domicile. 20 (b) If the decedent had no domicile in this state, 21 then in any county where the decedent's decedent was possessed 22 of any property is located. 23 (c) If the decedent had no domicile in this state and 24 possessed no property in this state, then in the county where 25 any debtor of the decedent resides. 26 (2) For the purpose of this section, a married woman 27 whose husband is an alien or a nonresident of Florida may 28 establish or designate a separate domicile in this state. 29 (3) Whenever a When any proceeding is filed laying 30 venue in an improper the wrong county, the court may transfer 31 the action in the same manner as provided in the Florida Rules 77 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 of Civil Procedure. Any action taken by the court or the 2 parties before the transfer is not affected by because of the 3 improper venue. 4 Section 79. Subsection (2) of section 733.103, Florida 5 Statutes, is amended to read: 6 733.103 Effect of probate.-- 7 (2) In any collateral action or proceeding relating to 8 devised property, the probate of a will in Florida shall be 9 conclusive of its due execution; that it was executed by a 10 competent testator, free of fraud, duress, mistake, and undue 11 influence; and of the fact that the will was unrevoked on the 12 testator's death. 13 Section 80. Section 733.104, Florida Statutes, is 14 amended to read: 15 733.104 Suspension of statutes of limitation in favor 16 of the personal representative.-- 17 (1) If a person entitled to bring an action dies 18 before the expiration of the time limited for the commencement 19 of the action and the cause of action survives, the action may 20 be commenced by that person's his or her personal 21 representative before the later of the expiration of the time 22 limited for the commencement of the action or 12 months after 23 the expiration and within 12 months from the date of the 24 decedent's death. 25 (2) If a person against whom a cause of action exists 26 dies before the expiration of the time limited for 27 commencement of the action and the cause of action survives, 28 if a claim is timely filed shall be filed on the cause of 29 action, and it shall then proceed as other claims against the 30 estate, notwithstanding the expiration of the time limited for 31 commencement of the action shall not apply. 78 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 Section 81. Section 733.105, Florida Statutes, is 2 amended to read: 3 733.105 Determination of beneficiaries.-- 4 (1) When property passes by intestate succession or 5 under a will to a person not sufficiently identified in the 6 will is unclear and there is the personal representative is in 7 doubt about: 8 (a) Who is entitled to receive any part of the 9 property it or part of it, or 10 (b) The shares and amounts that any person is entitled 11 to receive, 12 13 any interested person the personal representative may petition 14 the court to determine beneficiaries or their shares file a 15 petition setting forth the names, residences, and post office 16 addresses of all persons in interest, except creditors of the 17 decedent, so far as known or ascertainable by diligent search 18 and inquiry, and the nature of their respective interests, 19 designating those who are believed by the personal 20 representative to be minors or incompetents and stating 21 whether those so designated are under legal guardianship in 22 this state. If the personal representative believes that 23 there are, or may be, persons whose names are not known to him 24 or her who have claims against, or interest in, the estate as 25 heirs or devisees, the petition shall so state. 26 (2) After formal notice and hearing, the court shall 27 enter an order determining the heirs or devisees or the shares 28 and amounts they are entitled to receive, or both. Any 29 personal representative who makes distribution or takes any 30 other action pursuant to an the order determining 31 beneficiaries shall be fully protected. 79 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 (3) When it is necessary to determine who are or were 2 the heirs or devisees, the court may make a determination, on 3 the petition of any interested person, in like proceedings and 4 after formal notice, irrespective of whether the estate of the 5 deceased person is administered or, if administered, whether 6 the administration of the estate has been closed or the 7 personal representative discharged. A separate civil action 8 to determine beneficiaries may be brought under this 9 subsection when an estate has not been is not being 10 administered. 11 Section 82. Subsections (2), (3), and (4) of section 12 733.106, Florida Statutes, are amended to read: 13 733.106 Costs and attorney's attorney fees.-- 14 (2) A person nominated as personal representative of 15 the last known will, or any proponent of a the will if the 16 person so nominated does not act within a reasonable time, if 17 in good faith justified in offering the will in due form for 18 probate, shall receive his or her costs and attorney's 19 attorney fees from out of the estate even though probate is 20 denied or revoked he or she is unsuccessful. 21 (3) Any attorney who has rendered services to an 22 estate may be awarded reasonable compensation from the estate 23 apply for an order awarding attorney fees, and after informal 24 notice to the personal representative and all persons bearing 25 the impact of the payment the court shall enter its order on 26 the petition. 27 (4) When costs and attorney's attorney fees are to be 28 paid from out of the estate, the court may, in its discretion, 29 direct from what part of the estate they shall be paid. 30 Section 83. Section 733.107, Florida Statutes, is 31 amended to read: 80 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 733.107 Burden of proof in contests.--In all 2 proceedings contesting the validity of a will, the burden 3 shall be upon the proponent of the will to establish prima 4 facie its formal execution and attestation. Thereafter, the 5 contestant shall have the burden of establishing the grounds 6 on which the probate of the will is opposed or revocation is 7 sought. 8 Section 84. Section 733.109, Florida Statutes, is 9 amended to read: 10 733.109 Revocation of probate.-- 11 (1) A proceeding to revoke the probate of a will shall 12 be brought in the court having jurisdiction over the 13 administration. Any interested person, including a beneficiary 14 under a prior will, unless except those barred under s. 15 733.212 or s. 733.2123, may commence the proceeding, before 16 final discharge of the personal representative, petition the 17 court in which the will was admitted to probate for revocation 18 of probate. 19 (a) The petition shall state the interest of the 20 petitioner and the grounds for revocation. 21 (b) The petition shall be served upon the personal 22 representative and all interested persons by formal notice, 23 and thereafter proceedings shall be conducted as an adversary 24 proceeding under the rules of civil procedure. 25 (2) Pending the determination of any petition for 26 revocation of probate, the personal representative shall 27 proceed with the administration of the estate as if no 28 revocation proceeding had been commenced, except that no 29 distribution may be made to beneficiaries devisees in 30 contravention of the rights of those who, but for the will, 31 would be entitled to the property disposed of. 81 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 (3) Revocation of probate of a will shall not affect 2 or impair the title to the property theretofore purchased in 3 good faith for value from the personal representative prior to 4 an order of revocation. 5 Section 85. Subsection (3) of section 733.201, Florida 6 Statutes, is amended to read: 7 733.201 Proof of wills.-- 8 (3) If it appears to the court that the attesting 9 witnesses cannot be found or that they have become incompetent 10 after the execution of the will or their testimony cannot be 11 obtained within a reasonable time, a will may be admitted to 12 probate upon the oath of the personal representative nominated 13 by the will as provided in subsection (2), whether or not the 14 nominated personal representative he or she is interested in 15 the estate, or upon the oath of any person having no interest 16 in the estate under the will stating, that the person he or 17 she believes the writing exhibited to be the true last will of 18 the decedent. 19 Section 86. Section 733.202, Florida Statutes, is 20 amended to read: 21 733.202 Petition.--Any interested person may petition 22 for administration. 23 (1) A verified petition for administration may be 24 filed by any interested person. 25 (2) The petition for administration shall contain: 26 (a) A statement of the interest of the petitioner, the 27 petitioner's name and address, and the name and office address 28 of his or her attorney. 29 (b) The name, last known address, social security 30 number, and date and place of death of the decedent and the 31 state and county of the decedent's domicile. 82 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 (c) So far as is known, the names and addresses of the 2 beneficiaries and the dates of birth of any who are minors. 3 (d) A statement showing venue. 4 (e) The priority under part III of the person whose 5 appointment as the personal representative is sought. 6 (f) A statement of the approximate value and nature of 7 the assets so the clerk can ascertain the amount of the filing 8 fee and the court can determine the amount of any bond 9 authorized by this code. 10 (3) If the decedent was a nonresident of this state, 11 the petition shall state whether domiciliary proceedings are 12 pending in another state or country, if known, and, if so, the 13 name and address of the foreign personal representative and 14 the court issuing letters. 15 (4) In an intestate estate, the petition shall: 16 (a) State that after the exercise of reasonable 17 diligence the petitioner is unaware of any unrevoked wills or 18 codicils or, if the petitioner is aware of any unrevoked wills 19 or codicils, why the wills or codicils are not being probated, 20 or 21 (b) Otherwise give the facts concerning the will or 22 codicil. 23 (5) In a testate estate, the petition shall: 24 (a) Identify all unrevoked wills and codicils being 25 presented for probate. 26 (b) State that the petitioner is unaware of any other 27 unrevoked will or codicil or, if the petitioner is aware of 28 any other unrevoked will or codicil, why the other will or 29 codicil is not being probated. 30 (c) State that the original of the decedent's last 31 will is in the possession of the court or accompanies the 83 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 petition or that an authenticated copy of a will probated in 2 another jurisdiction accompanies the petition. 3 Section 87. Section 733.203, Florida Statutes, is 4 repealed: 5 733.203 Notice; when required.-- 6 (1) If a caveat has been filed by an heir or a devisee 7 under a will other than that being offered for probate, the 8 procedure provided for in s. 733.2123 shall be followed. 9 (2) Except as may otherwise be provided in this part, 10 no notice need be given of the petition for administration or 11 of the order granting letters when it appears that the 12 petitioner is entitled to preference of appointment. Before 13 letters shall be granted to any person who is not entitled to 14 preference, formal notice shall be served on all known persons 15 qualified to act as personal representative and entitled to 16 preference equal to or greater than the applicant, unless 17 those entitled to preference waive it in writing. 18 Section 88. Subsection (2) of section 733.204, Florida 19 Statutes, is amended to read: 20 733.204 Probate of a will written in a foreign 21 language.-- 22 (2) In admitting the will to probate, the court shall 23 establish its correct English translation. If the original 24 will is not or cannot be filed, a photographic copy of the 25 original will shall be filed. At any time during the 26 administration any interested person may have the correctness 27 of the translation, or any part, redetermined after formal 28 notice to all other interested persons. No personal 29 representative who complies in good faith with the English 30 translation of the will as may then be established by the 31 court shall thereafter be held liable for doing as a result of 84 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 having done so. 2 Section 89. Section 733.205, Florida Statutes, is 3 amended to read: 4 733.205 Probate of notarial will.-- 5 (1) When a copy of a notarial will in the possession 6 of a notary entitled to its custody in a foreign state or 7 country, the laws of which state or country require that the 8 will remain in the custody of the such notary, duly 9 authenticated by the notary, whose official position, 10 signature, and seal of office are further authenticated by an 11 American consul, vice consul, or other American consular 12 officer within whose jurisdiction the notary is a resident, is 13 presented to the court, it may be admitted to probate if the 14 original could have been admitted to probate in this state. 15 (2) The duly authenticated copy shall be prima facie 16 evidence of its purported execution and of the facts stated in 17 the certificate in compliance with subsection (1). 18 (3) Any interested person notified may oppose the 19 probate of such a notarial will or may petition for revocation 20 of probate of such a notarial will, as in the case of original 21 probate of a will in this state. 22 Section 90. Subsection (3) of section 733.206, Florida 23 Statutes, is amended to read: 24 733.206 Probate of will of resident after foreign 25 probate.-- 26 (3) Any interested person may oppose the probate of 27 the will, or may petition for revocation of the probate of the 28 will, as in the case of the original probate of a will in this 29 state. 30 Section 91. Section 733.207, Florida Statutes, is 31 amended to read: 85 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 733.207 Establishment and probate of lost or destroyed 2 will.--Any interested person may establish the full and 3 precise terms of a lost or destroyed will and offer the will 4 for probate. 5 (1) The establishment and probate of a lost or 6 destroyed will shall be in one proceeding. The court shall 7 recite, and thereby establish and preserve, the full and 8 precise terms and provisions of the will in the order 9 admitting it to probate. 10 (2) The petition for probate of a lost or destroyed 11 will shall contain a copy of the will or its substance. The 12 testimony of each witness must be reduced to writing and filed 13 and shall be evidence in any contest of the will if the 14 witness has died or moved from the state. 15 (3) No lost or destroyed will shall be admitted to 16 probate unless formal notice has been given to those who, but 17 for the will, would be entitled to the property thereby 18 devised. The specific content of the will must be clearly and 19 distinctly proved by the testimony of two disinterested 20 witnesses, or, if a correct copy is provided, it shall be 21 proved by one disinterested witness. 22 Section 92. Section 733.208, Florida Statutes, is 23 amended to read: 24 733.208 Discovery of later will.--On the discovery of 25 a later will or codicil expressly or impliedly revoking the 26 probated will in whole or in part, pending or during 27 administration, any interested person may petition to revoke 28 the probate of the earlier will or to probate the later will 29 or codicil offer the later will for probate. The proceedings 30 shall be similar to those for revocation of probate. No later 31 will or codicil may be offered after the testate or intestate 86 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 estate has been completely administered and the personal 2 representative discharged closing of the estate. 3 Section 93. Section 733.209, Florida Statutes, is 4 amended to read: 5 733.209 Estates of missing persons.--Any interested 6 person may petition to administer the estate of a missing 7 person; however, no personal representative shall be appointed 8 until the court determines the missing person is dead. The 9 estates of missing persons shall be administered in the same 10 manner as other estates. A petition for administration of the 11 estate shall request entry of an order declaring the death of 12 a missing person prior to appointing a personal representative 13 and commencing administration. 14 Section 94. Section 733.212, Florida Statutes, is 15 amended to read: 16 733.212 Notice of administration; filing of objections 17 and claims.-- 18 (1) The personal representative shall promptly publish 19 a notice of administration. The notice shall contain the name 20 of the decedent, the file number of the estate, the 21 designation and address of the court in which the proceedings 22 are pending, the name and address of the personal 23 representative, and the name and address of the personal 24 representative's attorney and state the date of first 25 publication. The notice shall require all interested persons 26 to file with the court: 27 (a) All claims against the estate within the time 28 periods set forth in s. 733.702, or be forever barred. 29 (b) Any objection by an interested person on whom 30 notice was served that challenges the validity of the will, 31 the qualifications of the personal representative, venue, or 87 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 jurisdiction of the court within the later of 3 months after 2 the date of the first publication of the notice or 30 days 3 after the date of service of a copy of the notice on the 4 objecting person. 5 (2) Publication shall be once a week for 2 consecutive 6 weeks, two publications being sufficient, in a newspaper 7 published in the county where the estate is administered or, 8 if there is no newspaper published in the county, in a 9 newspaper of general circulation in that county. 10 (1)(3) The personal representative shall promptly 11 serve a copy of the notice of administration on the following 12 persons who are known to the personal representative: 13 (a) The decedent's surviving spouse; 14 (b) Beneficiaries; and 15 (c) The trustee of any trust described in s. 16 733.707(3); and, of which the decedent was grantor 17 (d) Persons who may be entitled to exempt property 18 19 in the manner provided for service of formal notice, unless 20 served under s. 733.2123. The personal representative may 21 similarly serve a copy of the notice on any devisees under a 22 known prior will or heirs or others who claim or may claim an 23 interest in the estate. 24 (2) The notice shall state the name of the decedent, 25 the file number of the estate, the designation and address of 26 the court in which the proceedings are pending, whether the 27 estate is testate or intestate, and, if testate, the date of 28 the will and any codicils, the name and address of the 29 personal representative, and the name and address of the 30 personal representative's attorney. The notice shall state 31 that interested persons are required to file with the court 88 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 any objection by an interested person on whom the notice was 2 served that challenges the validity of the will, the 3 qualifications of the personal representative, venue, or 4 jurisdiction of the court within 3 months after the date of 5 service of a copy of the notice of administration on the 6 objecting person. 7 (3) Any interested person on whom a copy of the notice 8 of administration was served must object to the validity of 9 the will, the qualifications of the personal representative, 10 venue, or jurisdiction of the court by filing a petition or 11 other pleading requesting relief in accordance with the 12 Florida Probate Rules within 3 months after the date of 13 service of a copy of the notice of administration on the 14 objecting person or those objections are forever barred. The 15 appointment of a personal representative or a successor 16 personal representative shall not extend or renew the period 17 for filing objections under this section, unless a new will or 18 codicil is admitted. 19 (4)(a) The personal representative shall promptly make 20 a diligent search to determine the names and addresses of 21 creditors of the decedent who are reasonably ascertainable and 22 shall serve on those creditors a copy of the notice within 3 23 months after the first publication of the notice. Under s. 24 409.9101, the Agency for Health Care Administration is 25 considered a reasonably ascertainable creditor in instances 26 where the decedent had received Medicaid assistance for 27 medical care after reaching 55 years of age. Impracticable and 28 extended searches are not required. Service is not required 29 on any creditor who has filed a claim as provided in this 30 part; a creditor whose claim has been paid in full; or a 31 creditor whose claim is listed in a personal representative's 89 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 timely proof of claim if the personal representative notified 2 the creditor of that listing. 3 (4)(b) The personal representative is not individually 4 liable to any person for giving notice under this section 5 subsection, regardless of whether it is later determined that 6 such notice was not required by this section. The service of 7 notice in accordance with this section subsection shall not be 8 construed as conferring any right admitting the validity or 9 enforceability of a claim. 10 (5)(c) If the personal representative in good faith 11 fails to give notice required by this section subsection, the 12 personal representative is not liable to any person for the 13 failure. Liability, if any, for the failure in such a case is 14 on the estate. 15 (5) Objections under paragraph (1)(b), by persons on 16 whom notice was served, that are not filed within the later of 17 3 months after the date of first publication of the notice or 18 30 days after the date of service of a copy of the notice on 19 the objecting person are forever barred. 20 (6) If a will or codicil is subsequently admitted to 21 probate, the personal representative shall promptly serve a 22 copy of a new notice of administration as required for an 23 initial will admission. Claims under paragraph (1)(a) are 24 barred as provided in s. 733.702. 25 Section 95. Section 733.2121, Florida Statutes, is 26 created to read: 27 733.2121 Notice to creditors; filing of claims.-- 28 (1) Unless creditors' claims are otherwise barred by 29 s. 733.710, the personal representative shall promptly publish 30 a notice to creditors. The notice shall contain the name of 31 the decedent, the file number of the estate, the designation 90 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 and address of the court in which the proceedings are pending, 2 the name and address of the personal representative, the name 3 and address of the personal representative's attorney, and the 4 date of first publication. The notice shall state that 5 creditors must file claims against the estate with the court 6 within the time periods set forth in ss. 733.702 and 733.710, 7 or be forever barred. 8 (2) Publication shall be once a week for 2 consecutive 9 weeks, in a newspaper published in the county where the estate 10 is administered or, if there is no newspaper published in the 11 county, in a newspaper of general circulation in that county. 12 (3)(a) The personal representative shall promptly make 13 a diligent search to determine the names and addresses of 14 creditors of the decedent who are reasonably ascertainable, 15 even if the claims are unmatured, contingent, or unliquidated, 16 and shall promptly serve a copy of the notice on those 17 creditors. Impracticable and extended searches are not 18 required. Service is not required on any creditor who has 19 filed a claim as provided in this part, whose claim has been 20 paid in full, or whose claim is listed in a personal 21 representative's timely filed proof of claim. 22 (b) The personal representative is not individually 23 liable to any person for giving notice under this section, 24 even if it is later determined that notice was not required. 25 The service of notice to creditors in accordance with this 26 section shall not be construed as admitting the validity or 27 enforceability of a claim. 28 (c) If the personal representative in good faith fails 29 to give notice required by this section, the personal 30 representative is not liable to any person for the failure. 31 Liability, if any, for the failure is on the estate. 91 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 (d) If a decedent at the time of death was 55 years of 2 age or older, the personal representative shall promptly serve 3 a copy of the notice to creditors on the Agency for Health 4 Care Administration within 3 months after the first 5 publication of the notice to creditors, unless the agency has 6 already filed a statement of claim in the estate proceedings. 7 (e) If the Department of Revenue has not previously 8 been served with a copy of the notice to creditors, then 9 service of the inventory on the Department of Revenue shall be 10 the equivalent of service of a copy of the notice to 11 creditors. 12 (4) Claims are barred as provided in ss. 733.702 and 13 733.710. 14 Section 96. Section 733.2123, Florida Statutes, is 15 amended to read: 16 733.2123 Adjudication before issuance of letters.--A 17 petitioner may serve formal notice of the his or her petition 18 for administration on interested persons. A copy of the will 19 offered for proposed to be admitted to probate shall be 20 attached to the notice. No person who is served with formal 21 notice of the petition for administration prior to the 22 issuance of letters or who has waived notice may challenge the 23 validity of the will, testacy of the decedent, qualifications 24 of the personal representative, venue, or jurisdiction of the 25 court, except in connection with the proceedings before 26 issuance of letters. 27 Section 97. Section 733.213, Florida Statutes, is 28 amended to read: 29 733.213 Probate as prerequisite to judicial petition 30 for construction of will.--A will may not be construed until 31 it has been admitted to probate No pleading seeking 92 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 construction of a will may be maintained until the will has 2 first been probated. 3 Section 98. Section 733.301, Florida Statutes, is 4 amended to read: 5 733.301 Preference in appointment of personal 6 representative.-- 7 (1) In the granting of letters of administration, the 8 following order of preference preferences shall be observed: 9 (a)(1) In testate estates: 10 1.(a) The personal representative, or his or her 11 successor, nominated by the will or pursuant to a power 12 conferred in the will. 13 2.(b) The person selected by a majority in interest of 14 the persons entitled to the estate. 15 3.(c) A devisee under the will. If more than one 16 devisee applies, the court may select exercise its discretion 17 in selecting the one best qualified. 18 (b)(2) In intestate estates: 19 1.(a) The surviving spouse. 20 2.(b) The person selected by a majority in interest of 21 the heirs. 22 3.(c) The heir nearest in degree. If more than one 23 applies, the court may select exercise its discretion in 24 selecting the one best qualified for the office. 25 (2)(3) A guardian of the property of a ward who if 26 competent would be entitled to appointment as, or to select, 27 the a personal representative may exercise the right to select 28 the personal representative. 29 (3)(4) In either a testate or an intestate estate, if 30 no application is made by any of the persons described named 31 in subsection (1) or subsection (2), the court shall appoint a 93 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 capable person; but no person may be appointed under this 2 subsection: 3 (a) Who works for, or holds public office under, the 4 court. 5 (b) Who is employed by, or holds office under, any 6 judge exercising probate jurisdiction. 7 (4)(5) After letters have been granted in either a 8 testate or an intestate estate, if a person who was entitled 9 to, and has not waived, preference over the person appointed 10 at the time of the his or her appointment and on whom formal 11 notice was not served seeks the appointment, the letters 12 granted may be revoked and the person entitled to preference 13 may have letters granted to him or her after formal notice and 14 hearing. 15 (5)(6) After letters have been granted in either a 16 testate or an intestate estate, if any will is subsequently 17 admitted to probate the letters shall be revoked and new 18 letters granted as provided in subsection (1). 19 Section 99. Section 733.302, Florida Statutes, is 20 amended to read: 21 733.302 Who may be appointed personal 22 representative.--Subject to the limitations in this part, any 23 person who is sui juris and who is a resident of Florida at 24 the time of the death of the person whose estate is to be 25 administered he or she seeks to administer is qualified to act 26 as personal representative in Florida. A person who has been 27 convicted of a felony or who, from sickness, intemperance, or 28 want of understanding, is incompetent to discharge the duties 29 of a personal representative is not qualified. 30 Section 100. Subsections (1) and (2) of section 31 733.305, Florida Statutes, are amended to read: 94 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 733.305 Trust companies and other corporations and 2 associations.-- 3 (1) All trust companies incorporated under the laws of 4 Florida the state, all state banking corporations and state 5 savings associations authorized and qualified to exercise 6 fiduciary powers in Florida, and all national banking 7 associations and federal savings and loan associations 8 authorized and qualified to exercise fiduciary powers in 9 Florida shall be entitled to act as personal representatives 10 and curators of estates. 11 (2) When a qualified corporation has been named as a 12 personal representative in a will and subsequently thereafter 13 transfers its business and assets to, consolidates or merges 14 with, or is in any manner provided by law succeeded by, 15 another qualified corporation, on the death of the testator, 16 the successor corporation may qualify as personal 17 representative, and the court may issue letters to the 18 successor corporation unless the will provides otherwise. 19 Section 101. Section 733.306, Florida Statutes, is 20 amended to read: 21 733.306 Effect of appointment of debtor.--The 22 appointment of a debtor as personal representative shall not 23 extinguish the debt due to the decedent. This section shall 24 not prevent a testator from releasing a debtor by will. 25 Section 102. Section 733.307, Florida Statutes, is 26 amended to read: 27 733.307 Succession of administration.--The No personal 28 representative of the estate of a deceased personal 29 representative is not as such shall be authorized to 30 administer the estate of the first decedent. On the death of 31 a the sole or surviving personal representative, the court 95 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 shall appoint a successor personal representative to complete 2 the administration of the estate. 3 Section 103. Section 733.308, Florida Statutes, is 4 amended to read: 5 733.308 Administrator ad litem.--When it is necessary 6 that an estate must be represented and the there is no 7 personal representative is unable to do so of the estate, the 8 court shall appoint an administrator ad litem without bond to 9 represent the estate in that for that particular proceeding. 10 The fact that the personal representative is seeking 11 reimbursement for claims against the decedent paid by the 12 personal representative does not require appointment of an 13 administrator ad litem. 14 Section 104. Section 733.309, Florida Statutes, is 15 amended to read: 16 733.309 Executor de son tort.--No person shall be 17 liable to a creditor of a decedent as executor de son tort, 18 but any person taking, converting, or intermeddling with the 19 property of a decedent shall be liable to the personal 20 representative or curator, when appointed, for the value of 21 all the property so taken or converted and for all damages to 22 the estate caused by the his or her wrongful action. This 23 section shall not be construed to prevent a creditor of a 24 decedent from suing anyone in possession of property 25 fraudulently conveyed by the decedent to set aside the 26 fraudulent conveyance. 27 Section 105. Section 733.310, Florida Statutes, is 28 created to read: 29 733.310 Personal representative not qualified.--Any 30 time a personal representative knows or should have known that 31 he or she would not be qualified for appointment if 96 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 application for appointment were then made, the personal 2 representative shall promptly file and serve a notice setting 3 forth the reasons. A personal representative who fails to 4 comply with this section shall be personally liable for costs, 5 including attorney's fees, incurred in any removal proceeding, 6 if the personal representative is removed. This liability 7 shall be cumulative to any other provided by law. 8 Section 106. Section 733.401, Florida Statutes, is 9 repealed: 10 733.401 Issuance of letters.-- 11 (1) After the petition for administration is filed: 12 (a) The will, if any, shall be proved as provided 13 elsewhere in this code and shall be admitted to probate. 14 (b) The court shall appoint the person entitled and 15 qualified to be personal representative. 16 (c) The court shall determine the amount of any bond 17 required under this part. The clerk may approve the bond in 18 the amount determined by the court and shall not charge a 19 service fee. 20 (d) Any required oath or designation of, and 21 acceptance by, a resident agent shall be filed. 22 (2) Upon compliance with all of the foregoing, letters 23 shall be issued to the personal representative. 24 (3) Mistaken noncompliance with any of the 25 requirements of subsection (1) shall not be jurisdictional. 26 Section 107. Section 733.402, Florida Statutes, is 27 amended to read: 28 733.402 Bond of fiduciary personal representative; 29 when required; form.-- 30 (1) Unless the bond requirement has been waived by the 31 will or by the court testator waived the requirement, every 97 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 fiduciary person to whom letters are granted shall execute and 2 file a bond with surety, as defined in s. 45.011, to be 3 approved by the clerk without a service fee. The bond shall be 4 payable to the Governor and the Governor's successors in 5 office, conditioned on the performance of all duties as 6 personal representative according to law. The bond must be 7 joint and several. 8 (2) No bond executed by a personal representative or 9 curator shall be void or invalid because of an informality in 10 it or an informality or illegality in the appointment of the 11 fiduciary. The bond shall have the same force as if the 12 appointment had been legally made and the bond executed in 13 proper form. 14 (3) The requirements of this section shall not apply 15 to banks and trust companies authorized by law to act as 16 personal representative. 17 (4) On petition by any interested person or on the 18 court's own motion, the court may waive the requirement of 19 filing a bond, require a bond, increase or decrease the bond, 20 or require additional surety. 21 Section 108. Section 733.403, Florida Statutes, is 22 amended to read: 23 733.403 Amount of bond.-- 24 (1) All bonds required by this part shall be in the 25 penal sum that the court deems sufficient after consideration 26 of the gross value of the estate, the relationship of the 27 personal representative to the beneficiaries, exempt property 28 and any family allowance, the type and nature of assets, known 29 creditors, and liens and encumbrances on the assets. 30 (2) On petition by any interested person or on the 31 court's own motion, the court may waive the requirement of 98 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 filing a bond, require a personal representative or curator to 2 give bond, increase or decrease the bond, or require 3 additional surety. 4 Section 109. Section 733.404, Florida Statutes, is 5 amended to read: 6 733.404 Liability of surety.--No surety for any 7 personal representative or curator shall be charged beyond the 8 value of the assets of an estate because of any omission or 9 mistake in pleading or of false pleading of the personal 10 representative or curator. 11 Section 110. Section 733.405, Florida Statutes, is 12 amended to read: 13 733.405 Release of surety.-- 14 (1) Subject to the limitations of this section, on the 15 petition of any interested person, the surety is entitled to 16 be released from liability for the future acts and omissions 17 of the fiduciary On petitioning the surety, or the personal 18 representative of a surety, on the bond of any personal 19 representative or curator shall be entitled as a matter of 20 right to be released from future liability upon the bond. 21 (2) Pending the hearing of the petition, the court may 22 restrain the fiduciary principal from acting in his or her 23 representative capacity, except to preserve the estate. 24 (3) On hearing, the court shall enter an order 25 prescribing the amount of the new bond for the fiduciary 26 personal representative or curator and the date when the bond 27 shall be filed. If the fiduciary principal fails to give the 28 new bond, the fiduciary he or she shall be removed at once, 29 and further proceedings shall be had as in cases of removal. 30 (4) The original surety or sureties shall remain be 31 liable in accordance with the terms of its original bond for 99 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 all acts and omissions of the fiduciary that occur prior to 2 personal representative or surety until he or she has given 3 the approval of the new surety and filing and approval of the 4 bond and, after the giving of the new bond, shall remain 5 liable for all the principal's acts to the time of the filing 6 and approval of the new bond. The new surety shall be liable 7 on its bond for the principal's acts only after the filing and 8 approval of the new bond. 9 Section 111. Section 733.406, Florida Statutes, is 10 amended to read: 11 733.406 Bond premium allowable as expense of 12 administration or costs.--A personal representative Any 13 receiver, assignee, trustee, committee, guardian, executor or 14 administrator, or other fiduciary required by law to give bond 15 shall pay the reasonable premium as an expense of 16 administration as such, may include as part of his or her 17 lawful expense such reasonable sum paid such an insurer for 18 such suretyship not exceeding 1 percent per annum on the 19 amount of the bond, as the head of department, board, court, 20 judge or officer by whom, or the court or body in which, he or 21 she was appointed allows; and in all actions or proceedings 22 the party entitled to recover costs may include therein such 23 reasonable sum as may have been paid such an insurer executing 24 or guaranteeing any bond or undertaking therein. 25 Section 112. Section 733.501, Florida Statutes, is 26 amended to read: 27 733.501 Curators.-- 28 (1) When it is necessary, the court may appoint a 29 curator after and issue letters of curatorship to take charge 30 of the estate of a decedent until letters are granted. If the 31 person entitled to letters is a resident of the county where 100 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 the property is situated, no curator shall be appointed until 2 formal notice is given to the person apparently so entitled to 3 letters of administration. The curator may be authorized to 4 perform any duty or function of a personal representative. If 5 there is great danger that any of the decedent's property is 6 likely to wasted, destroyed, or removed beyond the 7 jurisdiction of the court and if the appointment of a curator 8 would be delayed by giving notice, the court may appoint a 9 curator without giving notice. On appointment, the court shall 10 direct the person in possession of the effects of the decedent 11 to deliver them to the curator. The order may be enforced by 12 contempt. 13 (2) If there is great danger that the property or any 14 part of it is likely to be wasted, destroyed, or removed 15 beyond the jurisdiction of the court and if the appointment of 16 a curator would be delayed by giving notice, the court may 17 appoint a curator without giving notice. 18 (3) On special order of the court, the curator may be 19 authorized to perform any duty or function of a personal 20 representative. 21 (2)(4) Bond shall be required of the curator as the 22 court deems necessary to secure the property. No bond shall 23 be required of banks and trust companies as curators. 24 (5) The curator shall file an inventory of the 25 property within 20 days. When the personal representative 26 qualifies, the curator shall immediately account and deliver 27 all assets of the estate in his or her hands to the personal 28 representative within 20 days, and in default shall be subject 29 to the provisions of this code relating to removal of personal 30 representatives. 31 (3)(6) Curators shall be allowed reasonable 101 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 compensation for their services and the court may consider the 2 provisions of s. 733.617. 3 (4) Curators shall be subject to removal and 4 surcharge. 5 Section 113. Section 733.502, Florida Statutes, is 6 amended to read: 7 733.502 Resignation of personal representative.--A 8 personal representative may resign and be relieved of his or 9 her office. Notice of the petition shall be given to all 10 interested persons. Before relieving the personal 11 representative from his or her duties and obligations, the 12 court shall require the personal representative to file a true 13 and correct account of his or her administration and deliver 14 to his or her successor or to his or her joint personal 15 representative all of the property of the decedent and all 16 records concerning the estate. After notice to all interested 17 persons, the court may accept the resignation and then revoke 18 the letters of the resigning personal representative if the 19 interests of the estate are not jeopardized by the 20 resignation. The acceptance of the resignation, after 21 compliance with this section, shall not exonerate the any 22 personal representative or the his or her surety from 23 liability previously incurred. 24 Section 114. Section 733.503, Florida Statutes, is 25 amended to read: 26 733.503 Appointment of successor upon 27 resignation.--When the personal representative's resignation 28 is accepted, the court shall appoint a personal representative 29 or shall appoint a curator to serve until a successor personal 30 representative is appointed If there is no joint personal 31 representative, a successor must be appointed and qualified 102 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 before a personal representative may be relieved of his or her 2 duties and obligations as provided in s. 733.502. 3 Section 115. Section 733.5035, Florida Statutes, is 4 created to read: 5 733.5035 Surrender of assets after resignation.--When 6 the resignation has been accepted by the court, all estate 7 assets, records, documents, papers, and other property of or 8 concerning the estate in the resigning personal 9 representative's possession or control shall immediately be 10 surrendered to the successor fiduciary. The court may 11 establish the conditions and specify the assets and records, 12 if any, that the resigning personal representative may retain 13 until the final accounting of the resigning personal 14 representative has been approved. 15 Section 116. Section 733.5036, Florida Statutes, is 16 created to read: 17 733.5036 Accounting and discharge following 18 resignation.-- 19 (1) A resigning personal representative shall file and 20 serve a final accounting of the personal representative's 21 administration. 22 (2) After determination and satisfaction of the 23 liability, if any, of the resigning personal representative, 24 after compensation of the personal representative and the 25 attorney and other persons employed by the personal 26 representative, and upon receipt of evidence that 27 undistributed estate assets have been delivered to the 28 successor fiduciary, the personal representative shall be 29 discharged, the bond released, and the surety discharged. 30 Section 117. Section 733.504, Florida Statutes, is 31 amended to read: 103 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 733.504 Causes of Removal of personal representative; 2 causes for removal.--A personal representative may be removed 3 and the his or her letters revoked for any of the following 4 causes, and the removal shall be in addition to any penalties 5 prescribed by law: 6 (1) Adjudication of incompetency. 7 (2) Physical or mental incapacity rendering the 8 personal representative incapable of the discharge of his or 9 her duties. 10 (3) Failure to comply with any order of the court, 11 unless the order has been superseded on appeal. 12 (4) Failure to account for the sale of property or to 13 produce and exhibit the assets of the estate when so required. 14 (5) The Wasting or maladministration of the estate. 15 (6) Failure to give bond or security for any purpose. 16 (7) Conviction of a felony. 17 (8) Insolvency of, or the appointment of a receiver or 18 liquidator for, any corporate personal representative. 19 (9) The Holding or acquiring by the personal 20 representative of conflicting or adverse interests against the 21 estate that will or may adversely interfere with the 22 administration of the estate as a whole. This cause of 23 removal shall not apply to the surviving spouse because of the 24 exercise of the right to the elective share, family allowance, 25 or exemptions, as provided elsewhere in this code. 26 (10) Revocation of the probate of the decedent's will 27 that authorized or designated the appointment of the such 28 personal representative. 29 (11) Removal of domicile from Florida, if domicile was 30 a requirement of initial appointment the personal 31 representative is no longer qualified under part III of this 104 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 chapter. 2 (12) The personal representative would not now be 3 entitled to appointment. 4 Section 118. Section 733.505, Florida Statutes, is 5 amended to read: 6 733.505 Jurisdiction in removal proceedings.--A 7 petition for removal shall be filed in the court having 8 jurisdiction of the administration issuing the letters. 9 Section 119. Section 733.506, Florida Statutes, is 10 amended to read: 11 733.506 Proceedings for removal.--Proceedings for 12 removal of a personal representative may be commenced by the 13 court or upon the petition of an by any interested person or 14 joint personal representative. The court shall revoke the 15 letters of a removed personal representative. The removal of a 16 personal representative shall not exonerate the removed 17 personal representative or the removed personal 18 representative's surety from any liability. 19 Section 120. Section 733.5061, Florida Statutes, is 20 created to read: 21 733.5061 Appointment of successor upon removal.--When 22 a personal representative is removed, the court shall appoint 23 a personal representative or shall appoint a curator to serve 24 until a successor personal representative is appointed. 25 Section 121. Section 733.507, Florida Statutes, is 26 repealed: 27 733.507 Administration following resignation or 28 removal.--When a personal representative has resigned or is 29 removed and there is a remaining personal representative, no 30 other personal representative shall be appointed unless the 31 will otherwise requires. The remaining personal 105 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 representative, together with any successor personal 2 representative, if appointed, shall complete the 3 administration of the estate. If the resigned or removed 4 personal representative is a sole personal representative, the 5 court shall appoint a successor personal representative as 6 provided in s. 733.301. 7 Section 122. Section 733.508, Florida Statutes, is 8 amended to read: 9 733.508 Accounting and discharge of removed personal 10 representatives upon removal.-- 11 (1) A removed personal representative shall file and 12 serve a final accounting of that personal representative's 13 administration. 14 (2) After determination and satisfaction of the 15 liability, if any, of the removed personal representative, 16 after compensation of that personal representative and the 17 attorney and other persons employed by that personal 18 representative, and upon receipt of evidence that the estate 19 assets have been delivered to the successor fiduciary, the 20 removed personal representative shall be discharged, the bond 21 released, and the surety discharged. A removed personal 22 representative shall file a full, true, and correct account of 23 his or her administration within 30 days after removal. 24 Section 123. Section 733.509, Florida Statutes, is 25 amended to read: 26 733.509 Surrender of assets upon removal.--Upon entry 27 of an order removing a personal representative, the removed 28 personal representative shall immediately deliver all estate 29 assets, records, documents, papers, and other property of or 30 concerning the estate in the removed personal representative's 31 possession or control to the remaining personal representative 106 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 or successor fiduciary The removed personal representative 2 shall deliver to the remaining or successor personal 3 representative all of the property of the decedent and all 4 records, documents, papers, and other property of or 5 concerning the estate. 6 Section 124. Section 733.601, Florida Statutes, is 7 amended to read: 8 733.601 Time of accrual of duties and powers.--The 9 duties and powers of a personal representative commence upon 10 his or her appointment. The powers of a personal 11 representative relate back in time to give acts by the person 12 appointed, occurring before appointment and beneficial to the 13 estate, the same effect as those occurring after appointment 14 thereafter. Before issuance of letters, a person named 15 executor in a will may carry out written instructions of the 16 decedent relating to the decedent's body and funeral and 17 burial arrangements. A personal representative may ratify and 18 accept acts on behalf of the estate done by others when the 19 acts would have been proper for a personal representative. 20 Section 125. Section 733.602, Florida Statutes, is 21 amended to read: 22 733.602 General duties.-- 23 (1) A personal representative is a fiduciary who shall 24 observe the standards of care applicable to trustees as 25 described by s. 737.302. A personal representative is under a 26 duty to settle and distribute the estate of the decedent in 27 accordance with the terms of the decedent's will and this code 28 as expeditiously and efficiently as is consistent with the 29 best interests of the estate. A personal representative shall 30 use the authority conferred upon him or her by this code, the 31 authority in the will, if any, and the authority of any order 107 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 of the court in proceedings to which he or she is party, for 2 the best interests of interested persons, including creditors 3 as well as beneficiaries. 4 (2) A personal representative shall not be liable for 5 any act of administration or distribution if the act was 6 authorized at the time. Subject to other obligations of 7 administration, a probated will is authority to administer and 8 distribute the estate according to its terms. An order of 9 appointment of a personal representative is authority to 10 distribute apparently intestate assets to the heirs of the 11 decedent if, at the time of distribution, the personal 12 representative is not aware of a proceeding challenging 13 intestacy or a proceeding questioning the his or her 14 appointment or fitness to continue. Nothing in this section 15 affects the duty of the personal representative to administer 16 and distribute the estate in accordance with the rights of 17 interested persons. 18 Section 126. Section 733.603, Florida Statutes, is 19 amended to read: 20 733.603 Personal representative to proceed without 21 court order.--A personal representative shall proceed 22 expeditiously with the settlement and distribution of a 23 decedent's estate and, except as otherwise specified by this 24 code or ordered by the court, shall do so without 25 adjudication, order, or direction of the court. A personal 26 representative may invoke the jurisdiction of the court to 27 resolve judicial questions concerning the estate or its 28 administration. 29 Section 127. Section 733.604, Florida Statutes, is 30 amended to read: 31 733.604 Inventory.-- 108 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 (1)(a) Unless an inventory has been previously filed 2 Within 60 days after issuance of letters, a personal 3 representative who is not a curator or a successor to another 4 personal representative who has previously discharged the duty 5 shall file a verified an inventory of property of the estate, 6 listing it with reasonable detail and including for each 7 listed item its estimated fair market value at the date of the 8 decedent's death. Unless otherwise ordered by the court for 9 good cause shown, the any such inventory or amended or 10 supplementary inventory is subject to inspection only by the 11 clerk of the court, or the clerk's representative, the 12 personal representative, and the personal representative's 13 attorney, and other interested persons. 14 (b) The initial opening of any safe-deposit box of the 15 decedent must be conducted in the presence of an employee of 16 the institution where the box is located and the personal 17 representative. The inventory of the contents of the box also 18 must be conducted in the presence of the employee and the 19 personal representative, each of whom must verify the contents 20 of the box by signing a copy of the inventory. The personal 21 representative shall file the safe-deposit box inventory with 22 the court within 10 days after the box is opened. 23 (2) The personal representative shall serve a copy of 24 the inventory on the Department of Revenue, as provided in s. 25 199.062(4), the surviving spouse, each heir at law in an 26 intestate estate, each residuary beneficiary in a testate 27 estate, and any other interested person who may request it; 28 and the personal representative shall file proof of such 29 service. The inventory shall be verified by the personal 30 representative. 31 (2)(3) If the personal representative learns of any 109 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 property not included in the original inventory, or learns 2 that the estimated value or description indicated in the 3 original inventory for any item is erroneous or misleading, 4 the personal representative he or she shall file a verified 5 prepare an amended or supplementary inventory showing any the 6 estimated value of the new items and their estimated value 7 item at the date of the decedent's death, or the revised 8 estimated value or description; and the personal 9 representative shall serve a copy of the amended or 10 supplementary inventory on each person on whom a copy of the 11 inventory was served and shall file proof of such service. 12 The amended or supplementary inventory shall be verified by 13 the personal representative. 14 (3)(4) Upon written request to the personal 15 representative, a beneficiary shall be furnished a written 16 explanation of how the inventory value for an asset was 17 determined, or, if an appraisal was obtained, a copy of the 18 appraisal, as follows: 19 (a) To a residuary beneficiary or heir in an intestate 20 estate, regarding all inventoried assets. 21 (b) To any other beneficiary, regarding all assets 22 distributed or proposed to be distributed to that beneficiary. 23 Upon the written request of a beneficiary for any asset 24 specifically devised to that beneficiary, a beneficiary for 25 any asset received by that beneficiary in satisfaction of a 26 general devise, or a residuary beneficiary of a intestate 27 estate or an heir of an intestate estate, for any asset not 28 specifically devised, the personal representative shall 29 promptly furnish a written explanation of how the inventory 30 value for the asset was determined, including whether the 31 personal representative obtained an independent appraisal for 110 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 that asset and from whom the appraisal was obtained. The 2 personal representative must notify each beneficiary of that 3 beneficiary's rights under this subsection the right to 4 request information regarding determination of the inventory 5 value of an asset. Neither a request nor the failure to 6 request information under this subsection affects any rights 7 of a beneficiary in subsequent proceedings concerning any 8 accounting of the personal representative or the propriety of 9 any action of the personal representative. 10 Section 128. Section 733.605, Florida Statutes, is 11 repealed: 12 733.605 Appraisers.--The personal representative may 13 employ a qualified and disinterested appraiser to assist him 14 or her in ascertaining the fair market value of any asset at 15 the date of the decedent's death or any other date that may be 16 appropriate, the value of which may be subject to reasonable 17 doubt. Different persons may be employed to appraise different 18 kinds of assets included in the estate. 19 Section 129. Section 733.6065, Florida Statutes, is 20 created to read: 21 733.6065 Opening safe-deposit box.-- 22 (1) Subject to the provisions of s. 655.936(2), the 23 initial opening of the decedent's safe-deposit box shall be 24 conducted in the presence of any two of the following persons: 25 an employee of the institution where the box is located, the 26 personal representative, or the personal representative's 27 attorney of record. Each person who is present must verify 28 the contents of the box by signing a copy of the inventory 29 under penalties of perjury. The personal representative shall 30 file the safe-deposit box inventory, together with a copy of 31 the box entry record from a date which is 6 months prior to 111 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 the date of death to the date of inventory, with the court 2 within 10 days after the box is opened. Unless otherwise 3 ordered by the court, this inventory and the attached box 4 entry record is subject to inspection only by persons entitled 5 to inspect an inventory under s. 733.604(1). The personal 6 representative may remove the contents of the box. 7 (2) The right to open and examine the contents of a 8 safe-deposit box leased by a decedent, or any documents 9 delivered by a decedent for safekeeping, and to receive items 10 as provided for in s. 655.935 are in addition to the rights 11 provided for in subsection (1). 12 Section 130. Section 733.607, Florida Statutes, is 13 amended to read: 14 733.607 Possession of estate.-- 15 (1) Except as otherwise provided by a decedent's will, 16 every personal representative has a right to, and shall take 17 possession or control of, the decedent's property, except the 18 protected homestead, but any real property or tangible 19 personal property may be left with, or surrendered to, the 20 person presumptively entitled to it unless possession of the 21 property by the personal representative will be necessary for 22 purposes of administration. The request by a personal 23 representative for delivery of any property possessed by a 24 beneficiary is conclusive evidence that the possession of the 25 property by the personal representative is necessary for the 26 purposes of administration, in any action against the 27 beneficiary for possession of it. The personal representative 28 shall take all steps reasonably necessary for the management, 29 protection, and preservation of the estate until distribution 30 and. He or she may maintain an action to recover possession of 31 property or to determine the title to it. 112 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 (2) If, after providing for statutory entitlements and 2 all devises other than residuary devises, the assets of the 3 decedent's estate are insufficient to pay the expenses of the 4 administration and obligations of the decedent's estate and 5 enforceable claims of the decedent's creditors, the personal 6 representative is entitled to payment from the trustee of a 7 trust described in s. 733.707(3), in the amount the personal 8 representative certifies in writing to be required to satisfy 9 the such insufficiency. 10 Section 131. Section 733.608, Florida Statutes, is 11 amended to read: 12 733.608 General power of the personal 13 representative.-- 14 (1) All real and personal property of the decedent, 15 except the protected homestead, within this state and the 16 rents, income, issues, and profits from it shall be assets in 17 the hands of the personal representative: 18 (a)(1) For the payment of devises, debts, family 19 allowance, elective share, estate and inheritance taxes, 20 claims, charges, and expenses of the administration and 21 obligations of the decedent's estate. 22 (b)(2) To enforce contribution and equalize 23 advancement. 24 (c)(3) For distribution. 25 (2) If property that reasonably appears to the 26 personal representative to be protected homestead is not in 27 the possession of a person who appears to have an interest in 28 the property, the personal representative is authorized, but 29 not required, to take possession of that property for the 30 limited purpose of preserving, insuring, and protecting it for 31 the heir or devisee, pending a determination of its homestead 113 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 status. If the personal representative takes possession of 2 that property, any rents and revenues may be collected by the 3 personal representative for the account of the heir or 4 devisee, but the personal representative shall have no duty to 5 rent or otherwise make the property productive. 6 Section 132. Section 733.609, Florida Statutes, is 7 amended to read: 8 733.609 Improper exercise of power; breach of 9 fiduciary duty.--A personal representative's fiduciary duty is 10 the same as the fiduciary duty of a trustee of an express 11 trust and a personal representative is liable to interested 12 persons for damage or loss resulting from the breach of this 13 duty. In all actions for breach of fiduciary duty or 14 challenging the exercise of or failure to exercise a personal 15 representative's powers, the court shall award taxable costs 16 as in chancery actions, including attorney's fees If the 17 exercise of power concerning the estate is improper or in bad 18 faith, the personal representative is liable to interested 19 persons for damage or loss resulting from a breach of his or 20 her fiduciary duty to the same extent as a trustee of an 21 express trust. In all actions challenging the proper exercise 22 of a personal representative's powers, the court shall award 23 taxable costs as in chancery actions, including attorney's 24 fees. 25 Section 133. Section 733.610, Florida Statutes, is 26 amended to read: 27 733.610 Sale, encumbrance or transaction involving 28 conflict of interest.--Any sale or encumbrance to the personal 29 representative or the personal representative's his or her 30 spouse, agent, or attorney, or any corporation or trust in 31 which the personal representative has a substantial beneficial 114 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 interest, or any transaction that is affected by a conflict of 2 interest on the part of the personal representative, is 3 voidable by any interested person except one who has consented 4 after fair disclosure, unless: 5 (1) The will or a contract entered into by the 6 decedent expressly authorized the transaction; or 7 (2) The transaction is approved by the court after 8 notice to interested persons. 9 Section 134. Section 733.611, Florida Statutes, is 10 amended to read: 11 733.611 Persons dealing with the personal 12 representative; protection.--Except as provided in s. 13 733.613(1), a person who in good faith either assists or deals 14 for value with a personal representative or deals with him or 15 her for value is protected as if the personal representative 16 acted properly exercised his or her power. The fact that a 17 person knowingly deals with the personal representative does 18 not alone require the person to inquire into the authority of 19 the personal representative existence of his or her power, the 20 limits on the power, or the propriety of its exercise. A 21 person is not bound to see to the proper application of estate 22 assets paid or delivered to the personal representative. This 23 The protection here expressed extends to instances in which a 24 procedural irregularity or jurisdictional defect occurred in 25 proceedings leading to the issuance of letters, including a 26 case in which the alleged decedent is alive. This protection 27 is in addition to any protection afforded by The protection 28 here expressed is not by substitution for that provided in 29 comparable provisions of the laws relating to commercial 30 transactions and laws simplifying transfers of securities by 31 fiduciaries. 115 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 Section 135. Section 733.612, Florida Statutes, is 2 amended to read: 3 733.612 Transactions authorized for the personal 4 representative; exceptions.--Except as otherwise provided by 5 the will or court by order of court, and subject to the 6 priorities stated in s. 733.805, without court order of court, 7 a personal representative, acting reasonably for the benefit 8 of the interested persons, may properly: 9 (1) Retain assets owned by the decedent, pending 10 distribution or liquidation, including those in which the 11 personal representative is personally interested or that are 12 otherwise improper for fiduciary trust investments. 13 (2) Perform or compromise, or, when proper, refuse to 14 perform performance of, the decedent's contracts. In 15 performing the decedent's enforceable contracts by the 16 decedent to convey or lease real property, among other 17 possible courses of action, the personal representative may: 18 (a) Convey the real property for cash payment of all 19 sums remaining due or for the purchaser's note for the sum 20 remaining due, secured by a mortgage on the property land. 21 (b) Deliver a deed in escrow, with directions that the 22 proceeds, when paid in accordance with the escrow agreement, 23 be paid as provided to the distributees of the decedent, as 24 designated in the escrow agreement. 25 (3) Receive assets from fiduciaries or other sources. 26 (4) Invest funds as provided in ss. 518.10-518.14, 27 considering the amount to be invested, liquidity needs of the 28 estate, and the time until distribution will be made If funds 29 are not needed to meet debts and expenses currently payable 30 and are not immediately distributable, deposit or invest 31 liquid assets of the estate, including moneys received from 116 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 the sale of other assets, in federally insured 2 interest-bearing accounts, readily marketable secured loan 3 arrangements, or other prudent investments that would be 4 reasonable for use by trustees. 5 (5) Acquire or dispose of an asset, excluding real 6 property in this or another state, for cash or on credit and 7 at public or private sale, and manage, develop, improve, 8 exchange, partition, or change the character of an estate 9 asset. 10 (6) Make ordinary or extraordinary repairs or 11 alterations in buildings or other structures; demolish 12 improvements; or erect new party walls or buildings. 13 (7) Enter into a lease, as lessor or lessee, for a 14 term within, or extending beyond, the period of 15 administration, with or without an option to renew. 16 (8) Enter into a lease or arrangement for exploration 17 and removal of minerals or other natural resources or enter 18 into a pooling or unitization agreement. 19 (9) Abandon property when it is valueless or so 20 encumbered, or in a such condition, that it is of no benefit 21 to the estate. 22 (10) Vote, or refrain from voting, stocks or other 23 securities in person or by general or limited proxy. 24 (11) Pay calls, assessments, and other sums chargeable 25 or accruing against, or on account of, securities, unless 26 barred by the provisions relating to claims. 27 (12) Hold property in the name of a nominee or in 28 other form without disclosure of the interest of the estate, 29 but the personal representative is liable for any act of the 30 nominee in connection with the property so held. 31 (13) Insure the assets of the estate against damage 117 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 or, loss, and liability and insure against personal and 2 fiduciary liability himself or herself against liability to 3 third persons. 4 (14) Borrow money, with or without security, to be 5 repaid from the estate assets or otherwise, other than real 6 property, and advance money for the protection of the estate. 7 (15) Extend, renew, or in any manner modify any 8 obligation owing to the estate. If the personal representative 9 holds a mortgage, security interest, or other lien upon 10 property of another person, he or she may accept a conveyance 11 or transfer of encumbered assets from the owner in 12 satisfaction of the indebtedness secured by its lien instead 13 of foreclosure. 14 (16) Pay taxes, assessments, and other expenses 15 incident to the administration of the estate. 16 (17) Sell or exercise stock subscription or conversion 17 rights or consent, directly or through a committee or other 18 agent, to the reorganization, consolidation, merger, 19 dissolution, or liquidation of a corporation or other business 20 enterprise. 21 (18) Allocate items of income or expense to either 22 estate income or principal, as permitted or provided by law. 23 (19) Employ persons, including, but not limited to, 24 attorneys, accountants, auditors, appraisers, investment 25 advisers, and others, even if they are one and the same as the 26 personal representative or are associated with the personal 27 representative, to advise or assist the personal 28 representative in the performance of his or her administrative 29 duties; act upon the recommendations of those such employed 30 persons without independent investigation; and, instead of 31 acting personally, employ one or more agents to perform any 118 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 act of administration, whether or not discretionary. Any fees 2 and compensation paid to a any such person who is the same as, 3 associated with, or employed by, the personal representative 4 shall be taken into consideration in determining the personal 5 representative's compensation. 6 (20) Prosecute or defend claims or proceedings in any 7 jurisdiction for the protection of the estate and of the 8 personal representative in the performance of his or her 9 duties. 10 (21) Sell, mortgage, or lease any personal property of 11 the estate or any interest in it for cash, credit, or for part 12 cash or part credit, and with or without security for the 13 unpaid balance. 14 (22) Continue any unincorporated business or venture 15 in which the decedent was engaged at the time of his or her 16 death: 17 (a) In the same business form for a period of not more 18 than 4 months from the date of his or her appointment, if 19 continuation is a reasonable means of preserving the value of 20 the business, including good will. 21 (b) In the same business form for any additional 22 period of time that may be approved by court order of court. 23 (23) Provide for exoneration of the personal 24 representative from personal liability in any contract entered 25 into on behalf of the estate. 26 (24) Satisfy and settle claims and distribute the 27 estate as provided in this code. 28 (25) Enter into agreements with the proper officer or 29 department head, commissioner, or agent of any department of 30 the government of the United States, waiving the statute of 31 limitations concerning the assessment and collection of any 119 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 federal tax or any deficiency in a federal tax. 2 (26) Make partial part distribution to the 3 beneficiaries of any part of the estate not necessary to 4 satisfy claims, expenses of administration, taxes, family 5 allowance, exempt property, and an elective share, in 6 accordance with the decedent's will or as authorized by 7 operation of law. 8 (27) Execute any instruments necessary in the exercise 9 of the personal representative's powers. 10 Section 136. Section 733.6121, Florida Statutes, is 11 amended to read: 12 733.6121 Powers of personal representatives conferred 13 by this part in relation to environmental or human health laws 14 affecting property subject to administration or to property 15 subject to administration contaminated with hazardous or toxic 16 substances; liability.-- 17 (1) Except as otherwise provided by the will or by 18 court order of court, and subject to s. 733.805, the personal 19 representative has, without court authorization, the powers 20 specified in subsection (2). 21 (2) A personal representative has the power, acting 22 reasonably and for the benefit of the interested persons 23 parties: 24 (a) To inspect or investigate, or cause to be 25 inspected or investigated, property subject to administration, 26 including interests in sole proprietorships, partnerships, or 27 corporations and any assets owned by any such a business 28 entity for the purpose of determining compliance with an 29 environmental law affecting that property or to respond to an 30 actual or threatened violation of an environmental law 31 affecting that property; 120 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 (b) To take, on behalf of the estate, any action 2 necessary to prevent, abate, or otherwise remedy an actual or 3 potential violation of an environmental law affecting property 4 subject to administration, either before or after initiation 5 of an enforcement action by a governmental body; 6 (c) To settle or compromise at any time any claim 7 against the estate or the personal representative that may be 8 asserted by a governmental body or private party which 9 involves the alleged violation of an environmental law 10 affecting property subject to administration over which the 11 personal representative has responsibility; 12 (d) To disclaim any power granted by any document, 13 statute, or rule of law which, in the sole judgment of the 14 personal representative, could cause the personal 15 representative to incur personal liability, or the estate to 16 incur liability, under any environmental law; 17 (e) To decline to serve as a personal representative, 18 or having undertaken to serve as a personal representative, to 19 resign at any time, if the personal representative believes 20 that there is or could be a conflict of interest in his or her 21 fiduciary capacity and in his or her individual capacity 22 because of potential claims or liabilities that could be 23 asserted against it on behalf of the estate by reason of the 24 type or condition of the assets held; or 25 (f) To charge against the assets of the estate the 26 cost of any inspection, investigation, review, abatement, 27 response, cleanup, or remedial action considered reasonable by 28 the personal representative that this section authorizes the 29 personal representative to take; and, in the event of the 30 closing or termination of the estate or the transfer of the 31 estate property to another personal representative, to hold 121 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 moneys sufficient to cover the cost of cleaning up any known 2 environmental problem. 3 (3) A personal representative is not personally liable 4 to any beneficiary or any other party for a decrease in value 5 of assets in an estate by reason of the personal 6 representative's compliance or efforts to comply with an 7 environmental law, specifically including any reporting 8 requirement under that law. 9 (4) A personal representative who acquires ownership 10 or control of a vessel or other property without having owned, 11 operated, or materially participated in the management of that 12 vessel or property before assuming ownership or control as 13 personal representative is not considered an owner or operator 14 for purposes of liability under chapter 376, chapter 403, or 15 any other environmental law. A personal representative who 16 willfully, knowingly, or recklessly causes or exacerbates a 17 release or threatened release of a hazardous substance is 18 personally liable for the cost of the response, to the extent 19 that the release or threatened release is attributable to the 20 personal representative's activities. This subsection does 21 not preclude the filing of claims against the assets that 22 constitute the estate held by the personal representative or 23 the filing of actions against the personal representative as 24 representative of the estate in his or her representative 25 capacity. In any such an action, an award or judgment against 26 the personal representative must be satisfied only from the 27 assets of the estate. 28 (5) Neither the acceptance by the personal 29 representative of the property or a failure by the personal 30 representative to inspect or investigate the property creates 31 any inference of as to whether there is liability under an 122 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 environmental law with respect to that property. 2 (6) For the purposes of this section, the term 3 "environmental law" means a federal, state, or local law, 4 rule, regulation, or ordinance that relates to protection of 5 the environment or human health, and the term "hazardous 6 substance" means a substance, material, or waste defined as 7 hazardous or toxic, or any contaminant, pollutant, or 8 constituent thereof, or otherwise regulated by an 9 environmental law. 10 (7) This section applies to any estate admitted to 11 probate on or after July 1, 1995. 12 Section 137. Section 733.613, Florida Statutes, is 13 amended to read: 14 733.613 Personal representative's right to sell real 15 property.-- 16 (1) When a personal representative of an a decedent 17 dying intestate estate, or whose testator has not conferred 18 upon him or her a power of sale or whose testator has granted 19 a power of sale but the his or her power is so limited by the 20 will or by operation of law that it cannot be conveniently 21 exercised, shall consider that it is for the best interest of 22 the estate and of those interested in it that real property be 23 sold, the personal representative may sell it at public or 24 private sale. No title shall pass until the sale is 25 authorized or confirmed by the court authorizes or confirms 26 the sale. Petition for authorization or confirmation of sale 27 shall set forth the reasons for the sale, a description of the 28 property sold or to be sold, and the price and terms of the 29 sale. Except when interested persons have joined in the 30 petition for sale of real property or have consented to the 31 sale, notice of the petition shall be given. No bona fide 123 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 purchaser shall be required to examine any proceedings before 2 the order of sale. 3 (2) When a decedent's will confers specific power to 4 sell or mortgage real property or a general power to sell any 5 asset of the estate, the personal representative may sell, 6 mortgage, or lease, without authorization or confirmation of 7 court, any real property of the estate or any interest therein 8 for cash or credit, or for part cash and part credit, and with 9 or without security for unpaid balances. The sale, mortgage, 10 or lease need not be justified by a showing of necessity, and 11 the sale pursuant to power of sale shall be valid. 12 (3) In a sale or mortgage which occurs under a 13 specific power to sell or mortgage real property, or under a 14 court order authorizing or confirming that act, the purchaser 15 or lender takes title free of claims of creditors of the 16 estate and entitlements of estate beneficiaries, except 17 existing mortgages or other liens against real property are 18 not affected. 19 Section 138. Section 733.614, Florida Statutes, is 20 amended to read: 21 733.614 Powers and duties of successor personal 22 representative.--A successor personal representative has the 23 same power and duty as the original personal representative to 24 complete the administration and distribution of the estate as 25 expeditiously as possible, but he or she shall not exercise 26 any power made personal to the personal representative named 27 in the will without court approval. 28 Section 139. Section 733.615, Florida Statutes, is 29 amended to read: 30 733.615 Joint personal representatives; when joint 31 action required.-- 124 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 (1) If two or more persons are appointed joint 2 personal representatives, and unless the will provides 3 otherwise, the concurrence of all joint personal 4 representatives appointed pursuant to a will or codicil 5 executed prior to October 1, 1987, or appointed to administer 6 an intestate estate of a decedent who died prior to October 1, 7 1987, or of a majority of joint personal representatives 8 appointed pursuant to a will or codicil executed on or after 9 October 1, 1987, or appointed to administer an the intestate 10 estate of a decedent dying on or after October 1, 1987, is 11 required on all acts connected with the administration and 12 distribution of the estate. This restriction does not apply 13 when any joint personal representative receives and receipts 14 for property due the estate, when the concurrence required 15 under this subsection cannot readily be obtained in the time 16 reasonably available for emergency action necessary to 17 preserve the estate, or when a joint personal representative 18 has been delegated to act for the others. 19 (2) Where action by a majority of the joint personal 20 representatives appointed is authorized, a joint personal 21 representative who has not joined in exercising a power is not 22 liable to the beneficiaries or to others for the consequences 23 of the exercise, and a dissenting joint personal 24 representative is not liable for the consequences of an action 25 act in which the dissenting personal representative he or she 26 joins at the direction of the majority of the joint personal 27 representatives, if the dissent is he or she expressed his or 28 her dissent in writing to the other any of his or her joint 29 personal representatives at or before the time of the action 30 joinder. 31 (3) A person dealing with a joint personal 125 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 representative without actual knowledge that joint personal 2 representatives have been appointed or if advised by a the 3 joint personal representative with whom he or she deals that 4 the joint personal representative has authority to act alone 5 for any of the reasons mentioned in subsection (1) is as fully 6 protected in dealing with that joint personal representative 7 as if that joint personal representative possessed and 8 properly exercised the power he or she purports to exercise. 9 Section 140. Section 733.616, Florida Statutes, is 10 amended to read: 11 733.616 Powers of surviving personal 12 representatives.--Unless otherwise provided by the terms of 13 the will or a court order otherwise provide, every power 14 exercisable by joint personal representatives may be exercised 15 by the one or more remaining after the appointment of one or 16 more is terminated., and If one or more, but not all, 17 nominated as joint personal representatives are not appointed, 18 those appointed may exercise all the powers granted to those 19 nominated incident to the office. 20 Section 141. Section 733.617, Florida Statutes, is 21 amended to read: 22 733.617 Compensation of personal representative.-- 23 (1) A personal representative shall be entitled to a 24 commission payable from the estate assets without court order 25 as compensation for ordinary services. The commission shall 26 be based on the compensable value of the estate, which is the 27 inventory value of the probate estate assets and the income 28 earned by the estate during administration As compensation for 29 its ordinary services, a personal representative shall be 30 entitled, without order of court unless otherwise stated, to a 31 commission payable from the estate assets. Such commission 126 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 shall be based upon the probate estate's value as determined 2 finally for probate inventory purposes and as accounted for by 3 the personal representative, which value shall include all 4 property, real or personal, tangible or intangible, and all 5 income earned thereon. 6 (2) A commission computed on the compensable value of 7 the estate is presumed to be reasonable compensation for a 8 personal representative in formal administration Upon the 9 probate estate's value as defined in subsection (1), such 10 commission shall be computed as follows: 11 (a) At the rate of 3 percent for the first $1 million. 12 (b) At the rate of 2.5 percent for all above $1 13 million and not exceeding $5 million. 14 (c) At the rate of 2 percent for all above $5 million 15 and not exceeding $10 million. 16 (d) At the rate of 1.5 percent for all above $10 17 million. 18 (3) In addition to the previously described aforesaid 19 commission, a personal representative shall be allowed such 20 further compensation as is the court may deem just and 21 reasonable for any extraordinary services including, but not 22 limited to: 23 (a) The sale of real or personal property. 24 (b) The conduct of litigation on behalf of or against 25 the estate. 26 (c) Involvement in proceedings for the adjustment or 27 payment of any taxes. 28 (d) The carrying on of the decedent's business. 29 (e) Dealing with protected homestead. 30 (f)(e) Any other special services which may be 31 necessary for the personal representative to perform. 127 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 (4) If the a decedent's will provides that a personal 2 representative's compensation shall be based upon specific 3 criteria, other than a general reference to commissions 4 allowed by law or words or similar import, including, but not 5 limited to, rates, amounts, commissions, or reference to the 6 personal representative's regularly published schedule of fees 7 in effect at the decedent's date of death, or words of similar 8 import, then a personal representative shall be entitled to 9 compensation in accordance with that such provision. However, 10 except for such references in the a decedent's will to the 11 personal representative's regularly published schedule of fees 12 in effect at the decedent's date of death, or words of similar 13 import, if there is no written contract with the decedent 14 regarding compensation, a personal representative may renounce 15 the provisions contained in the will and be entitled to 16 compensation under this section hereunder. A personal 17 representative may also renounce the its right to all or any 18 part of the compensation. 19 (5) If the probate estate's compensable value as 20 defined in subsection (1) is $100,000 or more, and there are 21 two representatives, each personal representative is entitled 22 to the full commission allowed to a sole personal 23 representative. If there are more than two personal 24 representatives and the probate estate's compensable value is 25 more than $100,000 or more, the compensation to which two 26 would be entitled must be apportioned among the personal 27 representatives. The basis for such apportionment shall be 28 one full commission allowed to the personal representative who 29 has possession of and primary responsibility for 30 administration of the assets and one full commission among the 31 remaining personal representatives according to the services 128 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 rendered by each of them respectively. If the probate 2 estate's compensable value is less than $100,000 and there is 3 more than one personal representative, then one full 4 commission allowed herein to a sole personal representative 5 must be apportioned among the personal representatives 6 according to the services rendered by each of them 7 respectively. 8 (6) If the personal representative is a member of The 9 Florida Bar and has rendered legal services in connection with 10 the administration of the estate, then in addition to a fee as 11 personal representative, there also shall be allowed a fee for 12 the legal services rendered. 13 (7) Upon petition of any interested person, the court 14 may increase or decrease the compensation for ordinary 15 services of the personal representative or award compensation 16 for extraordinary services if the facts and circumstances of 17 the particular administration warrant. In determining 18 reasonable compensation, the court shall consider all of the 19 following factors, giving weight to each as it determines to 20 be appropriate The compensation for a personal representative 21 as set forth in subsections (2) and (3) may, upon petition of 22 any interested person, be increased or decreased by the court. 23 In determining whether to increase or decrease the 24 compensation for ordinary services, the court must consider 25 each of the following factors, giving each such weight as it 26 determines to be appropriate: 27 (a) The promptness, efficiency, and skill with which 28 the administration was handled by the personal representative; 29 (b) The responsibilities assumed by and the potential 30 liabilities of the personal representative; 31 (c) The nature and value of the assets that are 129 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 affected by the decedent's death; 2 (d) The benefits or detriments resulting to the estate 3 or interested persons its beneficiaries from the personal 4 representative's services; 5 (e) The complexity or simplicity of the administration 6 and the novelty novelties of the issues presented; 7 (f) The personal representative's participation in tax 8 planning for the estate and the estate's beneficiaries and in 9 tax return preparation, review, or approval; 10 (g) The nature of the probate, nonprobate, and exempt 11 assets,; the expenses of administration,; the liabilities of 12 the decedent,; and the compensation paid to other 13 professionals and fiduciaries; 14 (h) Any delay in payment of the compensation after the 15 services were furnished; and 16 (i) Any other relevant factors. 17 Section 142. Section 733.6171, Florida Statutes, is 18 amended to read: 19 733.6171 Compensation of attorney for the personal 20 representative.-- 21 (1) Attorneys for personal representatives shall be 22 entitled to reasonable compensation for their services payable 23 from the estate assets of the estate without court order. 24 (2) The attorney, the personal representative, and 25 persons bearing the impact of the compensation may agree to 26 compensation determined in a different manner than provided in 27 this section. Compensation may also be determined in a 28 different manner than provided in this section if the manner 29 is disclosed to the parties bearing the impact of the 30 compensation and if no objection is made as provided for in 31 the Florida Probate Rules in the petition for discharge or 130 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 final accounting and there is no objection filed pursuant to 2 s. 733.901. 3 (3) Compensation provided in the following schedule 4 for ordinary services of attorneys in formal estate 5 administration is presumed to be reasonable if based on the 6 compensable upon the inventory value of the estate, which is 7 the inventory value of the probate estate assets and the 8 income earned by the estate during the administration as 9 provided in the following schedule is presumed to be 10 reasonable compensation for attorneys in formal estate 11 administration: 12 (a) One thousand five hundred dollars for estates 13 having a value of $40,000 or less. 14 (b) An additional $750 for estates having a value of 15 more than $40,000 and not exceeding $70,000. 16 (c) An additional $750 for estates having a value of 17 more than $70,000 and not exceeding $100,000. 18 (d) For estates having a value in excess of $100,000, 19 at the rate of 3 percent on the next $900,000. 20 (e) At the rate of 2.5 percent for all above $1 21 million and not exceeding $3 million. 22 (f) At the rate of 2 percent for all above $3 million 23 and not exceeding $5 million. 24 (g) At the rate of 1.5 percent for all above $5 25 million and not exceeding $10 million. 26 (h) At the rate of 1 percent for all above $10 27 million. 28 (4) In addition to the attorney's fees for ordinary 29 services, the attorney for the personal representative shall 30 be allowed further reasonable compensation for any 31 extraordinary service. What is an extraordinary service may 131 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 vary depending on many factors, including the size of the 2 estate. Extraordinary services may include, but are not 3 limited to: 4 (a) Involvement in a will contest, will construction, 5 a proceeding for determination of beneficiaries, a contested 6 claim, elective share proceeding, apportionment of estate 7 taxes, or any other adversarial proceeding or litigation by or 8 against the estate. 9 (b) Representation of the personal representative in 10 audit or any proceeding for adjustment, determination, or 11 collection of any taxes. 12 (c) Tax advice on postmortem tax planning, including, 13 but not limited to, disclaimer, renunciation of fiduciary 14 commission, alternate valuation date, allocation of 15 administrative expenses between tax returns, the QTIP or 16 reverse QTIP election, allocation of GST exemption, 17 qualification for Internal Revenue Code ss. 6166 and 303 18 privileges, deduction of last illness expenses, fiscal year 19 planning, distribution planning, asset basis considerations, 20 handling income or deductions in respect of a decedent, 21 valuation discounts, special use and other valuation, handling 22 employee benefit or retirement proceeds, prompt assessment 23 request, or request for release of personal liability for 24 payment of tax. 25 (d) Review of estate tax return and preparation or 26 review of other tax returns required to be filed by the 27 personal representative. 28 (e) Preparation of the estate's federal estate tax 29 return. If this return is prepared by the attorney, a fee of 30 one-half of 1 percent up to a value of $10 million and 31 one-fourth of 1 percent on the value in excess of $10 million 132 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 of the gross estate as finally determined for federal estate 2 tax purposes, is presumed to be reasonable compensation for 3 the attorney for this service. These fees shall include 4 services for routine audit of the return, not beyond the 5 examining agent level, if required. 6 (f) Purchase, sale, lease, or encumbrance of real 7 property by the personal representative or involvement in 8 zoning, land use, environmental, or other similar matters. 9 (g) Legal advice regarding carrying on of the 10 decedent's business or conducting other commercial activity by 11 the personal representative. 12 (h) Legal advice regarding claims for damage to the 13 environment or related procedures. 14 (i) Legal advice regarding homestead status of real 15 property or proceedings involving that status and services 16 related to protected homestead. 17 (j) Involvement in fiduciary, employee, or attorney 18 compensation disputes. 19 (k) Proceedings involving ancillary administration of 20 assets not subject to administration in this state. 21 (5) Upon petition of any interested person, the court 22 may increase or decrease the compensation for ordinary 23 services of the attorney or award compensation for 24 extraordinary services if the facts and circumstances of the 25 particular administration warrant. In determining reasonable 26 compensation, the court shall consider all of the following 27 factors, giving such weight to each as it determines may 28 determine to be appropriate: 29 (a) The promptness, efficiency, and skill with which 30 the administration was handled by the attorney. 31 (b) The responsibilities assumed by, and the potential 133 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 liabilities of, the attorney. 2 (c) The nature and value of the assets that are 3 affected by the decedent's death. 4 (d) The benefits or detriments resulting to the estate 5 or interested persons its beneficiaries from the attorney's 6 services. 7 (e) The complexity or simplicity of the administration 8 and the novelty of issues presented. 9 (f) The attorney's participation in tax planning for 10 the estate and the estate's beneficiaries and tax return 11 preparation, or review, or and approval. 12 (g) The nature of the probate, nonprobate, and exempt 13 assets, the expenses of administration, the and liabilities of 14 the decedent, and the compensation paid to other professionals 15 and fiduciaries. 16 (h) Any delay in payment of the compensation after the 17 services were furnished. 18 (i) Any other relevant factors. 19 (6) The court may determine reasonable attorney's 20 compensation without receiving expert testimony. Any party 21 may offer expert testimony after notice to interested persons. 22 If expert testimony is offered, an expert witness fee may be 23 awarded by the court and paid from the assets of the estate. 24 The court may, in its discretion, direct from what part of the 25 estate it shall be paid. 26 (6)(7) If a separate written agreement regarding 27 compensation exists between the attorney and the decedent, the 28 attorney shall furnish a copy to the personal representative 29 prior to commencement of employment, and, if employed, shall 30 promptly file and serve a copy on all interested persons. 31 Neither a separate agreement nor a provision in the will 134 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 suggesting or directing that the personal representative to 2 retain a specific attorney will obligate the personal 3 representative to employ the attorney or obligate the attorney 4 to accept the representation, but if the attorney who is a 5 party to the agreement or who drafted the will is employed, 6 the compensation paid shall not exceed the compensation 7 provided in the agreement or in the will. 8 (8) Court proceedings to determine compensation, if 9 required, are a part of the estate administration process, and 10 the costs, including fees for the personal representative's 11 attorney, shall be determined by the court and paid from the 12 assets of the estate unless the court finds the request for 13 attorney's fees to be substantially unreasonable. The court 14 shall direct from which part of the estate they shall be paid. 15 (9) The amount and manner of determining compensation 16 for attorneys for personal representatives must be disclosed 17 in the final accounting, unless the disclosure is waived in 18 writing signed by the parties bearing the impact of the 19 compensation and filed with the court. No such waiver shall 20 be valid unless it contains language declaring that the 21 waiving party has actual knowledge of the amount and manner of 22 determining such compensation and, in addition, expressly 23 acknowledging either one of the following two elements: 24 (a) That the waiving party has agreed to the amount 25 and manner of determining such compensation and is waiving any 26 objections to payment of such compensation; or 27 (b) That the waiving party has the right under 28 subsection (5) to petition the court to decrease such 29 compensation and is waiving that right. 30 31 The requirements of this subsection shall not apply if the 135 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 full amount of such compensation has previously been 2 determined by order of the court after notice. A waiver of 3 the final accounting shall not be effective if it does not 4 meet the requirements of this subsection. 5 (10) This section shall apply to estates in which an 6 order of discharge has not been entered prior to its effective 7 date but not to those estates in which attorney's fees have 8 previously been determined by order of court after notice. 9 Section 143. Section 733.6175, Florida Statutes, is 10 amended to read: 11 733.6175 Proceedings for review of employment of 12 agents and compensation of personal representatives and 13 employees of estate.-- 14 (1) The court may review the propriety of the 15 employment of any person employed by the personal 16 representative and the reasonableness of any compensation paid 17 to that person or to the personal representative. 18 (2) Court proceedings to determine reasonable 19 compensation of the personal representative or any person 20 employed by the personal representative, if required, are a 21 part of the estate administration process, and the costs, 22 including attorneys' fees, of the person assuming the burden 23 of proof of propriety of the employment and reasonableness of 24 the compensation shall be determined by the court and paid 25 from the assets of the estate unless the court finds the 26 requested compensation to be substantially unreasonable. The 27 court shall direct from which part of the estate the 28 compensation shall be paid. 29 (3) After notice to all affected interested persons 30 and upon petition of an interested person bearing all or part 31 of the impact of the payment of compensation to the personal 136 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 representative or any person employed by him or her, the 2 propriety of such employment and the reasonableness of such 3 compensation or payment may be reviewed by the court. The 4 burden of proof of propriety of the such employment and the 5 reasonableness of the compensation shall be upon the personal 6 representative and the person employed by him or her. Any 7 person who is determined to have received excessive 8 compensation from an estate for services rendered may be 9 ordered to make appropriate refunds. 10 (4) The court may determine reasonable compensation 11 for the personal representative or any person employed by the 12 personal representative without receiving expert testimony. 13 Any party may offer expert testimony after notice to 14 interested persons. If expert testimony is offered, a 15 reasonable expert witness fee shall be awarded by the court 16 and paid from the assets of the estate. The court shall direct 17 from what part of the estate the fee shall be paid. 18 Section 144. Section 733.619, Florida Statutes, is 19 amended to read: 20 733.619 Individual liability of personal 21 representative.-- 22 (1) Unless otherwise provided in the contract, a 23 personal representative is not individually liable on a 24 contract, except a contract for attorney's fee, properly 25 entered into as in his or her fiduciary capacity in the 26 administration of the estate unless the personal 27 representative fails to reveal that his or her representative 28 capacity and identify the estate in the contract. 29 (2) A personal representative is individually liable 30 for obligations arising from ownership or control of the 31 estate or for torts committed in the course of administration 137 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 of the estate only if he or she is personally at fault. 2 (3) Claims based on contracts, except a contract for 3 attorney's fee, entered into by a personal representative as a 4 fiduciary in his or her fiduciary capacity, on obligations 5 arising from ownership or control of the estate, or on torts 6 committed in the course of estate administration, may be 7 asserted against the estate by proceeding against the personal 8 representative in that his or her fiduciary capacity, whether 9 or not the personal representative is individually liable 10 therefor. 11 (4) Issues of liability as between the estate and the 12 personal representative individually may be determined in a 13 proceeding for accounting, surcharge, or indemnification, or 14 other appropriate proceeding. 15 Section 145. Section 733.701, Florida Statutes, is 16 amended to read: 17 733.701 Notifying creditors.--Unless creditors' claims 18 are otherwise barred by s. 733.710 the proceedings are under 19 chapter 734 or chapter 735, every personal representative 20 shall cause notice to creditors of administration to be 21 published and served under s. 733.2121 733.212. 22 Section 146. Section 733.702, Florida Statutes, is 23 amended to read: 24 733.702 Limitations on presentation of claims.-- 25 (1) If not barred by s. 733.710, no claim or demand 26 against the decedent's estate that arose before the death of 27 the decedent, including claims of the state and any of its 28 subdivisions, even if the claims are unmatured, contingent, 29 whether due or not, direct or contingent, or liquidated or 30 unliquidated; no claim for funeral or burial expenses; no 31 claim for personal property in the possession of the personal 138 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 representative; and no claim for damages, including, but not 2 limited to, an action founded on fraud or another wrongful act 3 or omission of the decedent, is binding on the estate, on the 4 personal representative, or on any beneficiary unless filed in 5 the probate proceeding within the later of 3 months after the 6 time of the first publication of the notice to creditors of 7 administration or, as to any creditor required to be served 8 with a copy of the notice to creditors of administration, 30 9 days after the date of service of such copy of the notice on 10 the creditor, even though the personal representative has 11 recognized the claim or demand by paying a part of it or 12 interest on it or otherwise. The personal representative may 13 settle in full any claim without the necessity of the claim 14 being filed when the settlement has been approved by the 15 interested persons beneficiaries adversely affected according 16 to the priorities provided in this code and when the 17 settlement is made within the statutory time for filing 18 claims; or, within 3 months after the first publication of the 19 notice of administration, he or she may file a proof of claim 20 of all claims he or she has paid or intends to pay. 21 (2) No cause of action heretofore or hereafter 22 accruing, including, but not limited to, an action founded 23 upon fraud or other wrongful act or omission, shall survive 24 the death of the person against whom the claim may be made, 25 whether or not an action is pending at the death of the person 26 or not, unless a the claim is filed within the time periods 27 set forth in this part. 28 (3) Any claim not timely filed as provided in this 29 section is barred even though no objection to the claim is 30 filed on the grounds of timeliness or otherwise unless the 31 court extends the time in which the claim may be filed. Such 139 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 An extension may be granted only upon grounds of fraud, 2 estoppel, or insufficient notice of the claims period. No 3 independent action or declaratory action may be brought upon a 4 claim which was not timely filed unless such an extension has 5 been granted by the court. If the personal representative or 6 any other interested person serves on the creditor a notice to 7 file a petition for an extension or be forever barred, the 8 creditor shall be limited to a period of 30 days from the date 9 of service of the notice in which to file a petition for 10 extension. 11 (4) Nothing in this section affects or prevents: 12 (a) A proceeding to enforce any mortgage, security 13 interest, or other lien on property of the decedent. 14 (b) To the limits of casualty insurance protection 15 only, any proceeding to establish liability that of the 16 decedent or the personal representative for which he or she is 17 protected by the casualty insurance. 18 (c) The filing of a claim by the Department of Revenue 19 subsequent to the expiration of the time for filing claims 20 provided in subsection (1), provided it does so file within 30 21 days after the service of the inventory by the personal 22 representative on the department or, in the event an amended 23 or supplementary inventory has been prepared, within 30 days 24 after the service of the amended or supplementary inventory by 25 the personal representative on the department. 26 (c)(d) The filing of a cross-claim or counterclaim 27 against the estate in an action instituted by the estate; 28 however, no recovery on such a cross-claim or counterclaim 29 shall exceed the estate's recovery in that such an action. 30 (5) The Department of Revenue may file a claim against 31 the estate of a decedent for taxes due under chapter 199 after 140 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 the expiration of the time for filing claims provided in 2 subsection (1), if the department files its claim within 30 3 days after the service of the inventory. Upon filing of the 4 estate tax return with the department as provided in s. 5 198.13, or to the extent the inventory or estate tax return is 6 amended or supplemented, the department has the right to file 7 a claim or to amend its previously filed claim within 30 days 8 after service of the estate tax return, or an amended or 9 supplemented inventory or filing of an amended or supplemental 10 estate tax return, as to the additional information disclosed. 11 (6)(5) Nothing in this section shall extend the 12 limitations period set forth in s. 733.710. 13 Section 147. Subsection (2) of section 733.703, 14 Florida Statutes, is amended to read: 15 733.703 Form and manner of presenting claim.-- 16 (2) Within the time allowed by s. 733.702, the 17 personal representative may file a proof of claim of all 18 claims he or she has paid or intends to pay. A claimant whose 19 claim is listed in a personal representative's proof of claim 20 filed within 3 months after the first publication of the 21 notice of administration shall be deemed to have filed a 22 statement of the claim listed. Except as provided otherwise 23 in this part, the claim shall be treated for all other 24 purposes as if it had been filed by the claimant had filed it. 25 Section 148. Section 733.704, Florida Statutes, is 26 amended to read: 27 733.704 Amendment of claims.--If a bona fide attempt 28 to file a claim is made by a creditor but the claim is 29 defective as to form, the court may permit the amendment of 30 the claim at any time. 31 Section 149. Section 733.705, Florida Statutes, is 141 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 amended to read: 2 733.705 Payment of and objection to claims.-- 3 (1) The personal representative shall pay all claims 4 within 1 year from the date of first publication of notice to 5 creditors of administration, provided that the time shall be 6 extended with respect to claims in litigation, unmatured 7 claims, and contingent claims for the period necessary to 8 dispose of those such claims pursuant to subsections (4), (5), 9 (6), and (7), and (8). The court may extend the time for 10 payment of any claim upon a showing of good cause. No 11 personal representative shall be compelled to pay the debts of 12 the decedent until after the expiration of 5 months from the 13 first publication of notice to creditors of administration. 14 If any person brings an action against a personal 15 representative within the 5 months on any claim to which the 16 personal representative has not filed an no objection, the 17 plaintiff shall not receive any costs or attorneys' fees if he 18 or she prevails, nor shall the judgment change the class of 19 the claim for payment under this code. 20 (2) On or before the expiration of 4 months from the 21 first publication of notice to creditors of administration or 22 within 30 days from the timely filing or amendment of a claim, 23 whichever occurs later, a personal representative or other 24 interested person may file a written objection to a claim. An 25 objection to a claim shall contain a statement that the 26 claimant is limited to a period of 30 days from the date of 27 service of the objection within which to bring an action on 28 the claim as provided in subsection (4). The failure to 29 include such a statement in the objection shall not affect the 30 validity of the objection but may be considered as good cause 31 for extending the time for filing an action or proceeding 142 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 after the objection is filed. If an objection is filed, the 2 person filing it shall serve a copy of the objection as 3 provided by the Florida Probate Rules by registered or 4 certified mail to the address of the claimant or the 5 claimant's attorney as shown on the claim or by delivery to 6 the claimant to whose claim the person objects or the 7 claimant's attorney of record, if any, not later than 10 days 8 after the objection has been filed, and also on the personal 9 representative if the objection is filed by any interested 10 person other than the personal representative. The failure to 11 serve a copy of the objection constitutes an abandonment of 12 the objection. For good cause, the court may extend the time 13 for filing or serving an objection to any claim or may extend 14 the time for serving the objection. The extension of time 15 shall be granted only after notice. Objection to a claim 16 constitutes an objection to an amendment of that claim unless 17 the objection is withdrawn. 18 (3) If the objection is filed by a person other than 19 the personal representative, the personal representative may 20 apply to the court for an order relieving him or her from the 21 obligation to defend the estate in an independent action or 22 for the appointment of the objector as administrator ad litem 23 to defend the action. Fees for the attorney for the 24 administrator ad litem may be awarded as provided in s. 25 733.106(3). If costs or attorney's fees are awarded from or 26 against the estate, the probate court may charge or apportion 27 that award as provided in s. 733.106(4). 28 (4)(3) An objection by an interested person to a 29 personal representative's proof of claim shall state the 30 particular item or items to which the interested person 31 objects and shall be filed and served as provided in 143 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 subsection (2). Issues of liability as between the estate and 2 the personal representative individually for items paid by the 3 personal representative and thereafter listed in a personal 4 representative's proof of claim shall be determined in the 5 estate administration proceeding, in a proceeding for 6 accounting or, surcharge, or in another other appropriate 7 proceeding, whether or not an objection has been filed. If an 8 objection to an item listed as to be paid in a personal 9 representative's proof of claim is filed and served, and the 10 personal representative has not paid the item, the other 11 subsections of this section shall apply as if a claim for the 12 item had been filed by the claimant; but if the personal 13 representative has paid the claim after listing it as to be 14 paid, issues of liability as between the estate and the 15 personal representative individually shall be determined in 16 the manner provided for an item listed as paid. 17 (5)(4) The claimant is limited to a period of 30 days 18 from the date of service of an objection within which to bring 19 an independent action upon the claim, or a declaratory action 20 to establish the validity and amount of an unmatured claim 21 which is not yet due but which is certain to become due in the 22 future, or a declaratory action to establish the validity of a 23 contingent claim upon which no cause of action has accrued on 24 the date of service of an objection and that may or may not 25 become due in the future, unless an extension of this time is 26 agreed to by the personal representative in writing before it 27 expires. For good cause, the court may extend the time for 28 filing an action or proceeding after objection is filed. The 29 extension of time shall be granted only after notice. No 30 action or proceeding on the claim may shall be brought against 31 the personal representative after the time limited above, and 144 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 the any such claim is thereafter forever barred without any 2 court order. If an objection is filed to the claim of any 3 creditor and an action is brought by the creditor brings an 4 action to establish the his or her claim, a judgment 5 establishing the claim shall give it no priority over claims 6 of the same class to which it belongs. 7 (6)(5) A claimant may bring an independent action or 8 declaratory action upon a claim which was not timely filed 9 pursuant to s. 733.702(1) only if the claimant has been 10 granted an extension of time to file the claim pursuant to s. 11 733.702(3). 12 (7)(6) If an unmatured claim has not become due before 13 the time for distribution of an estate, the personal 14 representative may prepay the full amount of principal plus 15 accrued interest due on the claim, without discount and 16 without penalty, regardless of any prohibition against 17 prepayment or provision for penalty in any instrument on which 18 the claim is founded. If the claim is not prepaid, no order 19 of discharge may be entered until the creditor and personal 20 representative have filed an agreement disposing of the claim, 21 or in the absence of an agreement until the court provides for 22 payment by one of the following methods: 23 (a) Requiring the personal representative to reserve 24 such assets as the court determines to be adequate to pay the 25 claim when it becomes due; in fixing the amount to be 26 reserved, the court may determine the value of any security or 27 collateral to which the creditor may resort for payment of the 28 claim and may direct the reservation, if necessary, of 29 sufficient assets to pay the claim or to pay the difference 30 between the value of any security or collateral and the amount 31 necessary to pay the claim. If the estate is insolvent, the 145 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 court may direct a proportionate amount to be reserved. The 2 court shall direct that the amount reserved be retained by the 3 personal representative until the time that the claim becomes 4 due, and that so much of the reserved amount as is not used 5 for payment be distributed thereafter according to law; 6 (b) Requiring that the claim be adequately secured by 7 a mortgage, pledge, bond, trust, guaranty, or other security, 8 as may be determined by the court, the security to remain in 9 effect until the time that the claim becomes due, and that so 10 much of the security or collateral as is not needed for 11 payment be distributed thereafter according to law; or 12 (c) Making provisions such other provision for the 13 disposition or satisfaction of the claim as are is equitable, 14 and in a manner so as not to delay unreasonably the closing of 15 the estate. 16 (8)(7) If no cause of action has accrued on a 17 contingent claim before the time for distribution of an 18 estate, no order of discharge may be entered until the 19 creditor and the personal representative have filed an 20 agreement disposing of the claim or, in the absence of an such 21 agreement, until: 22 (a) The court determines that the claim is adequately 23 secured or that it has no value, 24 (b) Three months from the date on which a cause of 25 action accrues upon the claim, provided that no action on the 26 claim is then pending, 27 (c) Five years from the date of first publication of 28 notice to creditors of administration, or 29 (d) The court provides for payment of the claim upon 30 the happening of the contingency by one of the methods 31 described in paragraph (a), paragraph (b), or paragraph (c) of 146 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 subsection (7) (6), 2 3 whichever occurs first. No action or proceeding on the claim 4 may be brought against the personal representative after the 5 time limited above, and the claim is barred without court 6 order. If an objection is filed to the claim of any creditor 7 and the creditor brings an action to establish the claim, a 8 judgment establishing the claim shall give it no priority over 9 claims of the same class to which it belongs No action or 10 proceeding may be brought against the personal representative 11 on the claim after the time limited above, and any such claim 12 shall thereafter be forever barred without order of court. If 13 an action is brought within the time limited above, a judgment 14 establishing the claim shall give it no priority over claims 15 of the same class to which it belongs. 16 (9)(8) No interest shall be paid by the personal 17 representative or allowed by the court on a claim until the 18 expiration of 5 calendar months from the first publication of 19 the notice of administration, unless the claim is founded on a 20 written obligation of the decedent providing for the payment 21 of interest. Interest shall be paid by the personal 22 representative on written obligations of the decedent 23 providing for the payment of interest. On all other claims, 24 interest shall be allowed and paid beginning 5 months from the 25 first publication of the notice to creditors of 26 administration. 27 (10)(9) The court may determine all issues concerning 28 claims or matters not requiring trial by jury. 29 (11)(10) An order for extension of time authorized 30 under this section may be entered only in the estate 31 administration proceeding. 147 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 Section 150. Section 733.707, Florida Statutes, is 2 amended to read: 3 733.707 Order of payment of expenses and 4 obligations.-- 5 (1) The personal representative shall pay the expenses 6 of the administration and obligations of the decedent's estate 7 in the following order: 8 (a) Class 1.--Costs, expenses of administration, and 9 compensation of personal representatives and their attorneys 10 attorneys' fees and attorneys fees awarded under s. 11 733.106(3). 12 (b) Class 2.--Reasonable funeral, interment, and grave 13 marker expenses, whether paid by a guardian under s. 14 744.441(16), the personal representative, or any other person, 15 not to exceed the aggregate of $6,000. 16 (c) Class 3.--Debts and taxes with preference under 17 federal law, and claims pursuant to ss. 409.9101 and 414.28. 18 (d) Class 4.--Reasonable and necessary medical and 19 hospital expenses of the last 60 days of the last illness of 20 the decedent, including compensation of persons attending the 21 decedent him or her. 22 (e) Class 5.--Family allowance. 23 (f) Class 6.--Arrearage from court-ordered child 24 support. 25 (g) Class 7.--Debts acquired after death by the 26 continuation of the decedent's business, in accordance with s. 27 733.612(22), but only to the extent of the assets of that 28 business. 29 (h) Class 8.--All other claims, including those 30 founded on judgments or decrees rendered against the decedent 31 during the decedent's lifetime, and any excess over the sums 148 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 allowed in paragraphs (b) and (d). 2 (2) After paying any preceding class, if the estate is 3 insufficient to pay all of the next succeeding class, the 4 creditors of the latter class shall be paid ratably in 5 proportion to their respective claims. 6 (3) Any portion of a trust with respect to which a 7 decedent who is the grantor has at the decedent's death a 8 right of revocation, as defined in paragraph (e), either alone 9 or in conjunction with any other person, is liable for the 10 expenses of the administration and obligations of the 11 decedent's estate and enforceable claims of the decedent's 12 creditors to the extent the decedent's estate is insufficient 13 to pay them as provided in s. 733.607(2). 14 (a) For purposes of this subsection, any trusts 15 established as part of, and all payments from, either an 16 employee annuity described in s. 403 of the Internal Revenue 17 Code of 1986, as amended, an Individual Retirement Account, as 18 described in s. 408 of the Internal Revenue Code of 1986, as 19 amended, a Keogh (HR-10) Plan, or a retirement or other plan 20 established by a corporation which is qualified under s. 401 21 of the Internal Revenue Code of 1986, as amended, shall not be 22 considered a trust over which the decedent has a right of 23 revocation. 24 (b) For purposes of this subsection, any trust 25 described in s. 664 of the Internal Revenue Code of 1986, as 26 amended, shall not be considered a trust over which the 27 decedent has a right of revocation. 28 (c) This subsection shall not impair any rights an 29 individual has under a qualified domestic relations order as 30 that term is defined in s. 414(p) of the Internal Revenue Code 31 of 1986, as amended. 149 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 (d) For purposes of this subsection, property held or 2 received by a trust to the extent that the property would not 3 have been subject to claims against the decedent's estate if 4 it had been paid directly to a trust created under the 5 decedent's will or other than to the decedent's estate, or 6 assets received from any trust other than a trust described in 7 this subsection, shall not be deemed assets of the trust 8 available to for the payment of the expenses of administration 9 of and enforceable claims against the decedent's estate. 10 (e) For purposes of this subsection, a "right of 11 revocation" is a power retained by the decedent, held in any 12 capacity, to: 13 1. Amend or revoke the trust and revest the principal 14 of the trust in the decedent; or 15 2. Withdraw or appoint the principal of the trust to 16 or for the decedent's benefit. 17 Section 151. Section 733.708, Florida Statutes, is 18 amended to read: 19 733.708 Compromise.--When a proposal is made to 20 compromise any claim, whether in suit or not, by or against 21 the estate of a decedent or to compromise any question 22 concerning the distribution of a decedent's estate, the court 23 may enter an order authorizing the compromise if satisfied 24 that the compromise will be for the best interest of the 25 interested persons beneficiaries. The order shall relieve the 26 personal representative of liability or responsibility for the 27 compromise. Claims against the estate may not be compromised 28 until after the time for filing objections to claims has 29 expired. Notice must be given to those who have filed 30 objection to the claim proposed to be compromised. 31 Section 152. Subsection (1) of section 733.710, 150 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 Florida Statutes, is amended to read: 2 733.710 Limitations on claims against estates.-- 3 (1) Notwithstanding any other provision of the code, 2 4 years after the death of a person, neither the decedent's 5 estate, the personal representative, (if any), nor the 6 beneficiaries shall be liable for any claim or cause of action 7 against the decedent, whether or not letters of administration 8 have been issued, except as provided in this section. 9 Section 153. Section 733.801, Florida Statutes, is 10 amended to read: 11 733.801 Delivery of devises and distributive shares.-- 12 (1) No personal representative shall be required to 13 pay or deliver any devise or distributive share or to 14 surrender possession of any land to any beneficiary until the 15 expiration of 5 months from the granting of letters. 16 (2) Except as otherwise provided in the will, the 17 personal representative shall pay as an expense of 18 administration the reasonable expenses of storage, insurance, 19 packing, and delivery of tangible personal property to a 20 beneficiary. 21 Section 154. Subsections (1) and (2) of section 22 733.802, Florida Statutes, are amended to read: 23 733.802 Proceedings for compulsory payment of devises 24 or distributive interest.-- 25 (1) Before final distribution, no personal 26 representative shall be compelled: 27 (a) To pay a devise in money before the final 28 settlement of the personal representative's his or her 29 accounts, 30 (b) To deliver specific personal property devised that 31 may have come into his or her hands, unless the personal 151 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 property is exempt personal property, 2 (c) To pay all or any part of a distributive share in 3 the personal estate of a decedent, or 4 (d) To surrender land to any beneficiary, 5 6 unless the beneficiary establishes files a petition setting 7 forth the facts that entitle him or her to relief and stating 8 that the property will not be required for the payment of 9 debts, family allowance, estate and inheritance taxes, claims, 10 elective share of the surviving spouse, charges, or expenses 11 of administration or to provide for providing funds for 12 contribution or to enforce enforcing equalization in case of 13 advancements. 14 (2) An order directing the surrender of real property 15 or the delivery of personal property by the personal 16 representative to the beneficiary shall describe the property 17 to be surrendered or delivered. The order shall be conclusive 18 in favor of bona fide purchasers for value from the 19 beneficiary or distributee as against the personal 20 representative and all other persons claiming by, through, 21 under, or against the decedent or the decedent's estate. 22 Section 155. Section 733.803, Florida Statutes, is 23 amended to read: 24 733.803 Encumbered property; liability for 25 payment.--The specific devisee of any encumbered property 26 shall be entitled to have the encumbrance on devised property 27 paid at the expense of the residue of the estate only when the 28 will shows that such an intent. A general direction in the 29 will to pay debts does not show that such an intent. 30 Section 156. Section 733.805, Florida Statutes, is 31 amended to read: 152 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 733.805 Order in which assets abate are 2 appropriated.-- 3 (1) If a testator makes provision by his or her will, 4 or designates the Funds or property designated by the will 5 shall to be used, to pay for the payment of debts, estate and 6 inheritance taxes, family allowance, exempt property, elective 7 share charges, expenses of administration, and devises, to the 8 extent the funds or property are they shall be paid out of the 9 funds or from the property or proceeds as provided by the will 10 so far as sufficient. If no provision is made or the 11 designated any fund or property designated, or if it is 12 insufficient, the funds and property of the estate shall be 13 used for these such purposes, except as otherwise provided in 14 s. 733.817 with respect to estate, inheritance, and other 15 death taxes, and to raise the shares of a pretermitted spouse 16 and children, except as otherwise provided in subsections (3) 17 and (4), in the following order: 18 (a) Property passing by intestacy not disposed of by 19 the will. 20 (b) Property devised to the residuary devisee or 21 devisees. 22 (c) Property not specifically or demonstratively 23 devised. 24 (d) Property specifically or demonstratively devised. 25 (2) Demonstrative devises shall be classed as general 26 devises upon the failure or insufficiency of funds or property 27 out of which payment should be made, to the extent of the 28 insufficiency. Devises to the decedent's surviving spouse, 29 given in satisfaction of, or instead of, the surviving 30 spouse's statutory rights in the estate, shall not abate until 31 other devises of the same class are exhausted. Devises given 153 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 for a valuable consideration shall abate with other devises of 2 the same class only to the extent of the excess over the 3 amount of value of the consideration until all others of the 4 same class are exhausted. Except as herein provided, devises 5 shall abate equally and ratably and without preference or 6 priority as between real and personal property. When property 7 that has been specifically devised or charged with a devise is 8 sold or used taken by the personal representative, other 9 devisees shall contribute according to their respective 10 interests to the devisee whose devise has been sold or used 11 taken., and before distribution the court shall determine The 12 amounts of the respective contributions shall be determined by 13 the court, and they shall be paid or withheld before 14 distribution is made. 15 (3) Section 733.817 shall be applied before this 16 section is applied. 17 (4) In determining the contribution required under s. 18 733.607(2), subsections (1)-(3) of this section and s. 19 737.3054(2) shall be applied as if the beneficiaries of the 20 estate and the beneficiaries of a trust described in s. 21 733.707(3), other than the estate or trust itself, were taking 22 under a common instrument. 23 Section 157. Section 733.806, Florida Statutes, is 24 amended to read: 25 733.806 Advancement.--If a person dies intestate as to 26 all his or her estate, property that the decedent gave during 27 in his or her lifetime to an heir is treated as an advancement 28 against the heir's latter's share of the estate only if 29 declared in a contemporaneous writing by the decedent or 30 acknowledged in writing by the heir. The property advanced 31 shall be valued at the time the heir came into possession or 154 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 enjoyment of the property or at the time of the death of the 2 decedent, whichever first occurs. If the recipient of the 3 property does not survive the decedent, the property shall not 4 be taken into account in computing the intestate share to be 5 received by the recipient's descendants unless the declaration 6 or acknowledgment provides otherwise. 7 Section 158. Subsections (3), (4), (5), and (6) of 8 section 733.808, Florida Statutes, are amended to read: 9 733.808 Death benefits; disposition of proceeds.-- 10 (3) In the event no trustee makes proper claim to the 11 proceeds from the insurance company or other obligor within a 12 period of 6 months after the date of the death of the insured, 13 employee, or annuitant, or if satisfactory evidence is 14 furnished to the insurance company or such obligor within that 15 period that there is, or will be, no trustee to receive the 16 proceeds, payment shall be made by the insurance company or 17 obligor to the personal representative of the person making 18 the such designation, unless otherwise provided by agreement 19 with the insurer or other obligor during the lifetime of the 20 insured, employee, or annuitant. 21 (4) Death benefits payable as provided in subsection 22 (1), subsection (2), or subsection (3), unless paid to a 23 personal representative under the provisions of subsection 24 (3), shall not be deemed to be part of the decedent's estate 25 of the testator or an intestate estate, and shall not be 26 subject to any obligation to pay the expenses of the 27 administration and obligations of the decedent's estate or for 28 contribution required from a trust under s. 733.607(2) 29 transfer or estate taxes, debts, or other charges enforceable 30 against the estate to any greater extent than if the such 31 proceeds were payable directly to the beneficiaries named in 155 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 the trust. 2 (5) The death benefits so held in trust may be 3 commingled with any other assets that may properly come into 4 the trust. 5 (6) Nothing in this section shall affect the validity 6 of any designation of a beneficiary of proceeds previously 7 heretofore made that designates as beneficiary the trustee of 8 any trust established under a trust agreement or declaration 9 of trust or by will. 10 Section 159. Section 733.809, Florida Statutes, is 11 amended to read: 12 733.809 Right of retainer.--The amount of a 13 noncontingent indebtedness due from of a beneficiary to the 14 estate, if due, or its present value, if not due, may be 15 offset against that the beneficiary's interest. However, that, 16 but the beneficiary shall have has the benefit of any defense 17 that would be available to him or her in a direct proceeding 18 for recovery of the debt. 19 Section 160. Section 733.810, Florida Statutes, is 20 amended to read: 21 733.810 Distribution in kind; valuation.-- 22 (1) Assets shall be distributed in kind unless: 23 (a) A general power of sale is conferred; 24 (b) A contrary intention is indicated by the will or 25 trust; or 26 (c) Disposition is made otherwise under the provisions 27 of this code. Unless a general power of sale is conferred or a 28 contrary intention is indicated by the will or unless assets 29 are otherwise disposed of under the provisions of this code, 30 the distributable assets of a decedent's estate shall be 31 distributed in kind through application of the following 156 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 provisions: 2 (2)(a) Any pecuniary devise, family allowance, or 3 other pecuniary share of the estate or trust or devise payable 4 in money may be satisfied by value in kind if: 5 (a)1. The person entitled to the payment has not 6 demanded cash; 7 (b)2. The property is distributed in kind is valued at 8 fair market value as of the date of its distribution date; and 9 (c)3. No residuary devisee has requested that the 10 asset remain a part of the residuary residue of the estate. 11 (3)(b) When it is not practicable to distribute 12 undivided interests in a residuary asset property, the asset 13 may property shall be sold converted into cash for 14 distribution. 15 (4)(2) When the personal representative, trustee, or 16 other fiduciary under a will or trust instrument is required 17 to, or has an option, to, satisfy a pecuniary devise or 18 transfer in trust, to, or for the benefit of, the surviving 19 spouse, with an in-kind distribution assets of the estate or 20 trust in kind, at values as finally determined for federal 21 estate tax purposes, the personal representative, trustee, or 22 other fiduciary shall, unless the governing will or trust 23 instrument otherwise provides, satisfy the devise or transfer 24 in trust by distribution of assets, including cash, fairly 25 representative of the appreciated or depreciated value of all 26 property available for that distribution in satisfaction of 27 the devise or transfer in trust, taking into consideration any 28 gains and losses realized from a prior the sale, prior to 29 distribution of the marital interest, of any property not 30 devised specifically, generally, or demonstratively devised. 31 (5)(3) With the consent of all beneficiaries affected, 157 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 A personal representative or a trustee is authorized to 2 distribute any distributable assets, non-pro rata among the 3 beneficiaries subject to the fiduciary's duty of impartiality 4 entitled thereto. 5 Section 161. Section 733.811, Florida Statutes, is 6 amended to read: 7 733.811 Distribution; right or title of 8 distributee.--If a distributee receives from a fiduciary an 9 instrument transferring assets in kind, payment in 10 distribution, or possession of specific property, the 11 distributee has succeeded to the estate's interest in the 12 assets as against all persons interested in the estate. 13 However, the fiduciary may recover the assets or their value 14 if the distribution was improper Proof that a distributee has 15 received an instrument transferring assets in kind or payment 16 in distribution or possession of specific property from a 17 personal representative is conclusive evidence that the 18 distributee has succeeded to the interest of the estate in the 19 distributed assets, as against all persons interested in the 20 estate, but the personal representative may recover the assets 21 or their value if the distribution was improper. 22 Section 162. Section 733.812, Florida Statutes, is 23 amended to read: 24 733.812 Improper distribution or payment; liability of 25 distributee or payee.--Unless the distribution or payment no 26 longer can be questioned because of adjudication, estoppel, or 27 limitations, A distributee of property improperly distributed 28 or paid or a claimant who was paid improperly must paid, if he 29 or she has the property, is liable to return the assets or 30 funds property improperly received, and the income from those 31 assets or interest on the funds its income since distribution 158 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 or payment, unless the distribution or payment cannot be 2 questioned because of adjudication, estoppel, or limitations 3 to the personal representative or to the beneficiaries 4 entitled to it. If the distributee or claimant he or she does 5 not have the property, its then he or she is liable to return 6 the value of the property improperly received at the date of 7 disposition, and its income thereon, and gain received by the 8 distributee or claimant must be returned him or her. 9 Section 163. Section 733.813, Florida Statutes, is 10 amended to read: 11 733.813 Purchasers from distributees protected.--If 12 property distributed in kind, or a security interest in that 13 property therein, is acquired by a purchaser or lender for 14 value from a distributee who has received an instrument of 15 distribution or possession from the personal representative, 16 the purchaser or lender takes title free of any claims of the 17 estate and incurs no personal liability to the estate, whether 18 or not the distribution was proper. The To be protected under 19 this provision a purchaser or lender need not inquire whether 20 a personal representative acted properly in making the 21 distribution in kind. 22 Section 164. Section 733.814, Florida Statutes, is 23 amended to read: 24 733.814 Partition for purpose of distribution.--When 25 two or more beneficiaries heirs or devisees are entitled to 26 distribution of undivided interests in any property, the 27 personal representative or any beneficiary one or more of the 28 beneficiaries may petition the court before closing the estate 29 is closed to make partition. After formal notice to the 30 interested beneficiaries, the court shall partition the 31 property in the same manner as provided by law for civil 159 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 actions of partition. The court may direct the personal 2 representative to sell any property that cannot be partitioned 3 without prejudice to the owners and that cannot be allotted 4 equitably and conveniently be allotted to any one party. 5 Section 165. Section 733.815, Florida Statutes, is 6 amended to read: 7 733.815 Private contracts agreements among interested 8 persons distributees.--Subject to the rights of creditors and 9 taxing authorities, competent interested persons may agree 10 among themselves to alter the interests, shares, or amounts to 11 which they are entitled under the will or under the laws of 12 intestacy in a written contract executed by them all who are 13 affected. The personal representative shall abide by the terms 14 of the contract agreement, subject to the personal 15 representative's his or her obligation to administer the 16 estate for the benefit of interested persons who are not 17 parties to the contract, and creditors, to pay all taxes and 18 costs of administration, and to carry out the responsibilities 19 of his or her office for the benefit of any beneficiaries of 20 the decedent who are not parties to the agreement. Personal 21 representatives are not required to see to the performance of 22 trusts if the trustee is another person who is willing to 23 accept the trust. Trustees of a testamentary trust are 24 interested persons beneficiaries for the purposes of this 25 section. Nothing in this section herein relieves trustees of 26 any duties owed to beneficiaries of trusts. 27 Section 166. Section 733.816, Florida Statutes, is 28 amended to read: 29 733.816 Disposition of unclaimed property held by 30 personal representatives.-- 31 (1) In all cases in which there is unclaimed property 160 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 in the hands of a personal representative that cannot be 2 distributed or paid because of the inability to find the 3 lawful owner because of inability to find him or her or 4 because no lawful owner is known or because the lawful owner 5 refuses to accept the property after a reasonable attempt to 6 distribute it and after notice to that lawful owner, the court 7 shall order the personal representative to sell the property 8 and deposit the proceeds and cash already in hand, after 9 retaining those amounts provided for in subsection (4), with 10 the clerk and receive a receipt, and the clerk shall deposit 11 the funds in the registry of the court to be disposed of as 12 follows: 13 (a) If the value of the funds is $500 or less, the 14 clerk shall post a notice for 30 days at the courthouse door 15 giving the amount involved, the name of the personal 16 representative, and the other pertinent information that will 17 put interested persons on notice. 18 (b) If the value of the funds is over $500, the clerk 19 shall publish the notice once a month for 2 consecutive months 20 in a newspaper of general circulation in the county. 21 22 After the expiration of 6 months from the posting or first 23 publication, the clerk shall deposit the funds with the State 24 Treasurer after deducting the clerk's his or her fees and the 25 costs of publication. 26 (2) Upon receipt of the funds, the State Treasurer 27 shall deposit them to the credit of the State School Fund, to 28 become a part of the school fund. All interest and all income 29 that may accrue from the money while so deposited shall belong 30 to the fund. The funds so deposited shall constitute and be a 31 permanent appropriation for payments by the State Treasurer in 161 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 obedience to court orders entered as provided by subsection 2 (3). 3 (3) Within 10 years from the date of deposit with the 4 State Treasurer, on written petition to the court that 5 directed the deposit of the funds and informal notice to the 6 Department of Legal Affairs, and after proof of entitlement 7 his or her right to them, any person entitled to the funds 8 before or after payment to the State Treasurer and deposit as 9 provided by subsection (1) may obtain a court an order of 10 court directing the payment of the funds to that person him or 11 her. All funds deposited with the State Treasurer and not 12 claimed within 10 years from the date of deposit shall escheat 13 to the state for the benefit of the State School Fund. 14 (4) The personal representative depositing assets with 15 the clerk is permitted to retain from the funds in his or her 16 possession a sufficient amount to pay final costs of 17 administration chargeable to the assets, including fees 18 allowed pursuant to s. 733.617 accruing between the deposit of 19 the funds with the clerk of the court and the order of 20 discharge. Any funds so retained which are surplus shall be 21 deposited with the clerk prior to discharge of the personal 22 representative. 23 (5)(a) If a person entitled to the funds assigns the 24 right his or her rights to receive payment or part payment to 25 an attorney or private investigative agency which is duly 26 licensed to do business in this state pursuant to a written 27 agreement with that such person, the Department of Banking and 28 Finance is authorized to make distribution in accordance with 29 the such assignment. 30 (b) Payments made to an attorney or private 31 investigative agency shall be promptly deposited into a trust 162 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 or escrow account which is regularly maintained by the 2 attorney or private investigative agency in a financial 3 institution located in this state and authorized to accept 4 these such deposits and located in this state. 5 (c) Distribution by the attorney or private 6 investigative agency to the person entitled to the funds shall 7 be made within 10 days following final credit of the deposit 8 into the trust or escrow account at the financial institution, 9 unless a party to the agreement protests the distribution in 10 writing such distribution before it is made. 11 (d) The department shall not be civilly or criminally 12 liable for any funds distributed pursuant to this subsection, 13 provided the such distribution is made in good faith. 14 Section 167. Subsections (1) and (2), paragraph (a) of 15 subsection (4), paragraph (c) of subsection (5), subsection 16 (6), paragraph (a) of subsection (7), and subsection (11) of 17 section 733.817, Florida Statutes, are amended to read: 18 733.817 Apportionment of estate taxes.-- 19 (1) For purposes of this section: 20 (a) "Fiduciary" means a person other than the personal 21 representative in possession of property included in the 22 measure of the tax who is liable to the applicable taxing 23 authority for payment of the entire tax to the extent of the 24 value of the property in his or her possession. 25 (b) "Governing instrument" means a will, trust 26 agreement, or any other document that controls the transfer of 27 an asset on the occurrence of the event with respect to which 28 the tax is being levied. 29 (c) "Gross estate" means the gross estate, as 30 determined by the Internal Revenue Code with respect to the 31 federal estate tax and the Florida estate tax, and as that 163 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 such concept is otherwise determined by the estate, 2 inheritance, or death tax laws of the particular state, 3 country, or political subdivision whose tax is being 4 apportioned. 5 (d) "Included in the measure of the tax" means that 6 for each separate tax that an interest may incur, only 7 interests included in the measure of that particular tax are 8 considered. The term "included in the measure of the tax" does 9 not include any interest, whether passing under the will or 10 not, to the extent the interest is initially deductible from 11 the gross estate, without regard to any subsequent reduction 12 diminution of the deduction by reason of the charge of any 13 part of the applicable tax to the interest. The term "included 14 in the measure of the tax" does not include interests or 15 amounts that are not included in the gross estate but are 16 included in the amount upon which the applicable tax is 17 computed, such as adjusted taxable gifts with respect to the 18 federal estate tax. If an election is required for 19 deductibility, an interest is not "initially deductible" 20 unless the election for deductibility is allowed. 21 (e) "Internal Revenue Code" means the Internal Revenue 22 Code of 1986, as amended from time to time. 23 (f) "Net tax" means the net tax payable to the 24 particular state, country, or political subdivision whose tax 25 is being apportioned, after taking into account all credits 26 against the applicable tax except as provided in this section. 27 With respect to the federal estate tax, "net tax" is 28 determined after taking into account all credits against the 29 tax except for the credit for foreign death taxes. 30 (g) "Nonresiduary devise" means any devise that is not 31 a residuary devise. 164 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 (h) "Nonresiduary interest" in connection with a trust 2 means any interest in a trust which is not a residuary 3 interest. 4 (i) "Recipient" means, with respect to property or an 5 interest in property included in the gross estate, an heir at 6 law in an intestate estate, devisee in a testate estate, 7 beneficiary of a trust, beneficiary of an insurance policy, 8 annuity, or other contractual right, surviving tenant, taker 9 as a result of the exercise or in default of the exercise of a 10 general power of appointment, person who receives or is to 11 receive the property or an interest in the property, or person 12 in possession of the property, other than a creditor. 13 (j) "Residuary devise" has the meaning set forth in s. 14 731.201(31)(30). 15 (k) "Residuary interest," in connection with a trust, 16 means an interest in the assets of a trust which remain after 17 provision for any distribution that is to be satisfied by 18 reference to a specific property or type of property, fund, 19 sum, or statutory amount. 20 (l) "Revocable trust" means a trust as described in s. 21 733.707(3) as defined in s. 731.201(33) created by the 22 decedent to the extent that the decedent had at his or her 23 death the power to alter, amend, or revoke the trust either 24 alone or in conjunction with any other person. 25 (m) "State" means any state, territory, or possession 26 of the United States, the District of Columbia, and the 27 Commonwealth of Puerto Rico. 28 (n) "Tax" means any estate tax, inheritance tax, 29 generation skipping transfer tax, or other tax levied or 30 assessed under the laws of this or any other state, the United 31 States, any other country, or any political subdivision of the 165 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 foregoing, as finally determined, which is imposed as a result 2 of the death of the decedent, including, without limitation, 3 the tax assessed pursuant to s. 4980A of the Internal Revenue 4 Code. The term also includes any interest and penalties 5 imposed in addition to the tax. Unless the context indicates 6 otherwise, the term "tax" means each separate tax. 7 (o) "Temporary interest" means an interest in income 8 or an estate for a specific period of time or for life or for 9 some other period controlled by reference to extrinsic events, 10 whether or not in trust. 11 (p) "Tentative Florida tax" with respect to any 12 property means the net Florida estate tax that would have been 13 attributable to that property if no tax were payable to any 14 other state in respect of that property. 15 (q) "Value" means the pecuniary worth of the interest 16 involved as finally determined for purposes of the applicable 17 tax after deducting any debt, expense, or other deduction 18 chargeable to it for which a deduction was allowed in 19 determining the amount of the applicable tax. A lien or other 20 encumbrance is not regarded as chargeable to a particular 21 interest to the extent that it will be paid from other 22 interests. The value of an interest shall not be reduced by 23 reason of the charge against it of any part of the tax. 24 (2) An interest in protected homestead property shall 25 be exempt from the apportionment of taxes if such interest 26 passes to a person to whom inures the decedent's exemption 27 from forced sale under the State Constitution. 28 (4)(a) Except as otherwise effectively directed by the 29 governing instrument, if the Internal Revenue Code including, 30 but not limited to, ss. 2032A(c)(5), 2206, 2207, 2207A, 2207B, 31 and 2603, of the Internal Revenue Code applies to apportion 166 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 federal tax against recipients of certain interests, all net 2 taxes, including taxes levied by the state attributable to 3 each type of interest, shall be apportioned against the 4 recipients of all interests of that type in the proportion 5 that the value of each interest of that type included in the 6 measure of the tax bears to the total of all interests of that 7 type included in the measure of the tax. 8 (5) Except as provided above or as otherwise directed 9 by the governing instrument, the net tax attributable to each 10 interest shall be apportioned as follows: 11 (c) The net tax attributable to an interest in 12 protected homestead property which is exempt from 13 apportionment pursuant to subsection (2) shall be apportioned 14 against the recipients of other interests in the estate or 15 passing under any revocable trust in the following order: 16 1. Class I: Recipients of interests not disposed of 17 by the decedent's will or revocable trust that which are 18 included in the measure of the federal estate tax. 19 2. Class II: Recipients of residuary devises and 20 residuary interests that are included in the measure of the 21 federal estate tax. 22 3. Class III: Recipients of nonresiduary devises and 23 nonresiduary interests that are included in the measure of the 24 federal estate tax. The net tax apportioned to a class, if 25 any, pursuant to this paragraph shall be apportioned among the 26 recipients in the class in the proportion that the value of 27 the interest of each bears to the total value of all interests 28 included in that class. 29 (6) The personal representative or fiduciary shall not 30 be required to transfer to a recipient any property in 31 possession of the personal representative or fiduciary which 167 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 he or she reasonably anticipated to anticipates may be 2 necessary for the payment of taxes. Further, the personal 3 representative or fiduciary shall not be required to transfer 4 any property in possession of the personal representative or 5 fiduciary to the recipient until the amount of the tax due 6 from the recipient is paid by the recipient. If property is 7 transferred before final apportionment of the tax, the 8 recipient shall provide a bond or other security for his or 9 her apportioned liability in the amount and form prescribed by 10 the personal representative or fiduciary. 11 (7)(a) The personal representative may petition at any 12 time for an order of apportionment. If no administration has 13 been commenced at any time after 90 days from the decedent's 14 death any fiduciary may petition for an order of apportionment 15 in the court in which venue would be proper for administration 16 of the decedent's estate. Formal notice of the petition for 17 order of apportionment shall be given to all interested 18 persons. At any time after 6 months from the decedent's death, 19 any recipient may petition the such court for an order of 20 apportionment. 21 (11) Nothing in this section shall limit the right of 22 any person who has paid more than the amount of the tax 23 apportionable to that such person, calculated as if all 24 apportioned amounts would be collected, to obtain contribution 25 from those who have not paid the full amount of the tax 26 apportionable to them, calculated as if all apportioned 27 amounts would be collected, and that right is hereby 28 conferred. In any action to enforce contribution, the court 29 shall award taxable costs as in chancery actions, including 30 reasonable attorney's fees. 31 Section 168. Section 733.901, Florida Statutes, is 168 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 amended to read: 2 733.901 Distribution; Final discharge.-- 3 (1) After administration has been When a personal 4 representative has completed the personal representative shall 5 be discharged administration except for distribution, he or 6 she shall file a final accounting and a petition for discharge 7 that shall contain: 8 (a) A complete report of all receipts and 9 disbursements since the date of the last annual accounting or, 10 if none, from the commencement of administration. 11 (b) A statement that he or she has fully administered 12 the estate by making payment, settlement, or other disposition 13 of all claims and debts that were presented and the expenses 14 of administration. 15 (c) The proposed distribution of the assets of the 16 estate. 17 (d) Any prior distributions that have been made. 18 (e) A statement that objections to this report or 19 proposed distribution of assets be filed within 30 days. 20 21 The final accounting and petition for discharge shall be filed 22 and served on all interested persons within 12 months after 23 issuance of letters for estates not required to file a federal 24 estate tax return, otherwise 12 months from the date the 25 return is due, unless the time is extended by the court for 26 cause shown after notice to interested persons. The petition 27 shall state the status of the estate and the reasons for the 28 extension. 29 (2) If no objection to the accounting or petition for 30 discharge has been filed within 30 days from the date of 31 service of copies on interested persons, or if service has 169 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 been waived, the personal representative may distribute the 2 estate according to the plan of distribution set forth in the 3 petition without a court order. The assets shall be 4 distributed free from the claims of any interested person and, 5 upon receipt of evidence that the estate has been properly 6 distributed and that claims of creditors have been paid or 7 otherwise disposed of, the court shall enter an order 8 discharging the personal representative and releasing the 9 surety on any bond. 10 (3) If an objection to the petition for discharge has 11 been filed within the time allowed, the court shall determine 12 the plan of distribution and, upon receipt of evidence that 13 the estate has been properly distributed and that claims of 14 creditors have been paid or otherwise disposed of, the court 15 shall enter an order discharging the personal representative 16 and releasing the surety on any bond. 17 (4) The final accounting required under subsection (1) 18 may be waived upon a filing of a consent waiver with the 19 court, by all interested persons, acknowledging that they are 20 aware of their rights and that they waive the right to have a 21 final accounting. 22 (5) The 30-day period contained in subsection (2) may 23 be waived upon written consent of all interested persons. 24 (2)(6) The discharge of the personal representative 25 shall release the personal representative of the estate and 26 shall bar any action against the personal representative, as 27 such or individually, and the his or her surety. 28 Section 169. Section 733.903, Florida Statutes, is 29 amended to read: 30 733.903 Subsequent administration.--The final 31 settlement of an estate and the discharge of the personal 170 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 representative shall not prevent a revocation of the order of 2 discharge or the subsequent issuance of letters if other 3 property of the estate is discovered or if it becomes 4 necessary that further administration of the estate be had for 5 any cause. However, The order of discharge may not be revoked 6 under this section based upon the discovery of a will or later 7 will. 8 Section 170. Subsections (3) and (4) of section 9 734.101, Florida Statutes, are amended to read: 10 734.101 Foreign personal representative.-- 11 (3) Debtors who have not received a written demand for 12 payment from a personal representative or curator appointed in 13 this state within 60 days after appointment of a personal 14 representative in any other state or country, and whose 15 property in Florida is subject to a mortgage or other lien 16 securing the debt held by the foreign personal representative, 17 may pay the foreign personal representative after the 18 expiration of 60 days from the date of his or her appointment 19 of the foreign personnel representative. Thereafter, a 20 satisfaction of the mortgage or lien executed by the foreign 21 personal representative, with an authenticated copy of the his 22 or her letters or other evidence of authority attached, may be 23 recorded in the public records. The satisfaction shall be an 24 effective discharge of the mortgage or lien, irrespective of 25 whether the debtor making payment had received a written 26 demand before paying the debt. 27 (4) All persons indebted to the estate of a decedent, 28 or having possession of personal property belonging to the 29 estate, who have received no written demand from a personal 30 representative or curator appointed in this state for payment 31 of the debt or the delivery of the property are authorized to 171 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 pay the debt or to deliver the personal property to the 2 foreign personal representative after the expiration of 60 3 days from the date of his or her appointment of the foreign 4 personnel representative. 5 Section 171. Section 734.102, Florida Statutes, is 6 amended to read: 7 734.102 Ancillary administration.-- 8 (1) If a nonresident of this state dies leaving assets 9 in this state, credits due him or her from residents in this 10 state, or liens on property in this state, a personal 11 representative specifically designated in the decedent's will 12 to administer the Florida property shall be entitled to have 13 ancillary letters issued to him or her, if qualified to act in 14 Florida. Otherwise, the foreign personal representative of the 15 decedent's estate shall be entitled to have letters issued to 16 him or her, if qualified to act in Florida. If the foreign 17 personal representative is not qualified to act in Florida and 18 the will names an alternate or successor who is qualified to 19 act in Florida, the alternate or successor shall be entitled 20 to have letters issued to him or her. Otherwise, those 21 entitled to a majority interest of the Florida property may 22 have letters issued to a personal representative selected by 23 them who is qualified to act in Florida. If the decedent dies 24 intestate and the foreign domiciliary personal representative 25 is not qualified to act in Florida, the order of preference 26 for appointment of a personal representative as prescribed in 27 this code shall apply. If ancillary letters are applied for 28 by other than the domiciliary personal representative, prior 29 notice shall be given to any domiciliary personal 30 representative. 31 (2) Ancillary administration shall be commenced as 172 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 provided by the Florida Probate Rules. To entitle the 2 applicant to ancillary letters, an authenticated copy of so 3 much of the domiciliary proceedings shall be filed as will 4 show either: 5 (a) The will, petition for probate, order admitting 6 the will to probate, and letters, if there are such; or 7 (b) The petition for letters and the letters. 8 (3) On filing the authenticated copy of a probated 9 will, including any probated codicils, the court shall 10 determine If the will and any the codicils, are executed as 11 required by the code, they shall be admitted to probate if 12 any, comply with s. 732.502(1) or s. 732.502(2). If they 13 comply, the court shall admit the will and any codicils to 14 record. 15 (4) The ancillary personal representative shall give 16 bond as do personal representatives generally. All 17 proceedings for appointment and administration of the estate 18 shall be as similar to those in original administrations as 19 possible. 20 (5) Unless creditors' claims are otherwise barred by 21 s. 733.710, the ancillary personal representative shall cause 22 a notice to creditors to be served and published according to 23 the requirements of chapter 733. Claims not filed in 24 accordance with chapter 733 shall be barred as provided in s. 25 733.702. 26 (6)(5) After the payment of all expenses of 27 administration and claims against the estate, the court may 28 order the remaining property held by the ancillary personal 29 representative transferred to the foreign domiciliary personal 30 representative or distributed to the beneficiaries heirs or 31 devisees. 173 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 (7)(6) Ancillary personal representatives shall have 2 the same rights, powers, and authority as other personal 3 representatives in Florida to manage and settle estates; to 4 sell, lease, or mortgage local property; and to raise funds 5 for the payment of debts, claims, and devises in the 6 domiciliary jurisdiction. No property shall be sold, leased, 7 or mortgaged to pay a debt or claim that is barred by any 8 statute of limitation or of nonclaim of this state. 9 Section 172. Section 734.1025, Florida Statutes, is 10 amended to read: 11 734.1025 Nonresident decedent's testate estate with 12 property not exceeding $50,000 $25,000 in this state; 13 determination of claims.-- 14 (1) When a nonresident decedent dies testate and 15 leaves property subject to administration in this state the 16 gross value of which does not exceed $50,000 at the date of 17 death $25,000, the foreign domiciliary personal representative 18 of the estate may determine the question of claims in this 19 state before the expiration of 2 years after the decedent's 20 death may file the 2-year period provided in s. 733.710 by 21 filing in the circuit court of the county where any property 22 is located an authenticated transcript of so much of the 23 foreign domiciliary proceedings as will show the will and 24 beneficiaries of the estate, as provided in the Florida 25 Probate Rules. The court shall admit the will and any codicils 26 to probate if they comply with s. 732.502(1) or (2).: 27 (a) In a testate estate, the probated will and all 28 probated codicils of the decedent; the order admitting them to 29 record; the letters or their equivalent; and the part of the 30 record showing the names of the devisees and heirs of the 31 decedent or an affidavit of the domiciliary personal 174 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 representative reciting that the names are not shown or not 2 fully disclosed by the domiciliary record and specifying the 3 names. On presentation of the foregoing, the court shall 4 admit the will and any codicils to probate if they comply with 5 s. 732.502(1) or (2). 6 (b) In an intestate estate, the authenticated copy of 7 letters of administration, or their equivalent, with the part 8 of the record showing the names of the heirs of the decedent 9 or an affidavit of the domiciliary personal representative 10 supplying the names, as provided in paragraph (a). On 11 presentation of the foregoing, the court shall order them 12 recorded. 13 (2) After complying with the foregoing requirements, 14 The foreign domiciliary personal representative may shall 15 cause a notice to creditors to be served and published 16 according to the revelant requirements of chapter 733 s. 17 731.111, notifying all persons having claims or demands 18 against the estate to file them. Claims not filed in 19 accordance with chapter 733 shall be barred as provided in s. 20 733.702. If any claim is filed, a personal representative 21 shall be appointed as provided in the Florida Probate Rules. 22 (3) The procedure for filing claims and objection to 23 them and for suing on them shall be the same as for other 24 estates, except as hereinafter provided. 25 (4) If no claims are filed against the estate within 26 the time allowed, the court shall enter an order adjudging 27 that notice to creditors has been duly given and proof thereof 28 filed and that no claims have been filed against the estate or 29 that all claims have been satisfied. 30 (5) If any claim is filed against the estate within 31 the time allowed, the court shall send to the domiciliary 175 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 personal representative a copy of the claim and a notice 2 setting a date for a hearing to appoint an ancillary personal 3 representative. At the hearing, the court shall appoint an 4 ancillary personal representative according to the preferences 5 as provided in s. 733.301. 6 (6) If an ancillary personal representative is 7 appointed pursuant to subsection (5), the procedure for 8 filing, objecting to, and suing on claims shall be the same as 9 for other estates, except that the ancillary personal 10 representative appointed shall have not fewer than 30 days 11 from the date of his or her appointment within which to object 12 to any claim filed. 13 (7) The filing by domiciliary personal representatives 14 of portions of the domiciliary probate proceedings as 15 specified in this section, and the barring of claims of 16 creditors in such estates by the publication of notice to 17 creditors as set forth in this section, in all cases prior to 18 June 25, 1980, are hereby validated and confirmed. 19 Section 173. Paragraph (a) of subsection (1) and 20 subsection (3) of section 734.104, Florida Statutes, are 21 amended to read: 22 734.104 Foreign wills; admission to record; effect on 23 title.-- 24 (1) An authenticated copy of the will of a nonresident 25 that devises real property in this state, or any right, title, 26 or interest in the property, may be admitted to record in any 27 county of this state where the property is located at any time 28 after 2 years from the death of the decedent or at any time 29 after the domiciliary personal representative has been 30 discharged if there has been no proceeding to administer the 31 estate of the decedent in this state, provided: 176 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 (a) The will was executed as required by Chapter 732 2 complies with s. 732.502 as to form and manner of execution; 3 and 4 (3) If the court finds that the requirements of this 5 section have been met has been complied with, it shall enter 6 an order admitting the foreign will to record. 7 Section 174. Section 734.201, Florida Statutes, is 8 amended to read: 9 734.201 Jurisdiction by act of foreign personal 10 representative.--A foreign personal representative submits 11 personally to the jurisdiction of the courts of this state in 12 any proceeding concerning the estate by: 13 (1) Filing authenticated copies of the domiciliary 14 proceedings under s. 734.104; 734.103. 15 (2) Receiving payment of money or taking delivery of 16 personal property, under s. 734.101; or. 17 (3) Doing any act as a personal representative in this 18 state that would have given the state jurisdiction over that 19 person him or her as an individual. 20 Section 175. Section 734.202, Florida Statutes, is 21 amended to read: 22 734.202 Jurisdiction by act of decedent.--In addition 23 to jurisdiction conferred by s. 734.201, a foreign personal 24 representative is subject to the jurisdiction of the courts of 25 this state to the same extent that the his or her decedent was 26 subject to jurisdiction immediately before death. 27 Section 176. Section 735.101, Florida Statutes, is 28 repealed: 29 735.101 Family administration; nature of 30 proceedings.--Family administration may be had in the 31 administration of a decedent's estate when it appears: 177 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 (1) In an intestate estate, that the heirs at law of 2 the decedent consist solely of a surviving spouse, lineal 3 descendants, and lineal ascendants, or any of them. 4 (2) In a testate estate, that the beneficiaries under 5 the will consist of a surviving spouse, lineal descendants, 6 and lineal ascendants, or any of them, and that any specific 7 or general devise to others constitutes a minor part of the 8 decedent's estate. 9 (3) In a testate estate, that the decedent's will does 10 not direct administration as required by chapter 733. 11 (4) That the value of the gross estate, as of the date 12 of death, for federal estate tax purposes is less than 13 $60,000. 14 (5) That the entire estate consists of personal 15 property or, if real property forms part of the estate, that 16 administration under chapter 733 has proceeded to the point 17 that all claims of creditors have been processed or barred. 18 Section 177. Section 735.103, Florida Statutes, is 19 repealed: 20 735.103 Petition for family administration.--A 21 verified petition for family administration shall contain, in 22 addition to the statements required by s. 733.202, the 23 following: 24 (1) Facts showing that petitioners are entitled to 25 family administration, as provided in s. 735.101. 26 (2) A complete list of the assets of the gross estate 27 for federal estate tax purposes and their estimated value. 28 (3) An appropriate statement that the estate is not 29 indebted or that provision for payment of debts has been made 30 or the claims are barred. 31 (4) A proposed schedule of distribution of all assets 178 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 to those entitled thereto as surviving spouse, heirs, 2 beneficiaries, or creditors. 3 4 The petition shall be signed and verified by all beneficiaries 5 and the surviving spouse, if any. The petition may be signed 6 on behalf of a minor or an incompetent by her or his legal 7 guardian or, if none, by her or his natural guardian. 8 Section 178. Section 735.107, Florida Statutes, is 9 repealed: 10 735.107 Family administration distribution.-- 11 (1) Upon filing the petition for family 12 administration, the will, if any, shall be proved in 13 accordance with chapter 733 and be admitted to probate. 14 (2) If the estate consists of personal property only, 15 then, after such hearing as the court may require, an order of 16 family administration may be entered allowing immediate 17 distribution of the assets to the persons entitled to them. 18 (3) The order of family administration and the 19 distribution so entered shall have the following effect: 20 (a) Those to whom specified parts of the decedent's 21 estate are assigned by the order shall be entitled to receive 22 and collect the parts and to have the parts transferred to 23 them. They may maintain actions to enforce the right. 24 (b) Debtors of the decedent, those holding property of 25 the decedent, and those with whom securities or other property 26 of the decedent are registered are authorized and empowered to 27 comply with the order by paying, delivering, or transferring 28 to those specified in the order the parts of the decedent's 29 estate assigned to them by the order, and the persons so 30 paying, delivering, or transferring shall not be accountable 31 to anyone else for the property. 179 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 (c) After the entry of the order, bona fide purchasers 2 for value from those to whom property of the decedent may be 3 assigned by the order shall take the property free of all 4 claims of creditors of the decedent and all rights of the 5 surviving spouse and all other heirs and devisees. 6 (d) Property of the decedent that is not exempt from 7 claims of creditors and that remains in the hands of those to 8 whom it may be assigned by the order shall continue to be 9 liable for claims against the decedent until barred as 10 provided in this law. 11 (e) The petitioners for the order of family 12 administration shall be personally liable for all lawful 13 claims against the estate of the decedent, but only to the 14 extent of the value of the estate of the decedent actually 15 received by each petitioner, exclusive of the property exempt 16 from claims of creditors under the constitution and statutes 17 of Florida. 18 (f) After 2 years from the death of the decedent, 19 neither her nor his estate nor those to whom it may be 20 assigned shall be liable for any claim against the decedent, 21 unless proceedings have been taken for the enforcement of the 22 claim. 23 (g) Any heir or devisee of the decedent who was 24 lawfully entitled to share in the estate but was not included 25 in the order of family administration and distribution may 26 enforce her or his rights against those who procured the order 27 in appropriate proceedings and, when successful, shall be 28 awarded reasonable attorney's fees as an element of costs. 29 (4)(a) If the estate of the decedent includes real 30 property and administration under chapter 733 has proceeded to 31 the point that all claims of creditors have been processed or 180 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 barred, or upon the satisfaction of all claims of creditors, 2 if any, and after such hearing as the court may require, an 3 order of family administration may be entered and the personal 4 representative authorized to make distribution of the assets 5 to the persons entitled to them. Upon evidence satisfactory 6 to the court that distribution has been made, the court shall 7 enter an order discharging the personal representative. 8 (b) Any heir or devisee of the decedent who was 9 lawfully entitled to share in the estate but who was not 10 included in the order of family administration and 11 distribution may enforce her or his rights against those who 12 procured the order in appropriate proceedings and, when 13 successful, shall be awarded reasonable attorney's fees as an 14 element of costs. 15 Section 179. Subsection (2) of section 735.201, 16 Florida Statutes, is amended to read: 17 735.201 Summary administration; nature of 18 proceedings.--Summary administration may be had in the 19 administration of either a resident or nonresident decedent's 20 estate, when it appears: 21 (2) That the value of the entire estate subject to 22 administration in this state, less the value of property 23 exempt from the claims of creditors, does not exceed $75,000 24 $25,000 or that the decedent has been dead for more than 2 25 years. 26 Section 180. Section 735.203, Florida Statutes, is 27 amended to read: 28 735.203 Petition for summary administration.-- 29 (1) A petition for summary administration may be filed 30 by any beneficiary, heir at law, or person nominated as 31 personal representative in the decedent's will offered for 181 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 probate. and shall be signed and verified by: The petition 2 must be signed and verified by 3 (a) the surviving spouse, if any and any; the heirs at 4 law or beneficiaries. 5 (2) If a person named in subsection (1) has died, is 6 incapacitated, or is a minor, or has conveyed or transferred 7 all interest in the property of the estate, then, as to that 8 person, the petition must be signed and certified by: 9 (a) The personal representative, if any, of a deceased 10 person or, if none, the surviving spouse, if any, and the 11 beneficiaries; 12 (b) The guardian of an incapacitated person or a 13 minor; or 14 (c) The grantee or transferee of any of them shall be 15 authorized to sign and verify the petition instead of the 16 beneficiary or surviving spouse. 17 (3) The joinder in, or consent to, a petition for 18 summary administration is not required of a beneficiary who 19 will receive full distributive share under the proposed 20 distribution. Any beneficiary not joining or consenting shall 21 receive formal notice of the petition. who are sui juris; and 22 the guardians of any heirs at law or beneficiaries who are not 23 sui juris; or 24 (b) The persons described by s. 735.209. 25 (2) A petition for summary administration shall 26 contain, in addition to the statements required by s. 27 733.202(2)(b) and (c), the following: 28 (a) Facts showing that petitioners are entitled to 29 summary administration as provided in s. 735.201. 30 (b) A complete list of the assets of the estate and 31 their estimated value, together with those assets claimed to 182 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 be exempt. 2 (c) A statement that the estate is not indebted or 3 that provision for payment of debts has been made. 4 (d) A proposed schedule of distribution of all assets 5 to those entitled thereto as surviving spouse, beneficiaries, 6 or creditors. 7 Section 181. Section 735.206, Florida Statutes, is 8 amended to read: 9 735.206 Summary administration distribution.-- 10 (1) Upon the filing of the petition for summary 11 administration, the will, if any, shall be proved in 12 accordance with chapter 733 and be admitted to probate. 13 (2) Prior to entry of the order of summary 14 administration, the petitioner shall make a diligent search 15 and reasonable inquiry for any known or reasonably 16 ascertainable creditors, serve a copy of the petition on those 17 creditors, and make provision for payment for those creditors 18 to the extent that assets are available. 19 (3)(2) The court may enter After such hearing as the 20 court may require, an order of summary administration may be 21 entered allowing immediate distribution of the assets to the 22 persons entitled to them. 23 (4)(3) The order of summary administration and 24 distribution so entered shall have the following effect: 25 (a) Those to whom specified parts of the decedent's 26 estate, including exempt property, are assigned by the order 27 shall be entitled to receive and collect the parts and to have 28 the parts transferred to them. They may maintain actions to 29 enforce the right. 30 (b) Debtors of the decedent, those holding property of 31 the decedent, and those with whom securities or other property 183 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 of the decedent are registered are authorized and empowered to 2 comply with the order by paying, delivering, or transferring 3 to those specified in the order the parts of the decedent's 4 estate assigned to them by the order, and the persons so 5 paying, delivering, or transferring shall not be accountable 6 to anyone else for the property. 7 (c) After the entry of the order, bona fide purchasers 8 for value from those to whom property of the decedent may be 9 assigned by the order shall take the property free of all 10 claims of creditors of the decedent and all rights of the 11 surviving spouse and all other beneficiaries heirs and 12 devisees. 13 (d) Property of the decedent that is not exempt from 14 claims of creditors and that remains in the hands of those to 15 whom it may be assigned by the order shall continue to be 16 liable for claims against the decedent until barred as 17 provided in the code this law. Any known or reasonably 18 ascertainable creditor who did not receive notice and for whom 19 provision for payment was not made may enforce the claim and, 20 if the creditor prevails, shall be awarded reasonable 21 attorneys fees as an element of costs against those who joined 22 in the petition. 23 (e) The recipients of the decedent's property under 24 petitioners for the order of summary administration shall be 25 personally liable for a pro rata share of all lawful claims 26 against the estate of the decedent, but only to the extent of 27 the value of the estate of the decedent actually received by 28 each recipient petitioner, exclusive of the property exempt 29 from claims of creditors under the constitution and statutes 30 of Florida. 31 (f) After 2 years from the death of the decedent, 184 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 neither the decedent's estate nor those to whom it may be 2 assigned shall be liable for any claim against the decedent, 3 unless proceedings have been taken for the enforcement of the 4 claim. 5 (g) Any heir or devisee of the decedent who was 6 lawfully entitled to share in the estate but who was not 7 included in the order of summary administration and 8 distribution may enforce all his or her rights in appropriate 9 proceedings against those who procured the order and, if when 10 successful, shall be awarded reasonable attorney's fees as an 11 element of costs. 12 Section 182. Section 735.2063, Florida Statutes, is 13 amended to read: 14 735.2063 Notice to creditors.-- 15 (1) Any person who has obtained received an order of 16 summary administration may publish a notice to creditors 17 according to the relevant requirements of s. 733.2121 731.111, 18 notifying all persons having claims or demands against the 19 estate of the decedent that an order of summary administration 20 has been entered by the court. The Such notice shall will 21 specify the total cash value of the estate and the names and 22 addresses of those to whom it has been assigned by the such 23 order. Such notice, if published, shall be published once a 24 week for 2 consecutive weeks in a newspaper published in the 25 county where such order was entered, and proof of publication 26 of such notice shall be filed with the court. 27 (2) If proof of publication of the such notice is 28 filed with the court, all claims and demands of creditors 29 against the estate of the decedent who are not known or are 30 reasonably ascertainable shall be forever barred unless the 31 such claims and demands are filed with the court within 3 185 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 months after from the first publication of the such notice. 2 Section 183. Section 735.209, Florida Statutes, is 3 repealed: 4 735.209 Joinder of heirs, devisees, or surviving 5 spouse in summary administration.-- 6 (1) When any heir, devisee, or surviving spouse is 7 authorized or required under this part to join in any 8 agreement or petition and any such person has died, become 9 incompetent or is a minor, or has conveyed or transferred all 10 of his or her interest in the property of the estate, then: 11 (a) The heirs, devisees, and surviving spouse, if any, 12 of a deceased person, 13 (b) The personal representative, if any, of the estate 14 of a deceased person, 15 (c) The guardian of an incompetent or minor, or 16 (d) The grantee or transferee of any of them 17 18 shall be authorized to join in such agreement or petition 19 instead of the heir, devisee, or surviving spouse. 20 (2) The joinder in, or consent to, a petition for 21 summary administration is not required of an heir or 22 beneficiary who will receive his or her full distributive 23 share under the proposed distribution. Any beneficiary not 24 joining or consenting shall receive formal notice of the 25 petition. 26 Section 184. Subsection (3) of section 735.301, 27 Florida Statutes, is amended to read: 28 735.301 Disposition without administration.-- 29 (3) Any person, firm, or corporation paying, 30 delivering, or transferring property under the authorization 31 shall be forever discharged from any liability thereon. 186 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 Section 185. Section 735.302, Florida Statutes, is 2 amended to read: 3 735.302 Income tax refunds in certain cases.-- 4 (1) In any case when the United States Treasury 5 Department determines that an overpayment of federal income 6 tax exists and the person in whose favor the overpayment is 7 determined is dead at the time the overpayment of tax is to be 8 refunded, and irrespective of whether the decedent had filed a 9 joint and several or separate income tax return, the amount of 10 the overpayment, if not in excess of $2,500 $500, may be 11 refunded as follows: 12 (a) Directly to the surviving spouse on his or her 13 verified application; or 14 (b) If there is no surviving spouse, to one of the 15 decedent's children who is designated in a verified 16 application purporting to be executed by all of the decedent's 17 children over the age of 14 years. 18 19 In either event, the application must show that the decedent 20 was not indebted, that provision has been made for the payment 21 of the decedent's debts, or that the entire estate is exempt 22 from the claims of creditors under the constitution and 23 statutes of the state, and that no administration of the 24 estate, including summary administration, has been initiated 25 and that none is planned, to the knowledge of the applicant. 26 (2) If a refund is made to the surviving spouse or 27 designated child pursuant to the application, the refund shall 28 operate as a complete discharge to the United States from 29 liability from any action, claim, or demand by any beneficiary 30 of the decedent or other person. Nothing in This section 31 shall be construed as establishing the ownership or rights of 187 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 the payee any person in the refund so distributed. 2 Section 186. Section 737.208, Florida Statutes, is 3 created to read: 4 737.208 Administration pending outcome of contest or 5 other proceeding.-- 6 (1) Pending the outcome of a proceeding filed to 7 determine the validity of all or part of a trust or the 8 beneficiaries of all or part of a trust, the trustee shall 9 proceed with the administration of the trust as if no 10 proceeding had been commenced, except that no distribution may 11 be made to a beneficiary in contravention of the rights of 12 those persons that may be affected by the outcome of the 13 proceeding. 14 (2) Upon motion of a party and after notice to 15 interested persons, a court may, upon good cause shown, make 16 an exception to the prohibition under subsection (1) and 17 authorize the trustee to distribute trust assets to a 18 beneficiary subject to any conditions the court, in its 19 discretion, may impose, including the posting of bond by the 20 beneficiary. 21 Section 187. Section 737.3054, Florida Statutes, is 22 amended to read: 23 737.3054 Trustee's duty to pay expenses and 24 obligations of grantor's settlor's estate.-- 25 (1) A trustee of a trust described in s. 733.707(3) 26 shall pay to the personal representative of a grantor's 27 settlor's estate any amounts that the personal representative 28 certifies in writing to the trustee are required to pay the 29 expenses of the administration and obligations of the 30 grantor's settlor's estate and the enforceable claims of the 31 settlor's creditors. Payments made by a trustee, unless 188 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 otherwise provided in the trust instrument, must be charged as 2 expenses of the trust without a contribution from anyone. The 3 interests interest of all beneficiaries of such a trust are 4 subject to the provisions of this subsection; however, the 5 payments must be made from assets or property or the proceeds 6 thereof, other than assets proscribed in s. 733.707(3), which 7 are included in the grantor's settlor's gross estate for 8 federal estate tax purposes. 9 (2) Unless a grantor settlor provides by will, or 10 designates in a trust described in s. 733.707(3) the funds or 11 property passing under the a trust described in s. 733.707(3) 12 to be so used, the expenses of the administration and 13 obligations of the grantor's settlor's estate and enforceable 14 claims of the settlor's creditors must be paid from the trust 15 in the following order: 16 (a) Property of the residue of the trust remaining 17 after all distributions that are to be satisfied by reference 18 to a specific property or type of property, fund, or sum; 19 (b) Property that is not to be distributed from 20 specified or identified property or a specified or identified 21 item of property; and 22 (c) Property that is to be distributed from specified 23 or identified property or a specified or identified item of 24 property. 25 (3) Trust distributions that are to be satisfied from 26 specified or identified property must be classed as 27 distributions to be satisfied from the general assets of the 28 trust and not otherwise disposed of in the trust instrument 29 upon the failure or insufficiency of funds or property from 30 which payment should be made, to the extent of the 31 insufficiency. Trust distributions given for valuable 189 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 consideration abate with other distributions of the same class 2 only to the extent of the excess over the value of the 3 consideration until all others of the same class are 4 exhausted. Except as provided in this section, trust 5 distributions abate equally and ratably and without preference 6 or priority between real and personal property. When a 7 specified or identified item of property that has been 8 designated for distribution in the trust instrument or that is 9 charged with a distribution is sold or taken by the trustee, 10 other beneficiaries shall contribute according to their 11 respective interests to the beneficiary whose property has 12 been sold or taken, and before distribution the trustee shall 13 determine the amounts of the respective contributions, and 14 they must be paid or withheld before distribution is made. 15 (4) The trustee shall pay the expenses of trust 16 administration, including compensation of trustees and their 17 attorneys, before and in preference to the expenses of the 18 administration and obligations of the grantor's settlor's 19 estate and enforceable claims of the settlor's creditors. 20 Section 188. Section 737.306, Florida Statutes, is 21 amended to read: 22 737.306 Personal liability of trustee.-- 23 (1)(a) Unless otherwise provided in the contract, a 24 trustee is not personally liable on contracts, except 25 contracts for attorneys' fees, properly entered into in the 26 trustee's fiduciary capacity in the course of administration 27 of the trust estate unless the trustee he or she fails to 28 reveal that his or her representative capacity and identify 29 the trust estate in the contract. 30 (b) A trustee is personally liable for obligations 31 arising from ownership or control of property of the trust 190 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 estate or for torts committed in the course of administration 2 of the trust estate only if the trustee is personally at 3 fault. 4 (c) Claims based on contracts, except contracts for 5 attorneys' fees, entered into by a trustee in his or her 6 fiduciary capacity, on obligations arising from ownership or 7 control of the trust estate, or on torts committed in the 8 course of trust administration may be asserted against the 9 trust estate by proceeding against the trustee in the 10 trustee's his or her fiduciary capacity, whether or not the 11 trustee is personally liable. 12 (2) Issues of liability between the trust estate and 13 the trustee individually may be determined in a proceeding for 14 accounting, surcharge, or indemnification, or in any other 15 appropriate proceeding. 16 (3) A successor trustee is not personally liable for 17 any action taken or omitted to be taken by any prior trustee; 18 nor does any successor trustee have a duty to institute any 19 action against any prior trustee, or file any claim against 20 any prior trustee's estate, for any of the prior trustee's 21 acts or omissions as trustee under any of the following 22 circumstances: 23 (a) The successor trustee succeeds a trustee who was 24 also the grantor of a trust that was revocable during the time 25 that the grantor served as trustee; 26 (b) As to any beneficiary who has waived any 27 accounting required by s. 737.303, but only as to the periods 28 included in the such waiver; 29 (c) As to any beneficiary who has released the 30 successor trustee from the such duty to institute any action 31 or file any claim; 191 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 (d) As to any person who is not a beneficiary within 2 the meaning of s. 737.303(4)(b); or 3 (e) As to any beneficiary described in s. 4 737.303(4)(b): 5 1. If a super majority of the reasonably ascertainable 6 current income or principal beneficiaries described in s. 7 737.303(4)(b)1. and a super majority of the reasonably 8 ascertainable remainder beneficiaries described in s. 9 737.303(4)(b)2. have released the successor trustee; 10 2. If the beneficiary has not delivered a written 11 request to the successor trustee to institute an action or 12 file a claim against the prior trustee within 6 months after 13 the date of the successor trustee's acceptance of the trust, 14 if the successor trustee has notified the beneficiary in 15 writing of its acceptance in accordance with s. 737.303(1) and 16 that such writing advises the beneficiary that, unless the 17 beneficiary delivers the such written request within 6 months 18 after the date of acceptance, the his or her right to proceed 19 against the successor trustee will be barred pursuant to this 20 section; or 21 3. For any action or claim that the beneficiary is 22 barred from bringing against the prior trustee. 23 (4)(a) Two years after the death of a settlor, neither 24 a trust described in s. 733.707(3) as established by the 25 settlor, the trustee of the trust, nor any beneficiary may be 26 held liable for any claim or cause of action against the 27 settlor by a creditor who seeks to recover from the trust, 28 trustee, or beneficiary. 29 (b) This subsection does not apply to a creditor who 30 has timely filed a claim against the settlor's estate under s. 31 733.702 within 2 years after the settlor's death and whose 192 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 claim has not been paid or otherwise disposed of, even if the 2 settlor's estate proceedings have been closed or otherwise 3 completed. 4 (c) This subsection does not affect the lien of a duly 5 recorded mortgage or security interest or the right to 6 foreclose and enforce the mortgage or lien. 7 (f)(5) For the purposes of this section, a super 8 majority of beneficiaries means at least two-thirds in 9 interest of the beneficiaries if the interests of the 10 beneficiaries are reasonably ascertainable; otherwise, it 11 means at least two-thirds in number of the beneficiaries. A 12 release or waiver under this section may be exercised by a 13 legal representative or natural guardian of the beneficiary 14 without the filing of any proceeding or approval of any court. 15 Nothing in this subsection (3) affects any liability of the 16 prior trustee or the right of the successor trustee or any 17 beneficiary to pursue an action or claim against the prior 18 trustee. 19 Section 189. Section 737.3061, Florida Statutes, is 20 created to read: 21 737.3061 Limitations on actions against certain 22 trusts.-- 23 (1) After the death of a grantor, no creditor of the 24 grantor may bring, maintain, or continue any direct action 25 against a trust described in s. 733.707(3), the trustee of the 26 trust or any beneficiary of the trust that is dependent on the 27 individual liability of the grantor. Those claims and causes 28 of action against the grantor shall be presented and enforced 29 against the grantor's estate as provided in part VII of 30 chapter 733, and the personal representative of the grantor's 31 estate may obtain payment from the trustee of a trust 193 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 described in s. 733.707(3) as provided in ss. 733.607(2), 2 733.707(3), and 737.3054(1). 3 (2) This section shall not preclude a direct action 4 against a trust described in s. 733.707(3), the trustee of the 5 trust, or a beneficiary of the trust that is not dependent on 6 the individual liability of the grantor. 7 (3) This section does not affect the lien of any duly 8 recorded mortgage or security interest or the lien of any 9 person in possession of personal property or the right to 10 foreclose and enforce the mortgage or lien. 11 Section 190. Section 737.308, Florida Statutes, is 12 amended to read: 13 737.308 Notice of trust.-- 14 (1) Upon the death of a grantor settlor of a trust 15 described in s. 733.707(3), the trustee must file a notice of 16 trust with the court of the county of the grantor's settlor's 17 domicile and the court having jurisdiction of the grantor's 18 settlor's estate. 19 (2) The notice of trust must contain the name of the 20 grantor settlor, the grantor's settlor's date of death, the 21 title of the trust, if any, the date of the trust, and the 22 name and address of the trustee. 23 (3) If the grantor's settlor's probate proceeding has 24 been commenced, the clerk must notify the trustee in writing 25 of the date of the commencement of the probate proceeding and 26 the file number. 27 (4) The clerk shall file and index the notice of trust 28 in the same manner as a caveat, unless there exists a probate 29 proceeding for the grantor's settlor's estate in which case 30 the notice of trust must be filed in the probate proceeding 31 and the clerk shall send a copy to the personal 194 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 representative. 2 (5) The clerk shall send a copy of any caveat filed 3 regarding the grantor settlor to the trustee, and the Notice 4 of Trust to any caveator, unless there is a probate proceeding 5 pending and the personal representative and the trustee are 6 the same. 7 (6) In any proceeding affecting the expenses of the 8 administration of the estate, or any claims described in s. 9 733.702(1), the trustee of a trust described in s. 733.707(3) 10 is an interested person in the administration of the grantor's 11 estate. 12 (6)(7) Any proceeding affecting the expenses of the 13 administration or obligations of the grantor's estate or any 14 claims described in s. 733.702(1) prior to the trustee filing 15 a notice of trust are binding upon the trustee. 16 (7)(8) The trustee's failure to file the notice of 17 trust does not affect the trustee's obligation to pay expenses 18 of administration and obligations of the grantor's estate 19 enforceable claims as provided in s. 733.607(2). 20 Section 191. Section 215.965, Florida Statutes, is 21 amended to read: 22 215.965 Disbursement of state moneys.--Except as 23 provided in s. 17.076, s. 253.025(14), s. 259.041(18), s. 24 717.124(5), s. 732.107(5)(6), or s. 733.816(5), all moneys in 25 the State Treasury shall be disbursed by state warrant, drawn 26 by the Comptroller upon the State Treasury and payable to the 27 ultimate beneficiary. This authorization shall include 28 electronic disbursement. 29 Section 192. Subsection (3) of section 660.46, Florida 30 Statutes, is amended to read: 31 660.46 Substitution of fiduciaries.-- 195 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 (3) Unless a waiver or consent shall be filed in the 2 proceedings as provided in subsection (4), the provisions of 3 s. 731.301(1)(a), (c), and (2)(d) shall apply with respect to 4 notice of the proceedings to all persons who are then 5 cofiduciaries with the original fiduciary, other than a person 6 joining as a petitioner in the proceedings; to all persons 7 named in the governing instrument as substitutes or successors 8 to the fiduciary capacity of the original fiduciary; to the 9 persons then living who are entitled under the governing 10 instrument to appoint a substitute or successor to act in the 11 fiduciary capacity of the original fiduciary; to all vested 12 beneficiaries of the fiduciary account; and to all then-living 13 originators of the governing instrument. Unless a waiver or 14 consent shall be filed in the proceedings as provided in 15 subsection (4), the provisions of s. 731.301(2) shall apply 16 with respect to notice to all contingent beneficiaries of the 17 fiduciary account. Only the persons or classes of persons 18 described in the foregoing provisions of this subsection shall 19 be deemed to be interested persons for the purposes of this 20 section and the proceedings and notices provided for in this 21 section; and the provisions of ss. 731.301(3) and 22 731.303(3)(4) and (4)(5), relating to notice requirements, the 23 effect of notice, and representation of interests, shall apply 24 to the proceedings provided for in this section. 25 Section 193. Subsection (1) of section 737.111, 26 Florida Statutes, is amended to read: 27 737.111 Execution requirements for express trusts.-- 28 (1) The testamentary aspects of a trust defined in s. 29 731.201(34)(33), are invalid unless the trust instrument is 30 executed by the grantor settlor with the formalities required 31 for the execution of a will. 196 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 Section 194. In editing manuscript for the next 2 official version of the Florida Statutes, the Division of 3 Statutory Revision of the Office of Legislative Services is 4 directed to: 5 (1) Change the title of Part II of Chapter 732, 6 Florida Statutes, from "Elective Share of Surviving Spouse" to 7 "Elective Share of Surviving Spouse; Rights in Community 8 Property." 9 (2) Change the title of Part III of Chapter 733, 10 Florida Statutes, from "Priority to Administer and 11 Qualifications of Personal Representative" to "Preference in 12 Appointment and Qualifications of Personal Representative." 13 (3) Change the title of Part IV of Chapter 733, 14 Florida Statutes, from "Appointment of Personal 15 Representative; Bonds" to "Fiduciary Bonds." 16 (4) Change the title of Part V of Chapter 733, Florida 17 Statutes, from "Curators; Successor Personal Representative; 18 Removal" to "Curators; Resignation and Removal of Personal 19 Representatives." 20 21 22 ================ T I T L E A M E N D M E N T =============== 23 And the title is amended as follows: 24 Delete everything before the enacting clause 25 26 and insert: 27 A bill to be entitled 28 An act relating to probate; amending s. 63.172, 29 F.S.; providing for the right of inheritance 30 with respect to adoption; amending s. 409.9101, 31 F.S.; revising language with respect to 197 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 recovery of payments made on behalf of certain 2 Medicaid-eligible persons; amending s. 655.936, 3 F.S., relating to the opening of a decedent's 4 safe-deposit box; amending s. 731.005, F.S., 5 relating to the Florida Probate Code; amending 6 s. 731.011, F.S.; providing reference to the 7 Florida Probate Rules with respect to the 8 determination of substantive rights under the 9 Florida Probate Code; amending s. 731.104, 10 F.S.; revising language with respect to the 11 verification of documents; amending s. 731.106, 12 F.S., relating to the assets of 13 nondomiciliaries; repealing s. 731.107, F.S., 14 relating to adversary proceedings; amending s. 15 731.110, F.S.; revising language with respect 16 to proceedings concerning caveat; repealing s. 17 731.111, F.S., relating to notice to creditors; 18 amending s. 731.201, F.S.; revising general 19 definitions with respect to the Florida Probate 20 Code; amending s. 731.301, F.S.; revising 21 language with respect to notice; amending s. 22 731.303, F.S., relating to representation; 23 amending s. 732.101, F.S., relating to 24 intestate estates; amending s. 732.102, F.S.; 25 revising language with respect to the share of 26 the spouse; increasing the monetary amount of 27 certain shares; amending s. 732.103, F.S., 28 relating to the share of certain heirs; 29 amending s. 732.107, F.S.; clarifying 30 provisions; revising a filing date; revising 31 certain provisions regarding owner's 198 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 representation; amending s. 732.1101, F.S.; 2 providing that aliens shall have the same right 3 of inheritance as citizens; amending s. 4 732.2025, F.S.; redefining the term "qualifying 5 special needs trust" or "supplemental needs 6 trust"; amending s. 732.2035, F.S.; redefining 7 the term "decedent's ownership interest"; 8 amending s. 732.2045, F.S.; adding an exclusion 9 to the elective share for property that is part 10 of the protected homestead; amending s. 11 732.2055, F.S.; redefining "value" for purposes 12 of calculating the elective estate; amending s. 13 732.2075, F.S.; revising the formula for 14 payment of the elective share; amending s. 15 732.2085, F.S.; adding a cross reference; 16 amending s. 732.2095, F.S.; correcting a cross 17 reference; modifying the formula for 18 determining the fair market value of assets 19 regarding the elective share; amending s. 20 732.2105, F.S.; revising the effect of an 21 elective share election on other estate 22 interests; amending s. 732.2125, F.S.; revising 23 language with respect to the right of election; 24 amending s. 732.2135, F.S.; revising language 25 with respect to time of election, extensions, 26 and withdrawal; amending s. 732.2145, F.S.; 27 revising language with respect to the order of 28 contribution; amending s. 732.2155, F.S.; 29 revising language with respect to the effective 30 date of certain trusts; providing for 31 applicability of certain provisions under 199 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 specified circumstances; amending s. 732.218, 2 F.S.; revising language with respect to 3 rebuttable presumptions; amending s. 732.219, 4 F.S., relating to disposition upon death; 5 amending s. 732.221, F.S.; revising language 6 with respect to perfection of title of personal 7 representative or beneficiary; amending s. 8 732.222, F.S., relating to the purchaser for 9 value or lender; amending s. 732.223, F.S.; 10 revising language with respect to perfection of 11 title of surviving spouse; amending s. 732.302, 12 F.S.; revising language with respect to 13 pretermitted children; amending s. 732.401, 14 F.S.; revising language with respect to descent 15 of homestead; amending s. 732.4015, F.S.; 16 revising language with respect to the 17 definition of "owner" and "devise" concerning 18 homestead; amending s. 732.402, F.S.; revising 19 language with respect to exempt property; 20 amending s. 732.403, F.S.; revising language 21 with respect to family allowance; amending s. 22 732.501, F.S.; revising language with respect 23 to who may make a will; amending s. 732.502, 24 F.S.; revising language with respect to 25 execution of wills; amending s. 732.503, F.S.; 26 revising language with respect to self-proof of 27 will; amending s. 732.505, F.S.; revising 28 language with respect to revocation by writing; 29 amending s. 732.507, F.S.; revising language 30 with respect to effect of subsequent marriage, 31 birth, or dissolution of marriage; amending s. 200 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 732.513, F.S.; revising language with respect 2 to devises to trustees; amending s. 732.514, 3 F.S., relating to vesting of devises; amending 4 s. 732.515, F.S.; revising language with 5 respect to separate writing identifying devises 6 of tangible property; amending s. 732.6005, 7 F.S., relating to rules of construction and 8 intention; amending s. 732.601, F.S.; revising 9 language with respect to the Simultaneous Death 10 Law; amending s. 732.603, F.S.; revising 11 language with respect to antilapse, deceased 12 devises, and class gifts; amending s. 732.604, 13 F.S., relating to the failure of a testamentary 14 provision; amending s. 732.605, F.S., relating 15 to change in securities, accessions, and 16 nonademption; amending s. 732.606, F.S., 17 relating to nonademption of specific devises in 18 certain cases; amending s. 732.701, F.S.; 19 providing for agreements concerning succession 20 executed by a nonresident under certain 21 circumstances; amending s. 732.702, F.S.; 22 revising language with respect to waiver of 23 spousal rights; amending s. 732.801, F.S.; 24 revising language with respect to disclaimer of 25 interests in property passing by will or 26 intestate succession or under certain powers of 27 appointment; amending s. 732.804, F.S.; 28 providing for provisions relating to 29 disposition of the body; amending s. 732.901, 30 F.S., relating to production of wills; 31 eliminating language with respect to willful 201 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 failure to deposit the will; transferring, 2 amending, and renumbering ss. 732.910, 732.911, 3 732.912, 732.913, 732.914, 732.915, 732.916, 4 732.917, 732.918, 732.9185, 732.919, 732.921, 5 732.9215, 732.92155, 732.9216, and 732.922, 6 F.S.; correcting cross references; amending ss. 7 381.004 and 381.0041, F.S.; correcting cross 8 references; amending s. 733.101, F.S., relating 9 to the venue of probate proceedings; amending 10 s. 733.103, F.S., relating to the effect of 11 probate; amending s. 733.104, F.S.; revising 12 language with respect to the suspension of the 13 statute of limitations in favor of the personal 14 representative; amending s. 733.105, F.S.; 15 revising language with respect to the 16 determination of beneficiaries; amending s. 17 733.106, F.S.; revising language with respect 18 to costs and attorney fees; amending s. 19 733.107, F.S., relating to the burden of proof 20 in contests; amending s. 733.109, F.S.; 21 revising language with respect to the 22 revocation of probate; amending s. 733.201, 23 F.S., relating to proof of wills; amending s. 24 733.202, F.S.; providing that any interested 25 person may petition for administration; 26 repealing s. 733.203, F.S., relating to when 27 notice is required; amending s. 733.204, F.S.; 28 revising language with respect to the probate 29 of a will written in a foreign language; 30 amending s. 733.205, F.S., relating to the 31 probate of a notarial will; amending s. 202 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 733.206, F.S., relating to the probate of a 2 resident after foreign probate; amending s. 3 733.207, F.S.; revising requirements with 4 respect to the establishment and probate of a 5 lost or destroyed will; amending s. 733.208, 6 F.S.; revising language with respect to the 7 discovery of a later will; amending s. 733.209, 8 F.S.; providing requirements with respect to 9 the estates of missing persons; amending s. 10 733.212, F.S.; revising language with respect 11 to the notice of administration and filing of 12 objections; creating s. 733.2121, F.S.; 13 providing for notice to creditors and the 14 filing of claims; amending s. 733.2123, F.S., 15 relating to adjudication before issuance of 16 letters; amending s. 733.213, F.S.; providing 17 that a will may not be construed until after it 18 has been admitted to probate; amending s. 19 733.301, F.S.; revising language with respect 20 to preference in the appointment of the 21 personal representative; amending s. 733.302, 22 F.S.; revising language with respect to who may 23 be appointed personal representative; amending 24 s. 733.305, F.S., relating to trust companies 25 and other corporations and associations; 26 amending s. 733.306, F.S.; revising language 27 with respect to the effect of the appointment 28 of a debtor; amending s. 733.307, F.S., 29 relating to succession of administration; 30 amending s. 733.308, F.S., relating to the 31 administrator ad litem; amending s. 733.309, 203 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 F.S., relating to the executor de son tort; 2 creating s. 733.310, F.S.; providing for when a 3 personal representative is not qualified; 4 repealing s. 733.401, F.S., relating to the 5 issuance of letters; amending s. 733.402, F.S.; 6 revising language with respect to the bond of a 7 fiduciary; amending s. 733.403, F.S.; revising 8 language with respect to the amount of the 9 bond; amending s. 733.404, F.S., relating to 10 the liability of the surety; amending s. 11 733.405, F.S.; revising language with respect 12 to the release of surety; amending s. 733.406, 13 F.S.; revising language with respect to bond 14 premium allowable as an expense of 15 administration; amending s. 733.501, F.S.; 16 revising language with respect to curators; 17 amending s. 733.502, F.S.; revising language 18 with respect to the resignation of the personal 19 representative; amending s. 733.503, F.S.; 20 providing for the appointment of a successor 21 upon the resignation of the personal 22 representative; creating s. 733.5035, F.S.; 23 providing for the surrender of assets after 24 resignation; creating s. 733.5036, F.S.; 25 providing for accounting and discharge 26 following resignation; amending s. 733.504, 27 F.S.; revising language with respect to the 28 removal of the personal representative; 29 amending s. 733.505, F.S.; providing that a 30 petition for removal shall be filed in the 31 court having jurisdiction of the 204 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 administration; amending s. 733.506, F.S.; 2 revising language with respect to proceedings 3 for removal; creating s. 733.5061, F.S.; 4 providing for the appointment of a successor 5 upon removal of the personal representative; 6 repealing s. 733.507, F.S., relating to 7 administration following resignation or 8 removal; amending s. 733.508, F.S.; providing 9 for accounting and discharge upon removal; 10 amending s. 733.509, F.S.; revising language 11 with respect to surrender of assets upon 12 removal; amending s. 733.601, F.S.; revising 13 language with respect to time of accrual of 14 duties and powers; amending s. 733.602, F.S., 15 relating to the general duties of a personal 16 representative; amending s. 733.603, F.S., 17 relating to when a personal representative may 18 proceed without court order; amending s. 19 733.604, F.S.; revising language with respect 20 to inventory; repealing s. 733.605, F.S., 21 relating to appraisers; creating s. 733.6065, 22 F.S.; providing for the opening of a 23 safe-deposit box; amending s. 733.607, F.S.; 24 revising language with respect to the 25 possession of the estate; amending s. 733.608, 26 F.S.; revising language with respect to the 27 general power of the personal representative; 28 amending s. 733.609, F.S.; revising language 29 with respect to improper exercise of power and 30 the breech of fiduciary duty; amending s. 31 733.610, F.S., relating to the sale, 205 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 encumbrance, or transaction involving a 2 conflict of interest; amending s. 733.611, 3 F.S.; revising language with respect to persons 4 dealing with the personal representative; 5 amending s. 733.612, F.S.; revising language 6 with respect to transactions authorized for the 7 personal representatives and exceptions 8 thereto; amending s. 733.6121, F.S., relating 9 to powers of the personal representative with 10 respect to environmental or human health laws 11 affecting property subject to administration; 12 amending s. 733.613, F.S.; revising language 13 with respect to the personal representatives' 14 right to sell real property; amending s. 15 733.614, F.S., relating to the powers and 16 duties of a successor personal representative; 17 amending s. 733.615, F.S.; revising language 18 with respect to joint personal representatives; 19 amending s. 733.616, F.S.; revising language 20 with respect to the powers of the surviving 21 personal representatives; amending s. 733.617, 22 F.S.; revising language with respect to 23 compensation of the personal representative; 24 amending s. 733.6171, F.S.; revising language 25 with respect to compensation of the attorney 26 for the personal representative; amending s. 27 733.6175, F.S.; revising language with respect 28 to proceedings for review of employment of 29 agents and compensation of personal 30 representatives and employees of the estate; 31 amending s. 733.619, F.S., relating to the 206 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 individual liability of the personal 2 representative; amending s. 733.701, F.S.; 3 revising language with respect to notifying 4 creditors; correcting cross references; 5 amending s. 733.702, F.S.; revising language 6 with respect to limitations on presentation of 7 claims; amending s. 733.703, F.S.; revising 8 language with respect to the form and manner of 9 presenting a claim; amending s. 733.704, F.S., 10 relating to amendment of claims; amending s. 11 733.705, F.S.; revising language with respect 12 to payment of and objection to claims; amending 13 s. 733.707, F.S.; revising language with 14 respect to the order of payment of expenses and 15 obligations; amending s. 733.708, F.S.; 16 revising language with respect to compromise; 17 amending s. 733.710, F.S., relating to claims 18 against estates; amending s. 733.801, F.S.; 19 providing that the personal representative 20 shall pay as an expense of administration 21 certain costs; amending s. 733.802, F.S.; 22 revising language with respect to proceedings 23 for compulsory payment of devises or 24 distributive interest; amending s. 733.803, 25 F.S., relating to encumbered property; amending 26 s. 733.805, F.S.; revising language with 27 respect to the order in which assets are 28 appropriated; amending s. 733.806, F.S., 29 relating to advancement; amending s. 733.808, 30 F.S.; revising language with respect to death 31 benefits and disposition of proceeds; amending 207 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 s. 733.809, F.S., relating to right of 2 retainer; amending s. 733.810, F.S.; revising 3 language with respect to distribution in kind 4 and valuation; amending s. 733.811, F.S.; 5 revising language with respect to the right or 6 title of distributee; amending s. 733.812, 7 F.S.; providing for improper distribution or 8 payment and liability of distributee; amending 9 s. 733.813, F.S., relating to protection of the 10 purchaser from the distributee; amending s. 11 733.814, F.S.; revising language with respect 12 to partition for the purpose of distribution; 13 amending s. 733.815, F.S.; providing for 14 private contracts among certain interested 15 persons; amending s. 733.816, F.S., relating to 16 the distribution of unclaimed property held by 17 the personal representative; amending s. 18 733.817, F.S.; revising language with respect 19 to apportionment of estate taxes; amending s. 20 733.901, F.S.; providing requirements with 21 respect to final discharge; amending s. 22 733.903, F.S.; revising language with respect 23 to subsequent administration; amending s. 24 734.101, F.S., relating to the foreign personal 25 representative; amending s. 734.102, F.S.; 26 revising language with respect to ancillary 27 administration; amending s. 734.1025, F.S.; 28 revising language with respect to the 29 nonresident decedent's testate estate with 30 property not exceeding a certain value in this 31 state; providing for the determination of 208 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 claims; amending s. 734.104, F.S., relating to 2 foreign wills; amending s. 734.201, F.S., 3 relating to jurisdiction by act of a foreign 4 personal representative; amending s. 734.202, 5 F.S., relating to jurisdiction by act of 6 decedent; repealing s. 735.101, F.S., relating 7 to family administration and the nature of the 8 proceedings; repealing s. 735.103, F.S., 9 relating to petition for family administration; 10 repealing s. 735.107, F.S., relating to family 11 administration distribution; amending s. 12 735.201, F.S.; increasing a monetary amount 13 with respect to summary administration; 14 amending s. 735.203, F.S.; revising language 15 with respect to the petition for summary 16 administration; amending s. 735.206, F.S.; 17 revising language with respect to summary 18 administration distribution; amending s. 19 735.2063, F.S.; revising language with respect 20 to notice to creditors; repealing s. 735.209, 21 F.S., relating to joinder of heirs, devisees, 22 or surviving spouse in summary administration; 23 amending s. 735.301, F.S., relating to 24 disposition without administration; amending s. 25 735.302, F.S.; revising language with respect 26 to income tax refunds in certain circumstances; 27 creating s. 737.208, F.S.; prohibiting 28 distribution pending outcome of contest; 29 providing exceptions; amending s. 737.3054, 30 F.S.; revising language with respect to 31 trustee's duty to pay expenses and obligations 209 4:59 PM 05/02/01 s0402.ju16.2g
SENATE AMENDMENT Bill No. CS for SB 402 Amendment No. ___ Barcode 192000 1 of grantor's estate; amending s. 737.306, F.S.; 2 revising language with respect to personal 3 liability of trustee; creating s. 737.3061, 4 F.S.; providing for limitation on actions 5 against certain trusts; amending s. 737.308, 6 F.S.; revising language with respect to notice 7 of trust; amending ss. 215.965, 660.46, and 8 737.111, F.S.; correcting cross references; 9 directing the Division of Statutory Revision 10 and Indexing to change the title of certain 11 parts of the Probate Code; providing an 12 effective date. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 210 4:59 PM 05/02/01 s0402.ju16.2g