Bill Text: FL S1544 | 2010 | Regular Session | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Probate Procedures [SPSC]

Spectrum: Partisan Bill (Democrat 2-0)

Status: (Introduced - Dead) 2010-04-28 - Placed on Special Order Calendar; Read 2nd time -SJ 00931; Amendment(s) adopted (214602) -SJ 00932; Substituted CS/CS/HB 1237 -SJ 00932; Laid on Table, companion bill(s) passed, see CS/CS/HB 1237 (Ch. 2010-132), CS/CS/SB 998 (Ch. 2010-122) -SJ 00932 [S1544 Detail]

Download: Florida-2010-S1544-Introduced.html

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