Practice Under Florida Probate Code 11th Edition [LATEST EDITION] 1663342148, 9781663342140

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PRACTICE UNDER FLORIDA PROBATE CODE ELEVENTH EDITION

THE FLORIDA BAR LEGAL PUBLICATIONS Distributed by LexisNexis®

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Legal Publications Staff Terry L. Hill, Director, Programs Division Krys Godwin, Director, Legal Publications Jamie Spargo, Associate Editor Chelsea Chick, Associate Editor

Preface This manual is another work in a continuing series of publications designed to aid Florida lawyers to practice more efficiently and effectively. It is presented with the understanding that there is no official Florida Barapproved method of practice and that Legal Publications does not render any legal or professional service through this manual. Due to the changing nature of the law, information in this publication may become outdated. As a result, an attorney using Legal Publications materials must always research original sources of authority and update Legal Publications information to ensure accuracy when dealing with the specific client’s legal matters. In no event will the authors, the reviewers, or The Florida Bar be liable for any direct, indirect, or consequential damages resulting from the use of these materials. The views and conclusions expressed are those of the authors and do not reflect a position of Legal Publications, The Florida Bar, or any of its sections or committees. Krys Godwin, Director, Legal Publications August 2022

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Table of Contents Cover Prefatory Material Title Page Copyright Legal Publications Staff Preface Table of Contents Chapter 1 — IMPORTANT PRELIMINARY ADMINISTRATION ISSUES § 1.1. ROLE OF THE LAWYER § 1.2. IMMEDIATE PRACTICAL CONSIDERATIONS A. Rights To The Body And To Control Burial 1. In General 2. Control By Decedent 3. Burial And Removal Permits And Death Certificates 4. Selection Of Casket And Burial Plot 5. Donation Of Body Or Parts Of Body 6. Autopsies 7. Authorization For Cremation 8. Duties Of Medical Examiner 9. Burial Insurance And Contracts B. Funeral Expenses 1. Limit On Priority Of Payment 2. Test Of Reasonableness 3. Property Not Subject To Claims 4. Federal Estate Tax Deduction 5. Expense Of Shipping Body When No Provision In Will

6. Need For Written Claim; Reimbursement Of Amounts Paid C. Domicile 1. In General 2. Checklist For Use In Determining Residence D. The Will 1. Locating Will 2. Depositing Will With Court 3. More Than One Will 4. Lost Or Destroyed Will 5. Specific Instructions In Will About Burial 6. Specific Instructions In Will About Bond Requirements 7. Designation And Qualification Of Personal Representative 8. Selection Of Personal Representative If No Will E. Estate Assets And Related Problems 1. Identifying Probate Property 2. Preliminary Inventory And Property Problems a. Securing Information About The Estate i. Determining Beneficiaries ii. Communications With Beneficiaries And Others iii. What Information To Gather iv. Estate Information Checklist And Information Sheet v. Checklist Of Possible Problems In Opening The Estate b. Securing Access To Safe-Deposit Box 3. Right Of Surviving Tenant To Funds In Joint Account 4. Insurance Issues a. Property Damage And Public Liability Insurance b. Life Insurance i. Payable To Named Beneficiary ii. Payable To Estate 5. Mortgage Payments 6. Automobile Held Under Joint Title 7. Telephone And Utility Bills 8. Veterans’ Survivors’ Benefits

9. Social Security Benefits And Claims 10. Rights Of Surviving Spouse a. Advising Surviving Spouse Of His Or Her Rights b. Checklist Of Rights Of Surviving Spouse As To Property 11. Checklist Of Duties Concerning Nonprobate Assets 12. Continuing Decedent’s Business F. Administration Of Smaller Estates G. Caveat Proceedings 1. In General 2. Effect Of Caveat On Right Of Potential Beneficiary To Contest Will H. Need For Curatorship § 1.3. THE PERSONAL REPRESENTATIVE A. In General B. Specific Problems 1. Minor As Named Personal Representative 2. Other Disqualification, Death, Or Failure Of Will To Name Personal Representative 3. Renunciation Or Resignation By Named Personal Representative 4. Selection Of Lawyer To Represent Personal Representative And Interested Parties C. Lawyer’s Conferences With Personal Representative 1. Initial Conference a. In General b. Caution Against Paying Debts Of Decedent i. During The Five-Month Period ii. Without Properly Filed Claim c. Outlining Responsibilities Of Lawyer To Client d. Checklist Of Subjects For Initial Conference 2. Keeping Client Informed 3. Discussion Of Fees And Costs With Personal Representative Chapter 2 — PRACTICE AND PROCEDURE

§ 2.1. INTRODUCTION A. Statutes B. Rules Of Procedure C. Evidence D. Court E. Clerk Of Court F. Pleadings G. Verification H. Lawyers I. Designation Of Address And Resident Agent § 2.2. NOTICE A. In General B. Notice Of Administration And Notice To Creditors 1. Bifurcation Of Procedure 2. Notice Of Administration 3. Notice To Creditors C. Notice Before Issuance Of Letters Of Administration D. Formal Notice 1. In General 2. Methods Of Service a. In General b. Service By Mail Or Delivery 3. Proof Of Service E. Informal Notice 1. In General 2. Methods Of Service 3. Certificate Of Service F. Waiver And Consent G. Request For Notices And Copies Of Pleadings H. Notice Of Civil Action Or Ancillary Administration § 2.3. TIME § 2.4. APPEALS § 2.5. REPRESENTATION

§ 2.6. INVENTORY § 2.7. ACCOUNTINGS AND PETITION FOR DISCHARGE § 2.8. GUARDIAN AD LITEM A. Appointment And Qualification B. Effect Of Appointment As To Service Of Process C. Duties D. Compensation And Discharge § 2.9. ADMINISTRATOR AD LITEM A. Appointment And Qualification B. Duties C. Compensation And Discharge § 2.10. AUTHENTICATED COPIES A. In General B. Use For Distribution Of Real Property Chapter 3 — JURISDICTION § 3.1. INTRODUCTION § 3.2. HISTORY A. In England B. Common Law C. In Florida § 3.3. FEDERAL JURISDICTION § 3.4. NATURE OF JURISDICTION A. In Rem B. In Personam § 3.5. GROUNDS FOR JURISDICTION A. Domiciliary B. Ancillary C. Single Administration In Florida D. Discovery On Issue Of Jurisdiction § 3.6. JURISDICTION OF PARTICULAR MATTERS A. Lawyer Charging Lien

B. Lawyer Malpractice: Long-Arm Jurisdiction C. Claims D. Full Faith And Credit, Comity, And The Principle Of Priority 1. In General 2. Full Faith And Credit 3. Comity 4. Principle Of Priority E. Construing Documents F. Declaratory Judgments G. Delay In Closing Administration H. Determining Beneficiaries I. Domicile Determination J. Elective Share K. Escheat L. Fees And Costs M. Foreign Personal Representatives N. Foreign Wills O. Formal Notice P. Guardianship Termination Q. Inherent Jurisdiction R. Jury Trial S. Missing Persons T. Original Florida Administration Of Nonresident’s Estate U. Partition V. Personal Jurisdiction Over Personal Representatives W. Production Of Wills X. Removal Of Personal Representative And Revocation Y. Reopening Closed Estate Z. Res Judicata AA. Surviving Spouse Status BB. Title To Property And Right To Possession 1. Real Property, Including Homestead 2. Personal Property

CC. Trusts DD. Unclaimed Property § 3.7. VENUE A. In General B. Objections To Venue § 3.8. APPEALS A. Appeals Before January 1, 2012 B. Appeals On And After January 1, 2012 C. Appeals And Appellate Attorneys’ Fees Chapter 4 — FUNCTIONS REPRESENTATIVES

OF

LAWYERS

AND

PERSONAL

§ 4.1. INTRODUCTION § 4.2. THE ATTORNEY-CLIENT RELATIONSHIP A. Nature Of Relationship B. The Client C. Representative’s Power To Hire Lawyer 1. In General 2. When There Are Joint Personal Representatives D. Lawyer As Personal Representative E. Will Provision Nominating Lawyer To Handle Estate § 4.3. THE PERSONAL REPRESENTATIVE A. Duties Of Personal Representative 1. Scope Of Duties 2. Standard Of Care 3. Estate Assets a. Duty To Inquire About Assets b. Duty Regarding Digital Assets c. Duty As To Custody Of Assets d. Treatment Of Gifts Made By Decedent e. Treatment Of Life Insurance Proceeds f. Duty To Resolve Claims By Or Against Estate g. Form For Personal Representative’s Certificate Of

Insufficiency h. Form For Petition To Compromise Claim i. Power To Abandon Property j. Form For Petition To Abandon Property (Including Claim) k. Duties With Regard To Real Property Of Decedent i. In General ii. Homestead Real Property iii. Power Of Sale Over Real Property iv. Foreign Real Property v. Form For Election Of Surviving Spouse To Take OneHalf Interest Of Decedent’s Interest In Homestead Property vi. Form For Petition For Authorization To Sell Real Property 4. Duty To Keep Estate Funds Separate 5. Duty To Keep Records And To Establish Bookkeeping Methods 6. Duty To Recognize Creditors’ Rights 7. Obligation To File Tax Returns And Notices For Decedent And Estate 8. Other Duties Toward Estate Assets a. Rental Of Property b. Investment Of Estate Funds c. Repairs d. Maintenance e. Insurance 9. Notice Of Administration 10. Checklist Of Duties And Procedures B. Powers 1. Power To Hire Lawyers, Accountants, Tax Specialists, And Other Experts a. In General b. Payment For Services c. Payment Of Fees To Lawyer For Personal Representative

d. Necessity For Prior Court Approval e. Form For Petition For Authority To Employ Accountant f. Disagreement Between Personal Representatives Concerning Hiring g. Form For Petition On Conflict In Hiring 2. Practical Problems Of Joint Personal Representatives C. Changing Personal Representatives 1. Renunciation Or Resignation 2. Form For Petition For Resignation Of Personal Representative 3. Form For Notice Of Disqualification Of Personal Representative 4. Form For Petition For Qualification Of Successor Personal Representative 5. Removal Proceedings a. Jurisdiction And Venue b. Grounds For Removal c. Commencement Of Removal Proceedings d. Procedure After Removal e. Appointment Of Successor f. Form For Petition For Removal Of Personal Representative 6. Preferences In Appointments And Qualification To Serve 7. Administrators Ad Litem 8. Sample Petition For Appointment Of Administrator Ad Litem D. Liabilities And Rights 1. Claims Of Representative Against Estate 2. Claims Of Estate Against Representative a. Debt Owed Estate By Personal Representative b. Liability For Mismanagement c. Liability For Torts, Negligence, And Other Acts d. Executor De Son Tort 3. Liability For Environmental Problems § 4.4. THE LAWYER A. Responsibilities Of Lawyer To Court 1. Notice

2. Pleadings And Orders B. Responsibilities Of Lawyer To Client And Beneficiaries 1. In General 2. Relationship Between Lawyer For Personal Representative And Lawyers For Beneficiaries 3. Notices And Copies Of Pleadings To Interested Persons C. Confidentiality Of Court Records D. Liability Of Lawyer For Negligent Advice Or Failure To Act Chapter 5 — INITIAL STEPS IN PROBATE AND ADMINISTRATION § 5.1. INTRODUCTION § 5.2. PREPARATION BEFORE FILING PETITION TO OPEN ESTATE A. Testate Estate 1. Production Of Will For Probate a. In General b. Forms i. Petition For Production Of Will ii. Order Requiring Production Of Will 2. Unwilling Or Unqualified Personal Representative B. Intestate Estate; Selection Of Personal Representative § 5.3. PROCEDURE FOR SECURING LETTERS OF ADMINISTRATION A. Petition For Administration 1. In General 2. Presenting Petition To Court 3. Notice B. Death Certificate C. Proof Of Will 1. Self-Proved Will 2. When Witness Appears Before Court 3. Oath Or Affirmation 4. When Witnesses To Will Are Unavailable

a. In General b. Form For Affidavit When Witnesses Are Unavailable 5. Commission To Prove Will D. Affidavit of Heirs (Intestate Estate) E. Order Of Probate (Testate Estate) F. Order Appointing Personal Representative (Intestate Estate) G. Oath Of Personal Representative H. Resident Agent I. Bond Of Personal Representative J. Letters Of Administration K. Notice Of Administration L. Notice To Creditors § 5.4. ADJUDICATION BEFORE ISSUANCE OF LETTERS A. In General B. Formal Notice Required C. Forms 1. Order Admitting Will To Probate And Appointing Personal Representative After Formal Notice (Testate Estate) 2. Order Appointing Personal Representative After Formal Notice (Intestate Estate) § 5.5. CAVEAT § 5.6. SOLVING SPECIFIC PROBLEMS A. Notarial Wills B. Nuncupative And Holographic Wills C. Probate Of Lost Or Destroyed Wills 1. In General 2. Forms a. Petition For Establishment And Probate Of Lost Or Destroyed Will And Appointment Of Personal Representative b. Order Admitting Lost Or Destroyed Will To Probate And Appointing Personal Representative D. Probate Of Will Of Florida Resident When Will Previously

Admitted To Probate In Foreign State 1. In General 2. Forms a. Petition For Establishment And Probate Of Will Probated In Another State And Appointment Of Personal Representative b. Order Establishing And Admitting To Probate Will Probated In Another State, And Appointing Personal Representative E. Probate Of Will In Foreign Language § 5.7. TAX CONSIDERATIONS A. Decedent’s Final Income Tax Return B. Notice Of Fiduciary Relationship C. Application For Employer Identification Number D. Estate (And Generation-Skipping Transfer) Tax And Income Tax Return(s) Chapter 6 — INVENTORY AND APPRAISAL § 6.1. INTRODUCTION § 6.2. FUNCTIONS OF INVENTORY AND APPRAISAL A. In General B. Valuation Of Assets C. Casualty Loss § 6.3. MARSHALING THE ASSETS A. Property Of The Estate B. Physical Inspection C. Summary Administration; Disposition Without Administration D. Possession Of Estate Property E. Working Inventory Of Gross Estate F. Affidavit Of No Florida Estate Tax Due § 6.4. APPRAISERS; APPRAISAL REPORT A. Appointment, Selection, And Qualifications 1. Number Of Appraisers And Scope Of Appraisal 2. Selection Of Appraisers

3. Appraiser As Broker For Estate 4. Alternatives To Formal Appraisal 5. Sale To Appraiser 6. Nonresident Appraisers 7. Corporations As Appraisers B. Instructing Appraisers C. Compensation Of Appraisers D. Filing Appraisal With Court E. Form For Appraisal Report § 6.5. EXAMPLES OF PARTICULAR ASSETS A. Partnerships B. Registered Limited Liability Partnerships C. Limited Liability Companies D. Close Corporations And Sole Proprietorships E. Decedent’s Claims Against Other Parties F. Cash G. Clothing H. Options And Contracts I. Furniture And Household Goods J. Cemetery Lots K. Contributions For Estate Taxes L. Advancements M. Revocable Trusts N. Rights To Benefits From Trusts O. Assets Subject To Condition P. Wages, Travel Expenses, And Unemployment Compensation Q. Special Rules For Life Insurance Proceeds R. Property Under Contract For Purchase S. Jointly Owned Property T. Totten Trusts U. Homestead Real Property V. Other Real And Personal Property § 6.6. PREPARATION, FILING, AND SERVICE OF INVENTORY

A. Preparation B. Filing C. Inspection D. Service E. Extensions Of Time To File F. Preservation Of Appraisals, Supporting Documents, And Original Listings G. Objections H. Amending The Inventory § 6.7. SAMPLE INVENTORY Chapter 7 — ELECTIVE SHARE § 7.1. INTRODUCTION A. Scope Of Chapter B. Legislative History Of The Elective Share C. Relationship Of Dower And Curtesy To Elective Share D. Preliminary Considerations 1. Recognizing Existence Of Circumstances In Which Election Should Be Considered 2. Researching Problems Involving Elective Share § 7.2. CONSEQUENCES OF ELECTION A. Elective Share As Floor B. Surviving Spouse As Fiduciary C. Construction Of Will D. Interests Of Surviving Spouse In Addition To Election E. Tax Consequences 1. In General 2. Marital Deduction 3. Income Tax § 7.3. PRIORITY OF ELECTIVE SHARE A. Debts And Administration Expenses Entitled To Priority B. Contracts To Make A Will § 7.4. TRUSTS FOR SURVIVING SPOUSE

A. Elective Share Trusts B. Qualifying Special Needs Trusts § 7.5. COMPUTATION OF THE ELECTIVE SHARE A. Property Included In Elective Estate 1. Background 2. The Probate Estate 3. Protected Homestead 4. Joint Bank Accounts, Pay-On-Death Accounts, Totten Trusts, And Similar Arrangements 5. Property Held In Joint Tenancy And Tenancy By Entireties (Other Than Accounts And Securities) 6. Revocable Trusts (And Other Revocable Transfers) 7. Irrevocable Transfers By Decedent a. Transfers With Retained Right To Income Or Principal b. Transfers With Retained Right To Discretionary Principal Distributions c. Irrevocable Transfers Not Subject To Elective Share 8. Life Insurance Policies 9. Pensions And Retirement Plans 10. Transfers Made Within One Year Of Decedent’s Death a. Gifts b. Termination Of Otherwise Includable Rights Or Interests 11. Irrevocable Transfers To Elective Share Trust B. Property Excluded From Elective Estate C. Amount Of Elective Share § 7.6. SATISFACTION OF THE ELECTIVE SHARE A. In General B. Property Passing To Surviving Spouse C. Valuation Of Property Passing To Surviving Spouse 1. In General 2. Life Interests In Property 3. Interests In Elective Share Trust 4. Interests In Qualifying Special Needs Trust

5. Interests In Other Trusts 6. Life Insurance Proceeds 7. Annuities And Similar Contracts D. Apportionment Of Unsatisfied Balance Among Direct Recipients Of Property 1. Order Of Priority 2. Liability of “Direct Recipients” 3. Liability Of Estate And Trust Beneficiaries 4. Contribution In Kind Or Sales Proceeds 5. Enforcing Contribution 6. Liability Of Third Parties For Contribution E. Interest § 7.7. PROCEDURAL MATTERS A. Who May File Election B. Petition For Approval Of Election By Agent Or Guardian C. Time Of Election D. Proceedings To Determine Entitlement To Elective Share E. Inventory Of Elective Estate F. Proceedings To Determine Amount Of Elective Share And Contribution G. Jurisdictional Problems H. Withdrawal Of Election I. Role Of Personal Representative J. Forms § 7.8. MATTERS IN BAR OF ELECTIVE SHARE A. In General B. Relinquishment Of Elective Share By Agreement (Waiver) 1. In General 2. Relinquishment Of Elective Share Before Marriage 3. Relinquishment Or Waiver Of Elective Share During Marriage 4. Relinquishment Of Elective Share After Death Of Spouse C. Right Barred By Action Of Surviving Spouse 1. Facts Not Constituting Bar

2. Facts Constituting Bar D. Operation Of Law 1. Facts Constituting Bar 2. Facts Not Constituting Bar § 7.9. CONSTITUTIONALITY OF ELECTIVE SHARE STATUTES § 7.10. ATTORNEYS’ FEES A. For Proceedings Commenced On Or After July 1, 2017 B. For Proceedings Commenced Before July 1, 2017 Chapter 8 — CREDITORS’ CLAIMS AND FAMILY ALLOWANCE § 8.1. INTRODUCTION § 8.2. CREDITORS’ CLAIMS FROM VIEWPOINT OF PERSONAL REPRESENTATIVE A. Procedure For Ascertaining Claims Against Estate 1. Diligent Search 2. Notice To Creditors a. History Of Notice Provisions b. Current Law c. Publication Of Notice d. Proof Of Publication e. Direct Service Of Notice—Ascertainable Creditors 3. Summary Administration 4. Statement Regarding Creditors B. Filing Of Claims 1. Three-Month/Thirty-Day Period—F.S. 733.702 2. Alternate Two-Year Period—F.S. 733.710 3. Statute Of Limitations, Statute Of Nonclaim, And Extensions Of Time a. F.S. 733.702 b. F.S. 733.710 4. Types Of Claims Covered C. Objections To Claims 1. In General

2. Service Of Objection And Creditor’s Action On Claim 3. Extending Time To Object And Failing To Object To Claim D. Limitation On Late Claims E. Payment Of Claims 1. Necessity For Personal Representative To Examine Nature Of Claims a. In General b. Liability Of Surviving Spouse For Claims Against Decedent 2. Procedure For Payment Of Claims a. In General b. Payment When No Formal Claim Is Made c. Assets From Which Claims Are Payable d. Priorities In Payment Of Claims F. Compromise And Settlement Of Claims 1. In General 2. Applicable Forms a. Petition To Compromise Claim b. Order Authorizing Compromise Of Claim § 8.3. CREDITORS’ CLAIMS FROM VIEWPOINT OF CREDITORS A. Procedure For Presenting Claims 1. Filing Statement Of Claim 2. Alternative Procedures To Filing Claim 3. Effect Of Failure To Comply With Statute Of Limitations B. Scope Of Statute Of Limitations And Statute Of Nonclaim 1. In General 2. Particular Claims a. Claims Within Statute i. Wrongful Death Action ii. Claims For Alimony, Support, And Community Property iii. Judgment Claims iv. Contingent Or Unmatured Claims v. Claims By State vi. Actions Pending At Time Of Death

vii. Counterclaims viii. Claims Of Nonresidents ix. Claims Of Personal Representative x. Agreement To Make A Will xi. Class Actions b. Claims Not Barred By Statute i. Claims Specifically Excluded I. Mortgages And Liens II. Claims Secured By Insurance III. Beneficial Interests Of Beneficiaries ii. Other Claims Excluded I. Claims Of The United States II. Trust Claims And Claims Based On Equitable Title III. Surviving Partners IV. Defensive Recoupment c. Claims Based On Federal Right C. Procedure After Claim Has Been Filed 1. When Objection Is Filed a. In General b. Extension Of Time To Commence Action 2. When No Objection Is Filed a. In General b. Form For Petition For Payment Of Claim D. Claims By Incapacitated Persons E. Claims Against Unadministered Estates § 8.4. DEDUCTIBILITY OF CLAIMS AGAINST ESTATE ON FEDERAL ESTATE TAX RETURN § 8.5. FAMILY ALLOWANCE A. In General B. Effect On Elective Share, Homestead, And Exempt Personal Property C. Effect Of Allowance On Creditors’ Rights D. Nondeductibility Of Family Allowance On Federal Estate Tax

Return Chapter 9 — MANAGEMENT OF DECEDENT’S PROPERTY § 9.1. INTRODUCTION A. In General B. Jurisdiction Of Courts § 9.2. MAINTAINING, PRESERVING, AND DISPOSING OF ESTATE ASSETS A. In General B. Safe-Deposit Box C. Elective Share D. Special Treatment Required For Certain Types Of Property 1. Perishables And Valueless Property 2. Corporate Interests 3. Wasting Or Nonproductive Assets E. Maintenance Of Property 1. In General 2. Forms a. Petition To Expend Funds To Preserve Property b. Order Authorizing Expenditure Of Funds F. Conversion Of Assets Into Cash For Payment Of Claims, Taxes, Or Administrative Expenses 1. Determination Of Need 2. Real Property 3. Corporate Interests 4. Tangible Personal Property G. Commingling Funds § 9.3. INVESTMENT OF ESTATE FUNDS A. In General B. Prudent Investor Rule C. Obtaining Investment Counseling D. Liability Of Personal Representative E. What Funds To Invest

F. Authorized Investments 1. In General 2. Real Property 3. Stocks And Bonds 4. Mutual Funds G. Credit Buying Or Necessary Borrowing H. Effect Of Florida Uniform Principal And Income Act I. Obtaining Court Authorization To Invest Funds J. Designating Depository For Cash Assets 1. In General 2. Forms a. Petition For Order Designating Depository For Cash Assets b. Order Designating Depository For Cash Assets § 9.4. CARRYING ON OF DECEDENT’S BUSINESS BY PERSONAL REPRESENTATIVE A. In General B. Duties, Authority, And Liability Of Personal Representative 1. In General 2. Limitation On Authority To Make Contracts Charging The Estate 3. Duty To Keep Records a. In General b. Forms i. Petition For Approval Of Monthly Report ii. Order Approving Monthly Report 4. Requirement To Give Appropriate Bond 5. Right To Mortgage Property Or Borrow Money C. Duties Peculiar To Certain Business Entities 1. S Corporations 2. Sole Proprietorships a. In General b. Forms i. Petition To Continue Sole Proprietorship

ii.

Order Granting Authority Proprietorship 3. Partnerships a. General Partnership Interest b. Limited Partnership Interest 4. Limited Liability Companies § 9.5. DIGITAL ASSETS § 9.6. ENVIRONMENTAL LAW CONCERNS A. In General B. Investigation, Reporting, And Remedy C. Liability

To

Continue

Sole

Chapter 10 — SALES AND TRANSFERS OF ESTATE ASSETS § 10.1. INTRODUCTION § 10.2. GENERAL CONSIDERATIONS A. Preference For Distribution In Kind B. Sale Of Assets To Pay Estate Taxes C. Sale Of Assets To Pay Administration Expenses And Claims § 10.3. PERSONAL REPRESENTATIVE’S AUTHORITY TO SELL ESTATE ASSETS A. In General B. Personal Property 1. Statutory Power Of Sale 2. Power Of Sale Limited By Will 3. Art Objects, Jewelry, And Other Personal Property Of Unique Nature C. Real Property 1. General Power Of Sale 2. When Power Of Sale Is Limited 3. Intestate Estates And Wills Lacking Power Of Sale D. Special Circumstances 1. Personal Representative Or Successor Not Named In Will 2. When Personal Representative Is Purchaser

3. Multiple Personal Representatives 4. Sale By Ancillary Administrator 5. Sale When Testator Survived By Spouse 6. Sale Of Exempt Assets 7. Sale Of Specifically Devised Assets 8. Sale Of Protected Homestead By Personal Representative In Possession § 10.4. CONSIDERATIONS IN SALE OF ESTATE ASSETS A. In General B. Public Or Private Sale C. Purchase Money Financing D. Sale Of Contract To Purchase Real Property E. Sale Of Real Property Subject To Contract To Purchase F. Sale Of Real Property Subject To Right Of First Refusal G. Sale Of Real Property Subject To Mortgage H. Sale Of Foreign Decedent’s Real Property 1. Conveyances Within Two Years Of Decedent’s Death 2. Conveyances After Two Years From Decedent’s Death § 10.5. COURT AUTHORIZATION OR CONFIRMATION A. Procedure To Secure Court Authorization Prior To Sale Or Transfer 1. In General 2. Petition For Court Authorization a. Contents b. Form For Petition To Secure Court Authorization 3. Notice a. General Requirements b. Form For Waiver Of Notice And Consent To Sale Or Transfer 4. Hearing 5. Order Of Court Authorizing Sale Or Transfer a. In General b. Form For Order Authorizing Sale

6. Vacation Of Order Authorizing Sale B. Court Confirmation Of Completed Sale Or Transfer 1. In General 2. Petition And Order Confirming Sale § 10.6. TRANSFER OF ESTATE ASSETS A. Encumbered Assets B. Transfer Of Personal Property 1. In General 2. Motor Vehicles And Vessels 3. Securities 4. Firearms 5. Digital Assets C. Transfer Of Real Property 1. In General 2. Personal Representative’s Release And Certificate Of Distribution Of Real Property D. Exchange Of Properties E. Partition Of Real Property F. Leases § 10.7. TAX CONSEQUENCES OF SALES AND EXCHANGES OF REAL PROPERTY A. Income In Respect Of Decedent B. General Tax Consequences On Sales And Transfers Of Estate Assets Chapter 11 — DETERMINATION OF BENEFICIARIES AND THEIR INTERESTS § 11.1. INTRODUCTION § 11.2. INTESTATE ESTATES A. Finding Potential Heirs 1. Order Of Succession 2. Duty To Search And Standard Of Care 3. Practical Methods Of Finding Heirs

4. Methods Of Proof 5. Right To Employ Investigator 6. Payment Of Investigation Expense B. Who May Inherit 1. Inheritance By Half Blood 2. Inheritance By Killer 3. Inheritance By Collateral Heirs 4. Inheritance By Illegitimates 5. Inheritance By Alien 6. Inheritance By Adopted Children 7. Afterborn Heirs 8. Effect Of Prenuptial And Postnuptial Agreements C. Effect Of Termination Of Parental Rights D. Inheritance Per Stirpes E. Escheat To State Of Florida F. Will Discovered After Administration § 11.3. TESTATE ESTATES A. Charitable Devises B. Devises To Aliens C. Devises Conditioned Upon Survivorship D. Doctrine Of Equitable Conversion E. Substitutionary Gifts F. Ademption And Nonademption G. Lapsed And Void Devises H. Pretermitted Spouse And Children I. Abatement § 11.4. COMMUNITY PROPERTY § 11.5. DEVISES TO LAWYERS AND OTHER DISQUALIFIED PERSONS § 11.6. EFFECT OF DISSOLUTION OF MARRIAGE ON BENEFICIARY DESIGNATION § 11.7. EFFECT OF SIMULTANEOUS DEATH LAW § 11.8. OBTAINING ORDER DETERMINING BENEFICIARIES AND

SPECIFYING THEIR SHARES IN ESTATE A. In General B. Contents Of Petition C. Form For Petition For Determination Of Beneficiaries D. Notice; Appointment Of Guardian Ad Litem; Virtual Representation E. Hearing And Order Determining Beneficiaries § 11.9. PAYMENT OF ESTATE TAXES A. Estate Taxes For The Year 2010 B. Liability For Tax 1. In General—No Liability 2. Liability Under Federal And Florida Governments For Older Estates C. Apportionment Of Tax To Recipients 1. In General 2. Tax Attributable To Each Interest 3. Statutory Apportionment 4. Effect Of Provisions In Governing Instrument That Direct Payment Of Taxes a. In General b. Express Direction Requirement c. Specificity Requirements Regarding Certain Federal Rights Of Recovery d. General Power Of Appointment e. Coordination Of Will And Revocable Trust f. Conflicts Between Governing Documents g. Permission Versus Direction h. Remaining Tax i. Case Law 5. Order Of Apportionment And Recovery Of Tax From Recipients a. Order Of Apportionment b. Deficiency c. Relief From Duty

d. Uncollected Tax e. Contribution f. Foreign Tax 6. Effect On Marital And Charitable Deduction D. Explanation Of 2015 Amendments To Apportionment Statute 1. Introduction 2. Applicability 3. Specific Provisions a. Removal Of Gift Taxes And Portion Of Any Intervivos Transfer Included In Gross Estate b. Homestead c. Common Instrument Construction d. Express Direction Requirement e. Waiver Of Apportionment f. Additional Specificity Requirements Regarding Certain Federal Rights Of Recovery g. Property Includable Under IRC §§ 2044 And 2041 h. Power Of Appointment Property Subject To Marginal Tax i. Conflicts Between Governing Documents j. Order Of Apportionment k. Other Notable Provisions E. Conflict Of Laws § 11.10. DISCLAIMER § 11.11. ALLOCATION OF WRONGFUL DEATH SETTLEMENTS § 11.12. GENEALOGICAL CHART Chapter 12 — FIDUCIARY ACCOUNTINGS § 12.1. INTRODUCTION A. Scope Of Chapter B. Fiduciary Accountings § 12.2. PRELIMINARY CONSIDERATIONS A. Required Fiduciary Accountings B. Use Of Waivers

C. Establishing A Fiduciary Accounting System D. Selecting Fiduciary Accounting Period § 12.3. PREPARATION OF FIDUCIARY ACCOUNTINGS A. Initial Determinations B. Types Of Fiduciary Accountings C. Practice And Procedure D. Commencement Of Fiduciary Accounting Period § 12.4. SIMPLE ACCOUNTINGS § 12.5. EXAMPLES OF PRINCIPAL AND INCOME ALLOCATIONS § 12.6. MODEL ACCOUNTING FORM A. Probate Accounting Rule B. Structure Of Model Accounting Form C. Schedule A: Receipts D. Schedule B: Disbursements E. Schedule C: Distributions F. Schedule D: Capital Transactions And Adjustments G. Schedule E: Assets On Hand At Close Of Accounting Period § 12.7. FORMS AND SAMPLES A. Form For Notice Of Final Accounting And Petition For Discharge B. Form For Proof Of Service Of Notice Of Final Accounting And Petition For Discharge C. Sample Accounting Chapter 13 — PARTIAL DISTRIBUTIONS § 13.1. INTRODUCTION § 13.2. PRELIMINARY CONSIDERATIONS A. Restrictions On Compulsory Payment B. The Risk Period C. Circumstances Justifying Distribution Before Expiration Of Risk Period D. Recovery Of Assets Or Their Value E. Income Tax Consequences Of Partial Distribution

1. In General 2. Determining Overall Benefit a. Distribution To One Beneficiary b. Distribution To Several Beneficiaries; Separate Share Rule c. Installment Sale Obligations d. Depreciable Property e. Specific Devise f. Distribution Within First Six Months F. Distribution To Testamentary Trustee G. Distribution Of Specific Assets 1. Tangible Personal Property a. Worthless Personalty b. Sample Waiver And Consent To Distribution To Charitable Institution 2. Clothing And Personal Effects Of Decedent 3. Exempt Property 4. Storage And Shipping 5. Automobiles 6. Business Of Decedent a. In General b. Partnerships And S Corporations 7. Life Insurance Proceeds 8. Interest And Income On Specific Devises H. Personal Liability Of Personal Representative For Taxes § 13.3. PROCEDURE A. General Considerations B. Compulsory Partial Distribution 1. In General 2. Forms Relating To Compulsory Distribution a. Sample Petition For Compulsory Partial Distribution b. Sample Answer To Petition For Partial Distribution c. Sample Partial Distribution Bond d. Sample Order For Partial Distribution

C. Voluntary Partial Distribution 1. In General 2. Forms Relating To Voluntary Distribution a. Sample Petition For Voluntary Partial Distribution b. Sample Receipt For Partial Distribution Of Assets Of Estate D. Repayment Of Partial Distribution § 13.4. EFFECT OF ESTATE TAX A. In General B. Securing Partial Estate Tax Releases § 13.5. ELECTIVE SHARE Chapter 14 — FINAL DISTRIBUTION AND DISCHARGE § 14.1. INTRODUCTION § 14.2. PROCEDURE FOR CLOSING ESTATE A. Preliminary Considerations B. Petition For Discharge 1. Full Waiver Petition 2. Notice Of Confidential Information C. Final Accounting 1. In General 2. Waiver Of Final Accounting 3. Notice Of Confidential Information 4. Receipt Of Final Accounting And Petition For Discharge D. Objections E. Order Of Distribution F. Report Of Distribution G. Order Of Final Discharge § 14.3. PROBLEMS OF DISTRIBUTION AND DISCHARGE A. Considerations Affecting Determination Of Distributive Shares 1. Elective Share 2. Advancements 3. Ademption

4. Abatement And Contribution 5. Satisfying Mortgages On Devised Property B. Tax Considerations 1. In General 2. Termination Of Estate 3. Unused Loss Carryovers And Excess Deductions On Termination 4. Distributions From Qualified Plans And Individual Retirement Accounts C. Mechanics Of Distribution 1. In General 2. Distributions In Kind 3. Distributions Pursuant To Directions In Will 4. Distribution To Trustees 5. Distribution Upon Consent Of Beneficiaries 6. Considerations Relevant To Distribution And Transfer Of Particular Assets a. Real Property (Non-Homestead) b. Protected Homestead c. Tangible Personal Property d. Securities e. United States Government Bonds f. Bank Accounts g. Interest And Income On Devises D. Other Problems And Considerations 1. Receipts From Beneficiaries a. In General b. Particularity Of Receipt c. Difficulties Encountered In Obtaining Receipts 2. Payment Of Estate Taxes As Condition Precedent To Final Discharge 3. Tax Refund Claims 4. Later-Discovered Wills 5. Contracts Affecting Distribution

a. In General b. Form For Contract 6. After-Discovered Assets Chapter 15 — COMPENSATION OF PERSONAL REPRESENTATIVES AND LAWYERS AND OTHER EXPENSES OF ADMINISTRATION § 15.1. INTRODUCTION AND SCOPE § 15.2. POWER OF PERSONAL REPRESENTATIVE TO INCUR EXPENSES A. In General B. Duty Of Personal Representative To Proceed Without Court Order C. Requirement Of Legal Representation D. Authority To Employ Appraisers E. Authority To Employ Lawyer And Others F. Professionals And Other Agents Entitled To Reasonable Compensation G. Reimbursement Or Credit For Compensation Paid And Other Expenses H. Liability Of Personal Representative For Costs And Expenses I. Evolution Of The Law 1. Introduction 2. Period Before January 1, 1976 (Pre-Code) 3. Period From January 1, 1976, To October 3, 1991, And In re Estate of Platt 4. Period From October 3, 1991, To October 1, 1993 5. Period From July 1, 1995, To Present Day § 15.3. COMPENSATION OF PERSONAL REPRESENTATIVE A. Abbreviated Forms Of Administration B. Extraordinary Services C. Compensation Order Not Required D. Lawyer As Personal Representative E. Multiple Personal Representatives F. Provisions In Will Concerning Personal Representative’s

Compensation G. Contract With Testator H. Agreements With Beneficiaries I. Proceedings For Review Of Employment Of Agents And Compensation Of Personal Representatives And Estate Employees J. Procedure, Notice, And Hearing K. Renunciation Of Compensation L. Compensation And Reimbursement For Offering Will For Probate If Not Successful § 15.4. COMPENSATION OF LAWYER A. Small Estates B. Determination Of Reasonable Fee 1. Reasonable Fee Before October 1, 1993 2. Reasonable Fee Before July 1, 1995 a. Introduction b. Reasonable Fee Under F.S. 733.6171 3. Reasonable Fee After June 30, 1995 C. Disclosure Requirement When Fees Are Based On Presumed Reasonable Statutory Schedule D. “Adjustable” Reasonable Fee Under F.S. 733.6171 1. In General 2. Factors To Be Considered Under F.S. 733.6171(5) a. Promptness, Efficiency, And Skill With Which Administration Was Handled b. Responsibilities Assumed By And Potential Liabilities Of Lawyer c. Nature And Value Of Assets Affected By Decedent’s Death d. Benefits Or Detriments Resulting To Estate Or Interested Persons From Lawyer’s Services e. Complexity Or Simplicity Of Administration And Novelty Of Issues Presented f. Lawyer’s Participation In Tax Planning For Estate And Estate’s Beneficiaries, And Tax Return Preparation, Review, Or Approval

g. Nature Of Probate, Nonprobate, And Exempt Assets; Expenses Of Administration, Liabilities Of Decedent, And Compensation Paid To Other Professionals And Fiduciaries h. Any Delay In Payment Of Compensation After Services Were Furnished i. Any Agreement Relating To Lawyer’s Compensation And Whether Required Disclosures Were Made To Personal Representative In Timely Manner j. Any Other Relevant Factors E. Extraordinary Services F. Expert Testimony G. Segregating Fiduciary Time Spent By Lawyer H. Fee Contracts 1. In General 2. Contract With Testator 3. Contract With Personal Representative 4. Consent By Beneficiaries 5. Sample Contract And Consent I. Payment Of Fee After Full Disclosure And Absent Objection J. Timing Of Payment K. Ethical Considerations In Charging Reasonable Fee L. Fees For Other Lawyers M. Procedure To Determine Fees 1. In General 2. Nature Of Proceeding 3. Rendition Of Order a. Content Requirements Of Order b. Procedure 4. Assets From Which Fees Are To Be Paid 5. Attorney Fees And Costs In Determining Fees 6. Sample Petition For Attorney Fees 7. Sample Order Granting Award Of Attorney Fees N. Reserved O. Miscellaneous Fee Issues

1. Multiple Lawyers For Joint Personal Representatives 2. Fees When Lawyer Is Also Personal Representative 3. Renunciation Of Fee 4. Attorney Fees And Costs For Unsuccessfully Offering Will For Probate, And When Personal Representative Is Removed 5. When Attorney Fees May Not Be Paid From Estate § 15.5. MISCELLANEOUS ADMINISTRATIVE EXPENSES A. Bond Premium And Other Expenses B. Continuing Business Of Decedent C. Protecting And Preserving Estate Assets And Protected Homestead D. Sale Of Assets § 15.6. FUNERAL, BURIAL, AND GRAVE MAINTENANCE EXPENSES § 15.7. POSTMORTEM PLANNING A. In General B. Renouncing Fees § 15.8. TAX CONSEQUENCES A. In General B. Funeral Expenses C. Administration Expenses D. Personal Representatives’ Commissions E. Attorney Fees F. Miscellaneous Expenses Chapter 16 — CURATORS § 16.1. INTRODUCTION § 16.2. AUTHORITY FOR AND DEFINITION OF CURATOR § 16.3. APPOINTMENT OF CURATORS A. Occasions For Appointment B. Procedure For Appointment 1. Venue 2. Petition For Appointment

a. In General b. Form For Petition 3. Notice And Hearing On Application 4. Order Appointing Curator a. In General b. Form For Order 5. Oath a. In General b. Form For Oath 6. Bond a. In General b. Form For Bond 7. Designation Of Resident Agent 8. Letters Of Curatorship a. In General b. Form For Letters § 16.4. POWERS AND DUTIES OF CURATOR A. In General B. Special Court Authority Required C. Completing Administration § 16.5. LIABILITIES OF CURATOR § 16.6. COMPENSATION OF CURATOR Chapter 17 — ANCILLARY ADMINISTRATION § 17.1. INTRODUCTION § 17.2. WHEN NEEDED AND WHEN NOT A. In General B. Nonresident Decedent With Florida Debtor Or Florida Tangible Personal Property C. Nonresident Decedent With Realty In Florida 1. In General 2. Shorter Forms Of Ancillary Administration 3. Notice To Creditors

D. Nonresident Decedent With Personalty In Florida E. Resident Decedent Whose Will Is Probated In Another State § 17.3. PROCEDURE FOR ISSUANCE OF ANCILLARY LETTERS A. Who May Serve B. Venue C. Petition For Ancillary Administration § 17.4. POWERS AND DUTIES OF ANCILLARY PERSONAL REPRESENTATIVE A. Management Of Decedent’s Property B. Tax Filing Requirements § 17.5. CONCLUSION OF PROCEEDINGS § 17.6. ORIGINAL FLORIDA ADMINISTRATION OF NONRESIDENT’S ESTATE Chapter 18 — SMALL ESTATES AND SUMMARY ADMINISTRATION § 18.1. INTRODUCTION § 18.2. SUMMARY ADMINISTRATION A. In General B. When Available C. Persons Required To Join In Petition D. Plan Of Distribution E. Converting From Ordinary Administration F. Exclusion Of Non-Estate Property G. Exclusion Of Exempt Property H. Gross As Opposed To Net Value I. Decedent Dead For More Than Two Years J. Indebtedness K. Procedures For Obtaining Order Of Summary Administration 1. Petition 2. Hearing And Order L. Effect Of Order Of Summary Administration M. Rights Of Creditors

N. Rights Of Beneficiaries O. Elimination Of Claims Of Creditors Against Florida Real Property Of Nonresident Decedents § 18.3. DISPOSITION WITHOUT ADMINISTRATION § 18.4. TRANSFERRING TITLE TO DECEDENT’S MOTOR VEHICLE A. In General B. Form For Application For Certificate Of Title Upon Death Of Owner Of Motor Vehicle § 18.5. TAX CONSIDERATIONS A. Income Tax Refunds B. Filing Income Tax Returns C. Estate Tax Chapter 19 — HOMESTEAD AND EXEMPT PERSONAL PROPERTY § 19.1. INTRODUCTION AND SCOPE § 19.2. HOMESTEAD A. The Many Faces Of Homestead B. Real Property Homestead Described 1. In General 2. Restraint On Testamentary Disposition 3. Exemption From Forced Sale And Qualification As Protected Homestead 4. Quality And Quantity Of Ownership a. In General b. Leasehold Interests c. Equitable Interests d. Tenancy By Entireties And Joint Tenancy With Rights Of Survivorship e. Funds From Voluntary Sales Or From Involuntary Conversion 5. Amount Of Property 6. Unimproved Property

C. Exempt Personal Property § 19.3. HISTORICAL EVOLUTION A. 1868 Constitution And 1885 Constitution B. 1968 And 1978 Constitutional Amendments C. 1984 Constitutional Amendment § 19.4. HOMESTEAD AS ASSET SUBJECT TO PROBATE A. Real Property 1. In General 2. When Homestead Real Property Is Devised To Heirs 3. When Homestead Real Property Is Devised To Persons Who Are Not Heirs B. Personal Property § 19.5. DESCENT AND DEVISE OF HOMESTEAD AND EXEMPTION FROM CLAIMS A. Personal Property B. Real Property 1. In General 2. When Neither Spouse Nor Minor Child Survive 3. Effect Of Devise To Spouse 4. Contrasting Permitted Devise To Spouse And Devise To Others 5. Effect Of Valid Nuptial Agreement, Waiver, Or Disclaimer 6. Homestead Paradigm 7. Distinction Between Devise And Descent Regarding Exemption From Claims 8. Effect Of Survival Of Minor Child 9. Title Held By Entireties Or As Joint Tenants With Right Of Survivorship § 19.6. HOMESTEAD AND TRUSTS A. Revocable Living Trusts 1. In General 2. When Decedent Is Survived By Spouse Or Minor Child 3. When Decedent Is Not Survived By Spouse Or Minor Child 4. Does Exemption Inure When Homestead Is Devised To Trust?

B. Irrevocable Trusts C. Constructive Trusts § 19.7. LIENS THAT DEFEAT HOMESTEAD § 19.8. ABANDONMENT OF HOMESTEAD § 19.9. PROCEDURE TO DETERMINE HOMESTEAD STATUS A. In General B. Subject Matter Jurisdiction C. Determination In Nonprobate Proceeding D. Determination In Probate Proceeding E. Guardian Ad Litem F. Curative Acts And Statutes Of Limitations As Remedy To Defective Homestead Determination G. Notice By Formal Notice H. Procedural Conclusions I. Forms For Petition To Determine Homestead Status In Probate Proceeding 1. Petition To Determine Homestead Status Of Real Property— Testate 2. Petition To Determine Homestead Status Of Real Property— Intestate J. Forms For Order Determining Homestead Status 1. Order Determining Homestead Status Of Real Property — Testate 2. Order Determining Homestead Status Of Real Property — Intestate K. Application Of Servicemembers Civil Relief Act To Determination Of Homestead Chapter 20 — PITFALLS IN ESTATE ADMINISTRATION—A VIEW FROM THE BENCH § 20.1. INTRODUCTION § 20.2. THE JUDICIARY A. Duties Of Judges In The Probate Division

B. Common Mistakes In Dealing With Probate Judges 1. Misrepresenting Facts Or Acting In Ignorance Of Law 2. Relying On Probate Judge As Insurance Against Malpractice 3. Relying On Probate Judge For Legal Advice Or Instruction § 20.3. THE BAR A. Observing Proper Standards And Providing Quality Representation 1. Quality Over Quantity 2. Lawyer’s Duty To Interested Parties 3. Avoiding Unnecessary Requests For Court Action 4. Correct Filing Of Litigation B. Checklist Of Practical Suggestions For Lawyers § 20.4. CONCLUSION Chapter 21 — PROBATE LITIGATION § 21.1. INTRODUCTION § 21.2. ETHICS AND CONFLICTS A. In General B. Lawyer Conflicts C. The Lawyer As Witness 1. In General 2. Prospective Lawyer As Witness May Not Also Serve As Advocate 3. Other Disqualification Issues And Potential Role Of Lawyer’s Firm D. Multiple Representation § 21.3. TYPES OF PROBATE LITIGATION A. Will Or Trust Contest 1. Grounds a. In General b. Undue Influence i. In General ii. Definition

iii. Ethical And Liability Considerations In Document Drafting I. Constitutional Foundation II. Drafting When Undue Influence Is Suspected III. Drafting When Diminished Capacity Is Suspected iv. Conditional Renunciation v. Presumptions And Burden Of Proof vi. Presumptions Involving Spouse vii. Order Of Trial viii. Quantum Of Proof ix. Diminished Capacity x. Naturalness Of Disposition xi. Undue Influence And The “Dutiful” Child xii. Lawyer As Undue Influencer xiii. Other Applications Of Undue Influence c. Testamentary Capacity i. Definition ii. Presumption And Burden Of Proof d. Improper Execution i. Wills ii. Trusts I. Application Of Formalities Required For Execution Of Will II. Limited Exceptions For Certain Pre-October 1 1995, Trusts III. Power Of Agent Under Durable Power Of Attorney To Execute Trust Documents e. Other Grounds i. In General ii. Revocation iii. Mistake iv. Insane Delusion v. Forgery vi. Charitable Devise

vii. Murder viii. Abuse, Neglect, Exploitation, Or Aggravated Manslaughter Of Elderly Or Disabled Person ix. Share Of Pretermitted Spouse Or Child 2. Incorporation By Reference 3. Partial Invalidity 4. Dependent Relative Revocation B. Will Or Trust Construction 1. In General 2. Construction By Statute 3. Rules Of Construction 4. Evidence 5. Reformation To Correct Mistakes; Modification To Achieve Testator’s Tax Objectives C. Creditors’ Claims 1. In General 2. Due Process Issues And Notice To Creditors 3. Extension Of Time To File 4. Claims Of The Sovereign D. Elective Share And Other Entitlements E. Joint And Survivorship Property Litigation F. Totten Trust Or Pay-On-Death Accounts G. Determination Of Beneficiaries H. Other Probate Litigation § 21.4. JURISDICTION AND PROCEDURE A. Subject Matter Jurisdiction B. Proper Forum And Applicable Law C. In Personam And In Rem Jurisdiction D. Acquiring Jurisdiction E. Party Petitioner F. Party Respondents G. Procedure H. Fees And Costs

I. Application Of “Dead Person’s Statute” J. Right To Jury Trial K. Appeals § 21.5. TAX CONSEQUENCES OF SETTLEMENT AGREEMENTS CITATION INDEX FLORIDA Florida Administrative Code Florida Code of Judicial Conduct Florida Code of Professional Responsibility Florida Constitution Florida Probate Rules Florida Rules of Appellate Procedure Florida Rules of Civil Procedure Florida Rules of General Practice and Judicial Administration Florida Statutes Rules Regulating The Florida Bar FEDERAL STATUTES, RULES, AND REGULATIONS United States Constitution United States Code Code of Federal Regulations Federal Rules of Civil Procedure TABLE OF CASES A B C D E F G

H I J K L M N O P Q R S T U V W Y Z SUBJECT INDEX A B C D E F G H I J

K L M N O P Q R S T U V W

Licensed to Otis K Pitts, Otis K Pitts

« Ch. 1 » 1 Practice Under Florida Probate Code Ch. 1 (2022)

Chapter 1 IMPORTANT PRELIMINARY ADMINISTRATION ISSUES SANDRA GRAHAM SHEETS* CRAIG A. MUNDY** Contents § 1.1. ROLE OF THE LAWYER § 1.2. IMMEDIATE PRACTICAL CONSIDERATIONS A. Rights To The Body And To Control Burial 1. In General 2. Control By Decedent 3. Burial And Removal Permits And Death Certificates 4. Selection Of Casket And Burial Plot 5. Donation Of Body Or Parts Of Body 6. Autopsies 7. Authorization For Cremation 8. Duties Of Medical Examiner 9. Burial Insurance And Contracts B. Funeral Expenses 1. Limit On Priority Of Payment 2. Test Of Reasonableness 3. Property Not Subject To Claims 4. Federal Estate Tax Deduction 5. Expense Of Shipping Body When No Provision In Will 6. Need For Written Claim; Reimbursement Of Amounts Paid C. Domicile

1. In General 2. Checklist For Use In Determining Residence D. The Will 1. Locating Will 2. Depositing Will With Court 3. More Than One Will 4. Lost Or Destroyed Will 5. Specific Instructions In Will About Burial 6. Specific Instructions In Will About Bond Requirements 7. Designation And Qualification Of Personal Representative 8. Selection Of Personal Representative If No Will E. Estate Assets And Related Problems 1. Identifying Probate Property 2. Preliminary Inventory And Property Problems a. Securing Information About The Estate i. Determining Beneficiaries ii. Communications With Beneficiaries And Others iii. What Information To Gather iv. Estate Information Checklist And Information Sheet v. Checklist Of Possible Problems In Opening The Estate b. Securing Access To Safe-Deposit Box 3. Right Of Surviving Tenant To Funds In Joint Account 4. Insurance Issues a. Property Damage And Public Liability Insurance b. Life Insurance i. Payable To Named Beneficiary ii. Payable To Estate 5. Mortgage Payments 6. Automobile Held Under Joint Title 7. Telephone And Utility Bills 8. Veterans’ Survivors’ Benefits 9. Social Security Benefits And Claims 10. Rights Of Surviving Spouse

a. Advising Surviving Spouse Of His Or Her Rights b. Checklist Of Rights Of Surviving Spouse As To Property 11. Checklist Of Duties Concerning Nonprobate Assets 12. Continuing Decedent’s Business F. Administration Of Smaller Estates G. Caveat Proceedings 1. In General 2. Effect Of Caveat On Right Of Potential Beneficiary To Contest Will H. Need For Curatorship § 1.3. THE PERSONAL REPRESENTATIVE A. In General B. Specific Problems 1. Minor As Named Personal Representative 2. Other Disqualification, Death, Or Failure Of Will To Name Personal Representative 3. Renunciation Or Resignation By Named Personal Representative 4. Selection Of Lawyer To Represent Personal Representative And Interested Parties C. Lawyer’s Conferences With Personal Representative 1. Initial Conference a. In General b. Caution Against Paying Debts Of Decedent i. During The Five-Month Period ii. Without Properly Filed Claim c. Outlining Responsibilities Of Lawyer To Client d. Checklist Of Subjects For Initial Conference 2. Keeping Client Informed 3. Discussion Of Fees And Costs With Personal Representative « Ch. 1 », • § 1.1 » 1 Practice Under Florida Probate Code § 1.1 (2022)

§ 1.1. ROLE OF THE LAWYER

The primary purpose of this chapter is to treat the subject of estate administration from the perspective of the personal representative and the personal representative’s lawyer. On occasion, however, the lawyer may be asked for advice immediately after the death of the decedent, sometimes from a person who does not have the right to act as personal representative. Therefore, this chapter also covers problems and rights of others before the estate administration begins.

« Ch. 1 », « § 1.2 » 1 Practice Under Florida Probate Code § 1.2 (2022)

§

1.2. IMMEDIATE CONSIDERATIONS

PRACTICAL « Ch. 1 », « § 1.2 », • A »

1 Practice Under Florida Probate Code § 1.2.A (2022)

A. Rights To The Body And To Control Burial « Ch. 1 », « § 1.2 », • A », • 1 » 1 Practice Under Florida Probate Code § 1.2.A.1 (2022)

1. In General In the absence of testamentary disposition to the contrary, a surviving spouse or next of kin has “a legitimate claim of entitlement” to possession of the body of a deceased person for the purpose of burial, sepulture, or other legal disposition as the surviving spouse or next of kin may see fit. Crocker v. Pleasant, 778 So. 2d 978, 988 (Fla. 2001). In Andrews v. McGowan, 739 So. 2d 132 (Fla. 5th DCA 1999), the court ruled that a judicially separated spouse had the right to determine disposition of his deceased spouse’s remains over the objection of the decedent’s son and daughter, who was the designated personal representative. The decedent’s children sued their chosen funeral home for releasing the remains to another funeral home under direction of the decedent’s estranged spouse without their consent. The children also sued the second funeral home, which provided funeral and cremation services, for the return of the remains. The court found in favor of the funeral homes based on former F.S. 470.002(18) (now F.S. 497.005(43)), which specifies who has priority over disposition, and held that the estranged spouse had the right to make the determination regarding the burial of the decedent. In Matsumoto v. American Burial & Cremation Services, Inc., 949 So. 2d 1054 (Fla. 2d DCA 2007), the court upheld the funeral home’s reliance on the decedent’s son’s instructions for cremation and burial and on his representation that he did not know the decedent’s daughter’s whereabouts, and held the statute did not require the funeral home to conduct further inquiry into the daughter’s location. Andrews and Matsumoto were cited by the District Court of Appeal, Fourth District, in Arthur v. Milstein, 949 So. 2d 1163, 1165 (Fla. 4th DCA

2007), in which the court found that Andrews indicates that the intent of F.S. 497.005 and 406.50 (which addresses unclaimed remains) is “to guide funeral home operators by clearly delineating the priority of those persons who are legally authorized to make funeral arrangements for a deceased person.” The court in Arthur distinguished Andrews and Matsumoto (in which the funeral home relied on F.S. 407.005 to defend its disposition of remains) in that Arthur involved a pre-burial dispute between heirs, holding the common law dispositive in the absence of a clear testamentary disposition. It has been held that although there is a legally recognized entitlement to a decedent’s remains for burial, there is no “property right” to the remains. Wilson v. Wilson, 138 So. 3d 1176, 1178 (Fla. 4th DCA 2014). See § 1.2.A.7. The unlawful withholding of the body is an actionable wrong for which damages may be recovered. Kirksey v. Jernigan, 45 So. 2d 188 (Fla. 1950). Tortious interference with the disposition of a body may give rise to a cause of action. Donigan v. Nevins, 785 So. 2d 573 (Fla. 4th DCA 2001). An action may also be brought under 42 U.S.C. § 1983 for deprivation under the due process clause. Crocker. However, an individual has no constitutionally protected property interest in a decedent’s remains after the point of burial or other lawful disposition. City of Key West v. Knowles, 948 So. 2d 58 (Fla. 3d DCA 2007). If the next of kin refuses to claim the body and is not legally responsible for burial, the county is responsible for burying the decedent. Op. Att’y Gen. Fla. 91-33 (1991). The Medical Examiners Act, F.S. Chapter 406, authorizes the anatomical board of the state, headquartered at the University of Florida Health Science Center in Gainesville, to receive unclaimed remains or remains that are to be buried at public expense. F.S. 406.49–406.53. See https://anatbd.acb.med.ufl.edu. The anatomical board or its duly authorized agent will distribute such remains “equitably among the medical and dental schools, teaching hospitals, medical institutions, and health-related teaching programs that require cadaveric material for study;” or the board may loan the remains “to accredited colleges of mortuary science or medical or dental examining boards for educational or research purposes.” F.S. 406.57. See also F.S. 406.55–406.56 and 406.58–406.61 for more information regarding the duties, limitations, and role of the state anatomical board. The Florida Statutes provide some exceptions to these general rules. For

example, a decedent may leave written instructions relating to the decedent’s body and to funeral and burial arrangements, including anatomical gifts. See F.S. 732.804, 765.517(1). There are also other restrictions on the right to possession of the body. See § 1.2.A.3 (burial and removal permits), § 1.2.A.5 (donation of body or parts of body), § 1.2.A.6 (autopsies), § 1.2.A.7 (cremation), § 1.2.A.8 (control by the medical examiner), and § 1.2.A.9 (preneed burial contracts). « Ch. 1 », « § 1.2 », • A », « 2 » 1 Practice Under Florida Probate Code § 1.2.A.2 (2022)

2. Control By Decedent A person has the right to make provisions for his or her funeral and the disposition of his or her body. A person may donate his or her body, or parts of it, either by will or by other written instrument. See § 1.2.A.5; F.S. 732.804, 765.514 et seq. Consequently, concerned persons should immediately ascertain whether a decedent has made any such arrangements. A person may include language in a Last Will and Testament, a trust, or any other form of writing to provide instructions as to the disposition of his or her remains. In the absence of an inter vivos declaration of wishes or in the event that there is a pre-burial dispute among private parties, common law is dispositive. In Cohen v. Guardianship of Cohen, 896 So. 2d 950 (Fla. 4th DCA 2005), the court faced an issue of first impression in Florida: whether a decedent’s testamentary burial instructions are binding on the court or whether they may be disregarded when the testator has made subsequent oral statements regarding his or her wishes as to a final resting place. The trial court held that evidence of the decedent’s intent could be introduced and, in this case, the court found that the decedent had, in fact, changed his mind. The appellate court affirmed the trial court and held that “direction [in a will] for the disposition of one’s body should not be conclusive when contrary and convincing oral or written evidence of a change in intent is present.” Id. at 955. In a high-profile case, when Anna Nicole Smith died while visiting Florida in February 2007, the legal dispute over her body garnered national attention. Although she had a will, it did not contain her wishes for disposition of her remains. The trial court ruled that the guardian ad litem for her only living child, an infant, was entitled to make the determination

regarding her burial, basing its ruling on the priority listing of “legally authorized person” under F.S. 497.005(39) (now subsection (43)) (see § 1.2.A.1). On appeal, the court relied on common law, finding that the statutes provide guidance and a rebuttable presumption overcome by clear and convincing evidence of the decedent’s intent, and it determined that there was sufficient evidence to establish the decedent’s intent to be buried in the Bahamas next to her adult son, who predeceased her, and that the guardian ad litem for the minor child had expressed a commitment to honor those wishes. In affirming the lower court’s decision, the court cited the “ ‘tipsy coachman’ ” doctrine and concluded that the trial court had reached “ ‘the right result, but for the wrong reasons’ ” [internal citations omitted]. Arthur v. Milstein, 949 So. 2d 1163, 1166 (Fla. 4th DCA 2007). In Giat v. SCI Funeral Services of Florida, LLC, 308 So. 3d 642 (Fla. 4th DCA 2020), the decedent’s son filed an emergency motion to enjoin the decedent’s wife from cremating the decedent’s body, arguing that the statute defining the person legally authorized to arrange cremation should not apply to disputes between family members regarding the manner of disposing of a decedent’s remains. The court agreed and held that, even in the absence of a testamentary declaration, the decedent’s intent is a question of fact for the trial court. « Ch. 1 », « § 1.2 », • A », « 3 » 1 Practice Under Florida Probate Code § 1.2.A.3 (2022)

3. Burial And Removal Permits And Death Certificates “The funeral director who first assumes custody of a dead body or fetus must obtain a burial-transit permit before final disposition and within 5 days after death.” F.S. 382.006(1). See F.S. 382.007. The permit must be obtained by the funeral home from the Florida Department of Health or the local registrar or subregistrar of vital statistics in “the registration district in which the death occurred or the body was found.” F.S. 382.006(2). Before the burial-transit permit can be issued, a certificate of death must be filed in accordance with the statute, or the funeral director must provide satisfactory assurances that a death certificate will be properly filed. F.S. 382.006(2)(a). If the death did not occur in Florida, the transit or removal permit issued where the death occurred is sufficient, and a local permit is not required. F.S. 382.006(4). Procedures and duties concerning death certificates are provided

in F.S. 382.008–382.012. The practitioner should note that effective July 1, 2017, certain of these statutes were amended to address nonviable birth certificates as well as death certificates. Another development with regard to death certificates is the effect of the United States Supreme Court’s holding in Obergefell v. Hodges, 135 S. Ct. 2584, 192 L. Ed. 2d 609 (2015), that state laws prohibiting the recognition of same-sex marriage were unconstitutional. Specifically, the Court explained that a state may not “exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.” Id. at 2605. Indeed, in listing those terms and conditions—the “rights, benefits, and responsibilities” to which same-sex couples, no less than opposite-sex couples, must have access—the Court expressly identified “death certificates.” Id. at 2601. As a result, the surviving spouse designation on death certificates became an issue in Florida and other states that had not recognized same-sex marriage. In Birchfield & Mocko v. Armstrong & Jones, 2017 WL 1319844 (N.D. Fla. 2017), the issue was resolved in Florida when the court ordered the state to amend any pre-existing Florida death certificates, without court order, when the following conditions are met: (1) the decedent, at the time of death, was in a same-sex marriage recognized as lawful in the jurisdiction where he or she married; and (2) the surviving spouse applies to amend the certificate and submits an affidavit and supporting documentation equivalent to that which would be considered sufficient in a heterosexual marriage to amend an original death certificate to either list the omitted surviving spouse or to correctly identify him or her. « Ch. 1 », « § 1.2 », • A », « 4 » 1 Practice Under Florida Probate Code § 1.2.A.4 (2022)

4. Selection Of Casket And Burial Plot The surviving spouse, or the next of kin if there is no spouse, has a right recognized by law to have, protect, and dispose of the remains of the decedent. This includes the right to select the burial plot and the casket unless the decedent made such provisions by will or otherwise. See Dunahoo v. Bess, 146 Fla. 182, 200 So. 541 (1941); Cohen v. Guardianship of Cohen, 896 So. 2d 950 (Fla. 4th DCA 2005). As noted in Wilson v. Wilson, 138 So. 3d 1176 (Fla. 4th DCA 2014), however, neither a body nor cremated remains constitute “property.” Thus,

the surviving spouse and next of kin do not have a “property right,” but rather a burial/disposition right. Furthermore, even if the decedent provided for the disposition of his or her remains in a valid will, the decedent’s remains are not “property” for testamentary disposition purposes, and, therefore, directions in the will may be disregarded if the decedent voiced alternative wishes before death. Cohen. The practitioner should note that upon request the Secretary of Veterans Affairs will furnish a flag to drape over the casket of an eligible veteran, 38 U.S.C. § 2301, and, if appropriate, the lawyer should advise the surviving spouse or next of kin that this option is available. « Ch. 1 », « § 1.2 », • A », « 5 » 1 Practice Under Florida Probate Code § 1.2.A.5 (2022)

5. Donation Of Body Or Parts Of Body A person may make a donation of his or her body, or parts of it, under F.S. 765.510 et seq. This may be done by will or by a written instrument declaring the gift. A provision in a will becomes effective immediately on the death of the testator without waiting for probate. F.S. 765.514(1)(e). Even if the will is declared invalid for testamentary purposes, the gift of parts of a testator’s body is valid to the extent that the gift has been acted upon in good faith. Id. A document other than a will (which could be a card carried on the person) must be signed by the donor and witnessed by two persons, who must sign the document in the donor’s presence. F.S. 765.514(1)(f). Delivery of the document during the donor’s lifetime is not necessary to the validity of the gift. Id. F.S. 765.514(1)(f) sets out a form for the document. Organ donors may also indicate their desire to donate body parts simply by stating so while completing their application for a driver license (see www.flhsmv.gov/driver-licenses-id-cards/general-information/organ-donor) or by registering online with the Florida organ, tissue, and eye donor registry (available at www.donatelifeflorida.org/register). In the following order of priority, the Florida Statutes permit a healthcare surrogate, a spouse, an adult son or daughter, a parent, an adult brother or sister, an adult grandchild, a grandparent, a close personal friend, as defined in F.S. 765.101, a guardian of the person of the decedent, or a representative ad litem to donate the decedent’s body, or parts of it, for the purposes

specified in F.S. 765.513. F.S. 765.522(1) requires that “[i]f, based on accepted medical standards, a hospital patient is a suitable candidate for organ or tissue donation, the hospital administrator or [a] designee shall, at or near the time of death [of such patient], notify the appropriate procurement organization.” The organization must then search the donor registry created by F.S. 765.5155 (or any other donor registry) to ascertain whether there is an unrevoked entry in the registry, or a document of gift executed by the patient. If neither exists and there is no other properly executed document indicating a donation, the procurement organization must seek consent to an anatomical gift of the decedent’s body from his or her health care surrogate or from the persons specified in F.S. 765.512(3), in the order of priority stated in that statute. F.S. 765.519 enables a licensed funeral director who qualifies under the law to enucleate (remove) eyes for gift purposes after a proper certification of death has been signed by a physician and in compliance with the intent of the gift, as defined in F.S. Chapter 765. F.S. 765.5185 allows corneal transplants from a decedent when an autopsy is required under F.S. 406.11, provided the medical examiner is unaware of any objection by the next of kin and the removal of the cornea will not interfere with the subsequent course of an investigation or autopsy. See Kirker v. Orange County, 519 So. 2d 682 (Fla. 5th DCA 1988). The constitutionality of the predecessor statute to F.S. 765.5185 was upheld by the Florida Supreme Court in State v. Powell, 497 So. 2d 1188 (Fla. 1986). See also Newman v. Sathyavaglswaran, 287 F.3d 786, 796 (9th Cir. 2002) (noting Florida Supreme Court’s recognition that Powell decision turned “on a balance between the public health interest in cornea donation and the ‘infinitesimally small intrusion’ ” created by removal procedure). Time is of the essence in making the donated parts of the body available, because lapse of time can make them useless. F.S. 765.517 should be consulted in detail as to the rights and duties of the donee upon the donor’s death. For example, a donee may accept or reject an anatomical gift and, if the gift is accepted, the donated body part must be removed without unnecessary mutilation. A will may leave the decedent’s remains to the anatomical board (see § 1.2.A.1) for the advancement of medical science. The anatomical board may

accept the remains if death occurs in Florida. F.S. 406.56. The right to possession of the body is restricted in some circumstances. See § 1.2.A.3 (permit for burial, removal, or other disposition), § 1.2.A.6 (autopsies), and § 1.2.A.8 (medical examiner). It is a first-degree misdemeanor to buy or sell a human body or parts of bodies. F.S. 406.61, 872.01. « Ch. 1 », « § 1.2 », • A », « 6 » 1 Practice Under Florida Probate Code § 1.2.A.6 (2022)

6. Autopsies F.S. 872.04(2) provides that, “[u]nless otherwise authorized by statute, no autopsy shall be performed without the written consent by the health care surrogate,” if one has been designated by the decedent. If no health care surrogate has been designated, “written consent may be provided by the spouse, nearest relative, or, if no such next of kin can be found, the person who has assumed custody of the body for purposes of burial.” Id. The statute further provides that when two or more persons assume custody of the body for burial, “the consent of any one of them [is] sufficient to authorize the autopsy.” Id. The decedent may, of course, have indirectly authorized an autopsy through a direction to his or her health care surrogate. F.S. 872.04(3) authorizes written consent by telegram and also permits authorization by a “duly witnessed telephone permission [when] obtaining written permission would result in undue delay.” If there is no one to consent, the chief law enforcement officer has jurisdiction to establish, after diligent search and inquiry through missing persons records and other sources, that no person who can authorize an autopsy can be found. After a reasonable time from the officer’s finding, an autopsy may be performed. A reasonable time for purposes of this provision is “not less than 48 hours or more than 72 hours after death.” F.S. 872.04(4). An autopsy may be performed under some circumstances without the consent of the health care surrogate or any person who has the right of sepulture (i.e., the right to make burial decisions). See F.S. Chapters 406 and 936, particularly F.S. 406.11 (listing circumstances under which medical examiner may order autopsy); F.S. 936.003 (providing procedures regarding inquest into death); F.S. 925.09 (authorizing state attorneys to order

autopsies); and F.S. 627.615 (requiring health insurance policy provision stating insurer may call for autopsy). See also §§ 1.2.A.7–1.2.A.8. The autopsy authorized under F.S. 925.09 may be ordered before or after interment. « Ch. 1 », « § 1.2 », • A », « 7 » 1 Practice Under Florida Probate Code § 1.2.A.7 (2022)

7. Authorization For Cremation A person may provide by will for the cremation of his or her body, funeral arrangements, and the disposition of the ashes. These wishes may be carried out by any person, before the issuance of letters of administration. F.S. 732.804. See § 1.2.A.2. Such a provision should supersede any contrary wishes of the personal representative. Kasmer v. Guardianship of Limner, 697 So. 2d 220 (Fla. 3d DCA 1997). If the decedent fails to make any provision, the surviving spouse or, if none, the next of kin has the right to authorize cremation. See Kirksey v. Jernigan, 45 So. 2d 188 (Fla. 1950), 17 A.L.R. 2d 766; Dunahoo v. Bess, 146 Fla. 182, 200 So. 541 (1941). See also § 1.2.A.1. Unless the decedent has entered into a written contract providing for cremation or has included instructions concerning cremation in a will, funeral directors require the person having the right to authorize cremation to do so in writing. The person contracting for cremation services must designate in writing his or her intentions with respect to disposition of the remains. F.S. 497.607(1). If cremated remains have not been claimed within 120 days of the date of cremation, the funeral establishment is authorized to dispose of the remains. F.S. 497.607(3)(a). Notably, in Wilson v. Wilson, 138 So. 3d 1176 (Fla. 4th DCA 2014), the court held that a decedent’s ashes are not “property” under the Florida Probate Code, and, therefore, are not subject to partition. F.S. 497.607 was subsequently amended to add subsection (2), which codified the holding in Wilson. It is a misdemeanor to cremate a body before 48 hours after death. F.S. 872.03. « Ch. 1 », « § 1.2 », • A », « 8 » 1 Practice Under Florida Probate Code § 1.2.A.8 (2022)

8. Duties Of Medical Examiner Under F.S. 406.12, when a person dies, any person in the district who becomes aware of the person’s death has a duty to report the death and circumstances to the district medical examiner. F.S. 406.11(1)–(2)(a) require the district medical examiner to conduct an autopsy or other examination and determine the identity and cause of death of the person’s death under any of the circumstances listed under F.S. 406.11(1)(a): 1. Of criminal violence. 2. By accident. 3. By suicide. 4. Suddenly, when in apparent good health. 5. Unattended by a practicing physician or other recognized practitioner. 6. In any prison or penal institution. 7. In police custody. 8. In any suspicious or unusual circumstance. 9. By criminal abortion. 10. By poison. 11. By disease constituting a threat to public health. 12. By disease, injury, or toxic agent resulting from employment. This statute carries the same requirement if the body is brought into the state without proper medical certification or is to be cremated, dissected, or buried at sea. F.S. 406.11(1)(b)–(1)(c). As noted at § 1.2.A.5, the medical examiner may also provide the cornea of the decedent for a transplant, as specified in F.S. 765.5185, as long as there is no objection from the next of kin and the removal of the cornea will not interfere with the subsequent course of an investigation or autopsy. Kirker v. Orange County, 519 So. 2d 682 (Fla. 5th DCA 1988). « Ch. 1 », « § 1.2 », • A », « 9 • 1 Practice Under Florida Probate Code § 1.2.A.9 (2022)

9. Burial Insurance And Contracts The Florida Funeral, Cemetery, and Consumer Services Act, F.S. Chapter 497, governs pre-need funeral merchandise or service contracts. Violation of these provisions is addressed in F.S. 497.159 and can subject a funeral director to civil liabilities under F.S. 497.169. F.S. 626.9541(1)(t)2c prohibits a life insurer from attempting to influence policy holders to employ a particular licensed funeral director or direct disposer. « Ch. 1 », « § 1.2 », « B » 1 Practice Under Florida Probate Code § 1.2.B (2022)

B. Funeral Expenses « Ch. 1 », « § 1.2 », « B », • 1 » 1 Practice Under Florida Probate Code § 1.2.B.1 (2022)

1. Limit On Priority Of Payment The Florida Probate Code provides an order of payment of expenses and obligations by priority, Classes 1 through 8, under F.S. 733.707. See § 1.3.C.1.b.i. Reasonable funeral, interment, and grave marker expenses not exceeding $6,000 in the aggregate are Class 2 expenses, second only to costs of administration, compensation of personal representatives and their lawyers, and lawyer fees awarded under F.S. 733.106(3), which are Class 1 expenses. F.S. 733.707(1)(a), (1)(b). « Ch. 1 », « § 1.2 », « B », « 2 » 1 Practice Under Florida Probate Code § 1.2.B.2 (2022)

2. Test Of Reasonableness What is considered reasonable funeral expenses for an estate of $100,000 may be considered unreasonable for an estate of $10,000. If the beneficiaries of an estate took part in incurring funeral and related expenses, they might be estopped from questioning the expenses. Pinkham v. Central Farmers’ Trust Co., 118 Fla. 253, 159 So. 289 (1935). The person making funeral arrangements should be cautioned not only that the expenses must be reasonable, but also that the funeral director may consider the person making arrangements personally liable for the portion of the bill over $6,000 if the assets are not sufficient to pay the funeral home after debts and expenses with higher priorities are paid.

« Ch. 1 », « § 1.2 », « B », « 3 » 1 Practice Under Florida Probate Code § 1.2.B.3 (2022)

3. Property Not Subject To Claims Before incurring large funeral bills, members of the decedent’s family should be cautioned that many assets may not be available for payment of expenses and claims. Such assets include property held jointly between the decedent and the surviving spouse, insurance payable to a beneficiary other than the estate, other property held jointly with right of survivorship, exempt property under F.S. 732.402, and homestead realty. See the list of property rights of surviving spouses in § 1.2.E.10.b. In addition, real estate not located in Florida may be particularly difficult to liquidate. A person may die without having property subject to claims because all property was either homestead or owned by the decedent and the surviving spouse as tenants by the entireties. In that situation, or if the status of title is not known at that time, the personal representative might be well advised to insist that the spouse or other members of the family order the funeral arrangements and accept personal liability for those expenses. « Ch. 1 », « § 1.2 », « B », « 4 » 1 Practice Under Florida Probate Code § 1.2.B.4 (2022)

4. Federal Estate Tax Deduction For federal estate tax purposes, IRC § 2053 authorizes as a deduction from the gross estate certain expenses and claims, including funeral expenses. Under Treas. Reg. § 20.2053-2, the deduction includes actual funeral expenses that would properly be allowable “out of property subject to claims under the laws of the local jurisdiction.” That regulation also provides, in part: A reasonable expenditure for a tombstone, monument, or mausoleum, or for a burial lot, either for the decedent or [the decedent’s] family, including a reasonable expenditure for its future care, may be deducted under this heading, provided such an expenditure is allowable by the local law. Included in funeral expenses is the cost of transportation of the person bringing the body to the place of burial. Id.

« Ch. 1 », « § 1.2 », « B », « 5 » 1 Practice Under Florida Probate Code § 1.2.B.5 (2022)

5. Expense Of Shipping Body When No Provision In Will Despite the absence of directions in the will, reasonable expenses of shipping the body to a foreign location, or from a foreign country to the United States, including transportation of the escort, are part of the allowable funeral expenses. Members of the family paying this expense may file a claim for reimbursement. « Ch. 1 », « § 1.2 », « B », « 6 • 1 Practice Under Florida Probate Code § 1.2.B.6 (2022)

6. Need For Written Claim; Reimbursement Of Amounts Paid Under the Florida Probate Code, the personal representative has limited authority to pay funeral expenses without a formal claim being filed. F.S. 733.702(1) authorizes the personal representative to settle a claim without the necessity of the claim being filed if the settlement is approved by the interested persons, and F.S. 733.703(2) permits the personal representative to file a proof of claim of all claims he or she has paid or intends to pay. The consent of interested persons gives the personal representative the authority to pay funeral expenses without a formal claim, but the better practice is to file a claim so as to preserve the deduction for estate tax purposes. Estate of Hagmann v. Commissioner, 60 T.C. 465 (1973), aff’d 492 F.2d 796. The personal representative, if acting reasonably for the benefit of the interested persons, is authorized by F.S. 733.612(24) to satisfy and settle claims unless there is a will provision or court order to the contrary. Funeral expenses are deemed claims under F.S. 731.201(4) and 733.702(1). The cost of opening and closing the grave in a burial plot owned by the decedent is required by some funeral directors to be advanced by members of the family. Of course, if the decedent owned no burial plot, it may be necessary to purchase one. The reasonable costs of the casket, burial plot, and opening and closing of the grave are part of the funeral expenses. The funeral director may properly include all of these items in the claim. When funeral expenses have been paid by a guardian, personal representative, or any other person, that person is entitled to reimbursement

from the estate “not to exceed the aggregate of $6,000.” F.S. 733.707(1)(b). The portion of the expenses above $6,000 is included in Class 8. F.S. 733.707(1)(h). It is not the intent of the law to limit funeral expenses to $6,000, but only to limit the amount that has preferred status. « Ch. 1 », « § 1.2 », « C » 1 Practice Under Florida Probate Code § 1.2.C (2022)

C. Domicile « Ch. 1 », « § 1.2 », « C », • 1 » 1 Practice Under Florida Probate Code § 1.2.C.1 (2022)

1. In General The Florida Probate Code equates “domicile” with “residence” (i.e., “a person’s usual place of dwelling”). F.S. 731.201(13), (34). Many people living in Florida never become domiciliaries of Florida, such as a person who lives in Florida but works remotely for a foreign employer and files taxes elsewhere. If the decedent was not domiciled in this state, original administration proceedings normally should be initiated in the domiciliary state, followed, if necessary, by commencement of ancillary administration in Florida. See Chapter 17 of this manual. The precedence of these proceedings may be reversed when a domiciliary has no assets in the domiciliary state but has assets in another state. See Chapters 3 and 17. Whether properly commenced in the domiciliary state or not, it is advised that a curator (i.e., a custodian of the property) be appointed to act until a personal representative can be appointed. Curators are discussed in Chapter 16 of this manual. « Ch. 1 », « § 1.2 », « C », « 2 • 1 Practice Under Florida Probate Code § 1.2.C.2 (2022)

2. Checklist For Use In Determining Residence COMMENT: In most cases, it will be obvious that the decedent was a resident of a certain state. In some cases, however, it may be a close question, and items such as the following should be considered when determining whether the decedent was a resident of Florida. See also Lannon, Domicile Planning—Don’t Take it for Granted, 80 Fla. Bar J. 34 (Jan. 2006).

Ownership of dwelling houses; percentage of time spent in each state. Homestead tax exemptions. Occupation or occupations. Business interests and activities. Other real estate ownership. Place of filing federal income tax returns and tax filings made in other states. Address on federal income tax returns. Registration to vote and voting. Automobile registration. Driver license. Location of licensing of pets. Passport address. Location of valuable tangible personal property. Location of bank accounts, safe-deposit boxes, and securities. Location of will. Ownership of cemetery lot. Affidavit of domicile. F.S. 222.17. Statement of domicile in estate planning documents. Church affiliation. Club affiliations. Union membership. Charitable contributions. Children’s school attendance or other activities.

Termination of residence in one state by notice to taxing officer, cancellation of voter registration, change of driver license and automobile registration, and other acts. Recital of domicile in the will. Biederman v. Cheatham, 161 So. 2d 538 (Fla. 2d DCA 1964). « Ch. 1 », « § 1.2 », « D » 1 Practice Under Florida Probate Code § 1.2.D (2022)

D. The Will « Ch. 1 », « § 1.2 », « D », • 1 » 1 Practice Under Florida Probate Code § 1.2.D.1 (2022)

1. Locating Will A preliminary inquiry should be made to determine whether the decedent ever executed a will. This information may be obtained from members of the family. In any event, a diligent search should be made to locate the most recent will. Most lawyers advise the testator to keep the will in a safe place. If the will is located in the decedent’s safe-deposit box or in the office of the decedent’s lawyer, there is generally no problem in securing it for probate. To help eliminate any potential charge of tampering, the person searching for the will among the belongings of the decedent should always be accompanied by a disinterested third party. If the will is not found among the decedent’s valuable papers at the decedent’s home, the next most likely place to look for it is in the decedent’s safe-deposit box. See § 1.2.E.2.b concerning access to the safe-deposit box. « Ch. 1 », « § 1.2 », « D », « 2 » 1 Practice Under Florida Probate Code § 1.2.D.2 (2022)

2. Depositing Will With Court If there is evidence that the will was in the custody of a third party, the lawyer should call the clerk of the probate court to ascertain whether it has been deposited there. If not, the custodian of the will should be advised to deposit it with the court. Under F.S. 732.901(1), a custodian of a will is under a duty to deposit it with the court within 10 days after notice of the death.

This requirement includes a separate writing as described in F.S. 732.515. F.S. 732.901(5). If a custodian of a will fails or refuses to deposit with the court a will in the custodian’s possession, the custodian may be compelled to produce the will for depositing with the court. The involuntary production of the will is discussed in § 5.2.A.1.a of this manual; a form for a petition for production of the will appears in § 5.2.A.1.b.i and a form for an order is in § 5.2.A.1.b.ii. « Ch. 1 », « § 1.2 », « D », « 3 » 1 Practice Under Florida Probate Code § 1.2.D.3 (2022)

3. More Than One Will If there is more than one will, the lawyer should examine the will bearing the latest date to ascertain whether it expressly revoked all previous wills and codicils. Upon discovery of a more recently executed will or codicil, F.S. 733.208 permits a petition to revoke the probate of an earlier will (or to simply probate the later will, if no prior will was admitted to probate), provided administration of the estate is not complete and the personal representative discharged. See §§ 11.2.F and 14.3.D.4 of this manual. Although a will or codicil may not be offered after closing of the estate, F.S. 733.208, 733.903, the devisees in the subsequent will or codicil may have a cause of action against the distributees of the prior will. « Ch. 1 », « § 1.2 », « D », « 4 » 1 Practice Under Florida Probate Code § 1.2.D.4 (2022)

4. Lost Or Destroyed Will If an original will that was in the possession of the testator has been lost or destroyed, a presumption of revocation arises. In this situation, a carbon copy or photocopy is invaluable. “[An] interested person may establish the full and precise terms of a lost or destroyed will and offer the will for probate. The specific content of the will must be proved by the testimony of two disinterested witnesses, or, if a correct copy is provided, [the will may] be proved by one disinterested witness.” F.S. 733.207. See In re Estate of Parker, 382 So. 2d 652 (Fla. 1980). The copy need not be a copy of the signed document for this purpose, In re Estate of Kero, 591 So. 2d 675 (Fla.

4th DCA 1992), but a draft of the will is not a “correct copy,” Parker, 382 So. 2d at 653. See also Smith v. DeParry, 86 So. 3d 1228 (Fla. 2d DCA 2012) (regarding what constitutes “correct copy” of will). Discussion and forms concerning the establishment of a lost or destroyed will are in §§ 5.6.C.1–5.6.C.2.b of this manual. « Ch. 1 », « § 1.2 », « D », « 5 » 1 Practice Under Florida Probate Code § 1.2.D.5 (2022)

5. Specific Instructions In Will About Burial The will of the decedent should be examined immediately to ascertain whether it contains burial instructions. If so, the members of the family should be informed and it should be suggested that they carry out the wishes of the testator. For a more detailed discussion of rights, procedures, and expenses concerning burial, see §§ 1.2.A–1.2.B. « Ch. 1 », « § 1.2 », « D », « 6 » 1 Practice Under Florida Probate Code § 1.2.D.6 (2022)

6. Specific Instructions In Will About Bond Requirements Lawyers must familiarize themselves with the local rules and procedures with respect to the necessity of filing a fiduciary bond, which is required unless waived by the will or the court. See F.S. 733.402. The court may require that a bond be posted even if the will names a personal representative and waives bond. The court will probably require a bond if the personal representative is a nonresident. If the will fails to waive bond, the court will require it unless the personal representative is a bank or trust company authorized by law to act as a personal representative, F.S. 733.402(3), or unless the court waives the requirement, F.S. 733.402(4). The court has discretion in determining the amount of the bond but, in practice, may fix it at about the value of the liquid assets. Thus, the personal representative must estimate the value of those assets for the court’s information. Fla. Prob. R. 5.200(g); see F.S. 733.403. Personal representatives’ bonds are discussed more fully in § 5.3.H of this manual. « Ch. 1 », « § 1.2 », « D », « 7 » 1 Practice Under Florida Probate Code § 1.2.D.7 (2022)

7. Designation And Qualification Of Personal Representative Any person who is sui juris and who is a resident of Florida at the time of the testator’s death may qualify as the personal representative. F.S. 733.302. This would include a resident alien. In re Estate of Fernandez, 335 So. 2d 829 (Fla. 1976). A person who is under the age of 18, has been convicted of a felony, has been convicted of abuse, neglect, or exploitation of an elderly person or disabled adult, or is unable to perform the duties of the personal representative is not qualified. F.S. 733.303(1). A convicted felon who has been granted clemency and who has had his or her civil rights restored is not absolutely disqualified from serving as personal representative. Padgett v. Estate of Gilbert, 676 So. 2d 440 (Fla. 1st DCA 1996). See Chapter 4 of this manual. “A person who is not domiciled in the state cannot qualify as personal representative” of a Florida estate unless he or she is 1. the decedent’s legally adopted child or the decedent’s adoptive parent; 2. related by lineal consanguinity to the decedent; 3. the decedent’s spouse, brother, sister, uncle, aunt, nephew, or niece; 4. someone related by lineal consanguinity to those listed in 3; or 5. the spouse of any of those listed in 1 through 4. F.S. 733.304. The designation as personal representative of the nonresident niece or nephew of a testator’s spouse, for example, is ineffective. In re Estate of Angeleri, 575 So. 2d 794 (Fla. 4th DCA 1991) (holding that “nephew” in third exception is limited to blood relative). There is an irrebuttable presumption created by F.S. 733.302 and 733.304 that a nonresident who is not related to the decedent is incapable of performing the duties of a personal representative. In In re Estate of Greenberg, 390 So. 2d 40 (Fla. 1980), abrogated on other grounds 563 So. 2d 64, the Florida Supreme Court upheld the constitutionality of F.S. 733.302 and 733.304. A personal representative nominated under a will must be appointed as such unless there is evidence that the nominated personal representative does not meet the statutory criteria to qualify, or other exceptional circumstances exist to deny the appointment. Hernandez v. Hernandez, 946 So. 2d 124 (Fla.

5th DCA 2007), citing Schleider v. Estate of Schleider, 770 So. 2d 1252 (Fla. 4th DCA 2000) (personal representative named in will may be unsuitable if evidence shows that he or she has adverse interest, or is hostile to beneficiaries, or lacks necessary qualities or experience to serve; totality of circumstances may be taken into account in this determination). Courts have some narrow discretion to refuse to appoint the person named in the will as personal representative, even if that person is not disqualified by statute. If unforeseen circumstances occurred after the signing of the will that would have affected the testator’s choice of personal representative had the testator been given the opportunity to change the designation, the court may refuse to appoint the person. In re Estate of Mindlin, 571 So. 2d 90 (Fla. 2d DCA 1990); Pontrello v. Estate of Kepler, 528 So. 2d 441 (Fla. 2d DCA 1988). In this situation, there must be an evidentiary hearing, with proof presented. In re Estate of Miller, 568 So. 2d 487 (Fla. 1st DCA 1990). See § 1.2.D.8. However, in Werner v. Estate of McCloskey, 943 So. 2d 1007 (Fla. 1st DCA 2006), the court determined that the Florida Statutes do not permit a trial court to refuse to appoint a nominated personal representative, otherwise qualified under the statutes, simply because of a perceived conflict of interest. It appears that the issue of conflict of interest is grounds for removal only after an appointment of a personal representative. See McCormick v. McCormick, 991 So. 2d 437 (Fla. 1st DCA 2008), citing Werner. The practitioner should note that Schleider (and by implication, Hernandez which cites it) has been criticized for confusing Florida’s appointment statute with its removal statute, and failing to distinguish intestate and testate estates. See Kirkpatrick, Treading on Sacred Ground: Denying the Appointment of a Testator’s Nominated Personal Representative , 63 Fla. L. Rev. 1041 (July 2011). See also Maurer, Avoiding Statutory Restrictions on Appointment of Personal Representatives in Florida, 36 Nova L. Rev. 141 (Fall 2011). A person under 18 years of age cannot serve as a personal representative. F.S. 733.303(1)(c). This is true even if other disabilities of nonage have been removed. See § 1.3.B.1 for a further discussion of the age requirement. F.S. 733.301(1)(a) provides that if the named personal representative

cannot qualify and an alternate personal representative who can qualify is named in the will, letters of administration will be issued to the alternate. That statute also recognizes a testamentary power given to another person to appoint a personal representative or a successor. All trust companies incorporated under Florida law, and all state banking corporations, savings associations, national banking associations, and federal savings and loan associations that are authorized and qualified to exercise fiduciary powers in Florida, are qualified to act as personal representative. F.S. 733.305(1). Other corporations are not qualified. F.S. 660.41; In re Estate of Montanez, 687 So. 2d 943 (Fla. 3d DCA 1997). F.S. 660.41 has been challenged as an unconstitutional restriction of commerce, but the United States Supreme Court, in Lewis v. BT Investment Managers, Inc., 447 U.S. 27, 100 S. Ct. 2009, 64 L. Ed. 2d 702 (1980), only held unconstitutional a similar restriction against out-of-state banks providing investment advisory services, and it does not necessarily follow that F.S. 660.41 is unconstitutional. Every personal representative must be represented by a lawyer admitted to practice in Florida unless the personal representative is the “sole interested person” or is a lawyer. Fla. Prob. R. 5.030(a). See Dimitroff v. Taylor, 651 So. 2d 131 (Fla. 2d DCA 1995). « Ch. 1 », « § 1.2 », « D », « 8 • 1 Practice Under Florida Probate Code § 1.2.D.8 (2022)

8. Selection Of Personal Representative If No Will If the decedent left no valid will, preferences in appointment of the personal representative are governed by F.S. 733.301(1)(b). If the surviving spouse and heirs do not apply for letters of administration, the court may appoint some capable person but not one “[w]ho works for, or holds public office under, the court [or] is employed by, or holds office under, any judge exercising probate jurisdiction.” F.S. 733.301(3). If the person entitled to preference lacks the “qualities and characteristics” of a fiduciary, the court may refuse to appoint that person. In re Estate of Snyder, 333 So. 2d 519, 521 (Fla. 2d DCA 1976), 84 A.L.R.3d 703. The statutory disqualifications listed in F.S. 733.303 are not exclusive. See § 1.2.D.7.

« Ch. 1 », « § 1.2 », « E » 1 Practice Under Florida Probate Code § 1.2.E (2022)

E. Estate Assets And Related Problems « Ch. 1 », « § 1.2 », « E », • 1 » 1 Practice Under Florida Probate Code § 1.2.E.1 (2022)

1. Identifying Probate Property The probate estate consists of personal property, wherever located, owned by the decedent and nonhomestead real property located in Florida and owned by the decedent. See F.S. 732.201(32), (33). Although the homestead is excluded from the probate estate, it should be identified in the inventory. Fla. Prob. R. 5.340(a). See Chapter 19 of this manual for a discussion of homestead. Personal property exempt from forced sale by Article X, § 4, of the Florida Constitution (up to a value of $1,000) is part of the estate. It may be devised by will and is used in computing the elective share. See Hinson v. Booth, 39 Fla. 333, 22 So. 687 (1897); F.S. 732.2035, 732.2065. See also BLACK’S LAW DICTIONARY (11th ed. 2019) (defining “elective share” as “[t]he percentage of a deceased spouse’s estate … that a surviving spouse … may choose to receive instead of taking under a will or in the event of being unjustifiably disinherited”). It is exempt from funeral expenses and debts except those specified in Article X, § 4. In re Estate of Livingston, 161 So. 2d 723 (Fla. 2d DCA 1964). Exempt property under F.S. 732.402, which includes, for example, up to $20,000 in household items, some personal vehicles, and certain death benefits, should be appraised by the personal representative and included in the inventory even if an order setting it aside has been entered. The personal representative is chargeable with including the property in the gross estate for estate tax purposes and should not have to surrender it until satisfactory arrangements are made guaranteeing that the protected party will exonerate the estate with respect to exempt property that is subject to a perfected security interest. Exempt property under F.S. 732.402 is excluded from the estate valuation when determining residuary, intestate, pretermitted, or elective shares. F.S. 732.402(7). The lawyer should be careful to determine whether the decedent had

established an inter vivos trust that the decedent had the power to revoke (either alone or in conjunction with another) at the time of his or her death. If so, the trust property may not be probate property, F.S. 689.075, but the trust assets may be used to satisfy the expenses of estate administration and the claims of creditors if the probate property is insufficient, F.S. 733.707(3), 736.05053, 736.1014. The personal representative must determine whether such a trust exists and, if so, must serve the trustee with a copy of the notice of administration. Rule 5.240(a)(3); F.S. 733.212(1)(c). The lawyer should review the manner in which the trust was executed to check for compliance with F.S. 736.0403(2)(b) if the trust was executed on or after July 1, 2007, the effective date of the Florida Trust Code. F.S. 737.111, which was in effect before the effective date of the Florida Trust Code, continues to apply to trusts created before July 1, 2007. See Greensburg Public Library v. Alzheimer’s Lifeliners Ass’n, Inc., 787 So. 2d 947 (Fla. 2d DCA 2001). Other property not included in the probate estate includes estates by the entireties, joint tenancies with right of survivorship, and life insurance policies payable to a named beneficiary. With some exceptions, such property is part of the gross estate for estate tax purposes. See § 1.2.E.3 regarding accounts in financial institutions. Other items of nonprobate property are identified in § 1.2.E.11. If the decedent owned real property in another state, the lawyer should determine the procedure necessary to transfer title. It may be necessary to employ counsel in that state to handle the proceedings. The lawyer must be very cautious to determine the impact of probate property, property passing outside of probate, and inter vivos transfers on the elective share of the surviving spouse. Nonprobate property is also included in the computation and determination of the elective share. See § 1.2.E.10 and Chapter 7 of this manual. « Ch. 1 », « § 1.2 », « E », « 2 » 1 Practice Under Florida Probate Code § 1.2.E.2 (2022)

2. Preliminary Inventory And Property Problems « Ch. 1 », « § 1.2 », « E », « 2 », • a » 1 Practice Under Florida Probate Code § 1.2.E.2.a (2022)

a. Securing Information About The Estate

« Ch. 1 », « § 1.2 », « E », « 2 », • a », • i » 1 Practice Under Florida Probate Code § 1.2.E.2.a.i (2022)

i. Determining Beneficiaries The lawyer should seek to discover the identity, address, age, and social security number of the surviving spouse and all beneficiaries as soon as possible. This is because the petition for administration must contain the names and addresses of the beneficiaries and the ages of any who are minors, to the extent this information is known to the petitioner. Fla. Prob. R. 5.200(c). In the first meeting with the family, the lawyer should obtain as much information as possible about the estate beneficiaries. This is often best accomplished when out of town members of the family are in town for the funeral. However, the lawyer must be sympathetic and should realize that a complete analysis of estate procedures, assets, and other problems may be an undue burden on some family members at the initial meeting because of the emotional impact of the loss of a relative. The lawyer should use good judgment regarding the extent of the first conference. Some estates do not require immediate action. A number of statutes may affect the determination of beneficiaries or their shares of the estate. All estates, whether intestate or under a will, may be affected by the following: F.S. 732.401, 732.4015 (homestead); F.S. 732.402 (exempt property); F.S. 732.201–732.2155 (elective share); F.S. 732.216–732.228 (community property); F.S. 732.403 (family allowance); F.S. 732.601 (simultaneous death); F.S. 222.13 (life insurance); F.S. Chapter 739 (disclaimers); F.S. 732.802 (killer of decedent);

F.S. 732.108(1) (adopted child as heir or as decedent); F.S. 732.108(2) (person born out of wedlock as heir); F.S. 732.107 (escheat to the state); and 38 U.S.C. §§ 5502(e), 8520–8521 (escheat to United States). The following statutes may be relevant in testate estates: F.S. 732.301 (marriage after execution of will); F.S. 732.302 (child born or adopted after execution of will); F.S. 732.507(2) (dissolution of marriage whether marriage occurred before or after execution of will); F.S. 732.515 (separate writing devising tangible personal property); F.S. 732.603 (death of devisee or legatee before death of testator); and F.S. 732.604 (failure of a devise). F.S. 733.105 establishes a procedure for the determination of beneficiaries of testate and intestate estates when the identities or shares of the beneficiaries are in doubt. See Chapter 11 of this manual; see also LITIGATION UNDER FLORIDA PROBATE CODE (Fla. Bar 13th ed. 2022). « Ch. 1 », « § 1.2 », « E », « 2 », • a », « ii » 1 Practice Under Florida Probate Code § 1.2.E.2.a.ii (2022)

ii. Communications With Beneficiaries And Others The personal representative must promptly serve a copy of the notice of administration on the surviving spouse; all beneficiaries; the trustee of any trust described in F.S. 733.707(3), and each qualified beneficiary of the trust as defined in F.S. 736.0103(16), if each trustee is also a personal representative of the estate; and all those who may be entitled to exempt property. F.S. 733.212(1). Notice must be served in the manner provided for service of formal notice unless served under F.S. 733.2123. F.S. 733.212(1). The personal representative may also serve a copy of the notice on other heirs of the decedent, devisees under a known prior will, or others who may claim an interest in the estate. Id. A person on whom a copy is served has three months from the date of service to commence an adversary proceeding to

challenge the validity of any will of the decedent or to challenge the venue or jurisdiction of the court. F.S. 733.212(3). Fla. Prob. R. 5.240(b)(2) requires that a notice of administration include a statement that “the fiduciary lawyer-client privilege in [F.S.] 90.5021 … applies with respect to the personal representative and any attorney employed by the personal representative.” See F.S. 90.5021(1) (describing client acting as personal representative as serving in fiduciary role). Although the Florida Supreme Court has declined to adopt F.S. 90.5021 as a procedural rule of court, In re Amendments to Florida Evidence Code, 144 So. 3d 536 (Fla. 2014), “the statute remains the law in Florida,” Bivins v. Rogers, 207 F. Supp. 3d 1321, 1326 (S.D. Fla. 2016). Therefore, in communications between the personal representative and any lawyer employed by the personal representative, the lawyer should be mindful of the communications he or she has with other individuals involved in the administration of the estate. See § 21.2.B of this manual for further discussion of this issue. « Ch. 1 », « § 1.2 », « E », « 2 », • a », « iii » 1 Practice Under Florida Probate Code § 1.2.E.2.a.iii (2022)

iii. What Information To Gather It is important to gather information about the decedent, the decedent’s assets, and the beneficiaries. The social security number of each beneficiary may also be needed for federal income tax or estate tax purposes. In particular, factual information about the decedent’s domicile should be obtained to determine if there may be issues of residency in any other state or country. This information will be used in making several decisions, some of which are indicated below. See also the lists in §§ 1.2.C.2, 1.2.E.2.a.i, 1.2.E.2.a.iv, 1.2.E.2.a.v, 1.2.E.10.b, and 1.2.E.11. A substantial estate may consist only of property that passes to a surviving tenant by the entireties and is not subject to administration or claims of creditors. This may be true even if there is a will. If all the property is entireties property except for the homestead real estate, summary administration or disposition without administration may be appropriate for the purpose of establishing its new ownership of record. See F.S. Chapter 735. Small estates are treated in Chapter 18 of this manual.

Ancillary administration in another state may be necessary, and a prompt commencement of those proceedings may be important. See F.S. Chapter 734 and Chapter 17 of this manual. The exact status of title to real estate and other items, including automobiles, bank accounts, and stock certificates, should be personally checked by the lawyer, even though the client may insist that title is held in a certain manner. The lawyer should request that pertinent documents be produced for examination. If the client is uncertain about bank information, inquiries should be sent to all banks and savings institutions in the area, to avoid overlooking valuable property of the estate. The lawyer should advise the personal representative, preferably before appointment, to consider environmental hazards and liabilities associated with any property owned by the decedent. The personal representative may wish to consider an environmental audit of any questionable property. See F.S. 733.6121. Information should be gathered promptly for an estimate of the value of real and personal property as of the date of death. The lawyer should make an accurate, detailed, and exhaustive investigation of estate assets as soon as practicable, but this is not always necessary before administration proceedings are begun. If carry-over basis is a possibility, information about the decedent’s basis in the assets should be obtained. Inventory and appraisal are treated in Chapter 6 of this manual. The existence of perishable or rapidly deteriorating property that should be sold immediately must be ascertained. See § 9.2.D.1 of this manual. The information gathered may indicate the necessity for the appointment of a curator. See § 1.2.H and Chapter 16 of this manual. The Florida Fiduciary Access to Digital Assets Act, F.S. Chapter 740 (the Act), gives fiduciaries, including personal representatives, access to digital assets and electronic communications (e.g., e-mail and social media postings) of the account holder upon death. The Act distinguishes between access to the content of digital assets and electronic communications versus access to only a catalog of the digital property. It allows the account holder to specify whether his or her digital assets will be preserved, distributed to heirs, or destroyed, and it balances the decedent’s privacy rights regarding digital

assets with the asset custodian’s duties regarding disclosure. It gives the custodian protection in the form of immunity from liability for acts or omissions done in good faith in seeking to comply with the Act. Practitioners should note that the Act applies only to electronic records, which includes electronic communications, and does not apply to the underlying asset or liability unless the asset or liability itself is characterized as an electronic record. It applies not only to personal representatives of estates, but also to guardians of the property of minors or incapacitated persons, attorneys in fact acting under a power of attorney, and trustees. The balancing of interests between the ease of fiduciary access to information and the account holder’s privacy rights are addressed in the form of a consent to disclosure that can be given to the custodian by the account holder. The Act is therefore the first step in allowing the law to catch up to technology by giving account holders the tools to plan for the disposition of their digital assets in the event of their death or incapacity. « Ch. 1 », « § 1.2 », « E », « 2 », • a », « iv » 1 Practice Under Florida Probate Code § 1.2.E.2.a.iv (2022)

iv. Estate Information Checklist And Information Sheet COMMENT: The following checklist may be used as a guide in obtaining information needed in the initial conferences and in deciding how to proceed. See also the checklist of possible problems in opening an estate that appears in § 1.2.E.2.a.v and the checklist of subjects for the initial conference in § 1.3.C.1.d. The decedent: Full name Domicile (state and county of residence) and address at time of death Date and place of death Social security number Business or occupation; if retired, former business or occupation

Business name, address, and employer identification number Death certificate Funeral instructions other than in will Problems related to funeral Marital status of decedent at time of death (married, single, legally separated, widowed, divorced) Date of marriage to surviving spouse E-mail address, if available The will: Whether decedent died testate as to all property Location of will Funeral instructions in will Will clause or other writing making donation of body or parts of body or providing for cremation Contact information for personal representative named in will Whether personal representative can qualify and, if not, alternate personal representative’s contact information and qualifications Contact information for witnesses to will The revocable trust: Assets contained in the trust Identity of trustees Whether the assets are available for the claims of creditors The beneficiaries: Surviving spouse (name, age, address, and social security number) Heirs at law or devisees (name, age, relationship, address, and

social security number) Year of birth of minor beneficiaries and contact information for legal guardians The property (and estimated value of each item): Real estate in Florida (description, street address, improvements, insurance, mortgages, leases); designate exempt homestead as such $______ Real estate not in Florida (similar information as for that in Florida) $______ Automobiles (insurance, liens, possession, and use; whether specifically devised) $______ Other tangible personal property (antiques, artwork, silver, jewelry, furs, furniture, furnishings, fixtures, other items of substantial value) $______ Cash and accounts in financial institutions $______ Florida Prepaid College Program contracts and Florida College Savings agreements $______ Safe-deposit box (location, contents, and access) Sole proprietorship $______ Partnership interest $______ Stock in close or family corporation $______ Intellectual property $______ Cryptocurrencies $______ Other securities $______ Property passing by right of survivorship $______ Death benefits payable under retirement plans $______ Transfers made within one year of decedent’s death $______ Debts payable to decedent $______

Insurance payable to estate $______ Insurance owned by decedent, on others $______ Cash surrender value of insurance on decedent’s life $______ Trusts (see comment below) $______ Powers of appointment $______ Annuities $______ Pending litigation $______ Causes of action (to consider filing) $______ Veterans’ benefits $______ Social security benefits $______ Income tax refund (but see F.S. 735.302) $______ COMMENT: Wages, traveling expenses not exceeding $300, and unemployment compensation payments due at death ordinarily are not assets of the estate for administration purposes. F.S. 222.15– 222.16. See § 6.5.P of this manual. See also F.S. 733.808 concerning certain death benefits. If the decedent was married at the time of death, the lawyer must be careful to obtain information relevant for determining the amount of the elective share of a surviving spouse. The elective estate includes property interests that are outside the probate estate. See F.S. 732.2035; see also § 1.2.E.10 and Chapter 7 of this manual and BASIC ESTATE PLANNING IN FLORIDA Chapter 9 (Fla. Bar 10th ed. 2020). As to the availability of assets held in a revocable inter vivos trust for the payment of estate administration expenses or creditor claims, see F.S. 733.707(3), 736.05053, and 736.1014, and § 1.2.E.1. Debts, expenses, and liabilities of decedent secured unsecured business

personal funeral and burial costs last illness income tax environmental liabilities (see F.S. 733.6121) COMMENT: The lawyer should be certain to notify the personal representative that affirmative steps must be taken to identify, locate, and serve a copy of the notice to creditors on those creditors of the decedent who are known or reasonably ascertainable through diligent efforts. F.S. 733.2121(3)(a). This issue is discussed in detail in Chapter 8 of this manual. Additional information for estates for which an estate tax return is (or may be) required: Decedent’s date and place of birth Citizenship (nationality) at time of death of decedent and surviving spouse Year last domicile was established Cause of death and length of last illness Decedent’s physicians (names and addresses) Whether decedent was confined in hospital during last illness or within three years before death, name and address of hospital Domicile at date of marriage to surviving spouse and states in which they lived as a legally married couple (to determine if any community property laws apply) Whether decedent was widow or widower, name of deceased spouse and date of death Social security numbers or taxpayer account numbers of noncharitable beneficiaries, and their ages and relationships to

decedent Size or acreage of land Property owned by decedent as tenant by the entireties or as joint tenant with right of survivorship, and names and addresses of surviving cotenants, and property held in Totten trusts, pay-on-death accounts, or transfer-on-death accounts, and names and addresses of surviving beneficiaries Insurance owned by decedent on his or her own life not payable to estate Transfers by decedent during life, by trust or otherwise, other than bona fide sales for an adequate and full consideration in money or money’s worth, but including sales to grantor trusts Bonus or award to estate, spouse, or any other person as a result of decedent’s employment or his or her death Prior gift tax returns Income tax returns for three years before year of death Canceled checks, bank statements, and passbooks for all bank accounts (including joint accounts) for three-year period ending with death along with any online account log-in information and passwords Personal representative’s social security number COMMENT: The use of an information sheet similar to the following is suggested for collecting the information in the above checklist. INFORMATION SHEET ESTATE OF ____________

Office File No ___

Deceased PROBATE NO ____________ COUNTY _________ Personal Representative

____________ Name

JUDGE ____________

____________ Address ____________ Telephone/Cellphone ____________ E-mail address ____________ Preferred method of contact ____________

____________

Tax I.D. no. for estate

Decedent’s social security no.

Decedent’s date of death _________

Date of birth _________

Place of death _________ Address at death _________ Beneficiaries (indicate age of minors): Name

Relationship

Funeral director:

Address

Social security no.

Address

Date of will: ______ Witnesses: Name

Address

General and specific devisees (indicate age of minors): Name

Address

Social security no.

Devise

Address

Social security no.

Portion

Residuary devisees: Name

Decedent’s military service: _________

_________

_________

Branch of service

Service no.

Dates of service

Safe-deposit boxes: Box no.

Bank

Joint tenant

Estates from which decedent may have inherited property in last 10 years: _________

_________

Name of estate

Name of court where probated

_________

_________

Name of attorney

Address of court

_________

_________

Address Obtain copies of all gift tax returns made by decedent. Obtain copies of last three federal income tax returns filed by decedent. Life insurance policies (note if owned by other than decedent): Face amount

Policy no.

Company

Address of company

Long Term Care or Hospitalization policies: Company

Policy no.

Address of company

Employee benefits due after death: Name of company

Address of company

Description of benefits

Jointly owned property: Description

Approximate value

Joint tenant

Real estate owned by decedent, including state and county, approximate value, and encumbrances (note if homestead): Individual and joint bank accounts, pay-on-death accounts, and “in trust for” accounts of decedent (arrange to obtain bank statements, canceled checks, or passbooks for three years ending with date of death): Bank

Address

Personal property owned by decedent:

Account no.

Balance

Name and address of decedent’s financial advisor or stockbroker: Name and address of decedent’s accountant: Name and address of decedent’s insurance agent: Was decedent the owner of a sole proprietorship, a member of a partnership, or a holder of a substantial amount of stock in a closely held corporation? Name

Nature of enterprise

Interest

List any buy-sell agreements involving decedent’s interest: Was decedent a beneficiary of any trusts? (Obtain a copy of the trust.) Description of trust Trustee

Interest

Did decedent establish any trusts during his or her lifetime? (Obtain a copy of the trust.) List all known assets of decedent other than those described above. « Ch. 1 », « § 1.2 », « E », « 2 », • a », « v • 1 Practice Under Florida Probate Code § 1.2.E.2.a.v (2022)

v. Checklist Of Possible Problems In Opening The Estate COMMENT: The following checklist may alert the lawyer to potential trouble areas or unusual problems that may be encountered in the early stages of representing a personal representative. Decedent’s funeral instructions contrary to wishes of surviving spouse or next of kin. Decedent’s funeral instructions in will located after funeral that did not comply. Donation of body or part of body for charitable or scientific purpose by will provision or other written instrument. Proof of domicile. Need for a curator. Business that needs immediate attention.

Animal that needs immediate attention. Perishable or rapidly depreciating property that should be sold or distributed immediately. Need to secure decedent’s real and personal property. Access to safe-deposit box. Immediate notice to bank not to honor power of attorney to enter safe-deposit box. Identity of beneficiaries. Location of beneficiaries. Existence of will. Location of will. Access to will: in safe-deposit box custodian’s refusal to deliver to court. Lost or destroyed will; proof of contents; presumption of revocation. Will of Florida domiciliary probated in another state. Will of nonresident probated in another state not his or her domicile. Will of nonresident not probated in any state. Improper execution of will. Proof of will: Witnesses dead or incapacitated. Witnesses moved to known location and cannot appear without inconvenience. Witnesses moved to unknown location. In intestate estate, with no surviving spouse, heirs of equal dignity

disagree on selection of administrator. Delay due to caveat and adjudication before issuance of letters. « Ch. 1 », « § 1.2 », « E », « 2 », « b • 1 Practice Under Florida Probate Code § 1.2.E.2.b (2022)

b. Securing Access To Safe-Deposit Box As soon as possible after the decedent’s death, the named personal representative should ascertain if the decedent possessed a safe-deposit box and, if so, who else may have access to it. Because F.S. 655.937(4) specifically provides that a co-lessee of a safedeposit box may still be granted access to the decedent’s safe-deposit box even if the financial institution has been advised that the decedent has died, it would seem prudent to attempt to safeguard the contents or at least have a complete inventory as soon as possible. In many instances, there is a race to the safe deposit box. If a co-lessee accesses the box and empties the contents without making an inventory, the personal representative may have difficulty ascertaining what had been in the box at the time of the decedent’s death. It is important to note that other states’ laws differ, and some states, including Florida, do not require the financial institution to maintain records of access to a safe-deposit box. The prompt identification of the location of boxes and proper notification to the financial institution may be crucial to the identification of all the decedent’s assets. F.S. 655.937(5) provides that, after the death of a co-lessee, the surviving co-lessee or any other person who is granted access to the safe-deposit box may make an inventory of the box in the presence of at least one other person who is either an employee of the institution at which the box is located, a lawyer licensed in Florida, or the personal representative of the estate. If the lawyer is representing a co-lessee, it is advisable to make the inventory in the presence of two of those individuals to avoid any claim by the personal representatives, the beneficiaries, or other interested parties that the co-lessee removed valuable assets from the box. Making the inventory at the first possible opportunity may save much time and energy by eliminating the argument that assets or documents were removed by the co-lessee. For the inventory to comply with the requirements of F.S. 733.6065, the inventory must be made in the presence of and signed under penalty of

perjury by at least two people including (1) an employee of the financial institution where the box is located, (2) the personal representative, or (3) the personal representative’s attorney of record. The personal representative must file the inventory and the box entry record for the six-month period before the date of inventory. There are currently several methods of securing access to a safe-deposit box. Before the appointment of a personal representative, if no court order has been served on the lessor and if satisfactory proof of the death of the lessee is presented, the lessor, without court order, must permit the spouse, parent, adult descendant, or person named as a personal representative in a copy of a purported will produced by that person to open and examine the contents of a safe-deposit box leased by the decedent, in the presence of an officer of the lessor. The person named in a court order for that purpose also has that right. F.S. 655.935. Before the appointment of a personal representative, the lessor, if requested by the authorized person, must deliver (a) Any writing purporting to be a will of the decedent to the court having probate jurisdiction in the county in which the financial institution is located. (b) Any writing purporting to be a deed to a burial plot or to give burial instructions to the person making the request for a search. (c) Any document purporting to be an insurance policy on the life of the decedent to the beneficiary named therein. Id. No other contents may be removed by authority of this statute. Other documents delivered by the decedent to the financial institution for safekeeping but not in a safe-deposit box are also subject to this procedure. Some lessors may have stricter requirements than others for the identification of persons authorized to open a safe-deposit box without court order. F.S. 655.935 also requires an officer of the lessor to “make a complete copy of any document removed and delivered” to the authorized person and place that copy, along with a memorandum detailing the circumstances, inside the safe deposit box. The memorandum must identify the name of the officer, the name of the authorized person to whom the document was

delivered, the purported relationship of the authorized person to the decedent, and the date of the delivery of the document to the authorized person. F.S. 655.935(2). The lessor may charge reasonable fees to cover the costs of complying with this procedure. F.S. 655.935(3). When the safe-deposit box is leased to the decedent alone and when access is not needed to obtain a will, there may be no need to enter the safedeposit box before appointment of the personal representative. Once a personal representative has been appointed, the procedures of F.S. 733.6065 and Fla. Prob. R. 5.342 should be followed. As previously noted, an inventory of the contents of any safe-deposit box must be made jointly by any two of the people listed in F.S. 733.6065(1). The inventory must be verified and signed by each of them. Id.; Rule 5.342(b). The original inventory together with a copy of the box entry record must be filed with the court within 10 days after the box is opened. F.S. 733.6065(1); Rule 5.342(a). The box entry record should cover the period of time six months preceding the decedent’s date of death up until the time of inventory. A copy of the inventory and the entry record should be kept by the lessor and the personal representative. The inventory is to be served “on the surviving spouse, each heir at law in an intestate estate, each residuary beneficiary in a testate estate, and any other interested person who may request it in writing.” Rule 5.342(c). Any joint tenant may enter the safe-deposit box and remove the contents before or after the death of the decedent if the lease contains a specific provision to that effect. F.S. 655.937(1). Regarding the property rights of the renters of joint safe-deposit boxes, see In re Estate of Bechtel, 348 So. 2d 927 (Fla. 2d DCA 1977); Bechtel v. Estate of Bechtel, 330 So. 2d 217 (Fla. 2d DCA 1976). Once the initial opening requirements of F.S. 733.6065 and Rule 5.342 have been met, a personal representative appointed by a court in Florida has the right to remove any part or all of the contents upon presentation of a certified copy of letters of administration. F.S. 655.936(1). The practitioner should note that certain counties restrict the use of the letters of administration with specific instructions regarding safe deposit boxes. For example, in Miami-Dade County, the form for letters of administration includes the statement “[t]hese letters do not authorize entry into any safe deposit box without further court order.” See Form E4, “Letters of

Administration (Single/Multiple Personal Representative(s))” (available at www.jud11.flcourts.org/Probate-Smart-Forms). A financial institution may continue to allow access to a box by a person holding a power of attorney until it acquires knowledge of death or adjudication of incapacity of the lessee, and transactions before that time will bind the estate. F.S. 655.934. The bank should be notified immediately of the death or incapacity, if there is reason to believe that a power of attorney had been granted. It might be advisable to give notice whether or not such a reason exists. Forms for a petition for authority to open a safe-deposit box and for an order to open the box are Form Nos. P-1.0100 and P-1.0110, respectively, available from Florida Lawyers Support Services, Inc.© (FLSSI) at P.O. Box 195909, Winter Springs, FL 32719-5909 (407/515-1501) or online at www.flssi.org/forms. In some circuits, a certified copy of the death certificate may be required. If required, the petition for authority to open a safe-deposit box should include a paragraph stating that the certificate is attached as an exhibit. If the petition is prepared for presentation after the funeral, it may be preferable to omit the references to a cemetery lot and burial instructions. « Ch. 1 », « § 1.2 », « E », « 3 » 1 Practice Under Florida Probate Code § 1.2.E.3 (2022)

3. Right Of Surviving Tenant To Funds In Joint Account A “true” joint account is one in which the parties to the account each have access to the funds while they are alive and also a survivorship interest in the account balance upon the death of the other joint tenant or tenants. This type of account is dealt with in F.S. 655.78 and 655.79. Unfortunately, the term “joint account” has mistakenly been used to describe accounts in which one person (an agent) has access to the funds while the other party to the account (the principal) is alive but there is no survivorship element. This type of account is properly known as a “convenience account” and is authorized by F.S. 655.80. A third type of account is the “pay-on-death account” established under F.S. 655.82. This type of account, also known as a “Totten Trust,” permits

multiple beneficiaries to succeed to the ownership of the account proceeds on the deaths of the original parties to the account. The beneficiaries have no interest in the account until the original parties are all deceased. This “payon-death” concept has been extended to the transfer of securities. The Florida Uniform Transfer-on-Death Security Registration Act, F.S. 711.50–711.512, permits the transfer of securities under a payable-on-death designation. It is therefore critical that the lawyer determine which type of account was created. The signature card and the title to the account must be reviewed to determine whether each party had lifetime access and a survivorship interest (a “true” joint account), a survivorship interest without lifetime access (the payable-on-death account), or lifetime access without any survivorship element (the convenience account). The practitioner should also note that the relationship between spouses with respect to a joint account could be that of tenants by the entireties or joint tenants with right of survivorship. Tenancies by the entireties will generally be presumed. Beal Bank, SSB v. Almand & Associates, 780 So. 2d 45 (Fla. 2001). Practitioners should keep in mind that the term “joint account” has been used rather loosely by both lawyers and nonlawyers, alike. This loose usage of terminology and the rather tortured history of the statutes and their interpretation led to considerable past confusion, which was lessened by the Florida Supreme Court’s decision in In re Estate of Combee, 601 So. 2d 1165 (Fla. 1992), and by the legislature’s revision of statutes that govern accounts established in “any state or national bank, state or federal association, or state or federal credit union.” F.S. 655.769(4). In Combee, the Florida Supreme Court determined that the enactment of former F.S. 658.56(1) (the principle of which is now contained in F.S. 655.79) indicated “a clear legislative intent” that the question of survivorship interests in joint accounts should be solved “under a contract theory as opposed to the earlier gift or tenancy theories.” Combee, 601 So. 2d at 1167. As such, if the provisions of the statute have been met, the depositors have formed a contract and the statute of wills has not been violated. Under the statute, “the presumption [of survivorship] may be overcome by proof of fraud or undue influence [or] by clear and convincing proof of a contrary intent.” Id. A personal representative, therefore, may have a duty to claim the funds

in a joint account or a pay-on-death account as estate property if there is proof of fraud, undue influence, or contrary intent. See, e.g., Keul v. Hodges Blvd. Presbyterian Church, 180 So. 3d 1074 (Fla. 1st DCA 2015); Davis v. Foulkrod, 642 So. 2d 1129 (Fla. 4th DCA 1994). Another beneficiary may have to assume the burden of taking appropriate action if the personal representative is the surviving tenant or the trust beneficiary. See Caputo v. Nouskhajian, 871 So. 2d 266 (Fla. 5th DCA 2004). This situation could create an ethical problem for the personal representative’s lawyer. « Ch. 1 », « § 1.2 », « E », « 4 » 1 Practice Under Florida Probate Code § 1.2.E.4 (2022)

4. Insurance Issues « Ch. 1 », « § 1.2 », « E », « 4 », • a » 1 Practice Under Florida Probate Code § 1.2.E.4.a (2022)

a. Property Damage And Public Liability Insurance The personal representative must protect and preserve the assets of the estate while they are held in the estate or in the possession of the personal representative. The personal representative may find it desirable to obtain insurance coverage to preserve the assets of the estate. Duties and procedures concerning insurance are discussed in Chapters 4 and 9 of this manual. Automobile insurance policies should be examined to determine whether they terminate on the death of the insured or whether they would continue to protect the estate in the event of an accident. If it is a family policy, included members of the family would be protected. If the contract terminates upon the death of the insured, it is strongly recommended that the vehicle not be used. It should be distributed or sold according to the terms of the will or according to an order determining the vehicle to be exempt property under F.S. 732.402. Otherwise, the vehicle is a wasting (depreciating) estate asset and could create a liability to the estate. See § 13.2.G.5 of this manual. « Ch. 1 », « § 1.2 », « E », « 4 », « b • 1 Practice Under Florida Probate Code § 1.2.E.4.b (2022)

b. Life Insurance « Ch. 1 », « § 1.2 », « E », « 4 », « b •, • i » 1 Practice Under Florida Probate Code § 1.2.E.4.b.i (2022)

i. Payable To Named Beneficiary Life insurance in favor of a named beneficiary is payable directly to the beneficiary. It is not part of the probate estate and is exempt from the claims of creditors of the insured unless the insurance policy or a valid assignment of it declares otherwise. F.S. 222.13(1). The proceeds of the policy, however, may be included in the gross estate for estate tax purposes if the decedent possessed at death any of the incidents of ownership, and the beneficiary may be liable for part of the estate tax. See F.S. 733.817; IRC § 2042. The cash surrender value of life insurance on the decedent’s life is used in the computation of the elective share. F.S. 732.2035(6). See § 1.2.E.10 and Chapter 7 of this manual. When a federal estate tax return is or may be required, the personal representative or lawyer should examine each life insurance policy and obtain the policy number, name of the insurance company, and address of the home office of the company. It is necessary to have this information to request that the company furnish IRS Form 712, Life Insurance Statement, which must be filed with the federal estate tax return. Form 712 shows the amount of insurance proceeds and other related information. If the policy is owned by someone other than the decedent or the estate, a copy of the policy, the application, and any assignment should be made and retained for use in case the estate tax return is audited. If the named beneficiary of an insurance policy predeceased the insured, the provisions of the policy must be consulted. Most insurance policies provide for the possibility of the beneficiary predeceasing the insured, but if it is an older policy that does not provide for such a contingency, it must be determined whether the beneficiary had a vested or contingent interest in the proceeds. The Simultaneous Death Law may require that the proceeds be distributed as if the insured had survived when there is insufficient evidence of the order of the deaths of the insured and the beneficiary. F.S. 732.601(4). « Ch. 1 », « § 1.2 », « E », « 4 », « b •, « ii • 1 Practice Under Florida Probate Code § 1.2.E.4.b.ii (2022)

ii. Payable To Estate If life insurance is payable to the estate, or to the insured or the insured’s personal representatives or assigns, the personal representative receives the

proceeds and they are administered in accordance with the probate laws like any other asset of the estate. F.S. 222.13(1). Accordingly, life insurance proceeds that become a part of the estate under that statute are subject to claims of creditors, taxes, and expenses of administration. This must be distinguished from the factual situation addressed by F.S. 733.808(4), which provides that death benefits payable to the trustee of an inter vivos or testamentary trust are excluded from estate administration unless the trust instrument or will states otherwise. « Ch. 1 », « § 1.2 », « E », « 5 » 1 Practice Under Florida Probate Code § 1.2.E.5 (2022)

5. Mortgage Payments The first duty of every personal representative is to protect and preserve the probatable assets of the decedent’s estate. The personal representative must take possession of the property and may be required to sell it during the course of administration to pay the debts of the decedent and the charges and costs of administration of the estate. When a person dies owning real property encumbered by a mortgage indebtedness owed by the decedent, the personal representative must keep the periodic mortgage payments current to the extent that the assets of the estate allow. To prevent foreclosure or loss to the estate, the personal representative must satisfy lump-sum mortgages when due. The payment of the mortgage encumbrance as it becomes due should be made even if no formal claim on the mortgage note has been filed in the estate proceedings. If a claim is filed by the holder of the mortgage note, all of the general assets of the decedent’s estate are liable for its payment. Failure to file a claim does not void the note but has the effect of requiring the creditor to rely only on the collateral for the full satisfaction of the indebtedness evidenced by the note. F.S. 733.702(4), 733.706. If no claim is filed, the general assets of the estate are not liable for the satisfaction of the mortgage. Id. Difficulty may be encountered if the value of the encumbered property does not exceed the amount of the lien, if the total amount of debt exceeds the value of property subject to claims, or if the encumbered property is specifically devised. Concerning specifically devised real property, F.S. 733.803 provides: “The specific devisee of any encumbered property shall be entitled to have

the encumbrance on devised property paid at the expense of the residue of the estate only when the will shows that intent. A general direction in the will to pay debts does not show that intent.” The common law was to the contrary and applied before the enactment of former F.S. 734.051 (the predecessor statute to F.S. 733.803) in 1965. The common-law rule was that the specific devisee of real property was entitled to have a mortgage on the property paid from the residuary estate unless the will showed a contrary intent, either express or implied from the provisions of the will as a whole when viewed in light of the surrounding circumstances. Ashkenazy v. Estate of Ashkenazy, 140 So. 2d 331 (Fla. 3d DCA 1962). F.S. 733.803 applies only to specifically devised real property that is a part of the probate estate. It does not apply to homestead property that descends by operation of law or to entireties property when the spouse survives, because those types of property are not part of the estate. It does not apply to intestate estates nor to residuary devises. As between tenants by the entireties, the survivor has no right to contribution from the estate of the deceased tenant toward payment of purchase money notes and mortgages executed by both spouses, or interest on the mortgage and taxes on the land. Lopez v. Lopez, 90 So. 2d 456 (Fla. 1956). Cf. First National Bank in St. Petersburg v. Cooper, 266 So. 2d 191 (Fla. 2d DCA 1972). The court in Lopez commented that it did not hold that the right to equitable contribution never exists in cases involving a mortgage (when the mortgage was other than for purchase money) executed by both spouses on entireties property, because there may well be cases when the principle would apply. An interesting situation could arise by reason of the mortgagee’s filing of a claim on the note. If the personal representative paid the note, the personal representative would probably have the right and duty to demand reimbursement from the survivor. See First National Bank in St. Petersburg. Under the reasoning of Lopez, it would be logical that a personal representative who paid the note in full would be subrogated to the lien and rights of (standing in the place of) the mortgagee against the land and the survivor for the full amount. Accordingly, when making payment, it might be appropriate to obtain an assignment of the note and mortgage from the mortgagee. The same reasoning would apply when the survivor pays a claim based

on a perfected security interest on property set off as exempt under F.S. 732.402. A question of prior concern, however, is whether an objection to the claim could be filed on the theory that the payee waived the right to file a claim against the estate of the first tenant to die when the payee created the tenancy by the entireties (via the language in the note and mortgage) and simultaneously accepted the note and mortgage executed by the tenants. « Ch. 1 », « § 1.2 », « E », « 6 » 1 Practice Under Florida Probate Code § 1.2.E.6 (2022)

6. Automobile Held Under Joint Title An automobile owned jointly by spouses constitutes an estate by the entireties. Upon the death of one of the spouses, title passes to the survivor and the automobile does not become an asset of the estate, although its value may be part of the gross estate for estate tax purposes. The surviving spouse should have the title certificate transferred immediately to his or her name for the protection of the estate. See §§ 18.4.A–18.4.B of this manual for the procedure to transfer title. Most courts will permit the distribution of an automobile owned solely by the decedent before the expiration of the time for filing claims, to prevent liability to the estate or to avoid rapid depreciation. See § 1.2.E.4.a. The decedent’s automobile may be included in exempt property passing to a surviving spouse or children under F.S. 732.402. « Ch. 1 », « § 1.2 », « E », « 7 » 1 Practice Under Florida Probate Code § 1.2.E.7 (2022)

7. Telephone And Utility Bills If the home of the decedent was owned jointly, title passes to the survivor on the death of the decedent. The survivor would be responsible for all telephone and utility bills accruing after the date of death. « Ch. 1 », « § 1.2 », « E », « 8 » 1 Practice Under Florida Probate Code § 1.2.E.8 (2022)

8. Veterans’ Survivors’ Benefits Most benefits due to deceased veterans’ survivors are paid directly to the persons entitled to receive them and involve no action by the personal

representative. Those matters are not within the scope of this manual. A lawyer handling the estate of a deceased veteran may contact the United States Department of Veterans Affairs, Veterans Benefits Administration Assistance Office, for information concerning the rights of a widow or dependents. The address of the St. Petersburg Regional Office is 9500 Bay Pines Blvd., Bay Pines, FL 33744, and other regional VA facilities are listed on the VA’s website (available at www.benefits.va.gov/stpetersburg/other-va-facilities.asp). The VA main telephone number is 800/698-2411, and the VA benefits hotline is 800/8271000. Information may also be obtained on the VA’s website (available at www.va.gov/family-member-benefits) or from the funeral director. The surviving spouse should be advised that the Department of Veterans Affairs will furnish appropriate forms and process all claims and that the professional services of a practicing lawyer are not necessary in most cases. Further information may be found on the department’s website (available at www.va.gov). « Ch. 1 », « § 1.2 », « E », « 9 » 1 Practice Under Florida Probate Code § 1.2.E.9 (2022)

9. Social Security Benefits And Claims A lump-sum social security benefit may be payable to a spouse who was living in the same household as the insured decedent at the time of the decedent’s death, to a spouse eligible for survivor’s benefits for the month of death, or to eligible children. Details of these programs may be found in the SOCIAL SECURITY HANDBOOK published by the United States Department of Health and Human Services, Social Security Administration. Copies may be obtained from the local social security office, or it may be viewed and downloaded on the Social Security Administration website (available at www.ssa.gov/OP_Home/handbook/handbook-toc.html under Survivors Benefits). The Social Security district office routinely provides information to inquirers and advises and assists claimants and beneficiaries free of charge regarding any social security matter. Further information may be found on the Social Security Administration website (available at www.ssa.gov). Ordinarily, the personal representative has no duty concerning the benefits of survivors under the Social Security Act, but occasionally a situation may arise that requires the personal representative’s attention. These

situations typically involve the refund of overpaid benefits. The SOCIAL SECURITY HANDBOOK indicates that the personal representative may be asked to make a refund, or benefits due the estate may be withheld. See 20 C.F.R. § 404.502(b). The beneficiaries of the estate may be required to refund any overpaid benefits to the extent of funds received from the estate. « Ch. 1 », « § 1.2 », « E », « 10 » 1 Practice Under Florida Probate Code § 1.2.E.10 (2022)

10. Rights Of Surviving Spouse « Ch. 1 », « § 1.2 », « E », « 10 », • a » 1 Practice Under Florida Probate Code § 1.2.E.10.a (2022)

a. Advising Surviving Spouse Of His Or Her Rights If the surviving spouse is represented by independent counsel, it is that counsel’s responsibility to advise the spouse of his or her rights. If the spouse is unrepresented by counsel, the question arises: should the personal representative or the personal representative’s lawyer advise the spouse of these rights? It is the authors’ opinion that it is the duty of the personal representative or the personal representative’s lawyer to advise the spouse of the existence of statutory benefits such as elective share, family allowance, or exempt property. The spouse should then be advised that the lawyer for the personal representative is not the lawyer for the surviving spouse and the surviving spouse should seek independent counsel to assist in determining which rights should be exercised and how the exercise is to be made. See Opinion 76-16, which can be accessed at www.floridabar.org/ethics. A similar problem arises when the surviving spouse is the personal representative. In this instance, because the lawyer represents the personal representative in a fiduciary capacity, the lawyer may owe a duty to explain the rights available to the spouse and to exhort the spouse to consult with independent counsel to represent the spouse in his or her individual capacity and to provide specific advice as to those rights. « Ch. 1 », « § 1.2 », « E », « 10 », « b • 1 Practice Under Florida Probate Code § 1.2.E.10.b (2022)

b. Checklist Of Rights Of Surviving Spouse As To Property COMMENT: Unless waived in a pre- or post-marital agreement, the

surviving spouse has a right to take an elective share. The elective share is governed by Part II of F.S. Chapter 732 and is discussed in detail in Chapter 7 of this manual. The practitioner should note that the computation of the “elective estate,” as that term is defined by F.S. 732.2035, requires the inclusion of certain nonprobate property and inter vivos transfers of the decedent. In addition to the elective share and any property rights as an heir or devisee, the spouse has various property rights and financial interests that are not subject to the administration proceedings. These rights and interests are listed below. Certain of these property rights and financial interests can also be claimed by the decedent’s children or other family members, depending on the facts and circumstances.

Spouse’s Property Rights and Financial Interests Not Subject to Administration Proceedings Property held as tenants by the entireties. This becomes the sole property of the surviving spouse by operation of law. Homestead realty. The homestead may be devised to anyone if there is no surviving spouse or minor child. In the absence of any minor children, a devise to a spouse is permitted. Otherwise, it may not be devised. Art. X, § 4, Fla. Const.; F.S. 732.4015. If not devised, the homestead descends as other property, except that F.S. 732.401 provides that, if the owner is survived by a spouse and one or more descendants, the spouse acquires a life estate with vested remainder to the descendants in being at the time of the owner’s death. In lieu of a life estate, a spouse may elect to take an undivided one-half interest in the homestead as a tenant in common with the other onehalf interest vesting in the owner’s descendants in being at the time of death, per stirpes. F.S. 732.401(2). This election may be made only by the spouse or, with court approval, by an attorney in fact or guardian of the spouse. F.S. 732.401(2)(a). The election is irrevocable, F.S. 732.401(2)(d), and in general, must be made within six months of the owner’s death, F.S. 732.401(2)(b). There is a limited period for extension. F.S. 732.401(2)(c). Homestead is exempt from forced sale except for certain obligations stated in

Article X, § 4, of the Florida Constitution. The personal property exempt from forced sale under that section may be devised. For a detailed discussion of homestead, see Chapter 19 of this manual. Exempt property. F.S. 732.402. Family allowance. F.S. 732.403. Life insurance payable to spouse as named beneficiary. See § 1.2.E.4.b.i. Wages due from any employer, traveling expenses, and unemployment compensation payments due from the Department of Economic Opportunity. F.S. 222.15-222.16. See § 6.5.P of this manual. (Note: Amounts paid in accordance with F.S. 222.15 are not subject to administration in Florida unless travel expenses exceed $300. F.S. 222.16.) Wrongful death action. F.S. 768.16-768.26. Benefits under decedent’s retirement programs. Survivors’ benefits under Social Security Act. Benefits for surviving spouse of veteran under state and federal laws. Nontestamentary trusts. Pre- and post-marital agreements. F.S. 61.079, 732.701, 733.702. Salary deductions for United States securities. F.S. 215.28(5). Fraternal benefit societies’ benefits. F.S. 632.617-632.619. Income tax refund not exceeding $2,500. F.S. 735.302. « Ch. 1 », « § 1.2 », « E », « 11 » 1 Practice Under Florida Probate Code § 1.2.E.11 (2022)

11. Checklist Of Duties Concerning Nonprobate Assets COMMENT: Although some items of property or some property rights or interests of the decedent are not subject to the administration proceedings, the personal representative may have some duties

concerning them or may need to be aware of them to compute the elective share or complete the estate tax return if one is required. Some examples appear below. Determining the existence of any inter vivos trusts created by the decedent in which the decedent (whether alone or in conjunction with another) had the power of revocation at the time of the decedent’s death, for purposes of computing the elective share, completing the estate tax return, and paying expenses of estate administration and creditors’ claims. See F.S. 733.707(3), 736.05053, 736.1014; see also §§ 1.2.E.1 and 1.2.E.2.a.iv. Ascertaining if there are any custodial accounts (under the Uniform Transfers to Minors Act) created by the decedent for which the decedent was serving as custodian. Determining the value of nonprobate assets for estate tax and elective share purposes. For decedents dying in 2010 only, determining the basis of nonprobate assets if the carry-over basis rules of IRC § 1022 are applicable. If the decedent was married, analyzing portability options and determining if an estate tax return should be filed for the purpose of preserving the decedent’s unused estate tax exemption amount. Identifying the existence of any trusts not created by the decedent (for example, a QTIP trust created by a predeceased spouse) that may be required to be reported in whole or in part on the decedent’s estate tax return, and dealing with the estate tax apportionment of such assets. See F.S. 733.817; IRC § 2207A. Apportioning and paying estate taxes. See F.S. 733.817. Delivering life insurance policies to named beneficiaries, while determining their value for estate tax purposes and determining their cash surrender value for elective share purposes. See § 1.2.E.4.b.i. Determining whether a joint account or a pay-on-death account, or

transfer-on-death account, apparently passing to another by survivorship, was in fact a valid joint account, pay-on-death account, or transfer-on-death account, and, in some circumstances, filing an action to obtain the account for the estate. See § 1.2.E.3. Procuring ancillary (out-of-state) administration or otherwise complying with requirements of another state in which real property is located. Dealing with claims and other problems concerning a mortgage on exempt, homestead, or entireties property. See § 1.2.E.5. « Ch. 1 », « § 1.2 », « E », « 12 • 1 Practice Under Florida Probate Code § 1.2.E.12 (2022)

12. Continuing Decedent’s Business If the decedent owned a trade or business at the time of death, attention to the business is of immediate concern. Appointment of a curator may be necessary if letters cannot be issued promptly to the personal representative. See Chapter 16 of this manual. Whether the business should be continued should be decided as soon as practicable. The will may give authority to continue it. In the absence of authority in the will, the personal representative may continue an unincorporated business for only four months without an order of the court. F.S. 733.612(22). For the procedure for obtaining court approval to continue the business beyond the four-month period, see Fla. Prob. R. 5.350. This decision is affected partly by the form of business (sole proprietorship, partnership, or corporation). The terms of a partnership agreement or other business agreement may control the procedure. This issue is discussed further in Chapter 9 of this manual. « Ch. 1 », « § 1.2 », « F » 1 Practice Under Florida Probate Code § 1.2.F (2022)

F. Administration Of Smaller Estates Considerable time and expense may be saved if one of the alternatives to formal administration can be adopted. These procedures—summary administration and disposition of personal property without administration—

are codified in F.S. Chapter 735 and are discussed in Chapter 18 of this manual. « Ch. 1 », « § 1.2 », « G » 1 Practice Under Florida Probate Code § 1.2.G (2022)

G. Caveat Proceedings « Ch. 1 », « § 1.2 », « G », • 1 » 1 Practice Under Florida Probate Code § 1.2.G.1 (2022)

1. In General A caveat is a written notice conveying one’s interest in an estate. It may be filed in the probate court (1) after the death of the person for whom the estate will be administered, by any creditor to prevent administration of an estate without notice, or (2) either before or after the death of the person for whom the estate will be administered, by any interested person other than a creditor to prevent either probate of a will or administration of an estate without notice. F.S. 731.110; Fla. Prob. R. 5.260. Thus, under the statute, an interested person concerned that an estate may be administered, or a will probated, without his or her knowledge may file a caveat with the court. “A caveat may be filed either before or after the death of the person whose estate is to be administered, with the exception of caveats of creditors, who may only file after death.” Crescenzo v. Simpson, 239 So. 3d 213, 214–215 (Fla. 2d DCA 2018). F.S. 731.110 governs the filing of caveats in probate proceedings. Fla. Prob. R. 5.260 sets forth the procedural requires for filing a caveat. A caveat filed before death expires two years after filing. F.S. 731.110(4). Noncreditor caveators have specific substantive rights to notice. When a caveat has been filed by an interested party other than a creditor, the court may not admit a will of the decedent to probate or appoint a personal representative until formal notice of the petition for administration is served on the caveator or the caveator’s designated agent and the caveator has had the opportunity to participate in the proceedings on the petition. See F.S. 731.110; Rule 5.260(f). “Thus, when an interested person other than a creditor files a caveat and challenges the decedent’s will, ‘the probate court [is] obliged to make a determination on [the] challenge to the will prior to appointing a personal representative and admitting the will to probate.’ ”

Crescenzo, 239 So. 3d at 215, quoting In re Estate of Hartman, 836 So. 2d 1038, 1039 (Fla. 2d DCA 2002); see Rocca v. Boyansky, 80 So. 3d 377 (Fla. 3d DCA 2012). If the caveator is a potential beneficiary, either as an heir at law or as a devisee under a will other than the one offered, and if the will has not been admitted, the probate of the will must be conducted under the provisions of F.S. 733.2123, under which notice of the petition for administration must be given to the caveator unless the caveator is the petitioner. Notice should be given to all other interested parties. See F.S. 731.110(3); § 1.2.G.2. Letters of administration will not be issued until this adversary proceeding has been disposed of, Grooms v. Royce, 638 So. 2d 1019 (Fla. 5th DCA 1994), or unless an agreement is made by all interested parties with respect to the appointment of a personal representative. In the meantime, letters of curatorship can be issued to a neutral person (in this case, a curator) who temporarily administers the estate until a personal representative is appointed, thereby avoiding a delay in administration. See Chapter 16 of this manual. If the caveator is a creditor, the clerk must notify the caveator in writing of the date of issuance of letters of administration and the names and addresses of the personal representative and the personal representative’s lawyer unless notice has previously been served on the caveator. Rule 5.260(e). As it relates to the form of the document, Rule 5.260(b) requires that the caveat include: the name of the person for whom the estate will be, or is being, administered, the last 4 digits of the person’s social security number or year of birth, if known, a statement of the interest of the caveator in the estate, and the name and specific mailing address of the caveator. Any variance in form between the pleading filed and a caveat, as contemplated by Rule 5.260, although defective in form, may not render the pleading invalid as long as there is no effect on the substance of the proceeding. Crescenzo. In Crescenzo, the court held that because the will contestant’s pleading in the probate proceedings, disputing the validity of the will, was the functional equivalent of a caveat, the probate court was required to rule on the challenges contained in the contestant’s pleading before entering its order admitting the testator’s will to probate, notwithstanding the

fact that the pleading did not provide the testator’s social security number or year of birth, when the pleading identified the estate to which it applied, identified contestant’s interest in the estate, provided the name and mailing address of contestant’s lawyer, and referenced the petition for administration of the estate, which contained the last four digits of testator’s social security number. Forms for a caveat by a creditor and by an interested person other than a creditor are FLSSI Form Nos. P-1.0300 through P-1.0315 (which can be purchased online at https://flssi.org/forms). « Ch. 1 », « § 1.2 », « G », « 2 • 1 Practice Under Florida Probate Code § 1.2.G.2 (2022)

2. Effect Of Caveat On Right Of Potential Beneficiary To Contest Will In a testate estate, the service of formal notice of the petition for administration on a caveator limits the period of time within which the caveator may contest the will. The will must be contested in the caveator’s answer to the petition, which is due 20 days after service of formal notice. See F.S. 731.110, 731.301, 733.2123; Fla. Prob. R. 5.040, 5.260(f). If a caveat is filed by a noncreditor, the personal representative should consider also serving formal notice of the petition for administration on all other interested persons, so as to bring all the interested persons within the 20-day time period of Rule 5.040(a)(1). F.S. 733.2123. If this is not done, F.S. 733.212(1) requires that the personal representative mail a copy of the notice of administration to the surviving spouse and all beneficiaries known to the personal representative who were not served under F.S. 733.2123, in the manner required for formal notice. See Rule 5.040. In addition, the personal representative may mail a copy of the notice of administration in similar fashion to other heirs or devisees under a known prior will or others who may claim an interest in the estate. F.S. 733.212(1). All persons to whom notice is mailed who wish to revoke probate or to challenge venue or jurisdiction of the court must file a petition to do so within three months after the date of service. F.S. 733.212(2)–(3). All other persons, including beneficiaries under a prior will, may commence a proceeding to revoke the probate of a will at any time before final discharge of the personal representative. F.S. 733.109.

Thus, a personal representative may wish to notify the other interested persons before the letters of administration are issued to limit the period in which a will contest may be filed to as little as 20 days. F.S. 733.2123; Rule 5.040(a)(1). « Ch. 1 », « § 1.2 », « H • 1 Practice Under Florida Probate Code § 1.2.H (2022)

H. Need For Curatorship A curator is a person appointed by the court when a delay in the appointment of a personal representative will be unreasonably long in view of the nature of the property or situation of the family and it is necessary to take charge of the estate. A curator may be authorized to perform any duty or function of a personal representative. F.S. 733.501; Fla. Prob. R. 5.122(d). See Chapter 16 of this manual.

« Ch. 1 », « § 1.3 • 1 Practice Under Florida Probate Code § 1.3 (2022)

§ 1.3. THE PERSONAL REPRESENTATIVE « Ch. 1 », « § 1.3 •, • A » 1 Practice Under Florida Probate Code § 1.3.A (2022)

A. In General As discussed in § 1.2.D.7, there are various types of individuals or corporations qualified to act as personal representatives. Some are disqualified entirely and others are forbidden to act under certain circumstances. In the sections that follow, certain problems concerning the duties of the personal representative are noted, and suggestions are made for resolving these problems. Chapter 4 of this manual discusses in more detail the functions of the personal representative. « Ch. 1 », « § 1.3 •, « B » 1 Practice Under Florida Probate Code § 1.3.B (2022)

B. Specific Problems « Ch. 1 », « § 1.3 •, « B », • 1 » 1 Practice Under Florida Probate Code § 1.3.B.1 (2022)

1. Minor As Named Personal Representative A person under the age of 18 years cannot qualify as a personal representative. F.S. 733.303(1)(c). If a minor is named in a will, letters will be granted to a named alternate personal representative, if any, who is qualified. If no other qualified personal representative is named, letters of administration will be granted to the person selected by a majority in interest of the persons entitled to the estate or to a devisee under the will. If more than one devisee applies, the court may exercise its discretion in selecting the one best qualified. F.S. 733.301(1)(a). The determination of preference to serve as personal representative is made only at the time the letters of administration are issued. In re Estate of Fisher, 503 So. 2d 962 (Fla. 1st DCA 1987). If the letters of administration are revoked and new letters are issued (as would occur, for example, if a

later-discovered will were admitted to probate) under the authority of F.S. 733.301(5), the priority for serving as personal representative would be redetermined at that time. Fouraker v. Carter, 507 So. 2d 749 (Fla. 5th DCA 1987). « Ch. 1 », « § 1.3 •, « B », « 2 » 1 Practice Under Florida Probate Code § 1.3.B.2 (2022)

2. Other Disqualification, Death, Or Failure Of Will To Name Personal Representative A successor personal representative should be appointed under the preferences set forth in F.S. 733.301(1) when the named personal representative is or becomes unqualified to assume the duties, F.S. 733.3101; the personal representative is removed from office, F.S. 733.5061; the personal representative resigns, F.S. 733.503; or a will is admitted to probate after letters of administration have been granted, F.S. 733.301(5). « Ch. 1 », « § 1.3 •, « B », « 3 » 1 Practice Under Florida Probate Code § 1.3.B.3 (2022)

3. Renunciation Or Resignation By Named Personal Representative Any personal representative named in the will who is not disqualified has a tentative right to be appointed, but no personal representative so named is required to qualify and serve. The named personal representative may renounce or waive the right to serve. A personal representative may also resign. If the personal representative has been appointed and letters issued, the resigning personal representative will be required to file an accounting and deliver all property to the successor fiduciary. F.S. 733.502–733.5036. The priorities for appointment of a personal representative upon renunciation or resignation by one named are identical to those in case of death or disqualification. « Ch. 1 », « § 1.3 •, « B », « 4 •

1 Practice Under Florida Probate Code § 1.3.B.4 (2022)

4. Selection Of Lawyer To Represent Personal Representative And Interested Parties The personal representative has the authority under F.S. 733.612(19) to select his or her own lawyer. This lawyer need not be the preferred choice of the beneficiaries of the estate. The lawyer for the personal representative must remember that, although the lawyer’s client is the personal representative, the lawyer could be considered to be acting in a fiduciary capacity to the beneficiaries and other interested parties, including legitimate creditors, because the personal representative also owes a fiduciary duty to them. It is a “vicarious responsibility” argument. See In re Estate of Gory, 570 So. 2d 1381 (Fla. 4th DCA 1990). See also § 1.2.E.2.a.ii and Chapter 4 of this manual regarding attorney-client privilege and the notice of administration. Special attention should also be given when there are copersonal representatives represented by the same lawyer. The lawyer may need to have a discussion with the beneficiaries regarding the administration of the estate, and should seek the personal representative’s permission to do so. « Ch. 1 », « § 1.3 •, « C • 1 Practice Under Florida Probate Code § 1.3.C (2022)

C. Lawyer’s Conferences With Personal Representative « Ch. 1 », « § 1.3 •, « C •, • 1 » 1 Practice Under Florida Probate Code § 1.3.C.1 (2022)

1. Initial Conference « Ch. 1 », « § 1.3 •, « C •, • 1 », • a » 1 Practice Under Florida Probate Code § 1.3.C.1.a (2022)

a. In General Before the probate proceedings are initiated, the putative personal representative has the right to employ counsel to represent the personal representative in the administration of the estate. This is discussed in § 4.2.C of this manual. When employed, the lawyer should advise the personal representative as to the latter’s duties and obligations.

As is discussed in Chapter 4 of this manual, the personal representative is authorized to take possession of the personal property of the deceased, wherever situated, and possession of all real property within Florida except the protected homestead realty. F.S. 733.607 (possession of estate); 731.201(32)–(33) (defining property and protected homestead for probate purposes); F.S. 733.608 (general powers of personal representative). The lawyer should advise the personal representative that one of the most important duties imposed on the personal representative is to keep the funds and property of the estate completely separate and distinct from the personal representative’s own funds and property. The personal representative should open an estate bank account or other adequate depository of estate funds as soon as the personal representative acquires funds belonging to the estate. All funds coming into the personal representative’s hands that are assets of the estate should be deposited into that account. « Ch. 1 », « § 1.3 •, « C •, • 1 », « b » 1 Practice Under Florida Probate Code § 1.3.C.1.b (2022)

b. Caution Against Paying Debts Of Decedent « Ch. 1 », « § 1.3 •, « C •, • 1 », « b », • i » 1 Practice Under Florida Probate Code § 1.3.C.1.b.i (2022)

i. During The Five-Month Period The rights of creditors are discussed in Chapter 8 of this manual. Creditors of an estate have a maximum of three months from the date of first publication of notice to creditors within which to file claims (and only 30 days after service of notice). F.S. 733.702(1). Generally, at the time of opening an estate, the personal representative has no way of knowing the number or amount of claims that may be filed against the estate. The personal representative, therefore, cannot be required to pay any debts of the decedent during a five-month period after first publication of the notice to creditors. F.S. 733.705(1). The personal representative should proceed cautiously in paying debts during that time period and should consult the lawyer when any claim is filed. Expenses of administration, debts of the decedent, and family allowances are divided by statute into eight classes, as enumerated in F.S. 733.707. Items in each class have a priority for payment over those of subsequent classes. If

the personal representative pays a claim prematurely and the assets are insufficient to pay all claims of that class or a prior class, the personal representative may be surcharged and may be personally liable to the parties affected. « Ch. 1 », « § 1.3 •, « C •, • 1 », « b », « ii • 1 Practice Under Florida Probate Code § 1.3.C.1.b.ii (2022)

ii. Without Properly Filed Claim Generally, the personal representative should pay only those debts of the decedent for which claims have been timely filed in the probate court or that are the subject of a personal representative’s proof of claim timely filed under F.S. 733.703, even though the personal representative may have personal knowledge that the debt is just. Most claims not filed within the allowed time are void, even if the personal representative has recognized them by paying part of them or interest on them or otherwise. See F.S. 733.702(1); Van Sciver v. Miami Beach First National Bank, 88 So. 2d 912 (Fla. 1956), 58 A.L.R. 2d 1279. See Chapter 8 of this manual for exceptions to this rule. The lawyer should be careful to advise the personal representative that the personal representative has an affirmative duty to search for reasonably ascertainable creditors of the decedent’s estate to satisfy the notice requirements of F.S. 733.2121(3) and Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 108 S. Ct. 1340, 99 L. Ed. 2d 565 (1988). The personal representative may be surcharged for failure to object to an improper claim or for the payment of any debt to a creditor without a claim being filed in the probate court. The personal representative may also be subject to removal. See § 4.3.C.5 of this manual. « Ch. 1 », « § 1.3 •, « C •, • 1 », « c » 1 Practice Under Florida Probate Code § 1.3.C.1.c (2022)

c. Outlining Responsibilities Of Lawyer To Client The lawyer should advise the personal representative not only about the personal representative’s duties and obligations to the estate, but also about the lawyer’s duties. If the decedent was the plaintiff in any pending litigation, the personal

representative’s lawyer should promptly confer with the decedent’s attorney of record in the pending litigation to determine the appropriate steps, which may include having the personal representative substituted as a party. The personal representative’s lawyer and the decedent’s lawyer should make mutually satisfactory arrangements for notification to the probate court and for the continuance of the litigation as the circumstances suggest. If the decedent was a defendant in an action pending at the time of death, however, the plaintiff must file a claim to protect his or her cause of action. F.S. 733.702(2). The personal representative should not become involved in the litigation until the claim is filed. In general, the personal representative’s lawyer should advise, assist, and guide the personal representative in carrying out the personal representative’s obligations to the estate. The lawyer should prepare all petitions and other legal instruments to be presented to the probate court, should personally appear whenever a matter is to be presented, and should see that all deadlines are met throughout the administration proceedings. Generally, the responsibilities of the lawyer follow the course of procedure appropriate for the particular estate. See the checklists in §§ 1.2.C.2, 1.2.E.2.a.i, 1.2.E.2.a.iv, 1.2.E.2.a.v, 1.2.E.10.b, and 1.2.E.11. See also Chapter 4 of this manual. « Ch. 1 », « § 1.3 •, « C •, • 1 », « d • 1 Practice Under Florida Probate Code § 1.3.C.1.d (2022)

d. Checklist Of Subjects For Initial Conference COMMENT: The following checklist assumes that the initial conference between the personal representative and the lawyer occurs after the funeral and no problems exist pertaining to the body or to the funeral, such as control of the funeral, permits, donation of the body, autopsy, cremation, the medical examiner, and related matters. These matters are discussed in § 1.2.A. Other checklists appear in § 1.2.C.2 (determining domicile); § 1.2.E.2.a.i (preliminary determination of beneficiaries), § 1.2.E.2.a.iv (estate information), § 1.2.E.2.a.v (possible problems in opening the estate), and § 4.3.A.11 of this manual (procedural steps and duties throughout administration). As suggested by the title of this section, this checklist is limited to

subjects that need consideration immediately or in the early stages of the administration of an estate. Reasonableness of funeral expenses, § 1.2.B.1; two priorities of payment (preferred and unpreferred), § 1.2.B.2. Payment of funeral bill and other debts without filed claims prohibited, with certain exceptions, §§ 1.2.B.6, 1.3.C.1.b.ii. Due diligence to determine the identity of creditors of the decedent, to enable service of the notice to creditors. Payment of claims during the five-month period inadvisable, § 1.3.C.1.b.i. Priorities of claims, F.S. 733.707 and § 8.2.E.2.d. Domicile of decedent, §§ 1.2.C.1–1.2.C.2. Will: locating, § 1.2.D.1; filing within 10 days, F.S. 732.901; proof, §§ 5.3.C.1–5.3.C.5. Confirm qualifications of personal representative, § 1.2.D.7. Bond, §§ 1.2.D.6, 5.3.H. Identification of beneficiaries, § 1.2.E.2.a.i. Assets of the estate, including cryptocurrencies, intellectual property, airline miles, credit card points, memberships, passwords, and social media accounts, §§ 1.2.E.1, 1.2.E.2.a.iv. Safe-deposit box, §§ 1.2.E.2.b, 4.3.A.3.a, 9.2.B. Automobile owned by decedent, §§ 1.2.E.6, 18.4.A–18.4.B. Continuation of decedent’s business, §§ 1.2.E.12, 9.4.A–9.4.C.4. Exempt property, F.S. 732.402. Animals needing care. Mortgage payments, § 1.2.E.5. Telephone and utility bills, § 1.2.E.7.

Property taxes due. Income tax returns due, see F.S. 735.302 as to refunds; Notice Concerning Fiduciary Relationship (IRS Form 56). Trusts, property, and rights not subject to administration, §§ 1.2.E.10.b–1.2.E.11. Appropriateness of disclaimer, § 11.9. Summary administration or disposition of property without administration, § 1.2.F and Chapter 18 of this manual. Other information necessary administration, § 5.3.A.1.

for

petition

for

letters

of

Filing of Notice of Confidential Information within Court Filing. See Fla. R. Gen. Prac. & Jud. Admin. 2.420(d)(2). Filing of caveats, § 1.2.G.1. Inventory in 60 days, §§ 6.6.B, 6.6.E. Appraisal, Chapter 6 of this manual. Estate tax. Selection of resident agent, § 5.3.G. Opening bank account, § 1.3.C.1.a. Fees of court, personal representative, and lawyer, § 1.3.C.3 and Chapter 15 of this manual. Duties of lawyer, §§ 1.3.C.1.c, 1.3.C.2. Instructions to personal representative information, see checklist, § 1.2.E.2.a.iv.

to

gather

further

Permission to discuss estate with surviving spouse and beneficiaries, § 1.3.B.4. Appointment for signing petition, oath, and designation of resident agent. Appointment to discuss assets, problems, and procedures in light of

additional information to be gathered. « Ch. 1 », « § 1.3 •, « C •, « 2 » 1 Practice Under Florida Probate Code § 1.3.C.2 (2022)

2. Keeping Client Informed Communication between the lawyer and client is of the utmost importance. It is not only a crucial component of the attorney-client relationship, but it is also a mandate to the lawyer according to Rule Reg. Fla. Bar 4-1.4 of the Rules of Professional Conduct. Many steps in the administration of an estate must be performed within a prescribed period of time. The lawyer should prepare all necessary instruments and advise the client that they must be executed and filed within the required time. The lawyer should not assume that the client knows what duties the lawyer is performing. It is very important that the lawyer keep the client informed as to the exact nature of the lawyer’s services as they progress. Otherwise, the client may think that the lawyer is doing nothing, lose confidence, and object to the amount of compensation awarded at a later date. « Ch. 1 », « § 1.3 •, « C •, « 3 • 1 Practice Under Florida Probate Code § 1.3.C.3 (2022)

3. Discussion Of Fees And Costs With Personal Representative When a lawyer is employed to represent a person as a personal representative, that person usually likes to have a general idea of the fees to which a personal representative is entitled and the lawyer’s fees to be charged. The lawyer should be prepared to discuss the statutory and ethical guidelines for the determination of fees and the work to be performed by the personal representative and the lawyer in earning these fees. See F.S. 733.617, 733.6171. At this early stage in the administration, however, a lawyer usually is not in a position to advise the client as to the exact amount of fees that will be appropriate. Many problems may arise necessitating extraordinary services. The lawyer should advise the personal representative of the bases for the determination of fees and provide a good-faith estimate of the work involved, the compensation to be paid, and the timing of the compensation. A fee agreement is recommended. The determination of compensation to be paid to the personal representative and lawyer is discussed in detail in Chapter 15 of this manual.

Footnotes — Chapter 1: *

J.D., 1987, George Washington University. Ms. Sheets is a member of The Florida Bar and the Estate and Trust Tax Planning Committee of The Florida Bar’s Real Property, Probate and Trust Law Section. She is a shareholder with GrayRobinson, P.A., in Lakeland. **

J.D., 1991, Florida State University. Mr. Mundy is a member of The Florida Bar and the Real Property, Probate and Trust Law Section of The Florida Bar. He is also a Certified Public Accountant, and practices under the entity name Craig A. Mundy, P.A., in Lakeland.

Licensed to Otis K Pitts, Otis K Pitts

« Ch. 2 » 1 Practice Under Florida Probate Code Ch. 2 (2022)

Chapter 2 PRACTICE AND PROCEDURE KIT VAN PELT* Contents § 2.1. INTRODUCTION A. Statutes B. Rules Of Procedure C. Evidence D. Court E. Clerk Of Court F. Pleadings G. Verification H. Lawyers I. Designation Of Address And Resident Agent § 2.2. NOTICE A. In General B. Notice Of Administration And Notice To Creditors 1. Bifurcation Of Procedure 2. Notice Of Administration 3. Notice To Creditors C. Notice Before Issuance Of Letters Of Administration D. Formal Notice 1. In General 2. Methods Of Service a. In General b. Service By Mail Or Delivery 3. Proof Of Service

E. Informal Notice 1. In General 2. Methods Of Service 3. Certificate Of Service F. Waiver And Consent G. Request For Notices And Copies Of Pleadings H. Notice Of Civil Action Or Ancillary Administration § 2.3. TIME § 2.4. APPEALS § 2.5. REPRESENTATION § 2.6. INVENTORY § 2.7. ACCOUNTINGS AND PETITION FOR DISCHARGE § 2.8. GUARDIAN AD LITEM A. Appointment And Qualification B. Effect Of Appointment As To Service Of Process C. Duties D. Compensation And Discharge § 2.9. ADMINISTRATOR AD LITEM A. Appointment And Qualification B. Duties C. Compensation And Discharge § 2.10. AUTHENTICATED COPIES A. In General B. Use For Distribution Of Real Property « Ch. 2 », • § 2.1 » 1 Practice Under Florida Probate Code § 2.1 (2022)

§ 2.1. INTRODUCTION « Ch. 2 », • § 2.1 », • A » 1 Practice Under Florida Probate Code § 2.1.A (2022)

A. Statutes The Florida Probate Code (the Code), F.S. Chapters 731–735, provides

the basic substantive law for probate, wills, intestacy, and administration of decedents’ estates. Other statutes of primary interest are those related to trusts, principal and income accounting, disclaimers, access to digital assets, guardianships, investment of fiduciary funds, and notarizations (including electronic notarizations). See F.S. Chapters 736 (and former 737), 738, 739, 740, 744, 518, and 117, respectively. See also F.S. Chapter 765 (concerning health care advance directives, including right to decline life-prolonging procedures, to appoint health care surrogate, and to make anatomical gifts). The practitioner should note that efforts continue to be made to eliminate from the Code the procedural provisions that should properly appear in the Florida Probate Rules. The Florida Supreme Court is responsible for adopting rules for the practice and procedure in all courts. Art. V, § 2, Fla. Const. « Ch. 2 », • § 2.1 », « B » 1 Practice Under Florida Probate Code § 2.1.B (2022)

B. Rules Of Procedure The Florida Probate Rules govern procedure in probate and guardianship proceedings. Fla. Prob. R. 5.010. The Florida Rules of Civil Procedure apply in probate proceedings only as provided in the probate rules. Id.; Fla. R. Civ. P. 1.010. Rule 5.080 lists specific civil rules, primarily relating to discovery, that apply in probate proceedings even absent an adversary proceeding. The Rules of Civil Procedure (except for Rule 1.525 governing costs and attorneys’ fees) apply in any adversary proceeding in probate. Rule 5.025(d) (2). An award of attorneys’ fees in probate proceedings is governed by the probate rules and not by the law and procedures for civil proceedings. Id.; Finnegan v. Compton, 154 So. 3d 370 (Fla. 4th DCA 2015). The court on its own initiative or on motion of any interested party may determine any probate proceeding to be adversary or non-adversary. Rules 5.025(b)–(c). Proceedings to remove a personal representative or guardian, surcharge a personal representative or guardian, probate a lost or destroyed will or laterdiscovered will, determine beneficiaries, construe a will, cancel a devise, partition property for the purposes of distribution, determine pretermitted status and share, determine amount of elective share and contribution, and revoke probate of a will, are adversary proceedings unless otherwise ordered by the court. Rule 5.025(a). Article V, § 2, of the Florida Constitution requires the Florida Supreme

Court to adopt rules for practice and procedure in all courts and authorizes the Florida Legislature to repeal rules by general law enacted by a two-thirds vote of each house. The rules must be procedural and not substantive. Ramos v. State, 505 So. 2d 418 (Fla. 1987). The difficulty of drawing the line between substance and procedure is discussed in Dickey, The Florida Evidence Code and the Separation of Powers Doctrine: How to Distinguish Substance and Procedure Now That It Matters, 34 Stet. L. Rev. 109 (Fall 2004); and Earl, The Rulemaking Power of the Florida Supreme Court: The Twilight Zone Between Substance & Procedure, 24 U. Fla. L. Rev. 87 (1971). « Ch. 2 », • § 2.1 », « C » 1 Practice Under Florida Probate Code § 2.1.C (2022)

C. Evidence In probate proceedings, the rules of evidence in civil actions apply unless specifically changed by the Code or the Florida Probate Rules. Fla. Prob. R. 5.170; F.S. 731.1035. « Ch. 2 », • § 2.1 », « D » 1 Practice Under Florida Probate Code § 2.1.D (2022)

D. Court The circuit court has jurisdiction in probate matters. Art. V, Fla. Const.; F.S. 26.012(2)(b). By definition, the circuit court is referred to simply as the “court” in the Code. F.S. 731.201(7). The scope of the court’s jurisdiction is discussed in Chapter 3 of this manual. « Ch. 2 », • § 2.1 », « E » 1 Practice Under Florida Probate Code § 2.1.E (2022)

E. Clerk Of Court The clerk of the circuit court, or a deputy clerk, is referred to simply as the “clerk” by definition in the Code. F.S. 731.201(5). « Ch. 2 », • § 2.1 », « F » 1 Practice Under Florida Probate Code § 2.1.F (2022)

F. Pleadings

The form of pleadings in probate and guardianship matters is controlled by Fla. Prob. R. 5.020(a), which requires pleadings to be signed by the attorney of record, as well as by the pleader when required by the rules. A party who is not represented by a lawyer must sign all documents, including pleadings, and state the party’s address and telephone number. Fla. R. Gen. Prac. & Jud. Admin. 2.515(b). Rule 5.330 specifies that the personal representative must sign the inventory, all accountings, and petitions for sale or encumbrance of property, as well as petitions to continue the decedent’s business, to compromise or settle a claim, to purchase on credit for distribution and discharge, and for resignation. Requiring the personal representative to sign these documents ensures the personal representative’s knowledge of important procedural steps in the administration of an estate. Most probate proceedings are initiated by petition and terminated by an order of the court. Motion practice is authorized by Rule 5.020(c) and can be used in both adversary and nonadversary proceedings. The deadline for service of a motion for rehearing of an order or judgment is 15 days after the date the order or judgment was filed. Rule 5.020(d). « Ch. 2 », • § 2.1 », « G » 1 Practice Under Florida Probate Code § 2.1.G (2022)

G. Verification When verification of a document is required by the Code or the rules, the document must include an oath, affirmation, or the following statement: “Under penalties of perjury, I declare that I have read the foregoing, and the facts alleged are true, to the best of my knowledge and belief.” Fla. Prob. R. 5.020(e); see F.S. 731.104. Any person who willfully includes a false statement in the document commits perjury. Id.; F.S. 837.02. « Ch. 2 », • § 2.1 », « H » 1 Practice Under Florida Probate Code § 2.1.H (2022)

H. Lawyers The personal representative, unless he or she is the sole interested person, must be represented by a lawyer admitted to practice in Florida. A lawyer

admitted to practice in Florida may represent himself or herself as personal representative. Fla. Prob. R. 5.030(a). Unless the lawyer specifically limits his or her appearance to a particular proceeding or the court orders otherwise, the attorney of record for an interested person is the attorney of record for the same person in all other proceedings in the administration of the same estate, except for service of process in an independent action on a claim. Rules 5.030(b)–(c). The lawyer’s role terminates upon filing notice of completion of limited appearance and serving a copy on the client and other interested persons. Rule 5.030(b). An attorney of record is not permitted to withdraw unless the withdrawal is sanctioned by the court after the lawyer files a motion setting forth the reasons and serves a copy on the client and interested persons. Rule 5.030(c). « Ch. 2 », • § 2.1 », « I • 1 Practice Under Florida Probate Code § 2.1.I (2022)

I. Designation Of Address And Resident Agent A resident agent is a person or business entity that accepts legal documents and communications on behalf of the personal representative. A resident agent may be required to ensure that a person authorized to accept service of process is available in Florida. Before letters of administration are issued, a personal representative must file: (1) a designation of street address and mailing address (if the personal representative is an individual, the designation must include the individual’s residence address); (2) a designation of a resident agent for the service of process or notice, which designation must include the agent’s name, street address, and mailing address (if the resident agent is an individual who is not a lawyer, the designation must include the individual’s residence address); and (3) the resident agent’s acceptance. Fla. Prob. R. 5.110(a)–(b). The personal representative must also notify the court of any change in its address within 20 days of the change. Rule 5.110(a). The designation of and consent by the resident agent constitute the personal representative’s consent to service of process or notice on the agent and are sufficient to bind the personal representative in any action against the personal representative in a representative capacity and personally, provided the personal action accrued in the administration of the estate. Rule 5.110(f). A designation of resident agent is not required if the personal

representative is either (1) a corporate fiduciary having an office in Florida, or (2) a Florida Bar member who is a resident of and has an office in Florida. Rule 5.110(b). The resident agent must reside in the county where the proceedings are pending. Rule 5.110(c). However, if the agent is a member of The Florida Bar and resides in Florida, the lawyer may be designated as resident agent even if the lawyer resides outside the county where the proceedings are pending. Id. If the resident agent fails or ceases to act for any reason, the personal representative must appoint a successor within 10 days after receiving notice of such event. Rule 5.110(g).

« Ch. 2 », « § 2.2 » 1 Practice Under Florida Probate Code § 2.2 (2022)

§ 2.2. NOTICE « Ch. 2 », « § 2.2 », • A » 1 Practice Under Florida Probate Code § 2.2.A (2022)

A. In General Notice to interested persons in the administration of a decedent’s estate may be classified by the purpose for which it is given: (1) general information about an estate, and (2) specific information regarding court proceedings. To provide general information, the personal representative must serve a notice of administration on designated beneficiaries and other interested persons other than creditors. Fla. Prob. R. 5.240(a); F.S. 733.212. See § 5.3.J of this manual. Under F.S. 733.2121, the personal representative must publish a notice to creditors and to serve that notice on reasonably ascertainable creditors. See §§ 2.2.B and 5.3.K of this manual. All other notices are to advise interested persons of specific proceedings and are accomplished either by formal or informal notice. See Rules 5.040– 5.041; Fla. R. Gen. Prac. & Jud. Admin. 2.516; F.S. 731.301. When formal notice is given in lieu of informal notice, formal notice does not modify any time period otherwise specified by statute or the probate rules. Rule 5.040(d). F.S. 731.301(3) provides that all “[p]ersons given proper notice of a proceeding are bound by all orders entered in that proceeding.” This provision assumes, of course, that the person receiving notice of that proceeding also receives notice of any hearing on the matter presented to the court and can be defaulted for failing to appear and respond after service of notice of the proceeding. See Nardi v. Nardi, 390 So. 2d 438 (Fla. 3d DCA 1980). « Ch. 2 », « § 2.2 », « B » 1 Practice Under Florida Probate Code § 2.2.B (2022)

B. Notice Of Administration And Notice To Creditors

« Ch. 2 », « § 2.2 », « B », • 1 » 1 Practice Under Florida Probate Code § 2.2.B.1 (2022)

1. Bifurcation Of Procedure In a substantial departure from the law in effect before January 1, 2002, the personal representative must now prepare and serve a notice of administration and a notice to creditors under F.S. 733.2121. See § 2.2.B.3. This change separated notification procedures relating to creditors from those procedures relating to beneficiaries and other interested persons. Ch. 2001226, § 95, Laws of Fla. « Ch. 2 », « § 2.2 », « B », « 2 » 1 Practice Under Florida Probate Code § 2.2.B.2 (2022)

2. Notice Of Administration The notice of administration notifies all interested parties of the death of the decedent, the filing of the Last Will and Testament, and the time period an interested party may object to the information detailed in the notice. F.S. 733.212(1) requires that a notice of administration be promptly served on the decedent’s spouse, the beneficiaries, certain trustees and qualified beneficiaries of trusts (discussed further below), and any person entitled to exempt property, unless any of those interested persons is unknown or was already served before the issuance of letters of administration under F.S. 733.2123. Fla. Prob. R. 5.240(a). F.S. 733.212(2) provides that the notice of administration must state: (a) The name of the decedent, the file number of the estate, the designation and address of the court in which the proceedings are pending, whether the estate is testate or intestate, and, if testate, the date of the will and any codicils. (b) The name and address of the personal representative and of the personal representative’s attorney, and that the fiduciary lawyer-client privilege in [F.S.] 90.5021 … applies with respect to the personal representative and any attorney employed by the personal representative. (c) That any interested person on whom the notice of administration is served must file, on or before the date that is 3 months after the date of service of the notice of administration on that person, any objection that

challenges the validity of the will, the venue, or the jurisdiction of the court. The 3-month time period may only be extended for estoppel based upon a misstatement by the personal representative regarding the time period within which an objection must be filed. The time period may not be extended for any other reason, including affirmative representation, failure to disclose information, or misconduct by the personal representative or any other person. Unless sooner barred by [F.S. 733.212(3)], all objections to the validity of a will, venue, or the jurisdiction of the court must be filed no later than the earlier of the entry of an order of final discharge of the personal representative, or 1 year after service of the notice of administration. (d) That persons entitled to exempt property under [F.S.] 732.402 will be deemed to have waived their rights to claim that property as exempt property unless a petition for determination of exempt property is filed by … the later of the date that is 4 months after the date of service of a copy of the notice of administration … or the date that is 40 days after the date of termination of any proceeding involving the construction, admission to probate, or validity of the will or involving any other matter affecting any part of the exempt property. (e) That, unless an extension is granted pursuant to [F.S.] 732.2135(2), an election to take an elective share must be filed on or before the earlier of the date that is 6 months after the date of service of a copy of the notice of administration on the surviving spouse, or an attorney in fact or a guardian of the property of the surviving spouse, or the date that is 2 years after the date of the decedent’s death. (f) That, under certain circumstances and by failing to contest the will, the recipient of the notice of administration may be waiving his or her right to contest the validity of a trust or other writing incorporated by reference into a will. Rule 5.240(b) reflects the language required under F.S. 733.212, with the exception of language in subdivision (b)(5), which recognizes that an extension may be granted under F.S. 732.2135(2) and the rule’s reference to an agent rather than an attorney-in-fact to file an election. See § 5.3.K of this manual.

The notice of administration is no longer published and is not served on creditors. See § 2.2.B.1. The personal representative must serve the notice of administration, in the manner provided for service of formal notice, on the decedent’s surviving spouse, beneficiaries, the trustee of any revocable trust described in F.S. 733.707(3), and each qualified beneficiary of the trust as defined in F.S. 736.0103(19), provided each trustee is also a personal representative of the estate, and are persons who may be entitled to exempt property. F.S. 733.212(1); Rule 5.240(a). If a different will or codicil is subsequently admitted to probate, the personal representative must promptly serve a copy of a new notice of administration on the designated interested persons. F.S. 733.212(7). If the person who is entitled to service of the notice of administration under Rule 5.240(a) is also a personal representative, the notice of administration is deemed served on the earliest of the following dates: (1) the date the person acknowledges in writing receipt of the notice of administration; (2) the date on which the notice of administration is first served on any other person entitled to notice; or (3) the date that is 30 days after letters of administration are issued. Rule 5.2405(a). The personal representative should consider serving the notice of administration on heirs and beneficiaries under other wills and on any others who may claim an interest in the estate when there is the possibility of a will contest, although the personal representative is not required to do so. F.S. 733.212(1); In re Estate of Clibbon, 735 So. 2d 487 (Fla. 4th DCA 1998). All challenges to the validity of the will, the venue, or the jurisdiction of the court are forever barred as to those persons who were served properly with notice of administration and who failed to file a petition or other pleading requesting relief in accordance with the Florida Probate Rules within three months after the date of service of the notice of administration on that person. F.S. 733.212(3); Rule 5.240(b). See Hill v. Davis, 70 So. 3d 572 (Fla. 2011). Similarly, a claim challenging the decedent’s domicile may not be raised

more than three months after service of the notice of administration. Pastor v. Pastor, 929 So. 2d 576 (Fla. 4th DCA 2006). Form P-3.0802, Notice of Administration, is available from Florida Lawyers Support Services, Inc.© (FLSSI) at P.O. Box 568157, Orlando, FL 32856-8157 (407/515-1501 or 800/404-9278) (or online at www.flssi.org/forms). If service of the notice of administration is waived, the deadlines established by reference to the date of service of the notice are deemed to occur on the date the waiver is filed. Rule 5.240(e). With this in mind, it may be preferable to simply serve the notice of administration, because the time limitations begin to run upon service of the notice and there is no risk of inadvertently extending the deadlines, for example, by not promptly filing a waiver of the notice. The resignation and removal of a personal representative who is not qualified is governed by F.S. 733.3101 and Rule 5.310. See § 4.3.C.2 of this manual. « Ch. 2 », « § 2.2 », « B », « 3 • 1 Practice Under Florida Probate Code § 2.2.B.3 (2022)

3. Notice To Creditors F.S. 733.2121 creates the concept of a notice to creditors, which the personal representative must publish “once a week for 2 consecutive weeks, in a newspaper published in the county where the estate is administered or, if there is no newspaper published in the county, in a newspaper of general circulation in that county.” F.S. 733.2121(2). Unless creditors’ claims are barred by F.S. 733.710 (providing a two-year limitation on claims against estates), every personal representative must cause notice to creditors to be published and served under F.S. 733.2121. F.S. 733.701. The notice to creditors must contain the name of the decedent; the file number of the estate; the designation and address of the court in which the proceeding is pending; the name and address of the personal representative and the personal representative’s attorney; and

the date of first publication. Fla. Prob. R. 5.241(b); F.S. 733.2121(1). The notice must state that creditors must file claims against the estate with the court within the time periods set forth in F.S. 733.702, or be forever barred. Rule 5.241(b); F.S. 733.2121(1). F.S. 733.702(1) provides that, unless barred by F.S. 733.710, claims (including claims for personal property in the personal representative’s possession and claims for funeral and burial expenses) must be filed in the probate proceeding within the later of three months after the time of the first publication of the notice to creditors or, as to any reasonably ascertainable creditor, 30 days after the date of service on the creditor. See United Bank v. Estate of Frazee, 197 So. 3d 1190 (Fla. 4th DCA 2016), affirming the circuit court’s refusal to extend the claims period when the creditor attempted, unsuccessfully, to file paper copies of its statements of claim on the last day of the claims period and then filed electronically after the claims period expired. F.S. 733.710(1) provides that two years after the death of a person, neither the estate, the personal representative, nor the beneficiaries will be liable for any claim or cause of action against the decedent. A form of the notice to creditors is FLSSI Form No. P-3.0740. The personal representative must promptly make a diligent search to determine the names and addresses of the decedent’s creditors who are reasonably ascertainable, even if the claims are unmatured, contingent, or unliquidated, and must promptly serve a copy of the notice to creditors on those creditors. F.S. 733.2121(3)(a). Whether a creditor is “reasonably ascertainable” is discussed in Soriano v. Estate of Manes, 177 So. 3d 677 (Fla. 3d DCA 2015). See Lerma-Fusco v. Smith, 220 So. 3d 562 (Fla. 5th DCA 2017). The personal representative must also serve a copy of the notice to creditors and a copy of the death certificate on the Agency for Health Care Administration within three months after the first publication if the decedent was 55 years of age of older at the time of death. F.S. 733.2121(3)(d); Rules 5.241(a), (e). “The personal representative may serve a notice to creditors on the Department of Revenue only when the Department of Revenue is determined to be a reasonable ascertainable creditor.” F.S. 733.2121(3)(e). The notice to creditors need only be served by informal notice, at the discretion of the personal representative. Rule 5.241(a). If the personal

representative is a known or reasonably ascertainable creditor entitled to service of the notice to creditors, Rule 5.2405(b) provides that the notice is deemed to have been served on the personal representative on the earliest of the following dates: (1) the date the person acknowledges in writing receipt of the notice; (2) the date the notice is required to be served under the Probate Rules or Probate Code; or (3) the date the notice is first served by the personal representative on any other person entitled to service of the notice. F.S. 733.2121(3)(b) and (3)(c) protect a personal representative from individual liability for serving notice when none was required, and for failing to serve notice when notice was required if the personal representative acted in good faith. The personal representative must file a proof of publication of the notice to creditors with the court within 45 days of the first publication. Rule 5.241(c). If not barred by F.S. 733.710 (barring claims two years after death), claims of creditors will be barred under F.S. 733.702(1) if not filed in the probate proceeding within three months from the first publication of the notice to creditors or 30 days from the date of service of the notice, whichever is later. See F.S. 733.2121(4). The claims of known or reasonably ascertainable creditors who are not served with a copy of the notice to creditors are timely if filed within two years of the decedent’s death because the three-month statute of limitations in F.S. 733.702(1) does not begin to run until service of the notice to creditors is perfected. Jones v. Golden, 176 So. 3d 242 (Fla. 2015). Any such creditors who wish to file a claim against the estate more than three months after the date of the first publication of the notice to creditors should be prepared to establish that they were known or reasonably ascertainable. If they are unable to do so, their claims will be barred by F.S. 733.702(1). The court may extend the period for filing a claim only for fraud, estoppel, or insufficient notice of the claims period. F.S. 733.702(3). F.S. 733.702 does not, however, affect a proceeding to enforce any

mortgage, security interest, or other lien on the decedent’s property or, to the limits of casualty insurance, any proceeding to establish the liability of the decedent or the personal representative for which he or she is protected by the liability insurance. F.S. 733.702(4)(a)–(4)(b). See also F.S. 733.710(3). Similarly, a crossclaim or counterclaim may be filed against an estate outside the claim period if the estate instituted the action. However, recovery on the crossclaim or counterclaim is limited to the estate’s recovery in that action. F.S. 733.702(4)(c). “An objection to a claim, other than a personal representative’s proof of claim, [must] be in writing and filed on or before the expiration of 4 months from the first publication of notice to creditors or within 30 days from the timely filing or amendment of the claim, whichever occurs later.” Rule 5.496; F.S. 733.705. A personal representative or other interested person who files an objection to a claim must serve the objection to the claim with a statement that the claimant is limited to a period of 30 days from service of the objection within which to bring an action as provided by law. Rule 5.496(c). The objection must include a certificate of service and be served on the personal representative (if the personal representative is not the objector). Rule 5.496(b). If the personal representative files a claim individually or in any other capacity that creates a conflict of interest between the personal representative and any other interested person, at the time the claim is filed, the personal representative must serve all interested persons with a copy of the claim and notice of the right to object to the claim, as provided by law and Rule 5.490(f). The Code and rules do not recognize the concept of a “partial objection” to a claim. Consequently, if a personal representative files an objection to any portion of a claim, the claimant should file an independent action to enforce the claim, or risk having its entire claim stricken. In re Estate of Cadgene, 938 So. 2d 581 (Fla. 2d DCA 2006). Rule 5.241(d) provides that, within four months after the date of the first publication of notice to creditors, the personal representative must “file a verified statement that [a] diligent search has been made to ascertain the name and address of each person having a claim against the estate.” The statement must include the name and address of each person who has or may

have a claim against the estate, other than those who filed a timely claim or were included in the personal representative’s proof of claim, and whether the person was served a notice to creditors or received actual notice of the information. Id. For further discussion of the notice of administration and notice to creditors, see Chapters 5 and 8 of this manual, which discuss the initial steps in probate and administration, and the claims of creditors, respectively. « Ch. 2 », « § 2.2 », « C » 1 Practice Under Florida Probate Code § 2.2.C (2022)

C. Notice Before Issuance Of Letters Of Administration All interested persons served formal notice of the petition for administration before the issuance of letters, as well as all persons who waived such notice, are barred from challenging the validity of the will, the testacy of the decedent, or the venue or jurisdiction of the court once the letters of administration have been issued. F.S. 733.2123. The procedure for binding interested persons who wish to make challenges of this nature, before letters of administration are issued, is discussed in §§ 5.4.A–5.4.B of this manual. Formal notice of the petition for administration is required if a caveat (i.e., a notice conveying interest in the proceeding) has been filed by an interested person other than a creditor or when the petitioner is not entitled to preference in appointment, unless those entitled to preference waive notice in writing; however, a caveator is not required to be served with formal notice of its own petition for administration. Fla. Prob. R. 5.201(b), 5.260(f). For an argument that the heir or devisee who files a caveat is entitled to formal notice only if his or her interest is affected if the offered will is not probated, see Lewis, Notice to Caveators Prior to Will’s Admission to Probate, 72 Fla. Bar J. 106 (Oct. 1998). « Ch. 2 », « § 2.2 », « D » 1 Practice Under Florida Probate Code § 2.2.D (2022)

D. Formal Notice « Ch. 2 », « § 2.2 », « D », • 1 » 1 Practice Under Florida Probate Code § 2.2.D.1 (2022)

1. In General “Probate proceedings are in rem proceedings.” F.S. 731.105. The circuit court, therefore, has jurisdiction over the res (the assets of the decedent’s estate) without the necessity of original process. Constitutional due process, however, requires that notice of the proceedings be given to interested persons to bind their interests in the estate. Once formal notice has been given to an interested person, informal notice of any hearing on the pleading or motion will suffice. Fla. Prob. R. 5.040(a)(2). Service of formal notice is complete upon receipt of the document. Rule 5.040(e). Formal notice is given by serving a copy of the pleading or motion on an interested person or the person’s lawyer if the person has appeared through a lawyer or requested that notice be sent to his or her lawyer. Rule 5.040(a); F.S. 731.301(1); see Parker v. Estate of Bealer, 890 So. 2d 508 (Fla. 4th DCA 2005). The person served may file a written answer or defense to the pleading or motion within 20 days after service. Rule 5.040(a)(1). A copy of the answer or defense must be served on the person giving notice. Id. If a person served with formal notice fails to serve a written answer or defense within the 20-day period, exclusive of the day of service, the court is authorized to consider the pleading or motion ex parte as to that person. Rules 5.040(a)(1)–(a)(2). A person giving notice has the option of giving formal notice in lieu of informal notice, unless the court orders otherwise. Rule 5.040(d); American & Foreign Insurance Co. v. Dimson, 645 So. 2d 45 (Fla. 4th DCA 1994), superseded by statute on other grounds as recognized in 33 So. 3d 130. However, when formal notice is given in lieu of informal notice, the formal notice does not modify any time period otherwise specified by statues or rules. Rule 5.040(d). If formal notice is given, it must be given to all interested persons entitled to notice. Id. A proceeding against the estate’s lawyer, individually, seeking a refund of attorneys’ fees, is an adversary proceeding requiring formal notice in order to obtain personal jurisdiction over the lawyer individually. Simmons v. Estate of Baranowitz, 189 So. 3d 819 (Fla. 4th DCA 2015). « Ch. 2 », « § 2.2 », « D », « 2 »

1 Practice Under Florida Probate Code § 2.2.D.2 (2022)

2. Methods Of Service « Ch. 2 », « § 2.2 », « D », « 2 », • a » 1 Practice Under Florida Probate Code § 2.2.D.2.a (2022)

a. In General Formal notice must be served by one of the following methods: (A) by sending a copy by any commercial delivery service requiring a signed receipt or by any form of mail requiring a signed receipt; (B) as provided in the Florida Rules of Civil Procedure for service of process; (C) as otherwise provided by Florida law for service of process; or (D) by first-class mail when only in rem or quasi in rem relief is sought against a person if: (i) registered or certified mail service to the addressee requiring a signed receipt is unavailable and if delivery by commercial delivery service requiring a signed receipt is also unavailable; (ii) delivery pursuant to subdivision (a)(3)(A) is attempted and is refused by the addressee; or (iii) delivery pursuant to subdivision (a)(3)(A) is attempted and is unclaimed after notice to the addressee by the delivering entity. Fla. Prob. R. 5.040(a)(3). See FLORIDA CIVIL PRACTICE BEFORE TRIAL Chapter 14 (Fla. Bar 14th ed. 2022) for methods of effecting service under F.S. Chapters 48 and 49. « Ch. 2 », « § 2.2 », « D », « 2 », « b • 1 Practice Under Florida Probate Code § 2.2.D.2.b (2022)

b. Service By Mail Or Delivery Service of formal notice under Fla. Prob. R. 5.040(a)(3)(A) and (a)(3)(D) must be made on the following persons: (A) service on an interested person represented by an attorney shall

be made by delivery to the attorney at his or her regular place of business; (B) service on an interested person who has filed a request for notice shall be made by delivery to such interested person at the address given in the request for notice; (C) service on an incapacitated person or a person with a developmental disability shall be made by delivery: (i) to such person at his or her usual place of abode; and (ii) to such person’s legal guardian at the legal guardian’s usual place of abode or regular place of business or, if such person does not have a legal guardian, to the person having care or custody of such person at his or her usual place of abode or regular place of business; (D) service on a minor whose disabilities of nonage are not removed shall be made by delivery to the persons designated to accept service of process on a minor under chapter 48, Florida Statutes, at their usual place of abode or regular place of business; (E) service on any other individual shall be made by delivery to such individual at his or her usual place of abode or to any person authorized to receive service of a summons on behalf of the individual as provided in chapter 48, Florida Statutes; or (F) service on a corporation or other business entity shall be made by delivery to such corporation or other business entity as provided in chapter 48, Florida Statutes. Fla. Prob. R. 5.040(a)(4). If service by mail or by a delivery service cannot be effected, service by process server or constructive service by publication is necessary. Service by publication is prohibited if personal service can be made. F.S. 49.021; Shefer v. Shefer, 440 So. 2d 1319 (Fla. 3d DCA 1983). Forms for formal notice by mail are FLSSI Form No. P-1.0500 and P1.0501. « Ch. 2 », « § 2.2 », « D », « 3 • 1 Practice Under Florida Probate Code § 2.2.D.3 (2022)

3. Proof Of Service If formal notice is served by mail or a commercial delivery service, proof of service is accomplished by verified statement of the person giving the notice along with the signed receipt or other evidence satisfactory to the court that delivery of the notice was made to or refused by the addressee or the addressee’s agent. Service of formal notice by mail or commercial delivery service is complete on receipt of the notice. Fla. Prob. R. 5.040(a)(6). Forms for proof of service of formal notice by mail are FLSSI Form No. P-1.0510 and P-1.0511. « Ch. 2 », « § 2.2 », « E » 1 Practice Under Florida Probate Code § 2.2.E (2022)

E. Informal Notice « Ch. 2 », « § 2.2 », « E », • 1 » 1 Practice Under Florida Probate Code § 2.2.E.1 (2022)

1. In General The term “notice,” when used in the Florida Probate Rules and the Florida Probate Code, means informal notice unless formal notice is specified. Fla. Prob. R. 5.040(c). When informal notice is required or permitted, it must be served as provided in Rule 5.041. Rule 5.040(b). Rule 5.041 regulates the method of service of informal notice. Unless the court orders otherwise, or the rules or the Code provide otherwise, every petition or motion for an order determining rights of an interested person, together with every other pleading or document filed in the proceeding, must be served on interested persons as set forth in Fla. R. Gen. Prac. & Jud. Admin. 2.516. For purposes of Rule 5.041, an “interested person” is deemed a “party” under Rule 2.516. No service is required, however, “on interested persons against whom a default has been entered, or against whom the matter may otherwise proceed ex parte, unless a new or additional right or demand is asserted.” Rule 5.041. See Rule 2.516(a). « Ch. 2 », « § 2.2 », « E », « 2 » 1 Practice Under Florida Probate Code § 2.2.E.2 (2022)

2. Methods Of Service

Upon appearing in a proceeding, lawyers must designate a primary e-mail address and may designate up to two secondary e-mail addresses. Fla. R. Gen. Prac. & Jud. Admin. 2.516(b)(1)(A). All documents served on another party must be served by e-mail unless the parties stipulate otherwise or Rule 2.516 provides otherwise. Rule 2.516(b)(1). If the lawyer does not designate an e-mail address for service, documents may be served on that lawyer at the e-mail address on record with The Florida Bar. Rule 2.516(b)(1)(A). Service must be directed to all designated e-mail addresses in the proceeding and every document filed or served by a lawyer thereafter must include the primary e-mail address of that lawyer and any secondary e-mail addresses. Rule 2.516(b)(1)(A). A filer of an electronic document has complied with this rule if the Florida Courts e-filing portal (“Portal”) or other Florida Supreme Court-approved electronic service (“e-Service”) system “served the document by e-mail or provided a link by e-mail to the document on a website maintained by a clerk.” Rule 2.516(b)(1). “The filer of an electronic document must verify that the Portal or other e-Service system uses the names and [e-mail] addresses provided by the parties.” Id. If a lawyer “has no e-mail account and lacks access to the Internet at the attorney’s office,” the court, upon motion by the lawyer, “may excuse the attorney from the requirements of e-mail service.” Rule 2.516(b)(1)(B). Service on and by a lawyer excused by the court from e-mail service must be provided by traditional means of service (delivery or mail), as provided in Rule 2.516(b)(2). Rule 2.516(b)(1)(B). If a party is not represented by a lawyer, the party may serve a designation of a primary e-mail address and up to two secondary e-mail addresses to which service must be directed in the proceeding as provided in Rule 2.516(b)(1). If the party does not designate an e-mail address, service on and by that party must be by traditional means, as provided in Rule 2.516(b) (2). Rule 2.516(b)(1)(C). “If the interested person is a minor whose disabilities of nonage are not removed, and who is not represented by an attorney, then service shall be on the persons designated to accept service of process on a minor under [F.S.] [C]hapter 48.” Fla. Prob. R. 5.041. “Service by e-mail is complete on the date it is sent.” Rule 2.516(b)(1)

(D). However, if “the e-mail is sent by the Portal or other e-Service system, service is complete on the date the served document is electronically filed.” Rule 2.516(b)(1)(D)(i). “If the person [who is] required to serve a document learns that the e-mail was not received by an intended recipient, the person must immediately resend the document to that intended recipient by e-mail” or traditional means, as provided in Rule 2.516(b)(2). Rule 2.516(b)(1)(D)(ii). “Service of a document by e-mail is made by an e-mail sent to all [email] addresses designated by the attorney or party with either (a) a copy of the document in PDF format attached or (b) a link to the document on a website maintained by a clerk.” Rule 2.516(b)(1)(E). The following format is required for e-mail service: (i) All documents served by e-mail must be sent by an e-mail message containing a subject line beginning with the words “SERVICE OF COURT DOCUMENT” in all capital letters, followed by the case number and case style of the proceeding in which the documents are being served. (ii) The body of the e-mail must identify the court in which the proceeding is pending, the case number, the name of the initial party on each side, the title of each document served with that e-mail, and the name and telephone number of the person required to serve the document. (iii) Any document served by e-mail may be signed by any of the “/s/,” “/s,” or “s/” formats. (iv) Any e-mail which, together with its attached documents, exceeds the appropriate size limitations specified in the Florida Supreme Court Standards for Electronic Access to the Court, must be divided and sent as separate e-mails, no one of which may exceed the appropriate size limitations specified in the Florida Supreme Court Standards for Electronic Access to the Court and each of which must be sequentially numbered in the subject line. Id. “Service on and by all parties who are not represented by an attorney and who do not designate an e-mail address, and on and by all attorneys excused

[by the court] from e-mail service, must be made by delivering a copy of the document or by mailing it to the party or attorney at their last known address or, if no address is known, by noting the non-service in the certificate of service, and stating in the certificate of service that a copy of the served document may be obtained, on request, from the clerk of the court or from the party serving the document. Service by mail is complete upon mailing.” Rule 2.516(b)(2). Delivery of a copy is complete upon (A) handing it to the attorney or to the party, (B) leaving it at the attorney’s or party’s office with a clerk or other person in charge thereof, (C) if there is no one in charge, leaving it in a conspicuous place therein, (D) if the office is closed or the person to be served has no office, leaving it at the person’s usual place of abode with some person of his or her family above 15 years of age and informing such person of the contents, or (E) transmitting it by facsimile to the attorney’s or party’s office with a cover sheet containing the sender’s name, firm, address, telephone number, and facsimile number, and the number of pages transmitted. When service is made by facsimile, a copy must also be served by any other method permitted by this rule. Facsimile service occurs when transmission is complete. (F) Service by delivery shall be deemed complete on the date of the delivery. Rules 2.516(b)(2). If service is accomplished through e-mail and regular mail or delivery, “the computation of time for any response to the served document [is] based on the method of service that provides the shortest response time.” Rule 2.516(b)(2). Rules for computing and extending time appear at Rule 2.514. When a person who is entitled to service of a notice from the personal representative is also serving as a personal representative, computation of the date of service of the notice on the personal representative is determined under Fla. Prob. R. 5.2405. This situation arises when the personal representative is also an interested person in an estate and entitled to

notices such as a notice of administration or a notice to creditors. Documents should be e-filed electronically in accordance with Rules 2.520 and 2.525, although the judge may permit documents to be filed with the judge. Rule 2.516(e). « Ch. 2 », « § 2.2 », « E », « 3 • 1 Practice Under Florida Probate Code § 2.2.E.3 (2022)

3. Certificate Of Service Proof of service of informal notice by a lawyer can be made by a certificate of service signed by the lawyer in the form prescribed by Fla. R. Gen. Prac. & Jud. Admin. 2.515 and 2.516(f). Such a certificate is prima facie proof of proper service. Rule 2.516(f). « Ch. 2 », « § 2.2 », « F » 1 Practice Under Florida Probate Code § 2.2.F (2022)

F. Waiver And Consent The right of an interested person (including one acting in a representative capacity, such as a guardian ad litem, administrator ad litem, guardian of the property, personal representative, trustee or other fiduciary, or a sole holder or all co-holders of a power of revocation or appointment) to waive or consent is governed by F.S. 731.302. Generally, the interested person may waive (“to the extent of that person’s interest or the interest which that person represents”) any right or notice or the filing of any document and may consent to any action or proceeding. Id. The waiver or consent must be in writing and signed by the person executing it. Fla. Prob. R. 5.180(a). The waiver or consent must also state (1) the person’s interest in the subject of the waiver or consent; (2) if the person is signing in a fiduciary or representative capacity, the nature of the capacity; (3) expressly what is being waived or consented to; and (4) if the waiver pertains to compensation, language declaring that the waiving party has actual knowledge of the amount and manner of determining the compensation and, in addition, either:

(A) that the party has agreed to the amount and manner of determining that compensation and waives any objection to payment; or (B) that the party has the right to petition the court to determine the compensation and waives that right. Rule 5.180(b). The waiver or consent must also be filed. Rule 5.180(c). Forms for waiver of notice are FLSSI Form Nos. P-1.0600 and P-1.0610. « Ch. 2 », « § 2.2 », « G » 1 Practice Under Florida Probate Code § 2.2.G (2022)

G. Request For Notices And Copies Of Pleadings Any interested person may file a written request for notice of estate proceedings, designating the person’s place of residence and post office address. Fla. Prob. R. 5.060(a). A copy of the request must be served on the lawyer for the personal representative. Id. Once a request for notice is filed, a moving party must serve the requesting party “with notice of further proceedings and with copies of subsequent pleadings and documents” as long as the requesting party remains an interested person. Rule 5.060(b). « Ch. 2 », « § 2.2 », « H • 1 Practice Under Florida Probate Code § 2.2.H (2022)

H. Notice Of Civil Action Or Ancillary Administration A personal representative must file a notice “when a civil action has been instituted by or against the personal representative.” Fla. Prob. R. 5.065(a). The domiciliary personal representative must file a notice when an ancillary administration has commenced. Rule 5.065(b). “A copy of the initial pleading may be attached to the notice.” Rule 5.065(c). The information required in the notice is set forth in Rule 5.065(a).

« Ch. 2 », « § 2.3 » 1 Practice Under Florida Probate Code § 2.3 (2022)

§ 2.3. TIME Fla. Prob. R. 5.042(a) refers to Fla. R. Gen. Prac. & Jud. Admin. 2.514 for the computation of time prescribed or allowed by the rules, by court order, or by any applicable statute. In computing any period of time, the day of the act from which the designated period of time begins to run is not included. The last day of the period so computed is included unless it is a Saturday, Sunday, or legal holiday. Rule 2.514(a)(1). When the period of time is less than seven days, intermediate Saturdays, Sundays, and legal holidays are excluded in the computation. Rule 2.514(a)(3). Any day the clerk’s office is closed is deemed a legal holiday for purposes of computing a prescribed time period. Rule 2.514(a)(6)(B). The court may, for cause shown, enlarge the time for performance of an act required or allowed to be done at or within a specified time. If a request for enlargement is made before the expiration of the period prescribed, the court may order the period enlarged with or without notice. If the request is made after the expiration of the specified period, the court, on motion and after notice, may permit the act to be done when failure to act was the result of excusable neglect, but the court “may not extend the time for serving a motion for rehearing or enlarge any period of time governed by the Florida Rules of Appellate Procedure.” Rule 5.042(b). A copy of any written petition or motion that may not be heard ex parte and a copy of the notice of the hearing on it must “be served a reasonable time before the time specified for the hearing.” Rule 5.042(c). When an interested person has the right or is required to act within a prescribed period after service, and service is made by mail, five days are added to the prescribed period. Rule 2.514(b). The practitioner should note, however, that Rule 2.514(b) does not apply when the document is served by formal notice. Rule 5.042(d). When formal notice is given, the person served has 20 days after service of the notice, exclusive of the day of service, to serve written defenses to the person giving notice. Rule 5.040(a).

« Ch. 2 », « § 2.4 » 1 Practice Under Florida Probate Code § 2.4 (2022)

§ 2.4. APPEALS Appeals of final orders entered in probate matters and discretionary appellate review of nonfinal orders are governed by the Florida Rules of Appellate Procedure. Fla. Prob. R. 5.100. See Delgado v. Estate of Garriga, 870 So. 2d 912 (Fla. 3d DCA 2004); In re Estate of Elliott, 798 So. 2d 13 (Fla. 1st DCA 2001); Swartz v. Lieberman, 712 So. 2d 479 (Fla. 4th DCA 1998); In re Estate of Nolan, 712 So. 2d 421 (Fla. 2d DCA 1998). Generally, orders entered in probate and guardianship matters that finally determine a right or obligation of an interested person, as defined in the Code, may be appealed to the appropriate district court of appeal, except for those appeals that may be taken directly to the Florida Supreme Court, as provided in Article V, § 3, of the Florida Constitution. Fla. R. App. P. 9.170. Rule 9.170, “Appeal Proceedings in Probate and Guardianship Cases,” contains a nonexclusive list of 25 types of final orders and provisions governing the record, briefs, and scope of review. In Cody v. Cody, 127 So. 3d 753 (Fla 1st DCA 2013), the court held that an Order Construing Will was not a final order for purposes of appeal, because further judicial action was contemplated. However, a subsequent order determining boundaries of particular portions of real property to be distributed was a final order. See also Local Door Coupons Franchise, Inc. v. Mayers, 261 So. 3d 726 (Fla. 3d DCA 2018) (order requiring corporation to advance fees and costs, but not affixing amount, was nonfinal, nonappealable); Lerma-Fusco v. Smith, 220 So. 3d 562 (Fla. 5th DCA 2017) (order granting motion to set aside prior order was nonfinal, nonappealable); In re Estate of Bierman, 587 So. 2d 1163 (Fla. 4th DCA 1991) (order appointing administrator ad litem was not final and appealable order). Compare In re Estate of Miller, 568 So. 2d 487 (Fla. 1st DCA 1990) (order appointing curator was final order, and was reversed on appeal). As with all appeals, it is crucial that the issue to be appealed be preserved in the record. Albear v. Hillman-Waller, 275 So. 3d 690 (Fla. 3d DCA 2019); Pearson v. Cobb, 713 So. 2d 1069 (Fla. 5th DCA 1998). For a discussion of

appellate jurisdiction, see §§ 3.8.A–3.8.B and 21.4.K of this manual.

« Ch. 2 », « § 2.5 » 1 Practice Under Florida Probate Code § 2.5 (2022)

§ 2.5. REPRESENTATION Unknown, unborn, unascertained, and sometimes minor beneficiaries may be represented before the court under the common-law doctrine of virtual representation by one or more persons who have identical, similar, or greater interests and who appear to the court to represent adequately the interests of the otherwise unrepresented persons. See F.S. 731.303. The doctrine of virtual representation can be illustrated as follows: In litigation involving the present or future interest of the children of A, the living children of A who are parties before the court may be allowed to also represent the unborn, unascertained, or minor children of A if their interests are identical. An order affecting the interests of A’s children before the court will have an identical effect on the represented children of A because the actions of the former should protect the interests of the latter. The courts developed the doctrine of virtual representation to allow a court to adjudicate issues even though necessary parties were not joined and before the court, when it was impractical or impossible to join them. The Supreme Court of Florida applied the doctrine of virtual representation in Popp v. Bond, 158 Fla. 185, 28 So. 2d 259 (1946), and in Blocker v. Blocker, 103 Fla. 285, 137 So. 249 (1931). F.S. 731.303 provides, in the administration of or in judicial proceedings involving decedents’ estates, for interested persons to be bound by a court order that binds others who are parties to the proceedings. The statute expands the common-law doctrine of virtual representation. Caution should be exercised in situations in which the statute and common law appear to overlap. Similar to F.S. 731.303(1)(c) regarding unborn, unascertained, and minor persons, to the extent there is no conflict of interest, a ward is bound by orders binding the guardian of the property, F.S. 731.303(1)(b)1; beneficiaries of a trust are bound by orders binding the trustee in proceedings to probate a will or to establish or add to a trust, proceedings to review the acts or accounts of a prior fiduciary, and proceedings involving creditors or

other third parties, F.S. 731.303(1)(b)2; beneficiaries of an estate are bound by orders binding the personal representative in actions by or against the estate, F.S. 731.303(1)(b)3; and takers under a power of appointment or revocation are bound by orders binding the holders of the power, provided the matter does not involve fraud or bad faith by the trustee, the trustee’s power to distribute trust property, or a power of appointment held by a person while the person is the sole trustee. F.S. 731.303(1)(a). Both the common law and the Florida Probate Code recognize that a conflict of interest between the representative and the represented person will disqualify the representative from binding the interests of the represented person. In any case in which the court determines that representation of the interest would be inadequate, a guardian ad litem for the represented person may be appointed. F.S. 731.303(4). Notice of any proceeding under F.S. 731.303 must be given as prescribed by the rules to every interested person or the representative person who can bind the interested person, or both. F.S. 731.303(3)(a). Notice is given to unborn or unascertained persons who are not otherwise represented “by giving notice to all known persons whose interests in the proceedings are the same as, or of a greater quality than, those of the unborn or unascertained persons.” F.S. 731.303(3)(b). Practitioners should note that the doctrine of virtual representation may be used only when the court has determined that the doctrine applies to bind the interest of the otherwise nonappearing party. Consequently, in the petition or motion, the lawyer should identify the persons or class that needs representation and the individual representing those persons or that class, and specifically ask the court to rule that the individual adequately represents the interests of the persons or class based on the facts presented. As previously noted, when there is a conflict or no suitable representative, the court should appoint a guardian ad litem to represent the absent party’s interest. See § 2.8.

« Ch. 2 », « § 2.6 » 1 Practice Under Florida Probate Code § 2.6 (2022)

§ 2.6. INVENTORY A personal representative must prepare and file an inventory of the assets of the decedent’s estate within 60 days after the personal representative’s appointment. Fla. Prob. R. 5.340(a); F.S. 733.604(1). The time for filing the inventory may be extended by the court for cause without notice, except that the personal representative must serve copies of the petition and order on those persons described in Rule 5.340(d). Rule 5.340(b). The personal representative must “serve a copy of the inventory and all supplemental and amended inventories on the surviving spouse, each heir at law in an intestate estate, each residuary beneficiary in a testate estate, and any other interested person who may request it in writing.” Rule 5.340(d). The inventory must show in reasonable detail the assets of the estate and the estimated fair market value of each asset on the date of the decedent’s death, and must contain a notice of the residuary and non-residuary beneficiary’s right to information to which the beneficiary is entitled by law. Rules 5.340(a), (e), (f); F.S. 733.604(3). “Real property appearing to be protected homestead [must] be listed and so designated.” Rule 5.340(a). The inventory must be verified by the personal representative. Rule 5.340(h); F.S. 733.604(1). The personal representative must file a supplementary or amended inventory if additional assets of the estate are discovered, if the value of assets or their description in the inventory is incorrect or misleading, or if the personal representative later determines the estimated fair market value of an item whose value had previously been listed as unknown on the inventory. Rule 5.340(c); F.S. 733.604(2). In addition, the personal representative must file an inventory of the contents of a decedent’s safe-deposit box, together with a copy of the box entry record from a date that is six months before the date of death to the date of inventory, within 10 days after the box is opened. F.S. 733.6065(1); Rule 5.342(a). Subject to the provisions of F.S. 655.936(2), the initial opening of the box must be “conducted in the presence of any two of the following persons: an employee of the institution where the box is located, the personal representative, or the personal representative’s attorney of record.” F.S.

733.6065(1). Each person present must verify the contents of the box by signing, under penalties of perjury, a copy of the box inventory. Id.; Rule 5.342(b). The inventory and any supplementary or amended inventory that is filed are subject to inspection only by the clerk of court or the clerk’s representative, by the personal representative or the personal representative’s lawyer, and by other interested persons. F.S. 733.604(1). See Rules 5.340(d)– (f). See § 5.1 of this manual for a discussion of the rules concerning confidential information under Fla. R. Gen. Prac. & Jud. Admin. 2.420. See F.S. 731.201(23) (defining “interested person”). The inventory is a confidential pleading and the lawyer is required to inform the clerk of court to seal the entire document as confidential. If a curator is appointed, the curator is required to file an inventory of the assets of the estate within 30 days after the appointment. Rule 5.122(e). See Chapter 16 of this manual discussing curators. Inventories are discussed further in Chapter 6 of this manual.

« Ch. 2 », « § 2.7 » 1 Practice Under Florida Probate Code § 2.7 (2022)

§ 2.7. ACCOUNTINGS AND PETITION FOR DISCHARGE When the administration of an estate is completed except for distribution, the personal representative must file a final accounting and petition for discharge, including a plan of distribution. Fla. Prob. R. 5.400(a). The final accounting must include “(1) all cash and property transactions since the date of the last accounting or, if none, from the commencement of administration, and (2) a schedule of assets at the end of the accounting period.” Rule 5.346(a). The final accounting must also meet the standards set forth in Rule 5.346(b) for the accounting of all transactions. Specifically, the accounting must be understandable, concisely summarize its purpose and content, disclose significant transactions (including those that do not affect the amount for which the personal representative is accountable), report asset acquisition value or carrying value and estimated current value, and disclose gains and losses. Id. The petition for discharge must contain a statement that the estate has been fully administered; that all claims presented have been paid, settled, or otherwise disposed of; that all taxes and expenses of administration have been paid or provision has been made for such items; showing the amount of compensation paid or to be paid to the personal representative and agents employed by the personal representative, and the manner of determining that compensation; showing a plan of distribution, including a schedule of all prior distributions, the property remaining in the hands of the personal representative for distribution, a schedule showing the proposed distribution of the remaining assets, and the amount of funds retained by the personal representative to pay final expenses;

that any objections to the accounting, the compensation paid or proposed to be paid, or the proposed distribution must be filed within 30 days from the date of service of the last of the petition for discharge or final accounting, and also that within 90 days after filing the objection, a notice of hearing on the objection must be served or the objection is abandoned; and that any objections must be in writing and must state with particularity the items to which the objections are directed and the grounds on which the objections are based. Rule 5.400(b). The final accounting and petition for discharge must be filed and served on interested persons within 12 months after issuance of letters of administration. Rule 5.400(c). For estates filing a federal estate tax return, however, the time is extended to 12 months from the date the return is due. The time for filing may be extended by the court for cause shown after notice to interested persons. Id. The final accounting, any portion of the petition for discharge, or the time for filing objections may be waived by all interested persons. F.S. 731.302. The form and content of the waiver must comply with Rule 5.180. See § 2.2.F. An interested person may object to the petition for discharge or final accounting. Copies of the objections must be served by the objector on the personal representative and interested persons within 30 days after the last date on which the petition for discharge or final accounting was served on the objector. Rule 5.401(a). It is reversible error for a court to prematurely enter an order discharging the personal representative without allowing for consideration of a timely filed objection to discharge. In re Estate of Unanue, 235 So. 3d 1006 (Fla. 2d DCA 2017). If a notice of hearing on the objections is not served within 90 days of filing the objections, the objections will be deemed abandoned and the personal representative may make distribution as set forth in the plan of distribution. Rule 5.401(d). See Estate of Guthrie v. Guthrie, 478 So. 2d 465 (Fla. 1st DCA 1986). Unless objections are filed, the personal representative must promptly distribute the estate property in accordance with the plan of distribution. Rule 5.400(d). Upon receipt of evidence that the estate has been fully administered

and properly distributed, the court will enter an order discharging the personal representative and releasing the surety on any bond. Rule 5.400(e); F.S. 733.901. The Code and rules do not require a personal representative to file interim accountings before the final accounting that accompanies the petition for discharge. However, a personal representative may elect to file, or the court may order, an interim accounting. Rule 5.345(a). The filing, notice, objection, and approval procedure for interim accountings is similar to that for final accountings. If interim accountings have been filed, the personal representative’s final accounting may be limited to the period from the date of the last interim accounting. Otherwise, the final accounting must reflect all transactions from the commencement of administration. Rule 5.346(a). When a personal representative fails to file an accounting required by statute or rule, the court, on its own motion or on the petition of an interested person, must order the personal representative to file the accounting, or show cause why he or she should not be compelled to do so. Rule 5.150(a). The court may require the personal representative to file an accounting not otherwise required by statute or rule. Rule 5.150(b). Accountings are the subject of Chapter 12 of this manual. Chapter 14 of this manual discusses the closing of the estate.

« Ch. 2 », « § 2.8 » 1 Practice Under Florida Probate Code § 2.8 (2022)

§ 2.8. GUARDIAN AD LITEM « Ch. 2 », « § 2.8 », • A » 1 Practice Under Florida Probate Code § 2.8.A (2022)

A. Appointment And Qualification In the administration of a decedent’s estate, the court may appoint a guardian ad litem to represent the interests of a minor or incapacitated person who is an interested person in a particular proceeding if (1) there is no personal representative of the estate or guardian of the ward; (2) the personal representative of the estate or guardian of the ward has an interest in the proceedings adverse to the represented person; or (3) the court finds that it is otherwise necessary. Fla. Prob. R. 5.120(a). The court also may appoint a guardian ad litem to represent unknown, unborn, or otherwise vulnerable interested persons. If not precluded by conflict of interest, a guardian ad litem may represent more than one person or interest. Id.. See also F.S. 731.303(4), 744.391. The requirements of the petition for appointment of a guardian ad litem are stated in Rule 5.120(b). Usually, a local lawyer who has no interest in the estate or no disqualifying relationship with lawyers representing other interested persons is appointed guardian ad litem. Appointment is made by the court without notice and without the requirement of bond. A guardian ad litem qualifies to act by filing an oath to discharge all duties faithfully. Rule 5.120(a). « Ch. 2 », « § 2.8 », « B » 1 Practice Under Florida Probate Code § 2.8.B (2022)

B. Effect Of Appointment As To Service Of Process It is not necessary to serve a guardian ad litem with notice of the proceedings, but the guardian ad litem is required to appear and defend the interests that he or she was appointed to represent as directed by the court. Fla. Prob. R. 5.120(a). The appointment of a guardian ad litem, however, does not eliminate the requirements of service of notice on the incapacitated

person and the incapacitated person’s legal guardian and, if none, on the person having custody of the incapacitated person. See § 2.2.D.2.b. The better practice may be to defer appointing a guardian ad litem until after service of notice for the particular proceeding and the expiration of the time for filing responses. There may be a guardian already qualified or receipt of notice may prompt the appointment of a guardian of the property, thus obviating the need for a guardian ad litem. The person who has custody of an incapacitated person should be advised of the interest of the ward in the estate and may be able to assist the guardian ad litem in obtaining needed facts or information. The person petitioning for the appointment of a guardian ad litem must serve the guardian or, if there is no guardian, the living natural guardians or the living natural guardian having legal custody of the minor, person with developmental disability, or incapacitated person with a conformed copy of the petition and order of appointment within 10 days after appointment. Rule 5.120(c). « Ch. 2 », « § 2.8 », « C » 1 Practice Under Florida Probate Code § 2.8.C (2022)

C. Duties It is not sufficient for the guardian ad litem to file an oath to discharge all duties faithfully and prepare and file a perfunctory answer in the proceedings. The guardian ad litem should investigate the rights of the represented person and, once those rights have been determined, the guardian ad litem has a duty to protect those rights in the proceedings. The rules require the guardian ad litem to “defend as directed by the court” the interests the guardian represents. Fla. Prob. R. 5.120(a). If there is doubt about the extent or scope of the investigation or representation, the guardian ad litem should seek clarification or further instructions from the court. The guardian ad litem must keep the incapacitated person’s court appointed guardian (or, if none, the natural guardian) informed of the proceedings. See Rules 5.120(c)–(d). « Ch. 2 », « § 2.8 », « D •

1 Practice Under Florida Probate Code § 2.8.D (2022)

D. Compensation And Discharge Once the guardian ad litem’s representation in the estate is complete, the guardian ad litem should petition the court for an order of discharge. The petition should include the essential facts, the date and reason for the appointment, a brief resume of the services rendered, and a request for compensation and discharge. The guardian ad litem should deliver a copy of the report or the findings of the investigation, the answer in the proceedings, the petition for compensation and discharge, and notice of the hearing on the petition to the guardian or person who has custody of the minor, person with a developmental disability, or incapacitated person. Fla. Prob. R. 5.120(d). Informal notice of the petition and hearing also must be given to the personal representative and to other interested persons. Rule 5.041; Fla. R. Gen. Prac. & Jud. Admin. 2.516. The guardian ad litem will be allowed reasonable compensation for the services rendered. The amount of the compensation and the assets from which it will be paid are to be determined within the discretion of the court. F.S. 733.106. The appointment of a guardian ad litem may be avoided in some circumstances under the doctrine of virtual representation. See F.S. 731.303 and § 2.5.

« Ch. 2 », « § 2.9 » 1 Practice Under Florida Probate Code § 2.9 (2022)

§ 2.9. ADMINISTRATOR AD LITEM « Ch. 2 », « § 2.9 », • A » 1 Practice Under Florida Probate Code § 2.9.A (2022)

A. Appointment And Qualification It may be necessary for the court with jurisdiction of a decedent’s estate to appoint an administrator ad litem to represent the interests of the estate or another estate in proceedings before the appointing court. The administrator ad litem is appointed to ensure that a decedent’s estate is represented. An administrator ad litem may be appointed if there is no personal representative, if the personal representative is interested adversely to the estate, if the personal representative is attempting to enforce a personal claim against the estate, or if the court finds that it is otherwise necessary. Fla. Prob. R. 5.120(a); F.S. 733.308. An administrator ad litem may also be required to represent the interests of a beneficiary of the estate who has died when no personal representative has been appointed to represent the beneficiary’s estate. Within 10 days after the appointment, the petitioner for an administrator ad litem must serve a conformed copy of the petition and order to the attorney of record for each beneficiary, or if none, then to each beneficiary. Rule 5.120(e). Usually, a local lawyer who has no interest in the estate or no disqualifying relationship with lawyers representing other interested persons is appointed administrator ad litem. Appointment is made by the court without notice and without requirement of bond. An administrator ad litem qualifies by filing an oath to discharge all duties faithfully. Rule 5.120(a). An administrator ad litem should be appointed to represent the estate in proceedings in which the qualified personal representative has a personal interest adverse to the estate. For instance, if the decedent and the personal representative together held a joint bank account on the date of death, an administrator ad litem may be appointed to investigate the circumstances of the account and to report to the court. The report will assist the court in ruling

on the question of survivorship of the account, which in some cases in the past has led to settlement of ownership without litigation. Survivorship accounts are discussed more fully in § 1.2.E.3 of this manual. The practitioner should note that if the personal representative seeks reimbursement from the estate for claims against the decedent paid by the personal representative, no administrator ad litem need be appointed. Rule 5.120(g); F.S. 733.308. Administrators ad litem are also discussed in § 4.3.C.7 of this manual. A sample petition for appointment of an administrator ad litem is available in § 4.3.C.8 of this manual. « Ch. 2 », « § 2.9 », « B » 1 Practice Under Florida Probate Code § 2.9.B (2022)

B. Duties If an administrator ad litem is appointed to represent the estate temporarily because the personal representative has a conflicting interest, the administrator ad litem has the duty to act concerning the conflict in the same manner as the personal representative of the estate. For all practical purposes as to the proceedings, the administrator ad litem is the personal representative of the estate. For example, if a personal representative files a personal claim against the estate, the period for filing objections to that claim is tolled until an administrator ad litem is appointed. If no objection has been filed by an interested person, the administrator ad litem has the duty to examine the claim, but is not required to file an objection to it unless the claim is questionable. Thus, the administrator ad litem has the duty to determine whether an objection should be filed to the claim in the same manner as the personal representative of the estate. If the administrator ad litem files an objection to a claim filed by the personal representative, the personal representative must proceed to enforce the claim in the same manner as any other claimant under the Probate Code. On the other hand, if the administrator ad litem finds that the claim is valid and should be allowed, no objection should be filed. Unless an interested person files a timely objection, the claim is allowed. See also §§ 4.3.C.7 and 8.3.B.2.a.ix of this manual regarding the use of administrators ad litem when the personal representative has an interest

adverse to the estate. « Ch. 2 », « § 2.9 », « C • 1 Practice Under Florida Probate Code § 2.9.C (2022)

C. Compensation And Discharge The administrator ad litem should petition the court for an order of discharge once representation of the estate is completed. The petition should include the essential facts, the date of and reason for the appointment, a brief resume of the services rendered, and a request for compensation and discharge. Notice of the hearing on the petition should be served on the personal representative and other interested persons. Fla. Prob. R. 5.041; Fla. R. Gen. Prac. & Jud. Admin. 2.516. The administrator ad litem will be allowed reasonable compensation for the services rendered. The amount of the compensation and the assets from which it will be paid are within the discretion of the court. F.S. 733.106.

« Ch. 2 », « § 2.10 • 1 Practice Under Florida Probate Code § 2.10 (2022)

§ 2.10. AUTHENTICATED COPIES « Ch. 2 », « § 2.10 •, • A » 1 Practice Under Florida Probate Code § 2.10.A (2022)

A. In General F.S. 731.201(1) provides that an “authenticated” copy of a document or judicial proceeding is “a certified copy or a copy authenticated according to the Federal Rules of Civil Procedure.” Fed. R. Civ. P. 44 provides a procedure similar to the one provided by F.S. 90.901–90.903. The purpose for which the copies are needed dictates the portions of the court file to be authenticated. Authenticated copies are generally needed to sell or transfer stock, sell automobiles, commence ancillary proceedings in another state, and establish in the public records title to real property owned by the decedent in a county in Florida other than the county in which the estate is being administered. « Ch. 2 », « § 2.10 •, « B • 1 Practice Under Florida Probate Code § 2.10.B (2022)

B. Use For Distribution Of Real Property When real property is “distributed” from a decedent’s estate, the personal representative may merely surrender possession of it to the beneficiary entitled to it. This is because title to real property vests in the beneficiary on the death of the decedent, subject to divestment if the real property must be sold for purposes of administration. F.S. 733.607; Jones v. Federal Farm Mortgage Corp., 132 Fla. 807, 182 So. 226 (1938). When the personal representative surrenders possession of real property, the better practice is to use a certificate of distribution (formerly known as a distributive deed) recorded in the county in Florida where the real property is located. See § 14.3.C.6.a of this manual. The certificate of distribution documents in the public records, as part of the chain of title, the death of the record owner, the administration of the decedent’s estate, the court with jurisdiction of the estate, the court file number, the right of the beneficiary to

title and possession of the real property, and the personal representative’s release of the right to sell or encumber the property. See THE FLORIDA BAR PROBATE SYSTEM Form No. 91 (Fla. Bar 5th ed. 2018). When the real property is located in a county in Florida other than the county in which the estate is being administered, it is best, as a precaution, to record an authenticated copy of parts of the court file with the certificate of distribution in the public records of the clerk of the circuit court where the real property is located. In a testate estate, authenticated copies of the following documents may be recorded with the certificate of distribution in the county where the real property is located: The will. The order admitting the will to probate. The letters of administration. Proof of publication of the notice to creditors. Federal tax clearances or, if no federal estate tax return was required, the Affidavit of No Estate Tax Due, for decedents dying on or after January 1, 2000. The order of discharge. In an intestate estate, authenticated copies of the latter three documents may be recorded with the certificate of distribution in the county where the real property is located. Forms for a certificate of distribution are FLSSI Form Nos. P-5.0600, P5.0605, and P-5.0610. Footnotes — Chapter 2: *

J.D., 2013, Nova Southeastern University. Ms. Van Pelt is a member of The Florida Bar and the Clearwater Bar Association. She is also a member of the Executive Council for the Real Property, Probate and Trust Law Section of the Florida Bar and the Probate Rules Committee of The Florida Bar. Ms. Van Pelt is a partner at Griffin & Van Pelt, P.A., in Clearwater. Robert F. Iseley, Jr., was the author of this chapter in the previous edition of this manual.

Licensed to Otis K Pitts, Otis K Pitts

« Ch. 3 » 1 Practice Under Florida Probate Code Ch. 3 (2022)

Chapter 3 JURISDICTION JAY L. KAUFFMAN* Contents § 3.1. INTRODUCTION § 3.2. HISTORY A. In England B. Common Law C. In Florida § 3.3. FEDERAL JURISDICTION § 3.4. NATURE OF JURISDICTION A. In Rem B. In Personam § 3.5. GROUNDS FOR JURISDICTION A. Domiciliary B. Ancillary C. Single Administration In Florida D. Discovery On Issue Of Jurisdiction § 3.6. JURISDICTION OF PARTICULAR MATTERS A. Lawyer Charging Lien B. Lawyer Malpractice: Long-Arm Jurisdiction C. Claims D. Full Faith And Credit, Comity, And The Principle Of Priority 1. In General 2. Full Faith And Credit 3. Comity 4. Principle Of Priority

E. Construing Documents F. Declaratory Judgments G. Delay In Closing Administration H. Determining Beneficiaries I. Domicile Determination J. Elective Share K. Escheat L. Fees And Costs M. Foreign Personal Representatives N. Foreign Wills O. Formal Notice P. Guardianship Termination Q. Inherent Jurisdiction R. Jury Trial S. Missing Persons T. Original Florida Administration Of Nonresident’s Estate U. Partition V. Personal Jurisdiction Over Personal Representatives W. Production Of Wills X. Removal Of Personal Representative And Revocation Y. Reopening Closed Estate Z. Res Judicata AA. Surviving Spouse Status BB. Title To Property And Right To Possession 1. Real Property, Including Homestead 2. Personal Property CC. Trusts DD. Unclaimed Property § 3.7. VENUE A. In General B. Objections To Venue § 3.8. APPEALS A. Appeals Before January 1, 2012

B. Appeals On And After January 1, 2012 C. Appeals And Appellate Attorneys’ Fees « Ch. 3 », • § 3.1 » 1 Practice Under Florida Probate Code § 3.1 (2022)

§ 3.1. INTRODUCTION This chapter covers subject matter jurisdiction of courts over proceedings regarding decedents’ estates, and the proper venue for the probate of wills and the administration of estates. The procedure by which jurisdiction is invoked or made effective and the substantive results of the exercise of jurisdiction are discussed elsewhere in this manual. Subject matter jurisdiction is “the power of the court to adjudicate the class of cases to which the particular case belongs.” Hollywood v. Clark, 153 Fla. 501, 15 So. 2d 175, 181 (1943). Court proceedings taken without subject matter jurisdiction are void. Roberts v. Seaboard Surety Co., 158 Fla. 686, 29 So. 2d 743 (1947). For a definition of the term “proceeding” in a probate context, see Velde v. Velde, 867 So. 2d 501 (Fla. 4th DCA 2004). Exclusive original jurisdiction over the estates of decedents in Florida is vested in the circuit courts. Art. V, § 20(c)(3), Fla. Const.; F.S. 26.012(2)(b). For case discussion, see J & S Installation Specialist, Inc. v. Mabry, 857 So. 2d 346 (Fla. 2d DCA 2003). Jurisdiction over a decedent’s estate is “in rem” jurisdiction, discussed in § 3.4.A. The circuit court in some circuits has been divided into divisions (e.g., probate, juvenile, family, general civil, criminal) for efficiency of administration of the circuit’s judicial business, as authorized by Article V, § 7, of the Florida Constitution. Notwithstanding this division, each judge of a circuit court possesses the full jurisdiction of that court. Burnett v. Starwood Hotels & Resorts Management Co., 251 So. 3d 223 (Fla. 3d DCA 2018); Bookman v. Davidson, 136 So. 3d 1276 (Fla. 1st DCA 2014); Partridge v. Partridge, 790 So. 2d 1280 (Fla. 4th DCA 2001). See § 20.2.A of this manual. A case filed in the wrong division should not be dismissed for lack of jurisdiction, but rather should be transferred to the proper division. Carlton v. Zanazzi, 266 So. 3d 243 (Fla. 2d DCA 2019); Golden v. Jones, 194 So. 3d 1060 (Fla. 4th DCA 2016); Malave v. Malave, 178 So. 3d 51 (Fla. 5th DCA

2015). Similarly, in Payette v. Clark, 559 So. 2d 630 (Fla. 2d DCA 1990), two of six counts of a pleading filed in the wrong division of the circuit court were severed and transferred to the proper division. The pendency of related cases in different divisions of the same circuit court does not raise an issue of jurisdiction, but an issue of consolidation and efficient judicial administration. In re Guardianship of Bentley, 342 So. 2d 1045 (Fla. 4th DCA 1977). During the administration of an estate over which the probate court has jurisdiction, it is possible that the probate court may have jurisdiction divested pending assignment of a successor judge. For example, in Leslie v. Leslie, 840 So. 2d 1097 (Fla. 4th DCA 2003), the issuance of a show cause order (by a district court of appeal on a petition for writ of prohibition based on the probate judge’s refusal to recuse herself) divested that probate court of jurisdiction to enter an order of discharge until a successor judge was assigned. Venue is the geographical place where jurisdiction is properly exercised. Ringling Bros.-Barnum & Bailey Combined Shows, Inc. v. State, 295 So. 2d 314 (Fla. 1st DCA 1974). Venue of probate proceedings is established by F.S. 733.101, and is discussed at § 3.7. Appeals are addressed at § 3.8.

« Ch. 3 », « § 3.2 » 1 Practice Under Florida Probate Code § 3.2 (2022)

§ 3.2. HISTORY « Ch. 3 », « § 3.2 », • A » 1 Practice Under Florida Probate Code § 3.2.A (2022)

A. In England During the time referred to as “at common law,” the jurisdiction of decedents’ estates was only partly “at common law.” Generally, real property descended by primogeniture, although other rules concerning succession to real property prevailed in certain parts of England. In any event, by the 13th century the right to devise land had ceased. It was not reestablished until the Statute of Wills was enacted in 1540. Personal property followed a different course. What is now known as probate jurisdiction was exercised by the ecclesiastical courts of England. The church claimed that the last will of a decedent was intimately connected with his last confession and ultimately this claim was recognized for jurisdictional purposes over personal property. Apparently, the claim was legitimized with use over time, and because most of the chancellors and judges were churchmen, the lack of opposition can be easily understood. A practical reason for the concern of the church was the implementation of deathbed bequests to the church. Jurisdiction of the ecclesiastical courts was largely that of the bishop of the diocese exercising his authority, i.e., acting as “ordinary.” The term “ordinary” remains in some states as the name of the probate court. As time passed, there was considerable infighting among the various ecclesiastical jurisdictions to obtain what must have been an increasingly lucrative source of revenue. The jurisdiction of the ecclesiastical courts was attacked in the 16th and 17th centuries by the common-law courts and the chancery. The common-law courts were unable to provide a satisfactory procedure for the administration of decedents’ estates, but chancery was. The jurisdiction of the chancellor was increasingly exercised to require executors and administrators to perform their duties. A relic of this concurrent jurisdiction existed in Florida between

1885 and 1973 in the constitutional authority for the legislature to empower circuit courts as well as the county judges’ courts to exercise jurisdiction in probate matters. In England, the ecclesiastical courts retained jurisdiction over the grant of probate and administration until 1857, when a court of probate was established and the jurisdiction of the ecclesiastical courts over decedents’ estates was abolished. Most of the work had been done by the court of chancery for years, because of its superior procedure. One lasting effect of this on Florida law is the lack of a large body of common law in the administration of decedents’ estates. Ecclesiastical law was not adopted by F.S. 2.01 (which declared common law and certain statutes of England to be in force). Unless a legal principle was enunciated by the common-law courts or the court of chancery before July 4, 1776, a legal researcher cannot find “common-law” precedents in probate. « Ch. 3 », « § 3.2 », « B » 1 Practice Under Florida Probate Code § 3.2.B (2022)

B. Common Law The common-law jurisdiction concerning the administration of decedents’ estates dealt largely with litigation between an executor or administrator and creditors of the decedent. These actions were the usual common-law actions applicable to the circumstances—debt, covenant, detinue (claim to recover personal property), and assumpsit (claim for damages on grounds of breach of an agreement). The court of chancery exercised a gradually expanding jurisdiction in compelling executors and administrators to account, to distribute, and otherwise to perform their duties and functions. The chancellor could effectuate his orders by the use of process not available to the common-law courts. It is from this increasing jurisdiction of chancery that Florida has most of its “common-law” precedents for the administration of the estates of decedents. « Ch. 3 », « § 3.2 », « C • 1 Practice Under Florida Probate Code § 3.2.C (2022)

C. In Florida Probate jurisdiction in Florida was originally vested in county courts by

an act adopted by the legislative council in 1833, when Florida was still a territory. When Florida was admitted to the United States in 1845, the legislature, under the Constitution of 1838, designated a judge of probate for each county. It is interesting to note that the statute prescribed that the probate judge should have the jurisdiction of courts of ordinary. See § 3.2.A. In 1868, probate jurisdiction was again vested in the county court, where it remained until 1885. Jurisdiction then was vested in the county judge’s court. It remained there until 1973, when it became vested in the circuit court. Between 1885 and 1957, jurisdiction was partly concurrent with the circuit court. The Florida Constitution during that time authorized the legislature to give the circuit courts probate jurisdiction by statute. As a result, there was occasional confusion about which court had jurisdiction.

« Ch. 3 », « § 3.3 » 1 Practice Under Florida Probate Code § 3.3 (2022)

§ 3.3. FEDERAL JURISDICTION The United States Supreme Court has developed a general rule referred to as the “probate exception” to federal diversity jurisdiction. A federal court cannot undertake the administration of an estate, nor can it directly probate a will. Waterman v. Canal-Louisiana Bank & Trust Co., 215 U.S. 33, 30 S. Ct. 10, 54 L. Ed. 80 (1909). However, a federal court (assuming requisite diversity and amount in controversy are present) has jurisdiction over lawsuits against estates to establish rights of beneficiaries, and claims of creditors and other claimants, “so long as the federal court does not interfere with the probate proceedings or assume general jurisdiction of the probate or control of the property in the custody of the state court.” Markham v. Allen, 326 U.S. 490, 494, 66 S. Ct. 296, 90 L. Ed. 256 (1946). In what some call the “Anna Nicole Smith case,” the United States Supreme Court analyzed and gave its latest pronouncement on the probate exception. Marshall v. Marshall, 547 U.S. 293, 126 S. Ct. 1735, 164 L. Ed. 2d 480 (2006). In Marshall, the Court determined that state probate courts have exclusive jurisdiction over the probate or annulment of a will and the administration of a decedent’s estate. If a state court is exercising in rem jurisdiction over an estate, then a federal court will not assume in rem jurisdiction over the same estate. The probate exception to federal diversity jurisdiction precludes federal courts from adjudicating cases that would dispose of property in the custody of a state probate court, but it does not prevent federal courts from determining matters that otherwise affect the rights of interested persons to an estate so long as those issues are otherwise within federal jurisdiction. For an analysis of Marshall, see Herb & Kauffman, The Supreme Court Takes Exception to the “Probate Exception”— Mrs. Smith Goes to Washington, 80 Fla. Bar J. 49 (Nov. 2006); see also § 7.5 of LITIGATION UNDER FLORIDA PROBATE CODE (Fla. Bar 13th ed. 2022). The final chapter in the case appears to have concluded with Stern v. Marshall, 564 U.S. 462, 131 S. Ct. 2594, 180 L. Ed. 2d 475 (2011), which had an impact on bankruptcy jurisdiction. See Colton & Lieb, Is Bankruptcy Court Jurisdiction in Flux Because of Anna Nicole Smith? 86 Fla. Bar J. 36

(Jan. 2012). The remainder of this section dealing with federal jurisdiction was written prior to Marshall and remains unchanged. In Florida, the administration of an estate or the probate of a will must take place in a state circuit court, to the exclusion of the federal courts. Beyond these instances, whether a particular action falls within the probate exception to federal diversity jurisdiction may depend on subtle distinctions, and the reader is cautioned to adequately research the precise circumstances at hand if a proceeding in federal court is contemplated. See, e.g., Modern Status of Jurisdiction of Federal Courts, Under 28 U.S.C.A. § 1332(a), of Diversity Actions Affecting Probate or Other Matters Concerning Administration of Decedents’ Estates, 61 A.L.R.Fed. 536 (1983). For example, a federal court is without jurisdiction to try the validity of a will. Strickland v. Peters, 120 F.2d 53 (5th Cir. 1941). However, a federal court (assuming requisite diversity and amount in controversy are present) has jurisdiction to construe various provisions of a will, and to adjudicate a claim that a decedent breached a contract to make a will. Michigan Tech Fund v. Century National Bank of Broward, 680 F.2d 736 (11th Cir. 1982). The United States Court of Appeals, Eleventh Circuit, by its own admission, has narrowly construed the probate exceptions. In Glickstein v. Sun Bank/Miami, N.A., 922 F.2d 666 (11th Cir. 1991), abrogated on other grounds 254 F.3d 959, the court held that there was federal jurisdiction when the will did not need to be interpreted, the claim was being made by nonresident beneficiaries of the estate, the validity of the will had been finally resolved by the state court, and the assets at issue were in the control of the defendants rather than the probate court. Recently, the Eleventh Circuit determined that the probate exception applies only in three circumstances: (1) the probate or annulment of a will; (2) the administration of a decedent’s estate; and (3) disposing of property that is in the custody of the state probate court. Fisher v. PNC Bank, N.A., 2 F.4th 1352 (11th Cir. 2021) (court found that when plaintiff alleged bank mishandled jointly owned investment account, dispute fell outside probate exception because tortious interference with expectancy calls for in personam judgment against third party without probating will or disposing of probate property). A “garden variety contract claim” does not fall within the probate exception. Weiss v. Courshon, 768 So. 2d 2, 5 (Fla. 3d DCA 2000) (federal

court had jurisdiction to adjudicate validity of releases signed by trust beneficiaries). The probate exception does not prevent a creditor from bringing suit in federal court to prove the validity of a claim against the estate. Michigan Tech Fund. Nor does it prevent a suit in federal court by an estate for return of assets when the assets in question are not within the probate court’s jurisdiction. See Catano v. Capuano, 2020 U.S. Dist. LEXIS 23250, 2020 WL 639406 (S.D. Fla. 2020). Assuming that a federal court has jurisdiction over an estate matter, one effect of the probate exception is to limit the relief permitted. For example, a creditor may obtain a judgment that it has a valid claim against an estate for a certain amount, or a beneficiary may obtain a declaratory judgment that entitles him or her to a percentage of the net estate. These federal judgments could be asserted as res judicata in the probate proceeding. However, the federal court can neither order payment to the creditor nor place a dollar value on the beneficiary’s share of the net estate, because this would constitute a premature distribution or valuation of estate assets (i.e., it would constitute control over property in the custody of the probate court). Fisher. The status of state court proceedings (i.e., whether issues are currently before a state court) may also affect whether a federal court having jurisdiction will decline to exercise its jurisdiction. Michigan Tech Fund. A federal court may exercise jurisdiction over estate assets in the absence of a state probate proceeding. If an estate is without a representative, if it is in danger of being lost, and, if the petitioners appear interested in the estate as beneficiaries, and the requisite diversity and amount in controversy are present, the federal court may protect the estate property through receivership or injunction. Strickland. In this instance there is no interference with the state probate court and the federal court will yield to the state court when probate administration is commenced. Most instances in which a probate-related matter gets into federal court occur by way of removal of the proceeding from state court to federal court. The right of removal is statutory, set forth in 28 U.S.C. §§ 1441–1447. The amount in controversy under 28 U.S.C. § 1332 must exceed $75,000. For additional information on removal and remand from a Florida perspective, see FLORIDA CIVIL PRACTICE BEFORE TRIAL Chapter 15 (Fla. Bar 14th ed. 2022).

« Ch. 3 », « § 3.4 » 1 Practice Under Florida Probate Code § 3.4 (2022)

§ 3.4. NATURE OF JURISDICTION « Ch. 3 », « § 3.4 », • A » 1 Practice Under Florida Probate Code § 3.4.A (2022)

A. In Rem “Probate proceedings are in rem proceedings.” F.S. 731.105. This was true under the former probate code and in the absence of a statute on the point. In re Estate of Williamson, 95 So. 2d 244 (Fla. 1957), 65 A.L.R. 2d 1195. See § 3.2 for a historical discussion on probate jurisdiction. An in rem proceeding is one directed at property and against anyone claiming an interest in the property. State ex rel. South Brevard Drainage Dist. v. Smith, 126 Fla. 72, 170 So. 440 (1936). In a proceeding to admit a will to probate, the subject or “rem” is the will. Torrey v. Bruner, 60 Fla. 365, 53 So. 337 (1910). In most other probate proceedings, the property or “res” is the estate being administered. Pitts v. Pitts, 120 Fla. 363, 162 So. 708 (1935). “[E]xclusive original jurisdiction” to administer the estates of decedents is vested by the Florida Constitution in the circuit courts. Art. V, § 20(c)(3), Fla. Const. More precisely, the circuit courts have “exclusive original jurisdiction … of proceedings relating to the settlement of the estate of decedents and minors, the granting of letters testamentary, guardianship, involuntary hospitalization, the determination of incompetency, and other jurisdiction usually pertaining to courts of probate.” Id. In 1990, the Florida Supreme Court determined that the right to dispose of property by will was not purely statutory but was constitutionally protected, and further held that testators have the constitutional right to be free from unreasonable legislative restraint on their right to devise property. Shriners Hospitals for Crippled Children v. Zrillic, 563 So. 2d 64 (Fla. 1990). The purposes of administering a decedent’s estate are to collect the assets of the decedent, pay claims against the estate, and distribute the remaining assets to those entitled to receive them. Williams v. Howard Cole & Co., 159 Fla. 151, 31 So. 2d 914 (1947), adhered to 38 So. 2d 224. Because of these

purposes, the administration of a decedent’s estate can be a genuine in rem proceeding. Some proceedings that affect the administration of a decedent’s estate are not in rem, but in personam. For example, an action by the personal representative to collect a claim against a debtor of the decedent or an action by a creditor of the decedent to recover a claim to which the personal representative has objected are both in personam actions. The fact that there are in personam proceedings affecting the administration of a decedent’s estate does not affect the in rem nature of the administration proceeding. « Ch. 3 », « § 3.4 », « B • 1 Practice Under Florida Probate Code § 3.4.B (2022)

B. In Personam In personam jurisdiction is invoked against a person, as distinguished from being invoked against a thing. In personam jurisdiction is acquired by the circuit court in administering a decedent’s estate on a number of occasions as a result of statutory requirements. A proceeding concerning a claim, an elective share, exempt property, a contest of the will, the determination of beneficiaries, a family allowance, a proceeding compelling the personal representative to account or distribute, or one otherwise to supervise the personal representative’s fiduciary conduct are among the examples of in personam proceedings in the overall administration of a decedent’s estate. As noted in § 3.4.A, the in personam proceedings do not affect the in rem nature of the administration itself. The method of obtaining in personam jurisdiction when required, the peculiarities of each type of proceeding, and the effect of the determination of each are covered in other chapters in this manual. Generally, some form of personal notice and an opportunity to be heard must be given to a person before that person can be subjected to in personam jurisdiction. Ordinarily, the personal representative becomes subject to the in personam jurisdiction of the circuit court by filing the petition for appointment. See § 3.6.V. Similarly, any person who applies to the circuit court for any kind of relief during the administration of a decedent’s estate ordinarily becomes subject to the in personam jurisdiction of the court, at least for that particular

proceeding, unless the application is an objection to the jurisdiction of the court. See, e.g., Markowitz v. Merson, 869 So. 2d 728 (Fla. 4th DCA 2004) (beneficiary under will waived claim of lack of personal jurisdiction by filing response to formal notice of petition for administration and seeking discovery, without prior assertion of lack of personal jurisdiction). For a more recent case involving a personal representative suing a foreign corporation and the issues of pleading personal jurisdiction and waiver of an objection, see Sampson Farm Limited Partnership v. Parmenter, 238 So. 3d 387 (Fla. 3d DCA 2018). For a case involving trustees and the issue of personal jurisdiction in terms of what does and does not constitute waiver, see Snider v. Metcalfe, 157 So. 3d 422 (Fla. 4th DCA 2015). To be subject to the court’s in personam jurisdiction, the alleged conduct must have taken place in Florida. See F.S. 48.193. In Galego v. Robinson, 695 So. 2d 443 (Fla. 2d DCA 1997), in an action for damages for alleged mishandling of funds under a power of attorney, the execution of a power of attorney in favor of a non-Florida resident was not sufficient to bring that nonresident within the jurisdiction of a Florida probate court, absent “allegations in the complaint that any of the actions taken by appellant pursuant to the power of attorney were conducted in Florida.”. In a basic probate administration, the court normally does not have in personam jurisdiction over beneficiaries. “Thus, absent consent or statutory authority, a probate court may not apportion the expenses of an estate among the beneficiaries of an estate personally.” Brindle v. Brindle, 994 So. 2d 1174, 1175 (Fla. 3d DCA 2008). Various proceedings invoking in personam jurisdiction are discussed in detail in LITIGATION UNDER FLORIDA PROBATE CODE (Fla. Bar 13th ed. 2022).

« Ch. 3 », « § 3.5 » 1 Practice Under Florida Probate Code § 3.5 (2022)

§ 3.5. GROUNDS FOR JURISDICTION « Ch. 3 », « § 3.5 », • A » 1 Practice Under Florida Probate Code § 3.5.A (2022)

A. Domiciliary In addition to the grant of jurisdiction by the Florida Constitution to the circuit courts, a particular circuit court must have grounds on which to exercise its jurisdiction when it is asked to do so. In the case of administering a resident decedent’s estate in Florida, two things must occur. First, the person whose estate is sought to be administered must be deceased. (See § 20.2.B.1 of this manual.) Second, the decedent must have left property that is subject to administration. Emerson v. Ross’ Executrix, 17 Fla. 122 (1879). However, the second requirement seems to be vitiated (rendered invalid) in instances when, for example, proceedings are required on the elective share or on tax apportionment, even though there are no probate assets. “[D]eath is the event that vests the heirs’ right to the decedent’s intestate property.” F.S. 732.101(2). Likewise, death vests a beneficiary’s right to a devise, unless the will provides otherwise. F.S. 732.514; Lumbert v. Estate of Carter, 867 So. 2d 1175 (Fla. 5th DCA 2004). The vesting does not depend on actual distribution. Bryan v. Dethlefs, 959 So. 2d 314 (Fla. 3d DCA 2007). A copy of an official death record must be filed, unless such filing is waived by court order. Fla. Prob. R. 5.205. This rule provides for time limits in which to file, and subdivision (c) provides that the court may order the filing to take place at any time. Although not required by the rule, some circuits require filing of an official death record at the commencement of the probate proceeding. F.S. 28.222(3)(g) permits the clerk of the circuit court to record certified copies of death certificates issued by the Florida Department of Health that exclude information that is confidential under F.S. 382.008(6) (i.e., cause of death), and certified copies of death certificates issued by other states whether or not they exclude the confidential information. “An authenticated copy of a death certificate … is prima facie proof of the fact, place, date, and time of death and the identity of the decedent.” F.S.

731.103(1). However, it is not prima facie proof of the cause of death, and it does not create conclusive proof of any fact related to the death. Marshall v. HQM of Winter Park, LLC, 959 So. 2d 1207 (Fla. 5th DCA 2007). There will not always be a death certificate. The fact that a person is not known to be dead or alive does not change the principle that death is a necessary ground for exercising jurisdiction. F.S. 732.518 provides that “[a]n action to contest the validity of all or part of a will or the revocation of all or part of a will may not be commenced before the death of the testator.” The status of death may be presumed from certain records or reports of governmental agencies, or by a requisite absence for a continuous period of five years. F.S. 731.103(2)–(3). The fact that a resident decedent leaves no property in Florida is not necessarily a bar to administering the decedent’s estate in Florida. A domiciliary administration can be established in Florida, and property can be administered where it is located via ancillary proceedings. « Ch. 3 », « § 3.5 », « B » 1 Practice Under Florida Probate Code § 3.5.B (2022)

B. Ancillary Personal representatives of the estates of nonresidents of Florida who left property in Florida may administer that property by ancillary administration in Florida. F.S. 734.102 authorizes the circuit courts to exercise jurisdiction in ancillary administration, provided the two bases—death and property subject to administration (discussed in § 3.5.A)—are present. Ancillary administration is discussed in Chapter 17 of this manual. « Ch. 3 », « § 3.5 », « C » 1 Practice Under Florida Probate Code § 3.5.C (2022)

C. Single Administration In Florida Once a circuit court, having grounds on which to exercise its jurisdiction, has assumed jurisdiction over an estate administration, the attempt of a judge in another circuit to assume jurisdiction does not affect the jurisdiction of the first court. State ex rel. Campbell v. Chapman, 145 Fla. 647, 1 So. 2d 278 (1941). The appointment of the personal representative in the later proceeding is improper and can be collaterally attacked. See Epping, Bellas

& Co. v. Robinson, 21 Fla. 36 (1884). An order entered in a probate matter without jurisdiction can be collaterally attacked and set aside as invalid. Trueman Fertilizer Co. v. Stein, 157 Fla. 769, 26 So. 2d 893 (1946) (J. Chapman, concurring specially). « Ch. 3 », « § 3.5 », « D • 1 Practice Under Florida Probate Code § 3.5.D (2022)

D. Discovery On Issue Of Jurisdiction In 1992, the Florida Supreme Court addressed the issue of whether discovery is appropriate on jurisdictional questions while the jurisdictional questions are still pending before the trial court. The court held that discovery is appropriate, but it should not be broad, onerous, or expansive, nor should it address the merits of the case. Generally, the only discovery permissible is limited discovery on the jurisdictional issue in order to gather facts and file an opposing affidavit. Gleneagle Ship Management Co. v. Leondakos, 602 So. 2d 1282 (Fla. 1992).

« Ch. 3 », « § 3.6 » 1 Practice Under Florida Probate Code § 3.6 (2022)

§

3.6. JURISDICTION MATTERS

OF

PARTICULAR « Ch. 3 », « § 3.6 », • A »

1 Practice Under Florida Probate Code § 3.6.A (2022)

A. Lawyer Charging Lien The probate court administering an estate has jurisdiction to adjudicate a lawyer’s charging lien with respect to a beneficiary’s interest in the estate, for services rendered by the lawyer to the beneficiary. In re Estate of Baxter, 91 So. 2d 316 (Fla. 1957), citing In re Warner’s Estate, 160 Fla. 460, 35 So. 2d 296 (1948). A lawyer who represents the personal representative and whose efforts were merely to administer the estate, producing no fund or positive judgment or settlement out of these efforts, cannot impose a charging lien against the estate or personal representative. Correa v. Christensen, 780 So. 2d 220 (Fla. 5th DCA 2001) (charging lien attaches only to “tangible fruits” of lawyer’s services). « Ch. 3 », « § 3.6 », « B » 1 Practice Under Florida Probate Code § 3.6.B (2022)

B. Lawyer Malpractice: Long-Arm Jurisdiction The issue of whether non-Florida partners of an out-of-state law firm were subject to jurisdiction of the Florida courts for legal malpractice was addressed in In re Estate of Vernon, 609 So. 2d 128 (Fla. 4th DCA 1992). The Florida estate sued an out-of-state law partnership and its individual partners for professional malpractice. Jurisdiction over the partnership had been conceded, but at issue was whether the non-Florida partners and employees were subject to jurisdiction of the Florida court. Under the facts, it was held that the nonresident partners were subject to jurisdiction by virtue of the partnership’s minimum contacts with Florida. The court also held that the specific contacts the nonresident partners had with Florida by virtue of their work on the estate being probated in Florida constituted a second sufficient

and independent basis for jurisdiction. « Ch. 3 », « § 3.6 », « C » 1 Practice Under Florida Probate Code § 3.6.C (2022)

C. Claims A claim against the estate must be filed (unless excepted by law) in the probate proceeding within the later of three months from the first date of “publication of the notice to creditors or, as to any creditor required to be served with a copy of the notice to creditors, 30 days after the date of service” of such copy. F.S. 733.702(1). F.S. 733.702 is a statute of limitations, not a jurisdictional statute of nonclaim, so it must be pled as an affirmative defense or it is deemed waived. May v. Illinois National Insurance Co., 771 So. 2d 1143 (Fla. 2000), citing Spohr v. Berryman, 589 So. 2d 225 (Fla. 1991); Barnett Bank of Palm Beach County v. Estate of Read, 493 So. 2d 447 (Fla. 1986). The time period set forth in F.S. 733.702(1) is waived by the estate in a separate action, outside of the probate proceedings, if not raised as an affirmative defense, because the nonwaiver provision of F.S. 733.702(3) is, by its own terms, limited to the probate context. However, execution of such a judgment on the estate assets requires either the timely filing of a claim or that the probate court grant an extension of time for the filing of the claim on the grounds of fraud, estoppel, or insufficient notice. May. A statement of claim is not deemed filed unless it is electronically submitted or unless it falls within an exception to electronic filing. United Bank v. Estate of Frazee, 197 So. 3d 1190 (Fla. 4th DCA 2016). The relation back doctrine, which effectuates acts beneficial to the estate that were taken by the personal representative before appointment (and is codified in F.S. 733.601), applies to the publication of a notice to creditors. Richard v. Richard, 193 So. 3d 964 (Fla. 3d DCA 2016). The publication of a second notice to creditors does not restart the running of the three-month period. Mack v. Perri, 24 So. 3d 697 (Fla. 1st DCA 2009). “[C]laims of known or reasonably ascertainable creditors … who were not served with a copy of the notice to creditors are timely if filed within two

years of the decedent’s death.” Jones v. Golden, 176 So. 3d 242, 244 (Fla. 2015) (disapproving decisions in Lubee v. Adams, 77 So. 3d 882 (Fla. 2d DCA 2012), and Morgenthau v. Estate of Andzel, 26 So. 3d 628 (Fla. 1st DCA 2009)). As discussed further in § 8.2.B.3.b of this manual, a conflict existed regarding whether the two-year period set forth in F.S. 733.710 (stating that there will be no liability on claims filed later than two years after death) is a statute of limitations or a statute of repose. The District Court of Appeal, Third District, held that it was a statute of limitations. Baptist Hospital of Miami, Inc. v. Carter, 658 So. 2d 560 (Fla. 3d DCA 1995). On the other hand, the District Court of Appeal, Fourth District, held that it was a statute of repose. Comerica Bank & Trust, F.S.B. v. SDI Operating Partners, L.P., 673 So. 2d 163 (Fla. 4th DCA 1996). This conflict was resolved by the Florida Supreme Court in May when it determined F.S. 733.710 to be a jurisdictional statute of nonclaim “not subject to waiver or extension in a probate proceeding.” May, 771. So. 2d at 1145. See § 21.3.C.2 of this manual. Regarding the ability of a late-filed claim to “relate back” to a claim filed within the two-year period, the addition of a party otherwise barred can be allowed only when the new and the former parties have an identity of interest. Dobal v. Perez, 809 So. 2d 78 (Fla. 3d DCA 2002). As with F.S. 733.702, the estate may waive the time period set forth in F.S. 733.710 in a separate action outside of the probate proceedings. However, a creditor that has obtained a judgment in a separate action cannot recover against the estate unless the creditor filed a claim in the probate proceedings within two years of the decedent’s death, because the probate court lacks the authority to extend the two-year time period set forth in F.S. 733.710. A court may not award punitive damages as part of a claim against a deceased tortfeasor’s estate. The basic purpose of punitive damages is to punish the offender, not to compensate the injured party, and to punish innocent heirs or creditors of a decedent’s estate “ignores [this] philosophy of justice.” Lohr v. Byrd, 522 So. 2d 845, 847 (Fla. 1988). Accord Herendeen v. Mandelbaum, 232 So. 3d 487 (Fla. 2d DCA 2017). On the other hand, treble damages for civil theft are remedial, not punitive, and they survive the death

of the tortfeasor and can be assessed against the decedent’s estate. Snyder v. Bell, 746 So. 2d 1096 (Fla. 2d DCA 1999). The failure of a personal representative to object to a claim made against the estate does not give the probate court the power to decide ownership in property unless that property is part of the probate estate. Meltzer v. Estate of Norrie, 705 So. 2d 967 (Fla. 5th DCA 1998). A court has jurisdiction to make an extension of time to file an independent action on an objected-to claim contingent on the claimant taking certain other action. For example, in Brodfuehrer v. Estate of Brodfuehrer, 833 So. 2d 784 (Fla. 3d DCA 2002), the probate court was affirmed in entering an order granting a motion for extension of time to file an independent action contingent upon the claimant turning over a motorcycle to the estate. The three-year statute of limitations under the Federal Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA), 42 U.S.C. §§ 9601 et seq., does not preempt F.S. 733.702 and its three-month period for filing claims against an estate. U.S. Borax, Inc. v. Forster, 764 So. 2d 24 (Fla. 4th DCA 1999). Claims are the subject of Chapter 8 of this manual. See also LITIGATION UNDER FLORIDA PROBATE CODE Chapter 6 (Fla. Bar 13th ed. 2022). « Ch. 3 », « § 3.6 », « D » 1 Practice Under Florida Probate Code § 3.6.D (2022)

D. Full Faith And Credit, Comity, And The Principle Of Priority « Ch. 3 », « § 3.6 », « D », • 1 » 1 Practice Under Florida Probate Code § 3.6.D.1 (2022)

1. In General A final judgment or decree rendered in another state within the United States may be enforced by a Florida court under either of two legal doctrines: full faith and credit, or comity. Kellogg-Citizens Nat. Bank of Green Bay, Wis. v. Felton, 145 Fla. 68, 199 So. 50 (1940). A final judgment or decree rendered in another country may be enforced by a Florida court under the doctrine of comity. The principle of priority is a corollary of comity.

« Ch. 3 », « § 3.6 », « D », « 2 » 1 Practice Under Florida Probate Code § 3.6.D.2 (2022)

2. Full Faith And Credit Article IV, § 1, of the United States Constitution requires that full faith and credit be given in each state to public acts, records, and judicial proceedings of every other state. Full faith and credit will be given only to judgments or decrees that are final on the merits according to the laws of the state in which they were rendered. Solomon v. Beatty, 68 So. 2d 881 (Fla. 1953). Decrees that are continuing in nature and subject to modification are not entitled to full faith and credit. Lopez v. Avery, 66 So. 2d 689 (Fla. 1953). Furthermore, the rendering court must have had both personal jurisdiction over the parties and jurisdiction over the subject matter of the controversy, so as to satisfy due process considerations. Riley v. New York Trust Co., 315 U.S. 343, 62 S. Ct. 608, 86 L. Ed. 885 (1942); In re Estate of O’Keefe, 833 So. 2d 157 (Fla. 2d DCA 2002). Assuming that the rendering court had the necessary jurisdiction, the decree puts to rest every justiciable issue raised or that could or should have been raised. Overly v. Overly, 66 So. 2d 706 (Fla. 1953); Braden v. Braden, 436 So. 2d 914 (Fla. 2d DCA 1983). Finally, such a decree is to be given the same effect as it would have had in the rendering state. Herron v. Passailaigue, 92 Fla. 818, 110 So. 539 (1926); Astor v. Astor, 107 So. 2d 201 (Fla. 3d DCA 1958). For a discussion of foreign probate and real property located outside the state of Florida, see § 3.6.CC.1, addressing Trotter v. Van Pelt, 144 Fla. 517, 198 So. 215 (1940), 131 A.L.R. 1018. Some examples of full faith and credit in the probate context are: In re Estate of Rifkin, 359 So. 2d 1197 (Fla. 3d DCA 1978), in which a Colorado annulment decree was given full faith and credit when the decedent’s children challenged it on numerous bases, to the effect that the surviving spouse was found to be entitled to receive a $50,000 legacy under his wife’s will. In re Estate of O’Keefe, in which a California final judgment regarding an agreement waiving an interest in an estate, rendered with personal and subject matter jurisdiction according to California law, was held entitled to full faith and credit in a Florida probate proceeding, thereby

disinheriting a decedent’s son as an intestate heir. Full faith and credit does not necessarily apply regarding a domicile determination. See the discussion at § 3.6.I. « Ch. 3 », « § 3.6 », « D », « 3 » 1 Practice Under Florida Probate Code § 3.6.D.3 (2022)

3. Comity Comity is the recognition, by one nation or state, of the legislative, executive, or judicial acts of another nation or state, with regard both to international duty and convenience, and to the rights of its own citizens or other persons who are under the protection of its laws. McClaskey v. Leatherman, 261 So. 2d 137 (Fla. 1972). A foreign judgment that is not entitled to full faith and credit may be enforced under the doctrine of comity if, under the same circumstances, the foreign court would enforce a Florida judgment. Ogden v. Ogden, 159 Fla. 604, 33 So. 2d 870 (1948), overruled in part on other grounds 46 So. 2d 464; see Johnson v. Johnson, 676 So. 2d 458 (Fla. 5th DCA 1996). Unlike full faith and credit, recognition of foreign law under the doctrine of comity can be claimed only as a favor or courtesy, and not as a matter of right. Kellogg-Citizens National Bank of Green Bay, Wis. The application of comity is dependent on the facts of the case, and therefore falls within the court’s discretion. Hartford Accident & Indemnity Co. v. City of Thomasville, Ga., ex rel. Karner, 100 Fla. 748, 130 So. 7 (1930). Finally, a court need not apply comity when it deems it necessary to apply Florida law to protect citizens or to enforce paramount rules of public policy. Gillen v. United Services Automobile Ass’n, 300 So. 2d 3 (Fla. 1974), 83 A.L.R.3d 313. In In re Estate of Nicole Santos, 648 So. 2d 277 (Fla. 4th DCA 1995), comity was extended such that a prenuptial agreement entered into in Puerto Rico was held to be governed by Puerto Rico law and, based on that agreement, all inter vivos transfers of assets from the decedent to his wife were deemed invalid. However, Florida’s public policy of protecting homestead rights was deemed more important than comity with respect to the surviving spouse’s interest in the house in which she lived, resulting in remand for determination of homestead rights. The case is an example of a narrow exception to the lex loci rule carved out by Florida courts. State Farm

Mutual Automobile Insurance Co. v. Roach, 945 So. 2d 1160 (Fla. 2006). In Nahar v. Nahar, 656 So. 2d 225 (Fla. 3d DCA 1995), the court held that a judgment that was binding on all parties by the highest court of a foreign country (in this case, Aruba) was entitled to comity in determining that its law applied, rather than Florida law, regarding distribution of estate assets. The court determined that although personal and intangible property may be governed by the foreign judgment, Florida real property in an intestate probate proceeding may be subject to a different result (i.e., given that real property is governed by the law of the situs, the application of Florida law as opposed to the foreign law could result in a judgment for a different party regarding the real property). The judgment by the foreign court made no mention of the Florida real estate. The court’s opinion in Nahar suggests that the better approach is to ignore the question of what is considered “final” and to follow the approach of the RESTATEMENT (SECOND) CONFLICT OF LAWS, § 98, which suggests that almost all foreign decrees should be recognized as long as the parties have been afforded certain procedural and jurisdictional protections and are not otherwise controlled by treaties. The protections referenced include the necessity of notice and the opportunity to be heard in a foreign court, as well as the competent original jurisdiction of the foreign court. « Ch. 3 », « § 3.6 », « D », « 4 • 1 Practice Under Florida Probate Code § 3.6.D.4 (2022)

4. Principle Of Priority A related principle based on comity is the “principle of priority.” The Florida Supreme Court has stated the principle as follows: In general, where courts within one sovereignty have concurrent jurisdiction, the court which first exercises its jurisdiction acquires exclusive jurisdiction to proceed with that case. This is called the “principle of priority.” Admittedly, this principle is not applicable between sovereign jurisdictions as a matter of duty. As a matter of comity, however, a court of one state may, in its discretion, stay a proceeding pending before it on the grounds that a case involving the same subject matter and parties is pending in the court of another state. Siegel v. Siegel, 575 So. 2d 1267, 1272 (Fla. 1991), quoting Bedingfield v.

Bedingfield, 417 So. 2d 1047, 1050 (Fla. 4th DCA 1982). For a discussion of when a court “first exercises its jurisdiction” in a probate context, see Perelman v. Estate of Perelman, 124 So. 3d 983, 986–987 (Fla. 4th DCA 2013). « Ch. 3 », « § 3.6 », « E » 1 Practice Under Florida Probate Code § 3.6.E (2022)

E. Construing Documents The circuit court has jurisdiction in chancery, or equity, to construe all types of documents. The probate division of the circuit court may construe the will and any deeds, contracts, assignments, or other documents necessary to the complete exercise of its jurisdiction over a particular decedent’s estate. Will construction proceedings can be brought in the probate proceedings, but not until the will has been admitted to probate. F.S. 733.213; Cody v. Cody, 127 So. 3d 753 (Fla. 1st DCA 2013). Thus, will construction presupposes that the will has been probated and that the circuit court was the first court to obtain jurisdiction for construction. First National Bank of Miami v. Risolia, 200 So. 2d 260 (Fla. 3d DCA 1967). A second vehicle for construction of a will is F.S. 86.041 (discussed in § 3.6.F), which also is brought in the circuit court. A third alternative may be to bring a diversity action in federal district court. See § 3.3. F.S. 733.1051 provides for limited judicial construction of wills with certain tax provisions. F.S. 732.615 specifically provides for reformation of a will to correct mistakes, and F.S. 732.616 provides for modification of a will to achieve the testator’s tax objectives. The probate court has jurisdiction to determine the validity of an inter vivos trust agreement that was incorporated by reference in a will pursuant to F.S. 732.512(1). Sun Bank/Miami, N.A. v. Hogarth, 536 So. 2d 263 (Fla. 3d DCA 1989), citing In re Estate of Baer, 446 So. 2d 1128 (Fla. 4th DCA 1984). But see Pasquale v. Loving, 82 So. 3d 1205 (Fla. 4th DCA 2012), and Martin v. Martin, 687 So. 2d 903 (Fla. 4th DCA 1997) (depending on circumstances, challenge to validity of will may be prerequisite to determination of validity of trust). For detailed coverage of will construction litigation, see LITIGATION UNDER FLORIDA PROBATE CODE Chapter 7 (Fla. Bar 13th ed. 2022).

« Ch. 3 », « § 3.6 », « F » 1 Practice Under Florida Probate Code § 3.6.F (2022)

F. Declaratory Judgments The circuit court has jurisdiction under F.S. Chapter 86 to render declaratory judgments on a wide range of matters arising in the administration of a decedent’s estate. F.S. 86.041 provides that a declaration can be obtained to: (1) Ascertain any class of creditors, devisees, legatees, heirs, next of kin, or others; (2) Direct the executor, administrator, or trustee to refrain from doing any particular act in his or her fiduciary capacity; or (3) Determine any question relating to the administration of the guardianship, estate, or trust, including questions of construction of wills and other writings. It should be noted that a declaratory judgment proceeding has limits. See Wolf Sanitary Wiping Cloth, Inc. v. Wolf, 526 So. 2d 702 (Fla. 3d DCA 1988) (personal representative not permitted to, in effect, bring derivative lawsuit through declaratory judgment action based on decedent’s ownership of outof-state stock); First National Bank in Palm Beach v. Underwood, 499 So. 2d 60 (Fla. 4th DCA 1986) (curator of estate lacked standing to bring declaratory judgment action in name of estate concerning contract between corporation in which decedent owned stock and another; corporation should bring action). Practitioners should note that Wolf was receded from in part by C.A.T. LLC v. Island Developers, Ltd., 827 So. 2d 373, 374 (Fla. 3d DCA 2002), on the ground that Wolf involved “a direct action brought by the personal representative of [the decedent’s] estate.” See also FLORIDA CIVIL PRACTICE BEFORE TRIAL Chapter 22 (Fla. Bar 14th ed. 2022). « Ch. 3 », « § 3.6 », « G » 1 Practice Under Florida Probate Code § 3.6.G (2022)

G. Delay In Closing Administration Historically, an unreasonable delay in closing the administration of an

estate did not deprive the county judge’s court of its constitutional jurisdiction. Tyre v. Wright, 144 Fla. 90, 197 So. 846 (1940). Under the current statute and rule, the circuit court continues to have subject matter jurisdiction over the probate of an estate that has continued beyond the 12month period designated in Fla. Prob. R. 5.400. Herskowitz v. Nesbitt, 419 So. 2d 418 (Fla. 3d DCA 1982), citing F.S. 733.901. « Ch. 3 », « § 3.6 », « H » 1 Practice Under Florida Probate Code § 3.6.H (2022)

H. Determining Beneficiaries The circuit court has jurisdiction to determine beneficiaries and the amount or share to which each is entitled, either in the administration proceedings or, when an estate has not been administered, in a separate proceeding or action. F.S. 733.105. F.S. 733.105(3) provides for determining beneficiaries in other proceedings and is very useful in determining title to real property. It authorizes a separate civil action when an estate is not being administered. A determination of beneficiaries may also be obtained as a declaratory judgment under F.S. 86.041(1). See § 3.6.F. Chapter 11 of this manual discusses this subject in detail. See also Chapter 2 of LITIGATION UNDER FLORIDA PROBATE CODE (Fla. Bar 13th ed. 2022). « Ch. 3 », « § 3.6 », « I » 1 Practice Under Florida Probate Code § 3.6.I (2022)

I. Domicile Determination A finding by a court in one state that domicile was there does not preclude a court in another state from reinvestigating the question. Loewenthal v. Mandell, 125 Fla. 685, 170 So. 169 (1936). When courts in two states make conflicting findings of fact as to domicile between the states, each court may apply the probate laws of its state to the estate property situated there. Beverly Beach Properties v. Nelson, 68 So. 2d 604 (Fla. 1953), 41 A.L.R. 2d 1071. Accordingly, two or more states may have jurisdiction over different property and may reach different results as to which state was the decedent’s proper domicile. Cuevas v. Kelly, 873 So. 2d 367 (Fla. 2d

DCA 2004). « Ch. 3 », « § 3.6 », « J » 1 Practice Under Florida Probate Code § 3.6.J (2022)

J. Elective Share For decedents whose death occurred on or after January 1, 1976, the surviving spouse has the right to take an elective share. F.S. 732.201. The circuit court has jurisdiction to determine the amount of the elective share and the method of its payment. If this entails proof of what assets belong to the estate, the court continues to have jurisdiction to make that determination. In re Lawrence’s Estate, 45 So. 2d 344 (Fla. 1950). Under former law, a nonresident’s surviving spouse did not have the right to an elective share in Florida property, and the circuit court did not have jurisdiction to assign it even if the state of residence of the decedent allowed it. That law, F.S. 732.205, was repealed by Chapter 99-343, § 16, Laws of Florida, effective for estates of decedents dying after September 30, 2001. Chapter 7 of this manual discusses the elective share at length. Litigation concerning the rights of the surviving spouse is the subject of LITIGATION UNDER FLORIDA PROBATE CODE Chapter 4 (Fla. Bar 13th ed. 2022). « Ch. 3 », « § 3.6 », « K » 1 Practice Under Florida Probate Code § 3.6.K (2022)

K. Escheat In the absence of any heirs or beneficiaries, estate property reverts or “escheats” to the state. The circuit court is required to annually furnish the Department of Legal Affairs with “a list of all estates being administered in which no person appears to be entitled to the property” and in which the personal representative has not begun a proceeding to determine beneficiaries. Fla. Prob. R. 5.386(b). A personal representative is directed to institute the proceeding within one year after letters have been issued and to give notice to the department. Rule 5.386(a). If the personal representative fails to do so, the department can institute the proceeding to determine the beneficiaries. Id. On proper petition, the probate court has jurisdiction to reopen a closed estate to have a full evidentiary hearing to determine entitlement to funds.

Sando v. State, 512 So. 2d 329 (Fla. 3d DCA 1987). A person claiming to be entitled to the proceeds may reopen the administration and assert entitlement to the proceeds at any time within 10 years after the payment to the state Chief Financial Officer. F.S. 732.107(3). Appellate opinions dealing with escheat are rare. In re Estate of Faskowitz, 941 So. 2d 390 (Fla. 2d DCA 2006), holds that two provisions of the Florida Probate Code governing escheat of estate property (F.S. 732.107(1) and 733.816 (1999)) do not displace the rule of descent found in F.S. 732.103(4)(c), but the case does not address whether the 2001 change in F.S. 732.107(1) might change the result (see footnote 1 of In re Estate of Faskowitz). For a discussion of the difference between escheated funds and unclaimed property (which is not subject to probate), see Choice Plus, LLC v. Dept. of Financial Services, Bureau of Unclaimed Property, 244 So. 3d 343 (Fla. 1st DCA 2018). See § 3.6.D.D. See also F.S. Chapter 717 (Disposition of Unclaimed Property). « Ch. 3 », « § 3.6 », « L » 1 Practice Under Florida Probate Code § 3.6.L (2022)

L. Fees And Costs Under F.S. 733.106(4), the court is empowered to “direct from what part of the estate” fees and costs are to be paid. In a proceeding contesting a will and inter vivos trust incorporated by reference in the will, the court can award such fees and costs from the estate or from the trust corpus. Estate of Paulk v. Lindamood, 529 So. 2d 1150 (Fla. 1st DCA 1988). Likewise, the court can apportion fees when services are rendered in the administration of an estate in which a trust is a beneficiary. Robinson v. Robinson, 805 So. 2d 94 (Fla. 4th DCA 2002). An award of fees under F.S. 733.106(4) does “not contemplate imposition of personal liability for the fees in the event a beneficiary’s share is not sufficient to satisfy the full amount of the fees awarded.” Dourado v. Chousa, 604 So. 2d 864, 866 (Fla. 5th DCA 1992). See Anderson v. McDonough, 189 So. 3d 266 (Fla. 2d DCA 2016). However, F.S. 733.1061 authorizes the court to award attorneys’ fees and costs from “other property of the party” in a proceeding to reform a will under F.S. 732.615 or to modify a will under F.S.

732.616. Heritage Foundation v. Schmid, 291 So. 3d 1018 (Fla. 2d DCA 2020). When a final judgment reserves jurisdiction to assess fees and costs, and a subsequent initial order awarding fees and costs does not contain a reservation of jurisdiction for any further determination of fees or costs, the court lacks jurisdiction to enter a second order taxing costs. Estate of Paulk. When a probate court issues an order granting attorneys’ fees, but reserves jurisdiction to determine the amount later, the order is not a final order and the district court of appeal lacks jurisdiction to determine an appeal from the order. Swartz v. Lieberman, 712 So. 2d 479 (Fla. 4th DCA 1998); Rehman v. Estate of Frye, 692 So. 2d 956 (Fla. 5th DCA 1997). An out-of-state law firm engaged to perform legal services for a Florida estate is subject to the jurisdiction of the Florida probate court for determination of its fee. Rogers & Wells v. Winston, 662 So. 2d 1303 (Fla. 4th DCA 1995). In Morrison v. Estate of DeMarco, 833 So. 2d 180 (Fla. 4th DCA 2003), it was held that the probate court had jurisdiction to order a former lawyer for the personal representative to account for money the lawyer deducted from proceeds of the sale of the decedent’s condominium, even though the condominium was a nonprobate asset, when the fees were payment for other services performed by the lawyer in connection with the lawyer’s representation of the personal representative. “The fact that an attorney may be paid from sources separate from the estate does not divest the probate court of its authority to determine whether the fees charged are reasonable.” Faulkner v. Woodruff, 159 So. 3d 319, 322 (Fla. 2d DCA 2015). A trial court can be divested of jurisdiction to determine an award of attorneys’ fees in a matter through the filing of a voluntary dismissal. Almazan v. Estate of Aguilera-Valdez, 273 So. 3d 9 (Fla. 4th DCA 2019). « Ch. 3 », « § 3.6 », « M » 1 Practice Under Florida Probate Code § 3.6.M (2022)

M. Foreign Personal Representatives A foreign personal representative is subject to the jurisdiction of Florida courts “to the same extent that the decedent was subject to jurisdiction

immediately before death.” F.S. 734.202. F.S. 734.201 provides that, by certain acts, a foreign personal representative submits to the jurisdiction of Florida courts. These acts are (1) Filing authenticated copies of the domiciliary proceedings under s. 734.104; (2) Receiving payment of money or taking delivery of personal property, under s. 734.101; or (3) Doing any act as a personal representative in this state that would have given the state jurisdiction over that person as an individual. F.S. 734.201. The practitioner should note that personal jurisdiction over a foreign personal representative is not obtained simply by virtue of the foreign personal representative’s participation in a Florida civil action in a capacity other than as an individual. Juega v. Davidson, 105 So. 3d 575 (Fla. 3d DCA 2012) (personal representative bringing suit in his capacity as personal representative did not subject him to counterclaim against him individually). Except as provided in F.S. 655.936, a person indebted to a decedent’s estate, or having possession of estate personal property, who has received no written demand for payment or delivery from a Florida personal representative or curator, is authorized to pay the debt or deliver the personal property to the foreign personal representative after the expiration of 90 days from the date of the foreign personal representative’s appointment. F.S. 734.101(4). A Florida court lacks subject matter jurisdiction to enter an order compelling return of assets to Florida after transfer under F.S. 734.101(4) when the statute is complied with, the transfer is not done surreptitiously, there are no other estate assets in Florida, and the decedent was not a Florida resident. In re Estate of Purnell, 482 So. 2d 438 (Fla. 5th DCA 1986). « Ch. 3 », « § 3.6 », « N » 1 Practice Under Florida Probate Code § 3.6.N (2022)

N. Foreign Wills If a foreign will or codicil devises an interest in Florida real estate, the circuit court may admit an authenticated copy of it to record in Florida at any

time after two years from the death of the decedent or at any time after the domiciliary representative has been discharged when there has been no proceeding to administer the estate in Florida. F.S. 734.104(1). However, the foreign will or codicil must have been executed as required by F.S. Chapter 732, and the will or codicil must have been “admitted to probate in the proper court of any other state, territory, or country.” F.S. 734.104(1). The usual purpose of doing so is to use the will as a muniment of title to real property (evidence of ownership). See also F.S. 734.1025 when the value of the Florida real property is $50,000 or less. A will probated in another state may be attacked on substantive grounds (e.g., lack of mental capacity, undue influence) in a Florida circuit court, with respect to the effect of the will on Florida real property. In re Estate of Hatcher, 439 So. 2d 977 (Fla. 3d DCA 1983); In re Estate of Swanson, 397 So. 2d 465 (Fla. 2d DCA 1981); In re Estate of Roberg, 396 So. 2d 235 (Fla. 2d DCA 1981). The court in In re Estate of Barteau, 736 So. 2d 57, 58 (Fla. 2d DCA 1999), applied Hatcher, Swanson, and Roberg in ruling that a will executed in another country by a domiciliary of the other country, and probated there, is nevertheless subject to the jurisdiction of the Florida court for the determination of the validity of the will when it is presented to the court “for the purpose of devising real property in Florida.” Ancillary proceedings are discussed in detail in Chapter 17 of this manual. « Ch. 3 », « § 3.6 », « O » 1 Practice Under Florida Probate Code § 3.6.O (2022)

O. Formal Notice Formal notice is a way to serve legal process in a probate matter without the issuance of a subpoena which is governed by Fla. Prob. R. 5.040. F.S. 731.301(2) previously provided that formal notice was sufficient to obtain jurisdiction over a recipient to the extent of their interest in the estate. Effective October 1, 2010, this statute was amended to add jurisdiction over the recipient to the extent of their interest in the decedent’s protected homestead as well. In 2020, F.S. 731.301(2) was amended to specify that formal notice allows the court to exercise in rem jurisdiction, not in personam jurisdiction. Ch. 2020-67, § 5, Laws of Fla. Effective October 1, 2020, F.S. 731.301(2) provides: “In a probate proceeding, formal notice to a person is

sufficient notice for the court to exercise its in rem jurisdiction over the person’s interest in the estate property or in the decedent’s protected homestead. The court does not acquire personal jurisdiction over a person by service of formal notice.” F.S. 731.301 does not provide a method for subjecting all potential litigants to the jurisdiction of the probate court. Rather, the statute invests in rem jurisdiction in the probate court to determine who inherits that which was owned by the decedent at the time of death. See also F.S. 731.105 (probate proceedings are in rem proceedings). In Wolf Sanitary Wiping Cloth, Inc. v. Wolf, 526 So. 2d 702 (Fla. 3d DCA 1988), receded from in part 827 So. 2d 373, the fact that a decedent died owning stock in an out-of-state corporation did not subject the out-of-state corporation to the jurisdiction of the probate court. See § 3.6.F. In Paradise of Port Richey v. Estate of Boulis, 810 So. 2d 1044 (Fla. 4th DCA 2002), the fact that an estate had an interest in a company did not give the probate court jurisdiction to order the corporation to allow its books to be inspected, when the corporation was not served with process regarding a petition for accounting. The efficacy of using formal notice was addressed in In re Estate of Black, 528 So. 2d 1316 (Fla. 2d DCA 1988). The court assessed whether use of formal notice under former F.S. 731.301(1)(a) (1987) and Fla. Prob. R. 5.040(a), sent to a person who was a personal representative, trustee, and surviving spouse to try to (1) contest a will, (2) invalidate an inter vivos trust, and (3) annul the decedent’s last marriage, invoked jurisdiction of the probate court. It held that the probate court did have jurisdiction over the personal representative regarding the will contest, and did have jurisdiction over any assets transferred by the personal representative into the inter vivos trust following the decedent’s death, but did not have jurisdiction over the trustee regarding an action to invalidate the inter vivos trust or over assets in the trust before death, and did not have jurisdiction regarding an action to annul the decedent’s last marriage.

Black. The efficacy of using formal notice was also addressed in In re Estate of Vernon, 608 So. 2d 510 (Fla. 4th DCA 1992). The estate sued two defendants, claiming that certain stock, not titled in the decedent’s name, was beneficially owned by the decedent. The lawsuit was commenced in the probate case by filing an adversary proceeding, with the administrator mailing a copy of the initial pleading to the defendants. The appellate court held that the less restrictive methods of service of process set forth in F.S. 731.301 apply only to persons continuing to have an interest in the probate estate. A person who has no claim to estate property, and who does not otherwise claim any right to participate in the estate administration, is not an “interested person,” “distributee,” or “claimant,” and is entitled to “the traditional form of service of process” prescribed by F.S. 48.031. Id. at 511. Finally, the court held that F.S. 733.812 could not be used to find that the defendants were “distributees” of property of the estate who could be reached by this summary method, because to use F.S. 733.812 in this fashion would be to assume the fact sought to be litigated as the jurisdictional base for the probate court. Compare Vernon with Hall v. Tungett, 980 So. 2d 1289 (Fla. 2d DCA 2008), which reached a different result based on different pleading allegations. An action brought against a personal representative, seeking a refund or surcharge against the personal representative individually, and a return of money to the estate as a result of a breach of fiduciary duty, is tantamount to an action for surcharge seeking a judgment for damages. It requires personal service on the fiduciary as an individual (and not in any representative capacity), and is an adversary proceeding that requires service of formal notice. Kozinski v. Stabenow, 152 So. 3d 650 (Fla. 4th DCA 2014). Similarly, an action seeking to have the personal representative’s lawyer disgorge compensation paid is an adversary proceeding against the lawyer individually, and requires formal service of process. Simmons v. Estate of Baranowitz, 189 So. 3d 819 (Fla. 4th DCA 2015). In an action brought by personal representatives for damages for alleged mishandling of funds under a power of attorney, formal notice, mailed to the holder of the power of attorney, is ineffective when the holder is not an “interested person” in the proceedings under F.S. 731.201(23). Galego v.

Robinson, 695 So. 2d 443 (Fla. 2d DCA 1997). Particular care must be taken when one attempts to serve formal notice on a minor. Rules 5.040(a)(4)(D) (formerly (a)(3)) and 5.041 provide for service on minors in probate proceedings by serving the persons designated in F.S. Chapter 48 to accept service on behalf of minors. A trial court may strike a “notice of objection to probate” when that pleading was not served by formal notice. In re Estate of White, 605 So. 2d 1030 (Fla. 4th DCA 1992). « Ch. 3 », « § 3.6 », « P » 1 Practice Under Florida Probate Code § 3.6.P (2022)

P. Guardianship Termination On the death of an incapacitated person, unpaid administration expenses and debts of the guardianship, and debts of the ward that preexisted creation of the guardianship but that the court had ordered paid, are properly payable from the guardianship estate prior to distribution of assets to the probate estate. Midland National Bank & Trust v. Comerica Trust Company of Florida, N.A., 616 So. 2d 1081 (Fla. 4th DCA 1993). A guardianship court retains subject matter jurisdiction over the case after the ward’s death pending payment of outstanding guardian and attorneys’ fees. Lovest v. Mangiero, 279 So. 3d 205 (Fla. 3d DCA 2019). However, a court’s indefinite extension of a guardianship after the ward’s death “constitute[s] a departure from the essential requirements of law.” Batzle v. Baraso, 776 So. 2d 1107, 1110 (Fla. 5th DCA 2001). A guardianship court does not have authority to order the successor trustee of a ward’s revocable trust to pay trust assets to the ward’s creditors following the ward’s death. In re Guardianship of Gneiser, 873 So. 2d 573 (Fla. 2d DCA 2004). « Ch. 3 », « § 3.6 », « Q » 1 Practice Under Florida Probate Code § 3.6.Q (2022)

Q. Inherent Jurisdiction The circuit court, sitting in its probate capacity, has the inherent jurisdiction to monitor estate administration and to take action it deems necessary to protect the assets of the estate for the benefit of the beneficiaries.

Delbrouck v. Eberling, 177 So. 3d 66 (Fla. 4th DCA 2015), citing Estate of Conger v. Conger, 414 So. 2d 230 (Fla. 3d DCA 1982). See also In re Estate of Barsanti, 773 So. 2d 1206, 1208 (Fla. 3d DCA 2000) (“traditional standards controlling the issuance of temporary injunctions in other civil actions do not constrain the probate court in the exercise of its inherent jurisdiction over a decedent’s estate”). However, the sole fact that an estate owns 50% of an out-of-state business, without more, does not give the probate court jurisdiction to freeze the assets of the out-of-state business. Henderson v. Elias, 56 So. 3d 86 (Fla. 4th DCA 2011). In In re Estate of Katz, 501 So. 2d 68 (Fla. 3d DCA 1987), the district court held that the probate court did not abuse its discretion in its appointment of a curator to marshal the decedent’s assets and hold them for safekeeping, including assets claimed by a beneficiary as nonprobate assets (such as a joint account), when there were allegations that the beneficiary was making distributions of those assets. Nor did the probate court abuse its discretion in granting and continuing an injunction regarding funds in bank accounts in the decedent’s name in trust for others, pending a final determination as to ownership, in Sanchez v. Solomon, 508 So. 2d 1264 (Fla. 3d DCA 1987). An order entered by a probate court freezing assets, pending a will contest, is in the nature of a temporary injunction; the trial court’s determination in the will contest, if appealed, is not in itself a sufficient change in facts or circumstances to permit the injunction to be dissolved. Brock v. Brock, 667 So. 2d 310 (Fla. 1st DCA 1995). The practitioner should note, however, that before 2017, there was a judicial split among the district courts of appeal (although not all are dealing exclusively with probate cases) regarding whether an evidentiary showing is required to modify a temporary injunction entered after notice and hearing. In 2017, the Florida Supreme Court addressed this judicial split in Planned Parenthood of Greater Orlando, Inc. v. MMB Properties, 211 So. 3d 918, 924–925 (Fla. 2017), in which it explained: The party moving to dissolve or modify a temporary injunction entered after notice and a hearing bears the burden of proof. … The Florida Rules of Civil Procedure, however, do not specify that the party carrying the burden must demonstrate “changed circumstances” or “changed

conditions” when moving to dissolve or modify a temporary injunction pursuant to [Rule] 1.610(d). Despite the absence of such a requirement in the Florida Rules of Civil Procedure, the First, Second, Third, and Fifth District Courts of Appeal all require such a threshold showing. See Brock v. Brock, 667 So. 2d 310, 311–12 (Fla. 1st DCA 1995); Hunter v. Dennies Contracting Co., 693 So. 2d 615, 616 (Fla. 2d DCA 1997); Fong v. Courvoisier Courts Condo. Ass’n, Inc., 81 So. 3d 562, 563 (Fla. 3d DCA 2012); Highway 46 Holdings, LLC v. Myers, 114 So. 3d 215, 221 (Fla. 5th DCA 2012). The Fourth District, however, has rejected this rigid application of the changed circumstances rule. See Minty v. Meister Fin. Grp., Inc., 132 So. 3d 373, 376 (Fla. 4th DCA 2014); Precision Tune Auto Care, Inc. v. Radcliff, 731 So. 2d 744, 745 (Fla. 4th DCA 1999). As the Fourth District explained in Precision Tune Auto Care, Inc.: We do not agree … that a trial court cannot grant a motion to dissolve a temporary injunction where the arguments or evidence in support of the motion to dissolve could have been raised at the hearing on the temporary injunction. Such a bright line rule would, in our opinion, be inconsistent with two well-established principles. First, the “granting and continuing of injunctions rests in the sound discretion of the Court, dependent upon surrounding circumstances.” … Second, a trial court has the inherent authority to reconsider a non-final order and modify or retract it. We conclude that a trial court’s decision as to whether to reconsider, on a motion to dissolve, a temporary injunction entered after notice and a hearing, is discretionary, regardless of whether the arguments or evidence could have been brought to the attention of the court at the hearing on the injunction. Although the opinion in Hunter observed that it was incumbent on the party moving to dissolve the temporary injunction to demonstrate a change of circumstance, the court also recognized that the trial court’s decision not to reconsider was discretionary. Thus, as the Fourth District recognized, establishing changed circumstances as a threshold requirement before a trial court may modify or dissolve a temporary injunction is at odds with this Court’s

longstanding maxim that “[w]ide judicial discretion rests in the court in the granting, denying, dissolving, or modifying injunctions.” [Internal citations omitted.] The Florida Supreme Court concluded by stating, “a court of equity is a court of conscience; it ‘should not be shackled by rigid rules of procedure and thereby preclude justice being administered according to good conscience’ ” [internal citations omitted]; thus, “requiring a threshold showing of changed circumstances when moving to modify or dissolve a temporary injunction is incompatible with equity principles when a party shows clear misapprehension of the facts or clear legal error on the part of the trial court in entering the temporary injunction.” Planned Parenthood of Greater Orlando, 211 So. 3d at 925. Following the Florida Supreme Court’s decision in Planned Parenthood of Greater Orlando, it is now clear that, irrespective of changed circumstances, a trial court abuses its discretion by not dissolving a temporary injunction when a party can demonstrate that the temporary injunction was entered as a result of “clear legal error or misapprehension of facts on the part of the trial court.” Id. at 925. However, “[n]othing in the [Planned Parenthood of Greater Orlando] opinion … can be read to extend its rationale to permanent injunctions … manifested in a final judgment” [emphasis added]. Miranda v. Pacheco Entertainment Production Enterprises, Inc., 220 So. 3d 523, 527 (Fla. 3d DCA 2017). A probate court’s order appointing an administrator ad litem to investigate and, if necessary, contest a will that was already admitted to probate was held to be improper in Sine v. Davidson, 530 So. 2d 506 (Fla. 3d DCA 1988), when no person with standing demonstrated any jeopardy to the estate, and when the order imposed a duty beyond those authorized by law. A trial court can be divested of jurisdiction to exercise its inherent authority to award attorneys’ fees as a sanction for bad faith conduct through the filing of a voluntary dismissal. Almazan v. Estate of Aguilera-Valdez, 273 So. 3d 9 (Fla. 4th DCA 2019). « Ch. 3 », « § 3.6 », « R » 1 Practice Under Florida Probate Code § 3.6.R (2022)

R. Jury Trial

Article I, § 22, of the Florida Constitution provides a right to a jury trial in actions in which a jury trial was allowable before Florida’s first state constitution became effective in 1845. However, probate matters were historically not the subject of trial by jury. In re Estate of Howard, 542 So. 2d 395 (Fla. 1st DCA 1989), citing Lavey v. Doig, 25 Fla. 611, 6 So. 259 (1889). The following cases apply the general principle that there is no right to jury trial in probate: Attorneys’ fees for lawyer for personal representative. In re Estate of DuVal, 174 So. 2d 580 (Fla. 2d DCA 1965). Probate killer statute (a proceeding under F.S. 732.802, disqualifying the killer of a decedent from taking from the decedent’s estate). In re Estate of Howard. Will contests (undue influence, testamentary capacity). In re Estate of Ciccorella, 407 So. 2d 1044 (Fla. 3d DCA 1981), citing Allen v. Estate of Dutton, 394 So. 2d 132 (Fla. 5th DCA 1981). The probate judge may empanel an “advisory jury” whose verdict is not binding on the judge in probate, as an aid in determining disputed issues of fact. In re Estate of Fanelli, 336 So. 2d 631, 632 (Fla. 2d DCA 1976). If a separate action (to be brought after objection to a claim in probate) entitles the claimant to a jury trial, the right to jury trial is not waived by the fact that the claim was initially a probate claim. Goggin v. Shanley, 81 So. 2d 728 (Fla. 1955). An area with little guidance involves actions that mix traditional probate issues not entitling a party to a jury trial with nonprobate issues when there is a jury trial right. The following options may be attempted: The action stays in probate, with the probate judge empaneling a jury. For most probate judges, this is not practical because they do not have facilities to hold jury trials. The action is severed under Fla. R. Civ. P. 1.270(b), with probate issues staying before the probate judge and jury issues transferred to the civil division for jury trial. This is probably the most practical result when one party requests a jury and chooses not to withdraw the request.

The action is transferred out of probate to the general civil division. This would not be permissible in most instances, because the probate issues being raised must usually be determined by the probate judge presiding over the estate administration. The topic of jury trials and probate is the subject of LITIGATION UNDER FLORIDA PROBATE CODE Chapter 10 (Fla. Bar 13th ed. 2022). « Ch. 3 », « § 3.6 », « S » 1 Practice Under Florida Probate Code § 3.6.S (2022)

S. Missing Persons The circuit court has jurisdiction in the administration of estates of persons presumed to be dead. A presumption of death is created by F.S. 731.103(3) for a five-year absence. Once the court determines that the missing person is dead, the missing person’s estate may be administered in the same manner as other estates. F.S. 733.209. The existence of the statutory presumption requiring a five-year absence, however, does not preclude the establishment of death by circumstantial evidence before the expiration of five years. F.S. 731.103(3); Woods v. Estate of Woods, 681 So. 2d 903 (Fla. 4th DCA 1996). However, the practitioner should note that a ruling by a probate court that a person is dead does not constitute prima facie evidence of death outside the context of probate proceedings. See Great Southern Life Insurance Co. v. Porcaro, 869 So. 2d 585 (Fla. 4th DCA 2004) (death was material issue of fact that required reversal of summary judgment entered against insurance company to recover under life insurance policy). « Ch. 3 », « § 3.6 », « T » 1 Practice Under Florida Probate Code § 3.6.T (2022)

T. Original Florida Administration Of Nonresident’s Estate Generally, administration proceedings in another state for a resident of that state will precede administration in Florida of the property in Florida. Occasionally, domiciliary administration proceedings may not be taken in the other state. An obvious reason for this could be the lack of property subject to administration in the state of domicile of the decedent. In these circumstances, the will can be admitted to Florida originally or administration can begin, and the probate proceedings can be conducted in the same manner as in other estates. See § 17.6 of this manual.

« Ch. 3 », « § 3.6 », « U » 1 Practice Under Florida Probate Code § 3.6.U (2022)

U. Partition On the filing of a petition by the personal representative or any beneficiary, the circuit court has jurisdiction in an administration proceeding to partition property among beneficiaries without the necessity of an independent proceeding. F.S. 733.814. The petition for partition should contain all of the elements of a cause of action for partition. See F.S. 64.041 for the elements of a partition action. See also § 10.6.E of this manual. « Ch. 3 », « § 3.6 », « V » 1 Practice Under Florida Probate Code § 3.6.V (2022)

V. Personal Jurisdiction Over Personal Representatives In Burden v. Dickman, 547 So. 2d 170 (Fla. 3d DCA 1989), the probate court (dealing with a guardianship) had personal jurisdiction over parents who petitioned the court to be appointed joint guardians of their son’s property, and its personal jurisdiction continued even after the parents were not appointed as guardians. Similarly, a party who petitioned the court to be appointed guardian was held to have submitted herself individually to the court’s jurisdiction, and was not required to be named or served in her capacity as trustee or depository. In re Guardianship of Brown, 611 So. 2d 1342 (Fla. 4th DCA 1993), citing Burden and Finkelstein v. Southeast Bank, N.A., 490 So. 2d 976 (Fla. 4th DCA 1986). In Goethel v. Lawrence, 599 So. 2d 232 (Fla. 3d DCA 1992), a former personal representative was imprisoned for contempt for failure to obey an order to render a truthful accounting as required by the versions of F.S. 733.508 and 733.901(1) then in effect. The former personal representative applied for a writ of habeas corpus on the ground that his refusal was justified by his assertion under the Fifth Amendment that such an accounting would incriminate him. The appellate court denied the application on the basis that the privilege was waived (1) by his “knowing acceptance of the appointment as personal representative” that statutorily requires such an accounting, and (2) by making “numerous prior representations and responses to the court” regarding the subject matter of the accounting without raising the privilege. Goethel, 599 So. 2d at 233. See also In re Wright, 668 So. 2d 661 (Fla. 4th

DCA 1996) (for similar holding as to guardian). In contrast, the District Court of Appeal, Fourth District, in Pisciotti v. Stephens, 940 So. 2d 1217 (Fla. 4th DCA 2006), held that the trial court’s orders regarding answering deposition questions and filing an accounting violated the personal representative’s Fifth Amendment privilege against selfincrimination. Under the facts and circumstances of the case, Pisciotti was distinguished from In re Rasmussen’s Estate, 335 So. 2d 634, 636 (Fla. 1st DCA 1975), which held that “ ‘[t]he privilege against self-incrimination is a personal one,’ ” not designed to protect estate documents but only “ ‘purely personal’ ” documents. Pisciotti, 940 So. 2d at 1221. A court cannot incarcerate a former personal representative for failure to return estate property without an express finding that the contemnor has the present ability to comply. Jensen v. Estate of Gambidilla, 896 So. 2d 917 (Fla. 4th DCA 2005). A nonresident personal representative who retains and agrees to pay a Florida lawyer has submitted to personal jurisdiction in Florida courts concerning an alleged breach of the contract. Levey v. Adams, 609 So. 2d 163 (Fla. 4th DCA 1992). The probate court has authority to continue exercising jurisdiction over a removed personal representative and over any property in the possession of the removed personal representative, including inter vivos gifts procured by undue influence. Laushway v. Onofrio, 670 So. 2d 1135 (Fla. 5th DCA 1996). The probate court has jurisdiction to order a former caregiver (who is the current personal representative) to return funds obtained from an invalid payable-on-death account. Keul v. Hodges Blvd. Presbyterian Church, 180 So. 3d 1074 (Fla. 1st DCA 2015). « Ch. 3 », « § 3.6 », « W » 1 Practice Under Florida Probate Code § 3.6.W (2022)

W. Production Of Wills On petition and notice, the circuit court has the power to compel production of a will from the custodian. F.S. 732.901(2). The court may compel production before or after the petition for administration is filed.

« Ch. 3 », « § 3.6 », « X » 1 Practice Under Florida Probate Code § 3.6.X (2022)

X. Removal Of Personal Representative And Revocation A petition for removal of a personal representative must be filed in the circuit court having jurisdiction of the administration. F.S. 733.505. The circuit court exercising jurisdiction over a decedent’s estate has the same power to vacate its orders and judgments as it has otherwise. The authority is inherent. Holman v. Ford Motor Co., 239 So. 2d 40 (Fla. 1st DCA 1970), is an example of a court using its inherent power to vacate its own decision in an ordinary civil action. The probate of a will generally becomes final and binding on all persons served with the notice of administration after three months from the date of service of a copy of the notice of administration on those persons, unless they object within the three-month period. F.S. 733.212(3). The statute has been held to require filing the objection within three months, and no such time frame exists for objections to be served with formal notice. Aguilar v. Aguilar, 15 So. 3d 803 (Fla. 2d DCA 2009). Of course, when fraud or certain other circumstances prevent contestants from having their day in court, an attack on probate is permissible. See Ebeling v. Voltz, 454 So. 2d 783 (Fla. 4th DCA 1984), and the cases it cites. The court has jurisdiction to proceed with a petition for revocation of a will filed outside the statutory three-month period of F.S. 733.212, but within a period of extension to file published by the personal representative. In re Estate of Tarmy, 518 So. 2d 471 (Fla. 4th DCA 1988). If not barred by F.S. 733.212 or 733.2123, any interested person, including a beneficiary under a prior will, may petition the court for revocation of probate before final discharge of the personal representative. F.S. 733.109(1). A later-discovered will revoking a probated will in whole or in part cannot be offered for probate after the estate has been completely administered and the personal representative discharged. F.S. 733.208. See §§ 11.2.E and 14.3.D.4 of this manual. Although discharge of the personal representative will not prevent further administration, “[t]he order of discharge may not be revoked based upon the discovery of a will or later will.” F.S. 733.903. This precludes revocation of the probate of a will after

closing an estate. This does not preclude a subsequent action for tortious interference with an expectancy, under certain circumstances. See DeWitt v. Duce, 408 So. 2d 216 (Fla. 1981). For treatment of fiduciary removal proceedings, see LITIGATION UNDER FLORIDA PROBATE CODE Chapter 9 (Fla. Bar 13th ed. 2022). « Ch. 3 », « § 3.6 », « Y » 1 Practice Under Florida Probate Code § 3.6.Y (2022)

Y. Reopening Closed Estate F.S. 733.903 provides for further administration of an estate after being closed. The grounds for subsequent administration are now found in Fla. Prob. R. 5.460(a): “If, after an estate is closed, additional property of the decedent is discovered or if further administration of the estate is required for any other reason, any interested person may file a petition for further administration of the estate.” In Dribin v. Estate of Nolan, 801 So. 2d 249 (Fla. 4th DCA 2001), the personal representatives were able to request and receive an order of subsequent administration because all of the estate assets had not been distributed. In Mathis v. Estate of Mathis, 178 So. 3d 919 (Fla. 3d DCA 2015), subsequent administration was allowed in order to interpret a beneficiary’s interest in the estate and to effectuate the testator’s intent under her will. The practitioner should note that not every reason is sufficient for the estate to be reopened to allow subsequent administration. See, e.g. Elmowitz v. Estate of Zimmerman, 647 So. 2d 1064 (Fla. 3d DCA 1994), 51 A.L.R. 5th 951 (trustee failed to demonstrate good cause required to reopen estate). The probate court should not strike a creditor’s unobjected-to claim before closing an estate solely on grounds that the estate is insolvent, because doing so would foreclose the creditor from the possibility of subsequent administration in the event that additional assets are located. Chase Manhattan Bank, USA, N.A. v. Estate of Patricia Silveira, 815 So. 2d 770 (Fla. 4th DCA 2002). Beyond reopening an estate to administer additional property, the District Court of Appeal, First District, has concluded that case law allows reopening of an estate only when there are “procedural irregularities or facts

constituting fraud or bad faith.” Carraway v. Carraway, 883 So. 2d 834, 835 (Fla. 1st DCA 2004). See also Liechty v. Hall, 687 So. 2d 64 (Fla. 5th DCA 1997) (allegation that will was forged); Fritsevich v. Estate of Voss, 590 So. 2d 1057 (Fla. 3d DCA 1991) (fraud upon court when distant relative filed petition to determine heirs and knew or should have known there were less remote relatives entitled to inherit decedent’s estate); Payette v. Clark, 559 So. 2d 630 (Fla. 2d DCA 1990) (failure of personal representative in intestate estate to list heir as beneficiary, or to give notice to that heir); Grimes v. Estate of Stewart, 506 So. 2d 465 (Fla. 5th DCA 1987) (obligation of will proponent to reveal to court that will was executed after date that testator was adjudicated incompetent, and to give notice to beneficiaries under prior will). These decisions should be contrasted with In re Estate of Clibbon, 735 So. 2d 487 (Fla. 4th DCA 1998), in which the court found no fraud when the sole allegation was the failure to give notice to beneficiaries under a prior will. In a case that came before the District Court of Appeal, Third District, twice, a residual devisee (who had mistakenly been declared dead) filed a motion to reopen an estate years after it had been closed. The motion was denied, because the record showed that “diligent, although futile, efforts” had been made to find that devisee, but the concurring opinion added that a separate action to impose a constructive trust against the other devisee was available in law and equity. Espejo-Norton v. Estate of Merry, 869 So. 2d 1255, 1256 (Fla. 3d DCA 2004). Subsequently, in a separate civil action for a constructive trust brought by the devisee, the Third District (in a 2-1 decision, with an extensive dissenting opinion) held that the Miami-Dade Circuit Court had “quasi in rem jurisdiction” over a brokerage account opened in another county that contained the funds distributed from the probate court. Klem v. Espejo-Norton, 983 So. 2d 1235, 1237 (Fla. 3d DCA 2008). For an in-depth and insightful discussion of jurisdiction issues, see Stephens, Florida’s Third Species of Jurisdiction, 82 Fla. Bar J. 11 (March 2008), cited in Klem. There is a conflict among the district courts on the issue of the application of Fla. R. Civ. P. 1.540(b), which relieves a party from a final judgement in cases of, for example, mistake, fraud, or a void judgment, to an order of discharge that was not entered in an adversary proceeding. The Fifth District (Grimes), Second District (Payette), and Third District (Fritsevich), all hold that Rule 1.540(b) applies. The Fourth District (Clibbon) holds that commonlaw fraud can be asserted but that Rule 1.540(b) does not apply.

For a discussion of the application of Rule 1.540 in the probate context, see Steele v. Brown, 197 So. 3d 106 (Fla. 1st DCA 2016). The probate court may review the record of a closed estate when deciding whether the allegations of a petition to reopen the estate warrant further proceedings. On considering a motion to dismiss a petition to reopen, the court is not limited to reviewing the allegations within the four corners of the petition. In re Estate of Gleason, 631 So. 2d 321 n.1 (Fla. 4th DCA 1994). In Tedder v. Estate of Tedder, 200 So. 3d 123 (Fla. 5th DCA 2016), the court held that a notice of appeal must be filed within 30 days of rendition of an order denying a petition for subsequent administration. « Ch. 3 », « § 3.6 », « Z » 1 Practice Under Florida Probate Code § 3.6.Z (2022)

Z. Res Judicata In Weiss v. Courshon, 618 So. 2d 255 (Fla. 3d DCA 1993), the dismissal of an action with prejudice in the general jurisdiction division of the circuit court was not held to be res judicata as to identical claims by trust beneficiaries in a lawsuit instituted in the probate division against former trustees for an accounting and for breach of trust and fiduciary duty. The court determined that the trust beneficiaries at issue were not parties to the action in the general jurisdiction division. Moreover, the commissioner who recommended granting dismissal of the civil action noted that no right of any beneficiary was affected by the dismissal. The pending claims were claims that a trust beneficiary individually could assert against a trustee. The trust beneficiaries intervened in the probate action. The dismissal with prejudice by the successor trustee in the probate proceeding was held not to be binding as to the intervening beneficiaries’ individual claims. « Ch. 3 », « § 3.6 », « AA » 1 Practice Under Florida Probate Code § 3.6.AA (2022)

AA. Surviving Spouse Status Although a “surviving spouse” has a variety of rights, the Florida Probate Code does not define the term. When the issue of whether a person is a surviving spouse of the decedent is pending in a probate proceeding and that person, without notice to other

interested persons, obtains an order from the general civil division of the same circuit court declaring him or her to be a surviving spouse, such an order can be set aside as a fraudulent attempt “to moot the issue in the pending probate proceeding.” Woginiak v. Kleiman, 523 So. 2d 1209, 1210 (Fla. 3d DCA 1988). The probate court should then proceed to determine the issue. For the purposes of intestate succession under Florida law, when a couple’s entire marriage and separation took place in another country, that country’s law is controlling in determining the status of the marriage at the time of the decedent’s death. In re Estate of Salathe, 703 So. 2d 1167 (Fla. 2d DCA 1997). See Cohen v. Shushan, 212 So. 3d 1113 (Fla. 2d DCA 2017) (marriage of citizens of foreign country may be recognized in Florida if marriage deemed valid under laws of that country). See also § 11.3.G of this manual. « Ch. 3 », « § 3.6 », « BB » 1 Practice Under Florida Probate Code § 3.6.BB (2022)

BB. Title To Property And Right To Possession « Ch. 3 », « § 3.6 », « BB », • 1 » 1 Practice Under Florida Probate Code § 3.6.BB.1 (2022)

1. Real Property, Including Homestead The personal representative is authorized to “maintain an action to recover possession of property or to determine the title to it.” F.S. 733.607(1). Unless the decedent’s will provides otherwise, this applies to both personal and real property, but excludes protected homestead. “Protected homestead” is defined in F.S. 731.201(33). (But see F.S. 733.608(2), which gives the personal representative the right, but not the duty, to take possession of property appearing to be protected homestead “for the limited purpose of preserving, insuring, and protecting it.”) When the county judge’s court existed as the probate court, the probate court did not have subject matter jurisdiction to determine questions of title to real property because such jurisdiction belonged exclusively to the circuit court. Beke v. Estate of Molnar, 82 So. 2d 595 (Fla. 1955). The determination of whether property was homestead was distinguished as being within the

jurisdiction of the probate court, in that it is a determination of status. In re Noble’s Estate, 73 So. 2d 873 (Fla. 1954). Since January 1, 1973, probate jurisdiction has been vested in the circuit court. Art. 5, § 20(c)(3), Fla. Const. Questions of title to real property are also within the jurisdiction granted exclusively to the circuit court. F.S. 26.012(2) (g). Fla. Prob. R. 5.405 establishes the procedure to obtain a court determination of homestead status. The fact that the circuit court has subject matter jurisdiction of real property title questions does not mean that all real property title questions can or will be decided by the probate court administering the estate. For example, if the title issue as framed entitles a party to a jury trial, an unanswered question is whether the court sitting in its probate capacity can provide a nonadvisory jury. See F.S. 733.705(10); In re Estate of Fanelli, 336 So. 2d 631 (Fla. 2d DCA 1976); In re Estate of DuVal, 174 So. 2d 580 (Fla. 2d DCA 1965). As a second example, an action against a stranger to the estate to set aside a deed may, by virtue of venue requirements, be decided outside the county of administration. In this vein, it has been held that an “action to quiet title to an interest in [real property], is subject to the local action rule” and must be brought in the county in which the real property is located. Coraci v. Hogan, 515 So. 2d 1064 (Fla. 5th DCA 1987) (final summary judgment of probate division of Orange County Circuit Court reversed; action to quiet title had to be brought in Volusia County, where property was located). The right to real estate is determined according to the law of the situs. A will devising lands in two states will be construed by the courts in each state, as to land in that state, as if separate wills were involved. Insofar as it affects real estate located in another state, an adjudication in a probate proceeding that a will is properly attested need not be given full faith and credit under the United States Constitution. Trotter v. Van Pelt, 144 Fla. 517, 198 So. 215 (1940), 131 A.L.R. 1018. A will executed in another state or country by a domiciliary of the other state or country, and probated there, “is subject to the jurisdiction of Florida courts for the determination of the validity of that will when it is presented in Florida for the purpose of devising real property in Florida.” In re Estate of Barteau, 736 So. 2d 57, 58 (Fla. 2d DCA 1999). Under F.S. 731.106(2) (allowing a nonresident decedent to provide in his or her will that the testamentary disposition of his or her real property in Florida

must be construed and regulated by the laws of Florida), the validity and effect of that disposition must be determined by Florida law. In the absence of such a provision in the will, the court would apply the law of the decedent’s domicile. Saunders v. Saunders, 796 So. 2d 1253 (Fla. 1st DCA 2001) (Colorado decedent). To partition real property located outside of Florida, the personal representative needs to open an ancillary action in the state where the real property is located. Brown v. Brown, 169 So. 3d 286, 287 (Fla. 4th DCA 2015), quoting Polkowski v. Polkowski, 854 So. 2d 286 (Fla. 4th DCA 2003) (“ ‘state boundaries determine a court’s jurisdiction over real property.’ ”). One real property title question that will be determined in the probate proceeding is whether property is homestead or “protected homestead.” This is addressed fully in Chapter 19 of this manual. Three cases deserve mention here. In Ford v. Ford, 581 So. 2d 203, 204 (Fla. 5th DCA 1991), real property transferred by a decedent to a trust prior to death was considered not to be “real property owned by the decedent” for purposes of Rule 5.405, and thus the probate court lacked jurisdiction to determine whether such property was homestead. In In re Estate of Morrow, 611 So. 2d 80 (Fla. 2d DCA 1992), it was held that a personal representative could not contest the decedent’s inter vivos transfer of homestead property into a revocable trust, when the decedent died leaving no spouse or minor children. In Cavanaugh v. Cavanaugh, 542 So. 2d 1345 (Fla. 1st DCA 1989), there was no petition to determine whether property was homestead before the probate proceeding that was closed. The court held that this fact did not necessarily establish that the property was nonhomestead property by virtue of res judicata. A petition to determine homestead is generally brought for the purpose of changing record title to the real property, or releasing the personal representative of any obligation regarding the property. Such a proceeding is similar to an action for declaratory relief, to explain or clarify existing rights, rather than to determine new rights. In re Estate of Hamel, 821 So. 2d 1276 (Fla. 2d DCA 2002). Proceedings relating to the right of possession of real property generally come within the exclusive jurisdiction of the county court. F.S. 34.011(2). However, F.S. 34.011(2) makes an exception (deferring jurisdiction to the circuit court) “if the amount in controversy exceeds the jurisdictional limits

of the county court or the circuit court otherwise has jurisdiction as provided in s. 26.012.” F.S. 26.012(2)(f)–(2)(g) provide that actions in ejectment and actions involving the title and boundaries of real property are within the jurisdiction of the circuit court. Furthermore, F.S. 26.012(2)(b) provides for jurisdiction in the circuit court of “proceedings relating to the settlement of the estates of decedents.” One appellate court addressing the scope and effect of F.S. 26.012(2)(b) has held that the circuit court has jurisdiction with respect to an action that otherwise would be extensively within the jurisdiction of the county court, but that is not within that jurisdiction because the real property is estate property. Swartz v. Russell, 481 So. 2d 64 (Fla. 3d DCA 1986). A nonprobate case, Alexdex Corp. v. Nachon Enterprises, Inc., 641 So. 2d 858 (Fla. 1994), seems to confirm the approach taken in Swartz, and holds that the legislature has provided concurrent equity jurisdiction in circuit and county courts, but that equity cases in county court must fall within the statutory monetary jurisdiction of the county court. In two related decisions, an appellate court ruled that the circuit court was not divested of probate jurisdiction by a purported license permitting the Seminole Indian tribe to use property belonging to a decedent’s estate, Osceola v. Estate of Osceola, 870 So. 2d 174 (Fla. 3d DCA 2004), and when the subject land did not lie within a “dependent Indian community” or “Indian country,” Osceola v. Estate of Osceola, 744 So. 2d 1251, 1252 (Fla. 3d DCA 1999). « Ch. 3 », « § 3.6 », « BB », « 2 • 1 Practice Under Florida Probate Code § 3.6.BB.2 (2022)

2. Personal Property The personal representative is authorized to recover possession of personal property or to determine title to it. F.S. 733.607. The claim must be tried in the court having jurisdiction of the amount in controversy, although the practitioner should note that the jurisdictional amount has been evolving in recent years. Specifically, the circuit court can resolve all questions about title to personal property exceeding the jurisdiction of the county court—that is: $15,000 for all cases filed before December 31, 2019;

$30,000 for all cases filed from January 1, 2020, through December 31, 2022; and $50,000 for all cases filed on or after January 1, 2023. F.S. 26.012(2)(a), 34.01(1)(c). Effective July 1, 2030, and then every 10 years thereafter, the $50,000 jurisdictional limit will be adjusted for inflation. Id. See Chs. 2019-58, § 9, 2021-230, § 4, Laws of Fla. Whether the circuit court can try the question of title to personal property having a value under the applicable amount is unclear. The plenary grant of jurisdiction over the administration of decedents’ estates should be construed to eliminate the need for a separate proceeding in the county court when the question arises in probate. See Swartz v. Russell, 481 So. 2d 64 (Fla. 3d DCA 1986). The probate court has been held to have jurisdiction over a proceeding by the personal representative to compel delivery of tangible personal property, even if an action regarding the property is pending in a civil division court action for quantum meruit. Kutlesic v. Estate of Mervel, 898 So. 2d 231 (Fla. 3d DCA 2005). « Ch. 3 », « § 3.6 », « CC » 1 Practice Under Florida Probate Code § 3.6.CC (2022)

CC. Trusts Trusts are considered to be will substitutes, and some counties in Florida have administrative orders that require lawsuits over trusts to be brought in the probate division. Judicial proceedings relating to trusts are governed by the Florida Rules of Civil Procedure, requiring summons or other process issued by the court. F.S. 736.0201(1). This includes the requirement to file a subsequent or supplemental pleading under Fla. R. Civ. P. 1.110(h), and serve new process if new or additional relief is later sought beyond that sought in the initial pleading. Yawt v. Carlisle, 34 So. 3d 217 (Fla. 4th DCA 2010). With respect to a probate proceeding, informal notice given to a trustee who is not an “interested person” under F.S. 731.201(23) (formerly 731.201(21)) is not sufficient to acquire personal jurisdiction. Manufacturers National Bank of Detroit v. Moons, 659 So. 2d 474 (Fla. 4th DCA 1995). In order for the court to acquire personal jurisdiction over the trustee, either service of process must be made on the trustee, or the trustee must voluntarily

submit to the jurisdiction of the court. Beekhuis v. Morris, 89 So. 3d 1114 (Fla. 4th DCA 2012). A court having jurisdiction to consider the validity of a will also has jurisdiction to determine the validity of an inter vivos trust agreement incorporated by reference in the will. Sun Bank/Miami, N.A. v. Hogarth, 536 So. 2d 263 (Fla. 3d DCA 1989). In a proceeding contesting a will and inter vivos trust incorporated by reference in the will, the court is empowered under F.S. 733.106(4) to order fees and costs to be paid from a portion of the trust corpus. Estate of Paulk v. Lindamood, 529 So. 2d 1150 (Fla. 1st DCA 1988). The will must clearly reflect an intention to incorporate the trust. See Flinn v. Van Devere, 502 So. 2d 454 (Fla. 3d DCA 1987). In In re Estate of Black, 528 So. 2d 1316 (Fla. 2d DCA 1988), the court had jurisdiction over the personal representative regarding the will contest and over any assets transferred by the personal representative into the inter vivos trust following the decedent’s death, but did not have jurisdiction over the trustee regarding an action to invalidate the inter vivos trust or over assets in the trust before death, or regarding an action to annul the decedent’s last marriage. See the discussion of In re Estate of Black in § 3.6.O regarding the jurisdictional limitations of the use of formal notice under former F.S. 731.301(1)(a) and Fla. Prob. R. 5.040(a) sent to a person who was personal representative/trustee/surviving spouse to try to (1) contest a will, (2) invalidate an inter vivos trust, and (3) annul the decedent’s last marriage. The probate court must have personal jurisdiction over the trustees of a trust for it to rule on the trust corpus. In In re Estate of Stisser, 932 So. 2d 400 (Fla. 2d DCA 2006), when a personal representative filed a complaint in a pending probate proceeding, seeking to compel the trustees of an inter vivos trust established in another state to pay certain estate expenses, the probate court lacked authority to rule absent personal jurisdiction over the trustees. Similarly, if a trustee is before a probate court solely as trustee of one trust, the probate court lacks jurisdiction over any other trusts for which he or she is trustee. Chaffin v. Overstreet, 982 So. 2d 11 (Fla. 5th DCA 2008). However, personal jurisdiction over a trustee can be conferred by consent, such as by the trustee entering into a mediation settlement agreement that was court-approved in a guardianship proceeding. Sowden v. Brea, 47 So. 3d 341 (Fla. 5th DCA 2010).

In St. Martin’s Episcopal Church v. Prudential-Bache Securities, Inc., 613 So. 2d 108 (Fla. 4th DCA 1993), a trust beneficiary had standing to directly sue a securities dealer hired by the trustee. The appellate court held that, when the trustee was an employee of the defendant securities dealer and invested the trust funds with the defendant, the beneficiary of the trust had standing to directly sue the securities dealer for alleged collusion with the trustee in “churning” the investment account, even after settling with the deceased trustee’s estate. In Saffan v. Saffan, 588 So. 2d 684 (Fla. 3d DCA 1991), it was held that the trial court had jurisdiction over an action contesting the validity of a trust when (1) the settlor was a resident of Florida at the time the trust was executed, (2) the trust agreement provided for administration in accordance with Florida law, and (3) the trust corpus was located in Florida. The court held that “jurisdiction would not be determined by the grantor’s subsequent residence, or death, in another state.” Id. at 685. The opinion cites the wellestablished rule that “ ‘an inter vivos trust has its situs at the residence of the creator of the trust even though the grantor subsequently removes to the state where the trustees and beneficiaries reside and dies there.’ ” Id. quoting Henderson v. Usher, 118 Fla. 688, 160 So. 9, 11 (1935). Trial courts have jurisdiction over the trustees of a trust when the situs of the trust is in Florida, and both statutory requirements and the constitutional minimum contacts requirements have been met. Chereskin v. Branch Banking & Trust Co., 705 So. 2d 955 (Fla. 1st DCA 1998). The 1993, 1995, and 2001 Florida Legislatures passed important legislation in the area of trust law that significantly changed probate proceedings relating to certain trusts. Then, in 2006, the legislature enacted the Florida Trust Code (F.S. Chapter 736), effective July 1, 2007, which created a new body of trust statutes more closely modeled on the Uniform Trust Code. Ch. 2006–217, § 1, Laws of Fla. Although a complete examination of the legislation is beyond the scope of this chapter, the following is a partial summary of the changes: F.S. 733.707(3) defines what is referred to as a “§ 733.707(3) trust” (a revocable trust). F.S. 733.212(1)(c) requires that the personal representative promptly

serve a copy of the notice of administration on the trustee of any § 733.707(3) trust (and each qualified beneficiary of the trust if each trustee is also a personal representative of the estate). F.S. 731.201(23) includes the trustee of any § 733.707(3) trust as an “interested person” in the administration of the grantor’s estate. F.S. 736.05055(1) requires that the trustee of a § 733.707(3) trust “file a notice of trust with the court of the county of the settlor’s domicile and the court having jurisdiction of the settlor’s estate.” F.S. 736.05053(1) requires the trustee of a § 733.707(3) trust to “pay to the personal representative of a settlor’s estate any amounts that the personal representative certifies in writing to the trustee are required to pay the expenses of administration and obligations of the settlor’s estate.” The lawyer is urged to study the complete text of these statutes of the probate and trust laws. For additional discussion of these changes, see §§ 6.2.A–6.2.B and Chapter 18 of ADMINISTRATION OF TRUSTS IN FLORIDA (Fla. Bar 11th ed. 2022). A forum selection clause in a contract, including a trust, specifies the forum within which a suit regarding the contract must be brought. In Beaubien v. Cambridge Consolidated, Ltd., 652 So. 2d 936 (Fla. 5th DCA 1995), the court held that a forum selection clause in a trust document (which, in this case, provided for exclusive jurisdiction in the Cayman Islands) is not necessarily determinative. “Forum selection provisions which have been obtained through freely negotiated agreements are valid, unless shown by the resisting party to be unreasonable or unjust.” Id. at 940. The court further elaborated, that “[if] a trial in the contractual forum will be so gravely difficult and inconvenient that a party will for all practical purposes be deprived of his day in court, the forum selection clause is unenforceable.” Id. Florida will not “be jurisdiction to litigation of multinationals throughout the world.” Bacardi v. De Lindzon, 728 So. 2d 309, 312 (Fla. 3d DCA 1999), approved 845 So. 2d 33, relying on Kinney System, Inc. v. Continental Insurance Co., 674 So. 2d 86 (Fla. 1996), modified by 123 So. 3d 1085 (holding that public interest factors should always be considered as part of

Florida forum non conveniens test). In Bacardi, a trial court was held to have properly dismissed an action by a nonresident trust beneficiary on the basis of forum non conveniens when that action arose out of two non-Florida trusts established under laws of two separate foreign countries, administered by a non-Florida trustee in a foreign country under non-Florida law and having no trust assets in Florida. « Ch. 3 », « § 3.6 », « DD • 1 Practice Under Florida Probate Code § 3.6.DD (2022)

DD. Unclaimed Property It is not unusual for a decedent to own property that has been delivered to the Department of Financial Services as unclaimed, so it is incumbent upon an appointed personal representative to recover such property. An estate seeking to obtain such unclaimed property must first file a claim with the department and exhaust all administrative remedies before a trial court obtains jurisdiction to consider a lawsuit to determine ownership of the property. Yergin v. Georgopolos, 217 So. 3d 155 (Fla. 3d DCA 2017). Although escheated property (i.e., property that reverted to the state in the absence of heirs or beneficiaries) is sometimes labelled as “unclaimed,” jurisdiction to determine entitlement to escheated property is in the circuit court probate proceeding. Choice Plus, LLC v. Dept. of Financial Services, Bureau of Unclaimed Property, 244 So. 3d 343 (Fla. 1st DCA 2018). See § 3.6.K.

« Ch. 3 », « § 3.7 » 1 Practice Under Florida Probate Code § 3.7 (2022)

§ 3.7. VENUE « Ch. 3 », « § 3.7 », • A » 1 Practice Under Florida Probate Code § 3.7.A (2022)

A. In General Venue for the probate of wills and administration of decedents’ estates is prescribed by F.S. 733.101(1), which provides that venue must be in the county in Florida where the decedent was domiciled; if the decedent was not domiciled in Florida, in any county where the decedent’s property is located; or if the decedent had no domicile or property in Florida, in any county where any debtor of the decedent resides. In addition, “a married woman whose husband is an alien or a nonresident of Florida may establish or designate a separate domicile in” Florida for probate of her will and granting of letters. F.S. 733.101(2). F.S. 731.106(1) provides some aid in determining the location of certain assets of nondomiciliaries. If a proceeding is brought in the wrong county, an interested person can object and require that it be brought in a proper county. Venue can be waived, if not raised at the first opportunity. Fla. R. Civ. P. 1.140(b). As noted at § 3.1, jurisdiction of the subject matter is “the power of the court to adjudicate the class of cases to which the particular case belongs.” Hollywood v. Clark, 153 Fla. 501, 15 So. 2d 175, 181 (1943). Venue is the geographical place where that jurisdiction can be exercised. The two should not be confused. As previously noted, two cases that have dealt with the appropriate venue for trust actions are Weinberg v. Weinberg, 936 So. 2d 707 (Fla. 4th DCA 2006), and Meyer v. Meyer, 931 So. 2d 268 (Fla. 5th DCA 2006). « Ch. 3 », « § 3.7 », « B •

1 Practice Under Florida Probate Code § 3.7.B (2022)

B. Objections To Venue F.S. 733.101(3) and Fla. Prob. R. 5.050(a) authorize a transfer of venue in probate proceedings in the same manner as in civil actions and provide that any action taken by the court or parties before the transfer is not affected by the improper venue. This establishes the same rule for administration proceedings as governs other civil proceedings. Improper venue is a procedural error or irregularity that can be waived. An objection to improper venue should be raised by a motion to abate or a motion to transfer the proceeding. A failure to raise the objection at the earliest opportunity by motion, answer, or response may result in a waiver of the venue objection. Any interested person on whom a copy of the notice of administration is served and who fails to contest venue within three months after the date of service is forever barred under F.S. 733.212(3). See Rogers v. Rogers, 688 So. 2d 421 (Fla. 3d DCA 1997) (applying statute as formerly numbered 733.212(5)). If the venue is found to be improper, the court may transfer the proceeding to the proper circuit. The court orders transmittal of all papers to the proper circuit. The original papers are transmitted and filed with a certified copy of the order of transfer. Fla. R. Civ. P. 1.060(b), 1.170(j). A new filing fee is required. If the new filing fee is not paid within 30 days from the date of entry of the transfer order, the action may be dismissed without prejudice. F.S. 28.242; Rule 1.060(c). For a discussion of objections to venue under Rule 1.140(b) (which applies in probate only to adversary proceedings), and transfers under Rules 1.060 and 1.170(j) (both of which apply in probate under Rule 5.050 and F.S. 733.101(3)), see FLORIDA CIVIL PRACTICE BEFORE TRIAL Chapter 7 (Fla. Bar 14th ed. 2022). See also TRAWICK’S FLORIDA PRACTICE AND PROCEDURE § 6:8 (Thomson/West 2022 ed.).

« Ch. 3 », « § 3.8 • 1 Practice Under Florida Probate Code § 3.8 (2022)

§ 3.8. APPEALS « Ch. 3 », « § 3.8 •, • A » 1 Practice Under Florida Probate Code § 3.8.A (2022)

A. Appeals Before January 1, 2012 Before January 1, 1997, Fla. Prob. R. 5.100—apart from the Florida Rules of Appellate Procedure—addressed the right of appeal of orders and judgments from estate proceedings. Rule 5.100 and its committee notes provided, in relevant part:

RULE 5.100. RIGHT OF APPEAL All orders and judgments of the court determining rights of any party in any particular proceeding in the administration of the estate of a decedent or ward shall be deemed final and may, as a matter of right, be appealed to the appropriate district court of appeal, except those appeals which may be taken directly to the Supreme Court. …

Committee Notes An order that determines rights of a party may be appealed before the administration of the estate is completed (e.g., determination of the validity of a will, or of the rights of a person to participate as an heir in an estate, is a final determination). The rule defines “final orders and judgments” of the probate court that ultimately determine rights of a party in the estate. This rule is substantially the same as former F.S. 732.15 (repealed 1974) except that by rearrangement of that statute the word “finally” has been defined. From January 1, 1997, to January 1, 2012, appeals of probate orders and judgments were governed by Fla. R. App. P. 9.110(a)(2). Rule 5.100 was amended, effective January 1, 1997, to provide: “All orders and judgments of the court that finally determine a right or obligation of an interested person may be appealed as provided by Florida Rule of Appellate Procedure 9.110(a)(2).”

Newly-added Rule 9.110(a)(2), effective January 1, 1997, provided that the rule applied to proceedings that “seek review of orders entered in probate and guardianship matters that finally determine a right or obligation of an interested person as defined in the Florida Probate Code.” The Committee Note for the 1996 Amendment provided, in part: The addition of new subdivision (a)(2) is a restatement of former Florida Rule of Probate Procedure 5.100, and is not intended to change the definition of final order for appellate purposes. It recognizes that in probate and guardianship proceedings it is not unusual to have several final orders entered during the course of the proceeding that address many different issues and involve many different persons. An order of the circuit court that determines a right, an obligation, or the standing of an interested person as defined in the Florida Probate Code may be appealed before the administration of the probate or guardianship is complete and the fiduciary is discharged. Issues remained following the 1996 Amendment as to the appeal of nonfinal orders in probate, and the apparent possibility of tolling the 30-day appeal time by serving a timely motion for rehearing of a nonfinal order in probate. Effective January 1, 2001, Rule 5.100 was again amended to provide: “Appeal of final orders and discretionary appellate review of non-final orders are governed by the Florida Rules of Appellate Procedure.” The Committee Note to Rule 5.100 was amended to provide: “For purposes of appellate review, the service of a motion for rehearing postpones rendition of final orders only. A motion for rehearing of a non-final order does not toll the running of the time to seek review of that order.” The filing of a notice of appeal within 30 days of rendition of a final order is jurisdictional. In most instances, the appeal is to the district court of appeal. It is not just the last “final” order entered at the conclusion of the probate proceeding that is appealable, but also any order or judgment that determines rights of a party in any particular proceeding at any time during the estate administration. Care must be taken in order not to “sleep” on one’s appellate rights in probate. An opinion discussing 22 cases that address the issue of

whether an order of the probate court is final and appealable is In re Estate of Bierman, 587 So. 2d 1163 (Fla. 4th DCA 1991). Once there is a final order a party wishes to challenge, the party needs to either timely appeal the order or serve a motion that delays rendition. Generally, a motion for rehearing under Rule 5.020(d) must be served. For adversary proceedings, a motion to alter or amend a judgment under Fla. R. Civ. P. 1.530(g), or anything else authorized under the Florida Rules of Civil Procedure and listed in Rule 9.020(i), must also be served. In a case involving a probate court’s denial of a motion for rehearing, which denial was not appealed within 30 days, the probate court lost jurisdiction to grant a motion to reconsider the order that was the subject of the motion for rehearing. Estate of Godley, 508 So. 2d 46 (Fla. 4th DCA 1987). A motion for relief from judgment “is not a substitute for appellate review.” In re Estate of Beeman, 391 So. 2d 276, 280 (Fla. 4th DCA 1980). Even if the appellant’s position is correct, an appeal must be taken within 30 days of rendition of a final appealable order. In In re Estate of Schatz, 613 So. 2d 591 (Fla. 4th DCA 1993), the appellate court agreed with the appellants’ argument that the trial court incorrectly determined a $33,000 certificate was not a probate asset, but dismissed the appeal because it was not timely under Rules 9.110(b) and 5.100. In Tedder v. Estate of Tedder, 200 So. 3d 123 (Fla. 5th DCA 2016), the court held that a notice of appeal must be filed within 30 days of rendition of an order denying a petition for subsequent administration. « Ch. 3 », « § 3.8 •, « B » 1 Practice Under Florida Probate Code § 3.8.B (2022)

B. Appeals On And After January 1, 2012 Effective January 1, 2012, Fla. R. App. P. 9.170, supersedes Rule 9.110(a). The rule was most recently amended in 2019 and 2021. As it relates to appealable orders in probate and guardianship, the rule currently provides as follows:

RULE 9.170. APPEAL PROCEEDINGS IN PROBATE AND GUARDIANSHIP CASES.

(a) Applicability. Appeal proceedings in probate and guardianship cases shall be as in civil cases, except as modified by this rule. (b) Appealable Orders. Except for proceedings under rule 9.100 and rule 9.130(a), appeals of orders rendered in probate and guardianship cases shall be limited to orders that finally determine a right or obligation of an interested person as defined in the Florida Probate Code. Orders that finally determine a right or obligation include, but are not limited to, orders that: (1) determine a petition or motion to revoke letters of administration or letters of guardianship; (2) determine a petition or motion to revoke probate of a will; (3) determine a petition for probate of a lost or destroyed will; (4) grant or deny a petition for administration pursuant to section 733.2123, Florida Statutes; (5) grant heirship, succession, entitlement, or determine the persons to whom distribution should be made; (6) remove or refuse to remove a fiduciary; (7) refuse to appoint a personal representative or guardian; (8) determine a petition or motion to determine incapacity or to remove rights of an alleged incapacitated person or ward; (9) determine a motion or petition to restore capacity or rights of a ward; (10) determine a petition to approve the settlement of minors’ claims; (11) determine apportionment or contribution of estate taxes; (12) determine an estate’s interest in any property; (13) determine exempt property, family allowance, or the homestead status of real property; (14) authorize or confirm a sale of real or personal property by a personal representative;

(15) make distributions to any beneficiary; (16) determine amount and order contribution in satisfaction of elective share; (17) determine a motion or petition for enlargement of time to file a claim against an estate; (18) determine a motion or petition to strike an objection to a claim against an estate; (19) determine a motion or petition to extend the time to file an objection to a claim against an estate; (20) determine a motion or petition to enlarge the time to file an independent action on a claim filed against an estate; (21) settle an account of a personal representative, guardian, or other fiduciary; (22) discharge a fiduciary or the fiduciary’s surety; (23) grant an award attorneys’ fees or costs; (24) deny entitlement to attorney’s fees or costs; or (25) approve a settlement agreement on any of the matters listed above in (b)(1)–(b)(24) or authorizing a compromise pursuant to section 733.708, Florida Statutes. Rule 9.170 also provides an alternative record/appendix approach in Rule 9.170(c), addresses the initial brief and service of additional briefs in Rule 9.170(d), and provides comments about the scope of review in Rule 9.170(e). Courts construing Rule 9.170 include the following: Sibley v. Estate of Sibley, 273 So. 3d 1062 (Fla. 3d DCA 2019) (order for trustee to distribute all assets and monies in trust estate upon decedent’s death to residual beneficiary was appealable when order made distribution to beneficiary). Maercks v. Maercks, 272 So. 3d 485 (Fla. 3d DCA 2019) (order admitting codicil but not making any rulings as to its content or effect was not appealable order).

In re Guardianship of Bloom, 227 So. 3d 165 (Fla. 2d DCA 2017) (order denying attorneys’ fees or costs to interested person deemed to be appealable order). Lerma-Fusco v. Smith, 220 So. 3d 562 (Fla. 5th DCA 2017) (order granting motion to set aside order striking claim as untimely did not finally determine merits of claim and was therefore not appealable). Sudman v. O’Brien, 218 So. 3d 986 (Fla. 2d DCA 2017) (order denying claim to elective share finally determines right or obligation of interested person). Blackburn v. Boulis, 184 So. 3d 565 (Fla. 4th DCA 2016) (Rules 9.170(b)(16) and (e) justified review of interlocutory valuation order that was necessary step in reaching final order on distribution of elective share that was subject of appeal). Karr v. Vitry, 135 So. 3d 372 (Fla. 5th DCA 2014) (order denying motion for discharge in guardianship case found to be appealable because it determined right or obligation of interested person). Mann v. Davis, 131 So. 3d 830 (Fla. 1st DCA 2014) (appeal dismissed because “order on appeal does not finally determine a right or obligation of an interested party”). McLaughlin v. Lara, 133 So. 3d 1004 (Fla. 2d DCA 2013) (order approving settlement for minor found to be final appealable order under Rule 9.170(b)(10)). Pierce v. Pierce, 128 So. 3d 204, 207 n. (Fla. 1st DCA 2013) (review proper under Rule 9.170(e)). Cody v. Cody, 127 So. 3d 753 (Fla. 1st DCA 2013) (interlocutory order construing will was found appealable as part of appeal of final order determining boundaries of portions of real property). Cessac v. Stevens, 127 So. 3d 675, 678 n.2 (Fla. 1st DCA 2013) (Rule 9.170(b)(12) includes “orders that determine an estate’s interest in any property”). Martini v. Estate of Conner, 113 So. 3d 147 (Fla. 2d DCA 2013) (order denying petition to determine exempt property entered without notice

and opportunity to be heard was final appealable order under Rule 9.170(b)(13)). Estate of Sheffield v. Estate of Sheffield, 112 So. 3d 652 (Fla. 3d DCA 2013) (order sustaining objection to claim was found to be nonfinal and therefore not within Rule 9.170). Garrison v. Vance, 103 So. 3d 1041, 1043 n.6 (Fla. 1st DCA 2013) (citations omitted) (orders determining incapacity and appointing plenary guardian were not final orders disposing of case). Carrithers v. Cornett’s Spirit of Suwannee, Inc., 93 So. 3d 1240 (Fla. 1st DCA 2012) (review was proper by separate appeal under Rule 9.170(b) (23)). « Ch. 3 », « § 3.8 •, « C • 1 Practice Under Florida Probate Code § 3.8.C (2022)

C. Appeals And Appellate Attorneys’ Fees Practitioners have experienced some difficulty dealing with the question of whether to seek appellate attorneys’ fees in probate matters in the appellate court or in the probate court. This problem stems in part from the apparent facial conflict between Fla. R. App. P. 9.400(b), which requires that fees for appellate proceedings be awarded by appellate courts, and Article V, § 5(b), of the Florida Constitution and F.S. 26.012(2)(b), which grant jurisdiction of proceedings relating to settlement of estates, and other jurisdiction usually pertaining to courts of probate, to the circuit court. Three general rules may be stated: 1. If the services regard settlement of the estate (or other matter usually falling within probate jurisdiction), and if the fees are to be paid from the estate, the probate court has jurisdiction. This includes situations in which the estate prevails on appeal, and situations in which a party benefits the estate under F.S. 733.106(3). See In re Estate of Crosley, 384 So. 2d 274 (Fla. 4th DCA 1980) (probate court had jurisdiction to decide award of attorneys’ fees for stepson’s successful appeal of summary judgment favoring alleged blood relative in petition for determination of decedent’s heirs and beneficiaries); In re Estate of McCune, 223 So. 2d 787 (Fla. 4th DCA 1969) (beneficiary who is

successful in action to construe will is considered to have “benefited” estate, and probate court has jurisdiction to allow attorneys’ fees for such appellate services). 2. If the estate prevails and is entitled to fees to be paid from a party other than the estate, the appellate court has jurisdiction. See Garvey v. Garvey, 219 So. 2d 685 (Fla. 1969). 3. If the estate does not prevail and fees are paid out of the estate, and the services do not regard settlement of the estate (or other matter usually falling within probate jurisdiction), the appellate court has jurisdiction. See Cari v. Erickson, 394 So. 2d 1022 (Fla. 4th DCA 1981). For an extensive clarifying opinion, see In re Estate of Udell, 501 So. 2d 1286 (Fla. 4th DCA 1987). Commentary regarding Udell under Rule 9.170 (see § 3.8.B) is included in Carrithers v. Cornett’s Spirit of Suwannee, Inc., 93 So. 3d 1240 (Fla. 1st DCA 2012). The District Court of Appeal, Second District, has explicitly stated that it follows the guidelines set forth in Udell and Cari. Bissmeyer v. Southeast Bank, N.A., 596 So. 2d 678 (Fla. 2d DCA 1991). Udell and Bissmeyer were also followed by the First District in In re Estate of Gray, 626 So. 2d 971 (Fla. 1st DCA 1993). Other circumstances remain unanswered by the current cases. For examples of litigation over breach of fiduciary duty by the personal representative when the personal representative prevails and the judgment is appealed, see LITIGATION UNDER FLORIDA PROBATE CODE § 11.2.R (Fla. Bar 13th ed. 2022). An award by the probate court of appellate attorneys’ fees coming within its jurisdiction is, of course, subject to appellate review. In re Estate of Bridges, 282 So. 2d 197 (Fla. 1st DCA 1973). For in-depth treatment of the subject of appeals in probate, see LITIGATION UNDER FLORIDA PROBATE CODE, supra, Chapter 14. Attorneys’ fees are addressed more fully in Chapter 15 of this manual. Footnotes — Chapter 3: *

J.D., 1996, University of Texas. Mr. Kauffman is a member of The Florida Bar and the South Palm Beach County Bar Association. He is the managing partner of The Law Office of Jay Kauffman, P.A., in Boca Raton.

Licensed to Otis K Pitts, Otis K Pitts

« Ch. 4 » 1 Practice Under Florida Probate Code Ch. 4 (2022)

Chapter 4 FUNCTIONS OF LAWYERS AND PERSONAL REPRESENTATIVES SHANE KELLEY* JENNA RUBIN** Contents § 4.1. INTRODUCTION § 4.2. THE ATTORNEY-CLIENT RELATIONSHIP A. Nature Of Relationship B. The Client C. Representative’s Power To Hire Lawyer 1. In General 2. When There Are Joint Personal Representatives D. Lawyer As Personal Representative E. Will Provision Nominating Lawyer To Handle Estate § 4.3. THE PERSONAL REPRESENTATIVE A. Duties Of Personal Representative 1. Scope Of Duties 2. Standard Of Care 3. Estate Assets a. Duty To Inquire About Assets b. Duty Regarding Digital Assets c. Duty As To Custody Of Assets d. Treatment Of Gifts Made By Decedent e. Treatment Of Life Insurance Proceeds f. Duty To Resolve Claims By Or Against Estate

g. Form For Personal Representative’s Certificate Of Insufficiency h. Form For Petition To Compromise Claim i. Power To Abandon Property j. Form For Petition To Abandon Property (Including Claim) k. Duties With Regard To Real Property Of Decedent i. In General ii. Homestead Real Property iii. Power Of Sale Over Real Property iv. Foreign Real Property v. Form For Election Of Surviving Spouse To Take One-Half Interest Of Decedent’s Interest In Homestead Property vi. Form For Petition For Authorization To Sell Real Property 4. Duty To Keep Estate Funds Separate 5. Duty To Keep Records And To Establish Bookkeeping Methods 6. Duty To Recognize Creditors’ Rights 7. Obligation To File Tax Returns And Notices For Decedent And Estate 8. Other Duties Toward Estate Assets a. Rental Of Property b. Investment Of Estate Funds c. Repairs d. Maintenance e. Insurance 9. Notice Of Administration 10. Checklist Of Duties And Procedures B. Powers 1. Power To Hire Lawyers, Accountants, Tax Specialists, And Other Experts a. In General b. Payment For Services c. Payment Of Fees To Lawyer For Personal Representative d. Necessity For Prior Court Approval e. Form For Petition For Authority To Employ Accountant f. Disagreement Between Personal Representatives Concerning

Hiring g. Form For Petition On Conflict In Hiring 2. Practical Problems Of Joint Personal Representatives C. Changing Personal Representatives 1. Renunciation Or Resignation 2. Form For Petition For Resignation Of Personal Representative 3. Form For Notice Of Disqualification Of Personal Representative 4. Form For Petition For Qualification Of Successor Personal Representative 5. Removal Proceedings a. Jurisdiction And Venue b. Grounds For Removal c. Commencement Of Removal Proceedings d. Procedure After Removal e. Appointment Of Successor f. Form For Petition For Removal Of Personal Representative 6. Preferences In Appointments And Qualification To Serve 7. Administrators Ad Litem 8. Sample Petition For Appointment Of Administrator Ad Litem D. Liabilities And Rights 1. Claims Of Representative Against Estate 2. Claims Of Estate Against Representative a. Debt Owed Estate By Personal Representative b. Liability For Mismanagement c. Liability For Torts, Negligence, And Other Acts d. Executor De Son Tort 3. Liability For Environmental Problems § 4.4. THE LAWYER A. Responsibilities Of Lawyer To Court 1. Notice 2. Pleadings And Orders B. Responsibilities Of Lawyer To Client And Beneficiaries 1. In General

2. Relationship Between Lawyer For Personal Representative And Lawyers For Beneficiaries 3. Notices And Copies Of Pleadings To Interested Persons C. Confidentiality Of Court Records D. Liability Of Lawyer For Negligent Advice Or Failure To Act « Ch. 4 », • § 4.1 » 1 Practice Under Florida Probate Code § 4.1 (2022)

§ 4.1. INTRODUCTION This chapter examines the duties, powers, and liabilities of the personal representative as the court-appointed overseer of a decedent’s probate estate. It further explores the relationship between the personal representative and the personal representative’s lawyer, including their responsibilities and liabilities to each other, as well as to the estate’s beneficiaries and creditors and other interested persons.

« Ch. 4 », « § 4.2 » 1 Practice Under Florida Probate Code § 4.2 (2022)

§

4.2. THE RELATIONSHIP

ATTORNEY-CLIENT « Ch. 4 », « § 4.2 », • A »

1 Practice Under Florida Probate Code § 4.2.A (2022)

A. Nature Of Relationship In most instances the personal representative is solely responsible for decisions pertaining to the estate. The personal representative will need guidance in making the decisions necessary to ensure that the estate is administered in accordance with the law. The personal representative must be represented by a lawyer admitted to practice in Florida (unless the personal representative is a lawyer or is the sole interested person in the estate). Fla. Prob. R. 5.030(a); State ex rel. Falkner v. Blanton, 297 So. 2d 825 (Fla. 1974); Dimitroff v. Taylor, 651 So. 2d 131 (Fla. 2d DCA 1995); In re Estate of Jeffress, 301 So. 2d 25 (Fla. 2d DCA 1974). A lawyer is an officer of the court and, as such, is charged with obedience to the constitutions and laws of Florida and the United States. See Chapter 4 of the Rules Regulating The Florida Bar (available at www.floridabar.org/rules/rrtfb), the Preamble to the Rules of Professional Conduct (available at www.floridabar.org/rules/rrtfb), and the Oath of Admission to The Florida Bar (available at www.floridabar.org/prof/regulating-professionalism/oath-of-admission). The relationship of lawyer to client in probate matters, as in all other cases, is one of utmost faith and confidence by the lawyer toward the client and the client toward the lawyer. The lawyer at all times must represent the client with the highest degree of honesty, forthrightness, loyalty, and fidelity. Gerlach v. Donnelly, 98 So. 2d 493 (Fla. 1957). See Chiles v. State Employees Attorneys Guild, 734 So. 2d 1030 (Fla. 1999). The personal representative’s lawyer should handle all customary legal matters incident to the complete administration of the estate, from the probate of the will (in testate estates) and the procurement of the personal

representative’s appointment and qualification to the entry of the order of discharge. At an early stage in the proceedings, the lawyer should advise the personal representative as to the responsibilities of the personal representative and particularly emphasize those that pertain to collecting and protecting all assets of the estate (including taking legal actions against debtors of the decedent, if necessary); determining reasonably ascertainable creditors who may have a claim against the estate; paying claims or defending against improper claims; publishing a notice to creditors to limit the time within which creditors must file claims; keeping a proper and complete accounting of all transactions during the administration of the estate; preparing all necessary federal and Florida tax returns; and making distributions to the proper beneficiaries. See §§ 4.4.A–4.4.B. « Ch. 4 », « § 4.2 », « B » 1 Practice Under Florida Probate Code § 4.2.B (2022)

B. The Client A common misconception is that the personal representative’s lawyer also represents the beneficiaries of the decedent. It is true that the personal representative and, by extension, his or her lawyer, owes a fiduciary duty to the beneficiaries and creditors. DeVaughn v. DeVaughn, 840 So. 2d 1128 (Fla. 5th DCA 2003). However, the attorney-client relationship remains solely between the lawyer and the personal representative (and not between the lawyer and the estate or between the lawyer and the beneficiaries). In re Estate of Gory, 570 So. 2d 1381 (Fla. 4th DCA 1990). See F.S. 90.5021. See also the Comment to Rule Reg. Fla. Bar 4-1.7, titled Other conflict situations. « Ch. 4 », « § 4.2 », « C » 1 Practice Under Florida Probate Code § 4.2.C (2022)

C. Representative’s Power To Hire Lawyer « Ch. 4 », « § 4.2 », « C », • 1 » 1 Practice Under Florida Probate Code § 4.2.C.1 (2022)

1. In General The Florida Probate Code clearly indicates an intention that a personal representative should be able to proceed swiftly and without unnecessary

delay or interruption to achieve the settlement of the decedent’s affairs and, ultimately, the distribution of the decedent’s estate. F.S. 733.603. To that end, the Florida Probate Code grants to the personal representative a large array of very broad powers that can be exercised without the necessity of prior court approval. The power to employ a lawyer is included in the very broad powers that are given to a personal representative. F.S. 733.612(19). See § 4.3.B.1.a. The personal representative may pay the reasonable fees of the lawyer for the personal representative without a prior court order. See F.S. 733.6171(1). But any interested person, including the personal representative, may petition the probate court to determine whether the fees paid are reasonable or to increase or decrease the compensation of the lawyer. See F.S. 733.6171(5), 733.6175. If the personal representative files the petition, it is the burden of the lawyer to prove the reasonableness of the fees, but the personal representative may have liability for return of the excessive payments he or she made to the lawyer. F.S. 733.6175(3). See Faulkner v. Woodruff, 159 So. 3d 319 (Fla. 2d DCA 2015). The personal representative should note that the estate can be charged only for those services rendered to the estate, not for services rendered to or for the beneficiaries. Brickell v. McCaskill, 90 Fla. 441, 106 So. 470 (1925). But see Hampton v. Estate of Allen, 198 So. 3d 954 (Fla. 5th DCA 2016) (specific devisee of real estate under testator’s will was entitled to award of attorneys’ fees from testator’s estate under F.S. 733.106(3) providing for award of fees to lawyer who has rendered services to estate for fees that specific devisee incurred in successfully defending prospective purchaser’s specific-performance action concerning testator’s real estate); Baumer v. Howard, 542 So. 2d 400 (Fla. 1st DCA 1989) (lawyer’s services rendered to beneficiary that benefit estate were compensable from estate under F.S. 733.106(3)). The personal representative may call on the lawyer to do nonlegal work that the personal representative should do, but the personal representative as an individual, not the estate, should pay the fees of the lawyer for that work. Otherwise, there would be double payment for the same services. In re Estate of Lieber, 103 So. 2d 192 (Fla. 1958). This is more theoretical than practical in many estates, particularly in modest estates in which the personal representative and the residuary beneficiaries are all members of the same

family, or when the personal representative does not take compensation. The topic of compensation of personal representatives and lawyers (including the tax consequences related to fees as an expense of administration) is covered extensively in Chapter 15 of this manual. « Ch. 4 », « § 4.2 », « C », « 2 • 1 Practice Under Florida Probate Code § 4.2.C.2 (2022)

2. When There Are Joint Personal Representatives As a general rule, when there is more than one personal representative, they should be represented by the same lawyer. Circumstances may arise, however, justifying the employment of separate counsel. Although the Florida Probate Code explicitly provides for multiple personal representatives to each take a commission, it is silent with regard to compensation of multiple lawyers for multiple personal representatives. See F.S. 733.617(5), 733.6171. Apparently, Florida courts have not ruled on the question of whether each of two or more joint personal representatives may employ separate lawyers. However, the court in In re Estate of Maxcy, 240 So. 2d 93 (Fla. 2d DCA 1970), expressed disapproval and did rule that if multiple lawyers were engaged, they should receive fees in the aggregate equal only to what one lawyer would have received. See Brake v. Murphy, 736 So. 2d 745 (Fla. 3d DCA 1999) (duplication of efforts by multiple lawyers will not be compensated). See also § 15.4.T of this manual. « Ch. 4 », « § 4.2 », « D » 1 Practice Under Florida Probate Code § 4.2.D (2022)

D. Lawyer As Personal Representative A personal representative who is a practicing lawyer in Florida may also act in the capacity of lawyer. Fla. Prob. R. 5.030(a). Reasonable fees for the lawyer’s legal services will be allowed in addition to the fees as personal representative. F.S. 733.617(6). « Ch. 4 », « § 4.2 », « E • 1 Practice Under Florida Probate Code § 4.2.E (2022)

E. Will Provision Nominating Lawyer To Handle Estate Often the lawyer who draws the will for the testator has been a longtime

friend and legal counselor. It is quite natural that the testator would want the lawyer to act as his or her lawyer in the handling of the testator’s estate. The testator therefore may insist that a provision be put in the will to the effect that the testator’s friend and lawyer is to be the lawyer who handles the estate. As noted in § 4.2.B, however, the lawyer represents the personal representative rather than the estate, and therefore the personal representative may hire whomever he or she desires. A direction in the will appointing a lawyer is precatory only. In re Estate of Marks, 83 So. 2d 853 (Fla. 1955); In re Estate of Fresia, 390 So. 2d 176 (Fla. 5th DCA 1980). It is considered unethical for a lawyer to request or suggest to the client that the lawyer be designated as personal representative under the client’s will or as the lawyer for the personal representative. See § 15.4.U of this manual and LITIGATION UNDER FLORIDA PROBATE CODE § 11.2.H (Fla. Bar 13th ed. 2022). In fact, if the lawyer is nominated as personal representative in a will executed or republished by a Florida resident on or after October 1, 2020, if the will nominates the attorney or a person related to that attorney who prepared or supervised the execution of the instrument, as personal representative, the appointed person will only be entitled to compensation for serving as personal representative if the lawyer makes specific new statutory disclosures. F.S. 733.617(6), 733.617(8). A testator may believe that a clause in the will designating a lawyer would be honored by the personal representative. Such a clause is proper only if the testator specifically requests it. Quite possibly, the personal representative will not know whom to ask for advice and assistance, and may be glad to see the testator’s suggestion. In general, it is more practical for the testator to acquaint the personal representative with the testator’s lawyer personally and make these wishes known during the testator’s lifetime.

« Ch. 4 », « § 4.3 » 1 Practice Under Florida Probate Code § 4.3 (2022)

§ 4.3. THE PERSONAL REPRESENTATIVE « Ch. 4 », « § 4.3 », • A » 1 Practice Under Florida Probate Code § 4.3.A (2022)

A. Duties Of Personal Representative « Ch. 4 », « § 4.3 », • A », • 1 » 1 Practice Under Florida Probate Code § 4.3.A.1 (2022)

1. Scope Of Duties The duties of the personal representative regarding the administration of a decedent’s estate encompass a broad spectrum of obligations. A synopsis of the essential duties of the personal representative, however, includes the duty to gather together all estate assets and collect all debts; preserve, maintain, and manage the assets during administration to prevent loss; determine all ascertainable creditors who may file a claim against the estate and ensure that those creditors are served with a Notice to Creditors; arrange for sufficient liquidity to pay the proper debts of the decedent, funeral and administration expenses, taxes, and cash bequests; pay the decedent’s debts, funeral and administration expenses, taxes, and cash bequests; determine whether there are any statutory rights in the surviving spouse or descendants of the decedent that need to be addressed, such as elective share, exempt property, spousal allowance, and homestead rights; prepare all necessary federal and Florida tax returns; and make distribution to beneficiaries.

The personal representative has a duty to settle and distribute the estate in accordance with the terms of the will and the Florida Probate Code “as expeditiously and efficiently as is consistent with the best interests of the estate.” F.S. 733.602(1). Because letters of administration relate back to the date of death of the decedent (under the “relation back” doctrine), all acts of the personal representative done before qualification that were beneficial to the estate are approved as though the personal representative had been qualified at the time the acts were done. Thus, the person entitled to the appointment as personal representative should not hesitate before qualification to do those things that may be necessary to protect the estate, such as placing jewelry and other valuables in safekeeping, gathering together all valuable documents, and even placing an insurance binder on uninsured property. See F.S. 733.601; Richard v. Richard, 193 So. 3d 964 (Fla. 3d DCA 2016), citing Berges v. Infinity Insurance Co., 896 So. 2d 665 (Fla. 2005), and other cases addressing the “relation back” doctrine. The person entitled to the appointment as personal representative may even prosecute certain claims of the decedent prior to appointment. See Estate of McKenzie through McIntosch v. Hi Rise Crane, Inc., 326 So. 3d 1161 (Fla 1st DCA 2021) (applying relation back doctrine to filing of workers’ compensation petition for benefits). However, a person who has not yet been appointed as personal representative has no statutory duty to do any of these things before appointment. Depriest v. Greeson, 213 So. 3d 1022 (Fla. 1st DCA 2017). « Ch. 4 », « § 4.3 », • A », « 2 » 1 Practice Under Florida Probate Code § 4.3.A.2 (2022)

2. Standard Of Care The personal representative is a fiduciary and, as such, is held to the standard of care of a trustee in dealing with the assets of the estate. F.S. 733.602(1); Whitfield v. Whitfield, 127 Fla. 74, 172 So. 711 (1937); Campbell v. Owen, 132 So. 2d 212 (Fla. 2d DCA 1961). Stated another way, the personal representative is a trustee of the assets of the estate for the benefit of the beneficiaries and creditors of the decedent. Dacus v. Blackwell, 90 So. 2d 324 (Fla. 1956); In re Estate of Pearce, 507 So. 2d 729 (Fla. 4th DCA 1987); In re Estate of Rosenthal, 189 So. 2d 507 (Fla. 3d DCA 1966). « Ch. 4 », « § 4.3 », • A », « 3 »

1 Practice Under Florida Probate Code § 4.3.A.3 (2022)

3. Estate Assets « Ch. 4 », « § 4.3 », • A », « 3 », • a » 1 Practice Under Florida Probate Code § 4.3.A.3.a (2022)

a. Duty To Inquire About Assets Even before actual appointment and qualification as personal representative, one who anticipates appointment should take preliminary steps to locate assets and see that they are protected, or take them into temporary custody until letters are issued. Attention should also be directed to finding any funeral or burial instructions or agreements with a funeral establishment regarding those arrangements. Restrictions on burial contracts are discussed in § 1.2.A.9 of this manual. The right to control the funeral and related matters are treated in § 1.2.A of this manual. It may be appropriate or necessary to enter a safe-deposit box before a personal representative is appointed. Methods of access to a safe-deposit box are discussed in §§ 1.2.E.2.b and 9.2.B of this manual. After letters of administration are issued, the initial opening of the decedent’s safe-deposit box must be conducted in the presence of any two of the following persons: (1) an employee of the institution where the box is located, (2) the personal representative, or (3) the personal representative’s lawyer. F.S. 733.6065(1). Each person present at the opening “must verify the contents of the box by signing a copy of the inventory under penalties of perjury.” Id.; Fla. Prob. R. 5.342(b). The personal representative must file the safe-deposit box inventory with a copy of the box entry record (from a date that is six months before the date of death to the date of inventory) with the court within 10 days after the box is opened. F.S. 733.6065(1); Rule 5.342(a). When letters of administration are issued, the personal representative should carefully examine all records of the decedent for the purpose of locating assets and take all reasonable steps to follow up on any clues, being particularly alert to locate safe-deposit boxes, bank accounts, savings and loan association accounts, brokerage accounts, and insurance. If lawsuits are indicated, they should be investigated thoroughly with the lawyer and consideration should be given to the cost of any action as well as the desirability of settlement of any claim.

« Ch. 4 », « § 4.3 », • A », « 3 », « b » 1 Practice Under Florida Probate Code § 4.3.A.3.b (2022)

b. Duty Regarding Digital Assets In addition to tangible or real property, the personal representative must also be cognizant of any potential digital assets that may have been owned by the decedent upon his or her death. The average person has multiple digital accounts and the number is increasing with increased dependence on online commerce. This category of assets can include items such as credit card rewards, frequent flyer miles, and digital currency (such as bitcoins and nonfungible tokens (NFTs)) or assets that were only accessed by the decedent through digital means such as digital brokerage or bank accounts, and Amazon or other online merchant accounts. A personal representative has a duty to preserve these assets and, due to the proliferation of online fraud, the personal representative should act promptly to discover and secure any digital assets that were owned by the decedent. F.S. 740.05. Digital assets can be located by searching computers, as well as tablets or smart phones, that were used by the decedent. Any e-mail accounts of the decedent should also be secured and reviewed for any information that may be relevant to the discovery of digital assets, as well as information relevant to the discovery of creditors. Until recently, one of the significant problems for personal representatives when dealing with digital assets was obtaining access to those assets. Most online accounts are password protected, and access to online accounts is strictly monitored due to concerns of online fraud and identity theft. Previously, there often was no practical way for the personal representative to obtain access to these assets. In 2016, the Florida Legislature passed the Florida Fiduciary Access to Digital Assets Act (the FFADAA), F.S. Chapter 740, in an effort to create some guidelines for online companies and for fiduciaries regarding a fiduciary’s right to access digital assets held by a third party, including a deceased owner. The FFADAA grants a personal representative the authority to access a decedent’s digital assets (F.S. 740.05), and the procedures for doing so are provided in F.S. 740.006–740.007 and 740.05. A personal representative can also obtain access to the e-mails of a decedent under the provisions of the FFADAA. F.S. 740.006.

Specifically, a personal representative can send a written request to a custodian of digital assets or electronic communications by making a request for the information pursuant to the FFADAA. If necessary, the personal representative may obtain a court order directing the disclosure of digital assets or providing access to the contents of an e-mail account of a deceased owner. F.S. 740.005–740.007. With regard to any digital assets that have no value to the estate or cannot be transferred or liquidated, as well as e-mail or other social media accounts, the personal representative should take steps to close those accounts to prevent any fraud or hacking that could lead to damage to the estate. Care should be taken to preserve any necessary electronically stored information before closing or deleting any of the decedent’s accounts, and the personal representative should consider retaining a computer consultant or forensic expert to review all of the decedent’s electronic devices to locate and preserve any such relevant information. « Ch. 4 », « § 4.3 », • A », « 3 », « c » 1 Practice Under Florida Probate Code § 4.3.A.3.c (2022)

c. Duty As To Custody Of Assets As noted in § 4.3.A.1, the prospective personal representative should take measures to protect valuable or perishable property immediately upon the death of the decedent. For example, the personal representative should take into custody jewelry or cash in the decedent’s home and secure the decedent’s automobile to prevent theft or potential liability from use of the automobile resulting in injury. The personal representative has the authority and the obligation (unless the will provides otherwise) to take possession and establish control over all property of the decedent (including digital assets as discussed in § 4.3.A.3.b above), with the specific exception of protected homestead. F.S. 733.607(1). However, special consideration must be given to property of the decedent held by a corporation or professional association, even though those entities may be substantially owned by the decedent. See BankAtlantic v. Estate of Glatzer, 61 So. 3d 1222 (Fla. 3d DCA 2011) (personal representative was entitled to take possession of stock of professional association, but not assets deposited in accounts in professional association’s name).

Any real property or tangible personal property may be left with or surrendered to the person presumptively entitled to it unless possession by the personal representative is necessary for purposes of administration. All real and personal property of the decedent (with the specific exception of protected homestead) within Florida and the rents, income, issues, and profits from any such property can be used by the personal representative to pay devises, family allowances, elective share, estate and inheritance taxes, claims, charges, expenses of administration, and estate obligations; to enforce contribution; to equalize advancement; and to make distributions to the beneficiaries. F.S. 733.608(1). F.S. 733.607(2) allows the personal representative to seek payment from the trustee of a trust described in F.S. 733.707(3), subject to certain exclusions and preferences found in F.S. 736.05053, provided the assets of the estate are insufficient to pay the expenses of administration and obligations of the estate, after providing for statutory entitlements and all devises other than residuary devises. A form for a personal representative’s certificate of insufficiency appears at § 4.3.A.3.g. The personal representative must file a verified inventory of the estate property, which has to include a reasonably detailed description and an estimated fair market value at date of death for each item listed. F.S. 733.604(1)(a). This inventory must be filed by the personal representative within 60 days of the issuance of letters of administration and must contain a “notice of the beneficiaries’ rights” indicating that, upon reasonable request in writing, the personal representative must provide the beneficiary with all information to which the beneficiary is entitled by law. Fla. Prob. R. 5.340(a), (e); see also Rule 5.341. The personal representative must “serve a copy of the inventory and all supplemental and amended inventories on the surviving spouse, each heir at law in an intestate estate, each residuary beneficiary in a testate estate, and any other interested person who may request it in writing.” Rule 5.340(d). The inclusion of a certificate of service is also required. Fla. R. Gen. Prac. & Jud. Admin. 2.516. However, if service of the inventory is effected in the manner provided for service of formal notice, proof of service (rather than the inclusion of a certificate of service) should be filed as provided in Rule 5.040(a)(4). The personal representative must notify beneficiaries of their right to be furnished (upon written request) with a written explanation regarding the determination of the inventory value of an asset, or a copy of an appraisal (if

one was obtained), in the following manner: regarding all inventoried assets if the beneficiary is a residuary beneficiary or intestate heir, or, as to any other beneficiary, regarding all assets distributed (or proposed to be distributed) to that beneficiary. F.S. 733.604(3); Rule 5.340(e). Form No. P3.0900 (available from Florida Lawyers Support Services, Inc.© (FLSSI), P.O. Box 195909, Winter Springs, FL 32719-5909, 407/515-1501, by e-mail at [email protected], or online at www.flssi.org/forms) contains language that includes the required notice to beneficiaries. If the personal representative later discovers any estate assets not included in the inventory (or that the estimated value or description of any item is incorrect or misleading), the personal representative must file a verified amended or supplemental inventory. F.S. 733.604(2). Any inventory filed with the clerk of court (including supplementary or amended filings) during the administration of an estate is confidential and exempt from the provisions of F.S. 119.07(1) and Article I, § 24(a), of the Florida Constitution. F.S. 733.604(1)(b). However, the clerk of the court must disclose any inventory for inspection and copying upon request to the personal representative, the personal representative’s lawyer, any interested person (as defined in F.S. 731.201), or as otherwise directed by order of the court upon a showing of good cause. F.S. 733.604(1)(b)4. Upon the petition of an interested person or on its own motion, the court may require the personal representative to show that the assets are in his or her possession or control and may order production of the assets for inspection. Rule 5.160. Special rules applicable to homestead personal property are discussed in Chapter 19 of this manual. « Ch. 4 », « § 4.3 », • A », « 3 », « d » 1 Practice Under Florida Probate Code § 4.3.A.3.d (2022)

d. Treatment Of Gifts Made By Decedent Gifts made by the decedent should be examined to determine whether they were proper and completed during the decedent’s lifetime. A personal representative who has reason to believe that specific gifts were not the voluntary act of the decedent or were the result of undue influence has a duty to investigate the matter and take appropriate action. See

Kirkland v. Carter, 126 Fla. 773, 171 So. 767 (1937). For a discussion of the presumptions involved in undue influence cases when the donee has a confidential relationship with the donor, see Diaz v. Ashworth, 963 So. 2d 731 (Fla. 3d DCA 2007), and Hack v. Janes, 878 So. 2d 440 (Fla. 5th DCA 2004). See also F.S. 733.107(2) regarding the presumption of undue influence. Incomplete gifts that were to take effect upon the death of the decedent are not effective to transfer the property. See Wood v. McClellan, 247 So. 2d 77 (Fla. 1st DCA 1971). This property should be claimed by the personal representative as assets of the estate. But see Panzirer v. Deco Purchasing & Distributing Co., 448 So. 2d 1197 (Fla. 5th DCA 1984) (recognizing gift as complete to transfer property out of estate when only constructive or symbolic delivery occurred). If it becomes necessary to resort to court action to recover the purported gifts, the personal representative should do so without delay. If the personal representative has doubt as to whether such an action may be advisable, the personal representative may seek court approval pursuant to F.S. 733.603. The rules applicable to joint checking and savings accounts, convenience accounts, and “pay-on-death” accounts are discussed in § 1.2.E.3 of this manual. See also LITIGATION UNDER FLORIDA PROBATE CODE Chapter 5 (Fla. Bar 13th ed. 2022) for an extensive discussion of issues involving joint accounts and other forms of joint ownership of property. With regard to tangible personal property, the personal representative must determine what items were owned by the decedent before death or whether such items may have been jointly held with another person, particularly the surviving spouse. The status of personal property can be a very sensitive issue to the decedent’s surviving spouse and descendants. See, e.g., Connell v. Connell, 93 So. 3d 1140 (Fla. 2d DCA 2012), in which the court held that a decedent’s jewelry was his separate property and belonged to his estate upon his death, even though both items of jewelry were purchased with funds from a joint checking account. TAX NOTE: Under the general rule of IRC § 2040, the entire value of property owned by the decedent and another as joint tenants with right of survivorship will be included in the decedent’s gross estate, except to the extent that (1) the property was acquired by the co-owners by gift,

bequest, devise, or inheritance, or (2) the surviving joint tenant can prove that part or all of the consideration for the property was supplied by the survivor. Under an exception to the general rule, only one half of the value of a “qualified joint interest” will be included in a decedent’s gross estate under IRC § 2040, regardless of how the property was acquired or who supplied the consideration for it. A “qualified joint interest” is an interest in property held by the decedent and spouse as (1) tenants by the entireties, or (2) joint tenants with right of survivorship, but only if the decedent and spouse are the only joint tenants. « Ch. 4 », « § 4.3 », • A », « 3 », « e » 1 Practice Under Florida Probate Code § 4.3.A.3.e (2022)

e. Treatment Of Life Insurance Proceeds Although life insurance proceeds payable to a named surviving beneficiary do not come into the personal representative’s possession, the personal representative may have some duties incidental to them. See § 1.2.E.4.b.i of this manual. Life insurance payable to the estate is subject to special rules of inheritance and procedure, primarily under F.S. 222.13(1). See § 1.2.E.4.b.ii of this manual. « Ch. 4 », « § 4.3 », • A », « 3 », « f » 1 Practice Under Florida Probate Code § 4.3.A.3.f (2022)

f. Duty To Resolve Claims By Or Against Estate The personal representative must collect all money owing to the estate, whether it be a deposit for keys to a safe-deposit box; a deposit for utilities; canceled orders for merchandise; salary, wages, pension or other retirement benefits; loans; interest; dividends; tax refunds; or any other obligation, liquidated or contingent. The personal representative should also make a determination as to whether it is advisable to continue any tort or contract action initiated by the decedent as plaintiff. If necessary, an action should be instituted to effect the collection of obligations to the estate. The authorized statutory transactions by a personal representative include the power to “[p]rosecute or defend claims or proceedings in any jurisdiction for the

protection of the estate, of the decedent’s property, and of the personal representative,” F.S. 733.612(20), and to “[s]atisfy and settle claims,” F.S. 733.612(24). A claim against an estate may not be compromised until after the time for filing objections to claims has expired. F.S. 733.708. A personal representative may be relieved from liability for compromising or settling any question concerning the distribution of a decedent’s estate if he or she has presented all facts to the court and obtained a court order approving the action. See F.S. 733.708; Evans v. Tucker, 101 Fla. 688, 135 So. 305 (1931), 85 A.L.R. 170; Carlton v. Carlton, 578 So. 2d 820 (Fla. 2d DCA 1991); Security Insurance Co. v. Estate of Stillson, 397 So. 2d 1206 (Fla. 1st DCA 1981). A form for a petition for leave to compromise a claim appears in § 4.3.A.3.h. F.S. 733.104 provides for tolling until one year after the decedent’s death any statute of limitations period that otherwise would expire within that year. Specifically, F.S. 733.104(1) provides that if a decedent was entitled to bring an action before he or she died, the action may be commenced by the decedent’s personal representative “before the later of the expiration of the time limited for the commencement of the action or 12 months after the decedent’s death.” See Mackle v. Mackle, 389 So. 2d 1081 (Fla. 3d DCA 1980). The personal representative has a duty to, and is in fact the sole person authorized to, bring an action for the wrongful death of the decedent, if warranted F.S. 768.20. See Grape Leaf Capital, Inc. v. Lafontant, 316 So. 3d 760 (Fla. 3d DCA 2021). Damages recoverable are listed in F.S. 768.21. See also § 11.11 of this manual for a discussion of the allocation of wrongful death proceeds. « Ch. 4 », « § 4.3 », • A », « 3 », « g » 1 Practice Under Florida Probate Code § 4.3.A.3.g (2022)

g.

Form For Insufficiency

Personal

Representative’s

Certificate

Of

To: ____________ Trustee of Revocable Trust You are notified pursuant to F.S. 733.607(2) of the Florida Probate Code

that the assets of this estate are insufficient to pay the statutory entitlements, expenses of administration, and obligations of the decedent’s estate, and all devises other than residuary devises. The amount of that insufficiency is $______. As trustee of a trust described in F.S. 733.707(3) of the Florida Probate Code, you are required to pay to the personal representative the amount certified herein. Demand is made for prompt payment of the amount of insufficiency. Under penalties of perjury, I declare that I have read the foregoing, and the facts alleged are true, to the best of my knowledge and belief. Signed on _________, 20___. (Certificate of Service) /s/____________ (name of attorney) Attorney for Petitioner (address and phone number) (e-mail address(es)) Florida Bar No. ______ COMMENT: This form is furnished by Kelley & Bronner, THE FLORIDA BAR PROBATE SYSTEM, Practice Form No. 112 (Fla. Bar 5th ed. 2018). This document should be served by informal notice on the lawyer for the trustee, but if none, on the trustee and on all interested persons. Fla. Prob. R. 5.040(b), (c), 5.041; Fla. R. Gen. Prac. & Jud. Admin. 2.516. « Ch. 4 », « § 4.3 », • A », « 3 », « h » 1 Practice Under Florida Probate Code § 4.3.A.3.h (2022)

h. Form For Petition To Compromise Claim IN THE CIRCUIT COURT _________ COUNTY, FLORIDA File Number ___

Division ___ IN RE: ESTATE OF _________, Deceased

PERSONAL REPRESENTATIVE’S PETITION TO COMPROMISE CLAIM Petitioner, _________, as personal representative of this estate, alleges: 1. The first publication of the notice to creditors in this estate occurred on ______, and the time for filing objections to claims has expired. 2. _________ filed a claim against the estate on ______, in the total amount of $______, a copy of the claim being attached as Exhibit 1. 3. Petitioner filed and served an objection to this claim within the time allowed by law, a copy of the objection being attached as Exhibit 2. 4. The claimant has offered to compromise this claim by reducing the total amount of the claim to $______ as full settlement of the claim and petitioner believes that this offer of compromise is fair and reasonable and that it would be in the best interests of the estate and the beneficiaries to accept this offer. 5. In the event the court approves the compromise as requested, there will be sufficient assets remaining in the estate to pay all other claims of creditors and devisees. 6. The only persons having an interest in this proceeding and their respective addresses are: ____________ Petitioner requests that an order be entered authorizing and approving the compromise as alleged. Under penalties of perjury, I declare that I have read the foregoing, and the facts alleged are true, to the best of my knowledge and belief.

Signed on ______, 20___. /s/ Petitioner /s/ (name of attorney) Attorney for Petitioner (address and phone number) (e-mail address(es)) Florida Bar No. ___ COMMENT: This form is furnished by Kelley & Bronner, THE FLORIDA BAR PROBATE SYSTEM, Practice Form No. 119 (Fla. Bar 5th ed. 2018). The verification is not required, but is recommended. A petition to compromise a claim by the estate requires notice to interested persons. Fla. Prob. R. 5.041 and Fla. R. Gen. Prac. & Jud. Admin. 2.516. See § 8.2.F.1 of this manual. Another form for a petition to compromise a creditor’s claim is in § 8.2.F.2.a, and one for the order is in § 8.2.F.2.b. « Ch. 4 », « § 4.3 », • A », « 3 », « i » 1 Practice Under Florida Probate Code § 4.3.A.3.i (2022)

i. Power To Abandon Property Although a personal representative has a clear duty to marshal and preserve the assets of the estate, it may also be advisable for the personal representative to abandon certain property or claims if retaining the property or pursuing the estate would be detrimental to the estate. Specifically, a personal representative may “[a]bandon property when it is valueless or so encumbered, or in a condition, that it is of no benefit to the estate.” F.S. 733.612(9). But caution should be exercised when considering whether to abandon property because a personal representative may be held personally liable for failure to collect debts due the estate, even if the personal representative claims that the failure to collect was on the advice of counsel. Laramore v. Laramore, 64 So. 2d 662 (Fla. 1953). This indicates that if there is any question, it is better practice to obtain an order authorizing

abandonment of the chose in action or specific item of property. A form for a petition for leave to abandon any property, including a claim, is set forth in § 4.3.A.3.j. « Ch. 4 », « § 4.3 », • A », « 3 », « j » 1 Practice Under Florida Probate Code § 4.3.A.3.j (2022)

j. Form For Petition To Abandon Property (Including Claim) (Title of Estate)

(Title of Court)

PETITION TO ABANDON PROPERTY Petitioner, _________, as personal representative of this estate, alleges: 1. Certain assets of the estate, which are the subject of this petition, are described as follows: _________ 2. Petitioner believes that this property is valueless, or of such a value that the cost of (describe action otherwise available for the subject property sought to be avoided) is substantially in excess of its value. 3. Petitioner believes that it would be in the best interests of the estate for the described property to be abandoned. 4. The only persons having an interest in this proceeding and their respective addresses are: ____________ Petitioner requests that an order be entered authorizing abandonment of the property described above and waives service of a copy of this petition and notice of further proceedings on this petition. Under penalties of perjury, I declare that I have read the foregoing, and the facts alleged are true, to the best of my knowledge and belief. Signed on ______, 20___. /s/ Petitioner (Certificate of Service) /s/

(name of attorney) Attorney for Petitioner (address and phone number) (e-mail address(es)) Florida Bar No. ___ COMMENT: Form furnished by Kelley & Bronner, THE FLORIDA BAR PROBATE SYSTEM, Practice Form No. 101 (with minor modification) (Fla. Bar 5th ed. 2018). « Ch. 4 », « § 4.3 », • A », « 3 », « k • 1 Practice Under Florida Probate Code § 4.3.A.3.k (2022)

k. Duties With Regard To Real Property Of Decedent « Ch. 4 », « § 4.3 », • A », « 3 », « k •, • i » 1 Practice Under Florida Probate Code § 4.3.A.3.k.i (2022)

i. In General Generally, the personal representative has the right to take possession of the decedent’s real property (except protected homestead). F.S. 733.607(1). If possession of the property is not necessary for administration of the estate, the property may be left in the possession of the beneficiary entitled to it. F.S. 733.607(1). If the beneficiary is refused possession of the property by the personal representative, a petition for possession may be filed pursuant to F.S. 733.802. But see F.S. 733.801 (limiting beneficiary’s ability to require personal representative to surrender possession until expiration of five months from granting of letters). Distribution, in effect, is only a transfer of the personal representative’s right of possession, but it will protect a bona fide purchaser for value from an heir or devisee as against the personal representative and all other persons claiming under or against the decedent. F.S. 733.813. In either a testate or intestate estate, title to real property vests in the beneficiary upon the death of the decedent. F.S. 732.101(2), 732.514. No formal act of the personal representative is required to convey the title, but a devisee of the property cannot prove his or her title until the will is probated.

F.S. 733.103(1). The title of an heir or a devisee is subject to the personal representative’s right of possession and the right of sale. F.S. 733.607(1), 733.608(1), 733.613(1). Some probate lawyers consider it advisable for record title purposes to have the personal representative execute a deed to the heirs or devisees at the time of distribution. However, because neither the personal representative nor the estate ever actually possess title to the real property, the authors recommend that a document referred to as a personal representative’s release and certificate of distribution be provided instead. See FLSSI Form No. P-5.0600 (single individual personal representative), P-5.0605 (multiple individual personal representatives), or P5.0610 (corporate personal representative) for such releases and certificates of distribution. If the real property is located in a Florida county other than the county where the estate is probated, certified copies of the pertinent probate proceedings should be recorded along with the deed or certificate of distribution. It is suggested that these include the death certificate, the will, if any, the petition for administration, the order admitting the will to probate and appointing the personal representative, letters of administration, proof of publication of the notice to creditors, a Florida tax affidavit (a Form DR-312 —Affidavit of No Florida Estate Tax Due, or a Form DR-313—Affidavit of No Florida Estate Tax Due When Federal Return is Required), and the federal estate tax acceptance or closing letter, if any. « Ch. 4 », « § 4.3 », • A », « 3 », « k •, « ii » 1 Practice Under Florida Probate Code § 4.3.A.3.k.ii (2022)

ii. Homestead Real Property Special rules apply to homestead real property. See Chapter 19 of this manual for a detailed treatment of homestead real property. Generally, homestead is not an asset of the estate subject to the administration proceedings and the personal representative has no right to possession of it, except in the limited circumstances. Nevertheless, the personal representative is required by Fla. Prob. R. 5.340 to list it in the inventory and so designate it (although no reference need be made as to value). F.S. 733.608(2) allows (but does not require) the personal representative to take possession of property that reasonably appears to be protected

homestead when that property is not occupied by a person who appears to have an interest in the property. The personal representative may take this action “for the limited purpose of preserving, insuring, and protecting [the property] for the person having an interest in the property, pending a determination of its homestead status.” Id. Notice of taking possession is required. Rule 5.404(a). The personal representative is entitled to a lien on the protected homestead for the fees and costs incurred in preserving it, but not for fees and costs otherwise incurred in the course of general administration of the estate. F.S. 733.608(3); Herrilka v. Yates, 13 So. 3d 122 (Fla. 4th DCA 2009). Article X, § 4(c), of the Florida Constitution and F.S. 732.4015(1) prohibit a devise of the homestead of a decedent if the decedent is survived by either a spouse or any minor children. In that case, descent of the homestead property is controlled by F.S. 732.401. When homestead property passes by operation of law to a spouse or minor child or children, the title vests in them and the property is exempt from the claims of creditors of the decedent’s estate. (However, see F.S. 222.01(5) for situations in which the homestead property will remain subject to certain existing liens and judgments.) F.S. 732.4015(2) provides that, for the purposes of subsection (1), the term “owner” includes the grantor of a trust and the term “devise” includes a disposition by trust of property that, “if titled in the name of the grantor of the trust, would be the grantor’s homestead.” If the decedent has neither a surviving spouse nor a minor surviving child or children, the homestead can be freely devised to whomever the decedent desires. Webb v. Blue, 243 So. 3d 1054 (Fla. 1st DCA 2018). If freely devisable, the homestead exemption from creditors’ claims will inure to the benefit of the decedent’s descendants who are devised the property, even if such descendants are not the specific “heirs” within the meaning of F.S. 732.103 (Florida’s intestacy statute) and as defined in F.S. 731.201(20) who would otherwise take the homestead if the estate were intestate. Snyder v. Davis, 699 So. 2d 999 (Fla. 1997). Furthermore, the rights afforded to such descendants who are devisees will vest at the time of the decedent’s death and will continue even in the absence of a court order declaring the property to be homestead. In re Estate of Hamel, 821 So. 2d 1276 (Fla. 2d DCA 2002). However, if the property is devised to someone other than an heir, the homestead becomes a general asset of the estate

subject to administrative expenses and claims. Snyder v. Davis, 699 So. 2d 999 (Fla. 1997); see also In re Estate of Hamel, 821 So. 2d 1276 (Fla. 2d DCA 2002). Not every form of ownership may qualify for homestead status. For example, as to the qualification of a cooperative unit for homestead treatment, compare In re Estate of Wartels, 357 So. 2d 708 (Fla. 1978), and Phillips v. Hirshon, 958 So. 2d 425 (Fla. 3d DCA 2007) (cooperative not considered homestead for purpose of devise and descent), with Southern Walls, Inc. v. Stilwell Corp., 810 So. 2d 566 (Fla. 5th DCA 2002) (cooperative affords benefit of homestead protection from forced sale), and see the discussion on this issue in § 19.2.B.4.b of this manual. See also Geraci v. Sunstar EMS, 93 So. 3d 384 (Fla. 2d DCA 2012), in which the court held that the decedent’s interest in a condominium that was subject to a 100–year lease term beginning in 1976 was entitled to the creditor exemption under Article X, § 4(a), of the Florida Constitution, and that this exemption inured to the beneficiaries of the estate. In Hubert v. Hubert, 622 So. 2d 1049 (Fla. 4th DCA 1993), the homestead exemption from creditors’ claims was applied when one of decedent’s two adult sons was devised the remainder interest in the decedent’s home property, subject to the devise of a life interest in a nonrelated friend of the decedent. In Cutler v. Cutler, 994 So. 2d 341 (Fla. 3d DCA 2008), the decedent deeded her home and a vacant lot to an irrevocable trust, retaining a life estate in the home. In her will, the decedent devised the home to her daughter and the vacant lot to her son, further providing that the two parcels would abate equally to satisfy creditors. The son argued that the home was not protected homestead property because, at the time of the decedent’s death, it was titled in an irrevocable trust, and furthermore, allowing the exemption to inure to the benefit of the daughter contravened the decedent’s express desire as written in her will, that the home would abate equally with the vacant lot to satisfy creditors’ claims. The court found that although the home was protected homestead property as described in Article X, § 4, of the Florida Constitution, the decedent’s direction that the homestead “abate” for purposes of payment to creditors was tantamount to a direction to sell the homestead and administer the proceeds as property of the estate subject to

administration, resulting in a loss of the homestead exemption from creditors under well-settled Florida law. In McKean v. Warburton, 919 So. 2d 341 (Fla. 2006), the Florida Supreme Court reviewed a decision from the District Court of Appeal, Fourth District (Warburton v. McKean, 877 So. 2d 50 (Fla. 4th DCA 2004)), based on a factual situation in which the decedent’s will provided for two specific cash bequests and directed that the remainder of the decedent’s property was to go to his four half-brothers. The decedent’s estate essentially had one asset, a condominium that the court determined was homestead real property. The value of the homestead was not even enough to satisfy the specific cash bequests. The four half-brothers argued that the decedent’s condominium, because it was homestead, passed outside the probate estate to them, leaving no probate assets to satisfy the specific cash bequests. The district court of appeal held that the condominium, although homestead, remained property of the estate subject to division under F.S. 733.805, and that the proceeds should be applied to satisfy the cash bequests before being applied to the residuary bequest. At the same time, the district court certified as a question of great public importance, whether homestead property, when not specifically devised and when a decedent is not survived by a spouse or a minor child or children, passes to general devisees before residuary devisees in accordance with F.S. 733.805. The Florida Supreme Court answered the certified question in the negative, holding that “the decedent’s homestead property passes to the residuary devisees, not the general devisees, unless there is a specific testamentary disposition ordering the property to be sold and the proceeds made a part of the general estate,” McKean, 919 So. 2d at 342, thus quashing the decision of the Fourth District. See McEnderfer v. Keefe, 921 So. 2d 597 (Fla. 2006). In DeJesus v. A.M.J.R.K Corp. 255 So. 3d 879 (Fla. 2d DCA 2018), real property was owned by a corporation of which the decedent was the president and sole shareholder. Because Article X, § 4(a), of the Florida Constitution describes homestead property as “property owned by a natural person,” and because being president and shareholder of an entity does not give that person a legal or equitable ownership interest in the property, the court held that the homestead exemption did not apply to the property. On the other

hand, the First District in HCA Gulf Coast Hospital v. Estate of Downing, 594 So. 2d 774 (Fla. 1st DCA 1991), determined that the beneficiary of a spendthrift trust was entitled to claim the homestead exemption as to trust property, because the trust beneficiary held an equitable ownership interest in the property. The practitioner should note, however, that the facts in this case were unusual and the holding of the case was limited to those specific facts. Accordingly, review of the facts of the case is necessary if faced with this specific issue. The personal representative may have certain duties incidental to the homestead realty pertaining to the apportionment and payment of estate taxes. The value of the homestead is a part of the gross estate for estate tax purposes, but the property is exempt from contribution for the tax. F.S. 733.817(3). TAX NOTE: Treas. Reg. § 20.2033-1(b) states that property subject to homestead under local law is included in the gross estate. If the conditions delineated in F.S. 732.4015 restricting the devise of the homestead are absent, and the homestead is then devised to someone other than an heir of the decedent, the homestead property becomes an estate asset and the exemption from claims is waived. If so, the homestead property should be subject to contribution for estate tax in the same manner as other real property. Under F.S. 732.401(1), if not devised as permitted by law and the constitution, “the homestead shall descend in the same manner as other intestate property; but if the decedent is survived by a spouse and one or more descendants, the surviving spouse shall take a life estate in the homestead, with a vested remainder to the descendants in being at the time of the decedent’s death per stirpes.” See Aronson v. Aronson, 81 So. 3d 515 (Fla. 3d DCA 2012). In addition, the surviving spouse has the right to make an election in lieu of the life estate, and can elect to take an undivided onehalf interest in the homestead as a tenant in common, with the remaining undivided one-half interest vesting in the decedent’s descendants in being upon the decedent’s death, per stirpes. F.S. 732.401(2). The election must be made within six months of the decedent’s death. The election is made by filing a notice of the election “for recording in the official record books of the county or counties where the homestead property is located.” F.S. 732.401(2)

(b), (2)(e). An attorney-in-fact or guardian of the property of the surviving spouse may petition to extend the time to make the election, but that petition must be filed within the six-month period. F.S. 732.401(2)(c); Samad v. Pla, 267 So. 3d 476 (Fla. 2d DCA 2019). Although there is no requirement that a notice or other document be filed in the estate by the surviving spouse when such an election is made, it may be advisable to file a notice of making the election so that the personal representative and the beneficiaries receive actual notice of the election. See § 4.3.A.3.k.v for a form of election of surviving spouse to take a one-half interest of decedent’s interest in homestead property. « Ch. 4 », « § 4.3 », • A », « 3 », « k •, « iii » 1 Practice Under Florida Probate Code § 4.3.A.3.k.iii (2022)

iii. Power Of Sale Over Real Property The personal representative may sell real property without court order under a power given in the will. F.S. 733.613(2). However, a successor personal representative may rely on a power to sell real property granted in the will only if the power was not personal to the personal representative named in the will. F.S. 733.614. In an intestate estate, or when there is no power in the will, or when a power is so limited that it cannot be exercised conveniently, the personal representative may sell real property at public or private sale, but title will not pass until the sale is authorized or confirmed by court order. F.S. 733.613(1). The procedure for such a sale is set forth in Fla. Prob. R. 5.370. Sales and transfers are more extensively treated in Chapter 10 of this manual, and related matters such as mortgaging or leasing assets, are treated in Chapter 9 of this manual. See § 4.3.A.3.j.vi for a form of petition for authorization to sell real property. « Ch. 4 », « § 4.3 », • A », « 3 », « k •, « iv » 1 Practice Under Florida Probate Code § 4.3.A.3.k.iv (2022)

iv. Foreign Real Property Real property not located in Florida does not come under the direct control of the personal representative, but usually the personal representative should take steps to arrange for ancillary administration in the jurisdiction where the real property is located.

TAX NOTE: For purposes of the federal estate tax, the gross estate of a decedent who was either a citizen or resident of the United States at death includes the value of all property beneficially owned by the decedent, regardless of whether it has ever been subject to the possession or control of the personal representative. Reg. § 20.2033-1(a). « Ch. 4 », « § 4.3 », • A », « 3 », « k •, « v » 1 Practice Under Florida Probate Code § 4.3.A.3.k.v (2022)

v. Form For Election Of Surviving Spouse To Take One-Half Interest Of Decedent’s Interest In Homestead Property (Title of Estate)

(Title of Court)

ELECTION OF SURVIVING SPOUSE TO TAKE A ONE-HALF INTEREST OF DECEDENT’S INTEREST IN HOMESTEAD PROPERTY 1. The decedent, _________, died on _________. On the date of the decedent’s death, the decedent was married to _________, who survived the decedent. 2. At the time of the decedent’s death, the decedent owned an interest in real property that affiant believes to be homestead property described in Article X, Section 4, of the Florida Constitution, that real property being in _________ County, Florida, and described as:

(insert description) 3. Affiant elects to take one-half of decedent’s interest in the homestead as a tenant in common in lieu of a life estate. 4. If affiant is not the surviving spouse, affiant is the surviving spouse’s attorney-in-fact or guardian of the property, and an order has been rendered by a court having jurisdiction of the real property authorizing the undersigned to make this election, and a certified copy of that order is attached to this election.

/s/____________ Affiant Sworn to (or affirmed) and subscribed before me by means of ☐ physical presence or ☐ online notarization, this ______ day of ______, 20___, by (name of affiant). /s/____________ Notary Public—State of Florida (Print, Type, or Stamp Commissioned Name of Notary Public) Personally Known _________ OR Produced Identification _________ Type of Identification Produced _________ (Seal) COMMENT: This form is furnished by Kelley & Bronner, THE FLORIDA BAR PROBATE SYSTEM, Practice Form No. 73 (with minor modification) (Fla. Bar 5th ed. 2018). If the affiant is the guardian of the property, insert the language “together with a certified copy of the letters of guardianship” at the end of Paragraph 4. If the affiant is the attorney-in-fact, insert the language “together with a photocopy of that power and an affidavit pursuant to F.S. 709.2119(2)(a).” Additionally, if the affiant is the attorney-in-fact or guardian of the property of the surviving spouse, insert the language “as attorney-infact [or guardian of the property] for the surviving spouse” after the word “Affiant” in the signature block. To be valid, this notice must be recorded in the official records books of the county or counties where the homestead property is located. It should first be recorded and then the recorded original should be filed in the probate file. F.S. 732.401(2)(e). Effective January 1, 2020, the jurat or certificate of acknowledgment must state whether the signer physically or through audio-visual technology personally appeared before the notary. F.S. 117.05. The above notarial certification is deemed sufficient and does not preclude other forms if the certificate is completed with the required

information. « Ch. 4 », « § 4.3 », • A », « 3 », « k •, « vi • 1 Practice Under Florida Probate Code § 4.3.A.3.k.vi (2022)

vi. Form For Petition For Authorization To Sell Real Property (Title of Estate)

(Title of Court)

PETITION FOR AUTHORIZATION TO SELL REAL PROPERTY Petitioner, _________, as personal representative of this estate, alleges: 1. One of the assets of the estate is real property described as: _________ 2. Petitioner has received an offer to purchase the described real property upon the following terms and conditions: _________ COMMENT: Consider attaching copy of written contract as an Exhibit. 3. Although power of sale has been granted in the will, such power is so limited by the will or by operation of law that it cannot be conveniently exercised. COMMENT: Replace paragraph 3 with “Decedent died intestate” if there is no will or, if no power of sale is contained in the will, replace with “No power of sale is conferred in the will.” 4. Petitioner considers that it is in the best interests of the estate and of those interested in it that the real property described be sold at the price and upon the terms offered, for the reason that: _________ 5. The only persons having an interest in this proceeding and their respective addresses are: ____________ Petitioner requests that an order be entered authorizing petitioner, as personal representative, to sell the described real property upon the terms recited, at private sale, and to execute all instruments and

documents necessary to effect such sale, and petitioner waives service of a copy of this petition and notice of further proceedings on this petition. Under penalties of perjury, I declare that I have read the foregoing, and the facts alleged are true, to the best of my knowledge and belief. Signed on ______, 20___. /s/ Petitioner (Certificate of Service) /s/ (name of attorney) Attorney for Petitioner (address and phone number) (e-mail address(es)) Florida Bar No. ___ COMMENT: Form furnished by Kelley & Bronner, THE FLORIDA BAR PROBATE SYSTEM, Practice Form No. 99 (with minor modification) (Fla. Bar 5th ed. 2018). Unless interested persons have joined in the petition or have consented to the sale, a notice of the petition must be given. A petition should be presented to the court only when a testator has not conferred on the personal representative a power of sale or when a conferred power is so limited by the will or by operation of law that it cannot be exercised conveniently. If the court is asked to authorize the sale under these circumstances, it may consider such things as adequacy of consideration, whether the transaction is in good faith, whether the sale will benefit one or more beneficiaries to the detriment of others, and whether there is fraud involved, in addition to the question of necessity. F.S. 733.613(1). If, on the other hand, a petition is presented to the court despite a clear power of sale specified in the will, the court may consider the factors stated above other than the necessity of the sale. F.S. 733.613(2); Iandoli v. Iandoli, 547 So. 2d 666 (Fla. 4th DCA 1989); In re Granger, 318 So. 2d 509 (Fla. 1st DCA 1975). See also § 10.9 of this

manual. Another form for authorization for the sale of property is provided in § 10.5.A.2.b of this manual. « Ch. 4 », « § 4.3 », • A », « 4 » 1 Practice Under Florida Probate Code § 4.3.A.4 (2022)

4. Duty To Keep Estate Funds Separate As must any fiduciary charged with the handling of funds in a trust capacity, the personal representative must keep estate funds separate from his or her own funds or any other funds, whether business or otherwise. Smith v. Reddish, 113 Fla. 20, 151 So. 273 (1933). See RESTATEMENT (THIRD) OF TRUSTS § 84. The personal representative must not deposit trust funds in his or her name without disclosing the trust. See Myers v. Matusek, 98 Fla. 1126, 125 So. 360 (1929). See also Rule Reg. Fla. Bar 4-1.15. « Ch. 4 », « § 4.3 », • A », « 5 » 1 Practice Under Florida Probate Code § 4.3.A.5 (2022)

5. Duty To Keep Records And To Establish Bookkeeping Methods A personal representative, being held to a high duty of care, would be derelict in that duty if he or she did not establish accepted methods for the keeping of records of estate transactions. Properly kept records will avoid trouble and simplify the preparation of tax returns and required accountings. The records do not need to be complicated. In fact, in smaller estates it may be sufficient to handle all receipts and disbursements through a checking account, because the canceled checks and deposit slips will provide clear and sufficient records for the purposes of substantiating the final accounting required by Fla. Prob. R. 5.400, or any other accountings. However, it may be necessary to specially request canceled checks for this purpose, because many banks no longer automatically provide canceled checks to the account holder along with the monthly statements. As a practical matter, many probate lawyers assist the personal representative in setting up the estate accounts and then subsequently maintain the accounting procedure at their offices. The personal representative must keep complete and detailed records of the estate to enable the District Director of the IRS to determine the estate

tax. These records must be kept available for inspection. No definite time limit is specified in the federal law or regulations. Reg. § 20.6001. To be fully protected, the personal representative should keep all original records of the estate as vouchers to support the books of account and accountings to the court. The Florida Uniform Principal and Income Act, F.S. Chapter 738, is applicable to estates and requires segregation of principal and income. Separate records for principal and income will also facilitate accounting and will be helpful in preparing the United States fiduciary income tax returns (IRS Form 1041) for the estate. The estate tax is a lien on the gross estate for 10 years unless paid. IRC § 6324. Rule 5.346, titled “Fiduciary Accounting,” became effective on January 1, 1989, and adopted the Uniform Fiduciary Accounting Principles and Model Formats. Rule 5.346(b) requires use of the standards set out in the rule for the accounting of all transactions occurring on or after January 1, 1994. Accountings that substantially conform to the model formats are acceptable. See Chapter 12 of this manual. « Ch. 4 », « § 4.3 », • A », « 6 » 1 Practice Under Florida Probate Code § 4.3.A.6 (2022)

6. Duty To Recognize Creditors’ Rights A personal representative’s authority, whether dictated by statute, a will, a court order, or any combination of these sources, extends to acting for the best interests of creditors of the estate. F.S. 733.602(1). F.S. 733.2121(1) and Fla. Prob. R. 5.241(a) require the personal representative to “promptly publish a notice to creditors.” The notice must be published “once a week for 2 consecutive weeks, in a newspaper published in the county where the estate is administered” or, if none, “a newspaper of general circulation in that county.” F.S. 733.2121(2). A diligent search for reasonably ascertainable creditors of the decedent must be conducted, and a copy of the notice must also be served by the personal representative on each of them. F.S. 733.2121(3)(a); Rule 5.241(a). If the decedent was 55 or older at the time of his or her death, a copy of the notice together with a copy of the death certificate must be served on the Agency for Health Care Administration. F.S.

733.2121(3)(d); Rules 5.241(a), (e). It is not necessary to serve a copy of the notice on the Florida Department of Revenue unless the department is determined to be a creditor after diligent search. F.S. 733.2121(3)(e). As to what constitutes a “diligent search,” see Strulowitz v. Cadle Co., II, Inc., 839 So. 2d 876 (Fla. 4th DCA 2003). A reasonably ascertainable creditor was distinguished from a merely conjectural creditor in Soriano v. Estate of Manes, 177 So. 3d 677 (Fla. 3d DCA 2015). See Cantero v. Estate of Caswell, 305 So. 3d 37 (Fla. 3d DCA 2019). It is not enough that the claimant’s identity is reasonably ascertainable, but its claim must also be reasonably ascertainable. Simpson v. Estate of Simpson, 922 So. 2d 1027 (Fla. 5th DCA 2006). All claims must be filed in the probate proceeding within the later of three months after the time of the first publication of the notice, or, as to any creditor required to be served with a copy of the notice to creditors, 30 days after the date of service. F.S. 733.702(1). If it is known to the personal representative that a creditor is presently represented by a lawyer at the time of service, the personal representative must serve the notice on such lawyer. Rule 5.041, citing Fla. R. Gen. Prac. & Jud. Admin. 2.516. Such service on a lawyer for a creditor made by a personal representative in good faith is effective for purposes of commencing the 30-day limitations period to subsequently file a claim under F.S. 733.702(1), even if such lawyer is not rendering services with respect to estate matters. Grainger v. Wald, 29 So. 3d 1155 (Fla. 1st DCA 2010). In Richard v. Richard, 193 So. 3d 964 (Fla. 3d DCA 2016), a creditor, who was also the co-personal representative of the estate, filed a claim more than three months after the publication date of the notice to creditors. He challenged the validity of the notice as premature, because it was published one day prior to the rendition of the order appointing the personal representatives. The court held that pursuant to F.S. 733.601, the “relation back” doctrine applied to the act of publishing the notice to creditors, and the notice was therefore valid to bar claims of creditors filed more than three months after the publication date. Taken to its logical conclusion, this case can lead to troubling outcomes if the notice to creditors is published a significant time before the court renders the order appointing the personal representative, rather than merely one day beforehand. For instance, the claims filing deadline could fall within a period when no estate

administration is in progress if the notice to creditors is published three months before the order appointing the personal representative. In Johnson v. Townsend, 259 So. 3d 851 (Fla. 4th DCA 2018), a surviving spouse petitioned more than two years after the decedent’s death to perfect an ownership interest in community property interests held with the decedent. The court held that the wife’s community property interest was a “claim” as defined in F.S. 731.201(4), subject to the time limitations set forth in F.S. 733.702(1) and 733.710(1). The Florida Supreme Court has held that a creditor who was “known or reasonably ascertainable” to the personal representative but was not served with a notice to creditors is not bound by the three-month deadline after the first publication of the notice to creditors to file a claim under F.S. 733.702(1), and may file a claim any time prior to the passage of the twoyear statute of repose under F.S. 733.710 (two years after the death of the decedent). Jones v. Golden, 176 So. 3d 242 (Fla. 2015). Practitioners should note that in accordance with the Golden case, “[a] personal representative is therefore constitutionally obligated to provide actual notice to known or reasonably ascertainable creditors” to satisfy due process requirements and bar the creditor’s claim filed before two years following death. Id. at 249. Creditors’ rights (as well as payment of administrative expenses of an estate) cannot be defeated by a testamentary devise forgiving a debt in a will when the estate is not solvent. See Lauritsen v. Wallace, 67 So. 3d 285 (Fla. 5th DCA 2011), in which the court dealt with a decedent’s will that forgave his son’s obligation on a promissory note and related mortgage. The forgiveness of the note was not set forth in the promissory note itself, but would be effective only upon probate of the will. The promissory note was the only non-exempt asset available to pay the estate’s administrative costs, debts, and expenses. The court held that the note could be forgiven only to the extent it was not needed to pay the estate’s debts and expenses under the priorities established in the Florida Probate Code. A personal representative should also be mindful that not all creditors’ claims have the same priority of payment. F.S. 733.707 provides a hierarchy for the payment of expenses and claims of creditors. It includes eight

different classes of claims, each having priority of payment over the lower classes. Accordingly, if there is a possibility that there will be insufficient assets to pay all expenses and creditors, the personal representative will need to determine which expenses and claims will be entitled to preference in payment. Additionally, a personal representative will need to be mindful of the order in which estate assets abate in determining what assets will be subject to being used to pay expenses of administration and claims of creditors. See Geezil v. Savage, 127 So. 3d 867 (Fla. 2d DCA 2013). « Ch. 4 », « § 4.3 », • A », « 7 » 1 Practice Under Florida Probate Code § 4.3.A.7 (2022)

7. Obligation To File Tax Returns And Notices For Decedent And Estate The personal representative is obligated to file income tax returns and pay the income taxes of the decedent. The personal representative must also file fiduciary income tax returns for the estate when required. IRC §§ 6012(a)– (b). Release of the personal representative from personal liability for the decedent’s income taxes may be obtained under IRC § 6905 by request to the district director early in the administration of the estate. See § 13.2.H of this manual. Capital losses or net operating losses incurred in business by a decedent during the last year of his or her life can be reported only on the final IRS Form 1040 and are not available as deductions on a federal estate tax return. Rev. Rul. 74-175, 1974-1 C.B. 52. If the decedent was obligated to file a gift tax return but had not done so, the personal representative must file it. Reg. § 25.6019-1(g). A surviving spouse may file a joint gift tax return. The practitioner should note that IRC § 6019 requires that a gift tax return be filed only with respect to gifts made by an individual. The personal representative, before discharge, should make written application, separate from the return, under IRC § 6905 to obtain a release from personal liability for the decedent’s gift tax liability, if any. If the estate is subject to estate tax, the personal representative is responsible for filing the estate tax return with the IRS and also for the payment of the estate tax. A death certificate must be filed with the return,

along with a certified copy of the will if the decedent died testate. Reg. § 20.6018-4. If there is more than one personal representative, the return must be made jointly by all. Reg. § 20.6018-2. The lawyer and personal representative should review the decedent’s last three income tax returns for clues as to assets, liabilities, and sources of the decedent’s income and deductions. If it is determined that income tax returns were not filed by the decedent for one or more years, the personal representative should have the decedent’s accountant order tax transcripts for those years to confirm that no federal income tax return was required. The lawyer should recognize that the IRS compares the information on the individual’s Form 1040 to the information on the individual’s IRS Form 706. IRC § 6018(a) requires that the personal representative file an estate tax return in all cases in which the gross estate of a citizen or resident exceeds the estate tax threshold amount in effect at the date of the decedent’s death. That amount may be reduced by taxable gifts given by the decedent, pursuant to IRC § 6018(a)(3). If the decedent was a nonresident and noncitizen of the United States, IRS Form 706NA must be filed if the decedent’s gross estate in the United States exceeded the statutory threshold amount. IRC § 6018(a) (2); Reg. § 20.6018-1(b). In situations in which the filing of an estate tax return is not required because the gross estate of a citizen or resident does not exceed the estate tax threshold amount, but the decedent is survived by a spouse, consideration should be given as to whether to file an estate tax return to allow the surviving spouse to utilize the decedent’s unused estate tax exemption and elect portability, which will result in the unused estate tax exemption being added to the exemption of the surviving spouse. IRC § 2010(c)(5)(A); Reg. § 20.2010-2T. The portability election must be made on a timely filed IRS Form 706, so this issue should be promptly addressed in every estate in which the decedent is survived by a spouse and the amount of the gross estate does not exceed the estate tax threshold amount to determine whether a portability election is of sufficient benefit to the surviving spouse to warrant the expense. The personal representative may file an affidavit with the Department of Revenue (Form DR-312) stating that the estate owes no Florida estate tax. See F.S. 198.32(2). A federal preliminary notice is not required, because the

notification requirement is satisfied by the filing of the estate tax return as required by IRC § 6018. IRC § 6903 and the corresponding regulations, however, require that every person acting in a fiduciary capacity for another person must give written notice to the district director for the district where the return must be filed. Thus, although Reg. § 20.6036-2 requires no special notification as to qualification of a personal representative of an estate, IRC § 6903 requires notification of a fiduciary relationship between the estate and personal representative. In addition, the fiduciary must file a written notice of the termination of the fiduciary capacity (IRS Form 56) in order to be relieved of any further fiduciary duties or liabilities. See also IRC § 2204, which provides that a personal representative may be relieved of estate tax liability on application and payment of the tax. There is a $10,000,000 estate and gift tax exemption per decedent that is indexed for inflation (during 2021, the exemption was $11,700,000). IRC § 2010. The estate tax exemption is now permanent and will not expire; however, the $10,000,000 estate and gift tax exemption amount will revert back to $5,000,000 after January 1, 2026, unless the exemption is modified before that date by separate legislation. As mentioned above, an affidavit attesting that the estate is not taxable should be filed with the Department of Revenue when the total value of the gross estate is insufficient to require the filing of a federal estate tax return, IRS Form 706. See § 6.3.F of this manual. The personal representative is personally liable for the federal estate tax if he or she distributes the estate without paying the tax. 31 U.S.C. § 3713(b). IRC § 2002 provides that the federal estate tax is payable by the personal representative of the decedent’s estate. The personal liability of the personal representative is described by 31 U.S.C. § 3713(b) as follows: “A representative of a person or an estate … paying any part of a debt of the person or estate before paying a claim of the Government is liable to the extent of the payment for unpaid claims of the Government.” For this purpose, a “debt” includes a beneficiary’s distributive share of an estate. A personal representative, therefore, who pays a debt due by the decedent’s estate or distributes any portion of the estate before estate taxes are paid in full will be personally liable to the extent of the payment or distribution for any unpaid estate tax. Reg. § 20.2002-1. Under Fla. Prob. R. 5.400 and

5.401, however, there is no provision for the court to examine, disapprove, or disallow the final accounting unless an interested person objects to the accounting. An order of final discharge should not be granted unless the proof of payment of federal and state taxes (if applicable) is made. The petition for final discharge should allege the payment of these taxes and the final account should record the payment. Practitioners should note, however, that effective January 1, 2013, for estates of decedents dying after December 31, 2004, no Florida estate tax return needs to be filed if a state death tax credit is not allowable under the Internal Revenue Code. F.S. 198.13(4). If an estate has a large estate tax liability, the personal representative should be made aware of the alternative means of paying the tax. If the estate consists largely of an interest or interests in a closely held business or businesses, the IRS may allow from 10 to 15 years to satisfy the liability if certain conditions are met. IRC § 6166. Moreover, a redemption of all or a portion of an estate’s shares may be in order if the federal estate tax value of the stock included in the decedent’s gross estate exceeds a certain percentage of the value of the gross estate. IRC §§ 303, 6166. Alternatively, the personal representative can mortgage the property to obtain the necessary funds to satisfy the estate tax liability. If this alternative is chosen, the personal representative should be certain the mortgage does not exceed the tax basis of the property, or the estate will realize a gain on its subsequent distribution of the property subject to the mortgage. Crane v. Commissioner, 331 U.S. 1, 67 S. Ct. 1047, 91 L. Ed. 1301 (1947); Kenan v. Commissioner, 114 F.2d 217 (2d Cir. 1940). Finally, under IRC § 6161 an extension of up to 12 months may be granted for payment of the federal estate tax if the personal representative can show reasonable cause. An application for an extension based on reasonable cause must establish why it is impossible or impracticable for the personal representative to pay the full amount of estate tax on or before the estate tax return due date. For example, reasonable cause may exist when an estate includes sufficient liquid assets to pay the tax, but those assets are located in several jurisdictions and are not immediately subject to the control of the personal representative, or when an estate includes a claim to substantial assets that cannot be collected without litigation such that the size of the gross estate is unascertainable as of the time the tax is otherwise due. Reg. §

20.6161-1. The practitioner should note, however, that an extension for time to pay the tax does not extend the time to file the estate tax return. Extensions for time to file the return are governed by IRC § 6081. See also IRC § 6163. The personal representative is obligated to file an income tax return (IRS Form 1041) for the income generated by estate assets during estate administration. Generally, income that is accumulated by an estate is taxable to the estate; income that is distributed to beneficiaries is taxable to the beneficiaries. With the relatively compressed tax rates for trusts and estates currently in effect, the incentive to have an estate hold income and pay the income tax on it is diminished. The obligation follows a personal representative who has been discharged if he or she had notice of the obligation “or failed to exercise due diligence in ascertaining whether or not such obligations existed.” Reg. § 1.641(b)–2(a). The tax liability also follows the assets. Id. If an estate lasts more than two tax years and is also obligated to pay an income tax, it must make estimated payments on the taxes due. IRC § 6654(l). This creates an additional cash-scheduling task for the practitioner. A personal representative may use the calendar year or adopt a fiscal year as the estate’s income tax year. IRC § 441(b). This may benefit those entitled to receive income from an estate. See also §§ 5.7.A–5.7.C of this manual. « Ch. 4 », « § 4.3 », • A », « 8 » 1 Practice Under Florida Probate Code § 4.3.A.8 (2022)

8. Other Duties Toward Estate Assets « Ch. 4 », « § 4.3 », • A », « 8 », • a » 1 Practice Under Florida Probate Code § 4.3.A.8.a (2022)

a. Rental Of Property The personal representative, without obtaining court approval, may lease real property for any term, with or without a renewal option. F.S. 733.612(7). See F.S. 733.613(2). The authority to lease does not exist if the will or the court forbids it. F.S. 733.612. See §§ 9.2.F.2 and 10.6.E of this manual for further discussion of this subject.

« Ch. 4 », « § 4.3 », • A », « 8 », « b » 1 Practice Under Florida Probate Code § 4.3.A.8.b (2022)

b. Investment Of Estate Funds The matter of investment of estate funds is treated primarily in §§ 9.3.A– 9.3.I of this manual and will be discussed here only to a limited extent. The personal representative must preserve the property but at the same time should keep it properly invested. The “prudent investor” rule applies, unless otherwise waived or modified by the decedent’s will. F.S. 518.11(2), 733.602(1). The personal representative is specifically authorized to invest in bonds or motor vehicle anticipation certificates by F.S. 518.15, higher education bonds or certificates under F.S. 518.151, or federally insured interest-bearing accounts, readily marketable secured loan arrangements, and other prudent investments under F.S. 733.612(4). The 1993 Florida Legislature substantially amended F.S. 518.11 and adopted most of the concepts of the proposed Uniform Prudent Investor Act. See § 4.3.A.2. The personal representative may exercise discretion under the prudent investor rule to retain proper investments as they existed at the death of the decedent. The personal representative is also authorized under the Code to “[r]etain assets owned by the decedent, pending distribution or liquidation, … that are otherwise improper for fiduciary investments.” F.S. 733.612(1). However, the prudent investor rule “requires the exercise of reasonable care and caution,” F.S. 518.11(1)(a), as well as the duty to diversify, F.S. 518.11(1)(c), while further maintaining that “[t]he fiduciary’s decision to retain or dispose of an asset may be influenced properly by the asset’s special relationship or value to the purposes of the … estate … or to some or all of the beneficiaries, consistent with the [fiduciary’s] duty of impartiality,” F.S. 518.11(1)(d). The personal representative must also consider proper temporary investments to have sufficient liquidity at the appropriate time for the payment of debts, funeral and administration expenses, and taxes. When the cash requirements have been estimated, the personal representative should liquidate sufficient assets and decide what part of the proceeds should be kept in a bank checking account and what part should be placed in short-term interest-bearing investments such as savings and loan association accounts, bank savings accounts, and Treasury bills. The personal representative is

specifically authorized to invest funds as provided in F.S. 518.10–518.14 “considering the amount to be invested, liquidity needs of the estate, and the time until distribution will be made.” F.S. 733.612(4). If in doubt, the personal representative may be well-advised to seek the consent of all interested persons, or prior court approval, regarding any of the aforementioned investment matters, consistent with the authority offered under F.S. 733.603. Additionally, the personal representative is authorized to delegate the investment functions to an investment agent if certain formalities are observed. See F.S. 518.112. If the investment functions are properly delegated pursuant to the requirements of F.S. 518.112(3), the personal representative “shall not be responsible otherwise for the investment decisions nor actions or omissions of the investment agent to which the investment functions are delegated.” See F.S. 518.112(4). « Ch. 4 », « § 4.3 », • A », « 8 », « c » 1 Practice Under Florida Probate Code § 4.3.A.8.c (2022)

c. Repairs Repairs to real and personal property should be undertaken only if necessary to preserve or protect the property from loss or damage. Unless the will provides otherwise, the cost of ordinary repairs must be paid out of income. F.S. 738.701(3). For extraordinary repairs see F.S. 738.702(1)(h). See § 9.2.E.1 of this manual for further discussion of related matters. Authority to make repairs is set out in F.S. 733.612(6). TAX NOTE: Expenses for preserving and caring for estate property, including costs of maintaining and storing it, may be deducted as administration expenses if necessarily incurred. Expenses incurred to preserve estate property do not include outlays for additions or improvements, nor will such expenses be allowed for a longer period than the personal representative is required to retain the property. Reg. § 20.2053-3(d). Under IRC § 642(g), administration expenses deductible in computing the taxable estate of a decedent are not deductible in computing the taxable income of the estate unless an election is filed stating that those items have not been allowed as deductions under IRC §§ 2053 or 2054, together with a waiver of the right to have those items so allowed. See IRC § 642(g) and the corresponding regulations.

If the will or the court limits the authority granted or if for some other reason a court order seems to be necessary, a petition to expend funds to preserve property must be filed. A form for the petition is set forth in § 9.2.E.2.a of this manual. « Ch. 4 », « § 4.3 », • A », « 8 », « d » 1 Practice Under Florida Probate Code § 4.3.A.8.d (2022)

d. Maintenance Buildings and other structures must be maintained to the extent necessary to prevent deterioration, loss, or damage during administration. Care must be given to lawns and plantings to prevent deterioration. Many types of personal property require maintenance to preserve them, such as proper storage for furs and stamp collections. The same is true of machinery and equipment that require continual attention to preserve their value and condition. TAX NOTE: See the Tax Note in § 4.3.A.8.c with respect to the deductibility of certain maintenance expenses. Expenses incident to this type of maintenance are ordinary expenses in managing the property and are to be paid out of income. F.S. 738.701(3). The matter of maintenance is discussed more fully in § 9.2.E.1 of this manual. « Ch. 4 », « § 4.3 », • A », « 8 », « e • 1 Practice Under Florida Probate Code § 4.3.A.8.e (2022)

e. Insurance The personal representative’s duties relative to property insurance are discussed in §§ 1.2.E.4.a and 9.2.E.1 of this manual. The personal representative should determine immediately whether there is adequate public liability, property damage, or other casualty insurance on the real and personal property of the probate estate. If not, the personal representative should have a binder placed on the property as soon as possible by a reliable insurance agent that also insures against personal and fiduciary liability to third persons. See F.S. 733.612(13). « Ch. 4 », « § 4.3 », • A », « 9 » 1 Practice Under Florida Probate Code § 4.3.A.9 (2022)

9. Notice Of Administration The personal representative must “promptly serve a copy of the notice of administration” (in the manner provided for service of formal notice) on (a) The decedent’s surviving spouse; (b) Beneficiaries; (c) The trustee of any trust described in s. 733.707(3) and each qualified beneficiary of the trust as defined in s. 736.0103, if each trustee is also a personal representative of the estate; and (d) Persons who may be entitled to exempt property. F.S. 733.212(1). These requirements are also found in Fla. Prob. R. 5.240(a). The notice of administration must contain the name of the decedent, the file number of the estate, the designation and address of the court, and the name and address of the personal representative and his or her lawyer. The notice must state that the fiduciary attorney-client privilege in F.S. 90.5021 “applies with respect to the personal representative and any attorney employed by the personal representative,” and must contain a statement indicating “whether the estate is testate or intestate, and, if testate, the date of the will and any codicils.” F.S. 733.212(2)(a)–(2)(b). The notice must state that the person served is required to file with the court “any objection that challenges the validity of the will, the venue, or the jurisdiction of the court” within three months after the date of service of the notice on the objecting person. F.S. 733.212(2)(c). When such an objection or challenge is made, “will contests and the rights of caveators must be determined prior to admitting a will to probate, appointing a personal representative or issuing letters of administration.” Platt v. Osteen, 103 So. 3d 1010, 1011 (Fla. 5th DCA 2012). A pleading that is functionally the equivalent of a caveat, even if technically deficient, is enough to prevent the admission of a will without due process to the challenger. Crescenzo v. Simpson, 239 So. 3d 213 (Fla. 2d DCA 2018). The notice must also state that persons entitled to exempt property under F.S. 732.402 will be deemed to have waived their rights to claim that property as

exempt property unless a petition for determination of exempt property is filed by such persons or on their behalf on or before the later of the date that is 4 months after the date of service of a copy of the notice of administration on such persons or the date that is 40 days after the date of termination of any proceeding involving the construction, admission to probate, or validity of the will or involving any other matter affecting any part of the exempt property. F.S. 733.212(2)(d). It must state that unless an extension is granted pursuant to s. 732.2135(2), an election to take an elective share must be filed on or before the earlier of the date that is 6 months after the date of service of a copy of the notice of administration on the surviving spouse, or an attorney in fact or a guardian of the property of the surviving spouse, or the date that is 2 years after the date of the decedent’s death. F.S. 733.212(2)(e). In 2020, F.S. 733.212(2)(f) was added, requiring the notice to state, “under certain circumstances and by failing to contest the will, the recipient of the notice of administration may be waiving his or her right to contest the validity of a trust or other writing incorporated by reference into a will.” F.S. 733.212(2)(c) and (3) clarify that the three-month deadline to object to the validity of a will, venue, or jurisdiction of the court after service of a notice of administration may be extended only for “estoppel based upon a misstatement by the personal representative regarding the time period within which an objection must be filed.” The objection period may not be extended for any other reason. Id. Rule 5.2405 addresses situations involving notice to personal representatives who are also interested persons in an estate in another capacity. See the 2013 Committee Notes to Rule 5.2405. Under the current rule, when a person entitled to service of the notice of administration pursuant to Rule 5.240(a) is also a personal representative, unless waived, the effective date of service of the notice of administration on the personal representative is the earliest of (1) the date such person acknowledges in writing receipt of the notice, (2) the date the notice is first served on any other person entitled to service, or (3) the date that is 30 days after the date letters

of administration are issued. Rule 5.2405(a). “Unless the court directs otherwise, the personal representative of a testate estate must, upon written request, furnish a copy of the will and all codicils admitted to probate to any person on whom the notice of administration was served.” Rule 5.240(c). The personal representative may elect to serve formal notice of the petition for administration on interested persons under F.S. 733.2123 to shorten the time period for filing objections challenging the validity of the will, testacy of the decedent, venue, or jurisdiction of the court to 20 days from the service of the petition. If a caveat is filed, formal notice of the submission of a will for probate must be given and the court must adjudicate any challenge to the will before admitting it to probate. Platt. See Rocca v. Boyansky, 80 So. 3d 377, 381 (Fla. 3d DCA 2012), in which the court held that “if a caveat is filed, the permissive language of [F.S.] 733.2123 becomes mandatory and requires the petitioner to serve formal notice of his or her petition upon caveators, as provided under [F.S.] 731.110(3).” The service of formal notice is governed by Rule 5.040(a). In the case of caveators other than creditors who file a petition for administration, F.S. 731.110(3) requires service of formal notice of the petition for administration on the caveator or the caveator’s agent (except that caveators need not be served formal notice on themselves), and the caveator must have “had the opportunity to participate in proceedings on the petition,” before the court may consider such petitions. For a discussion of caveat proceedings, see §§ 1.2.G of this manual. The personal representative also has the option to serve any heir of the decedent, a devisee under a prior will, “or others who claim or may claim an interest in the estate.” F.S. 733.212(1). This matter is discussed more fully in Chapter 2 of this manual. A form for the notice of administration is FLSSI Form No. P-3.0802. « Ch. 4 », « § 4.3 », • A », « 10 • 1 Practice Under Florida Probate Code § 4.3.A.10 (2022)

10. Checklist Of Duties And Procedures COMMENT: This checklist is not intended to cover every possible

duty or procedure and is illustrative only. Various factual situations may call for other steps, such as filing a petition to determine beneficiaries or for judicial interpretation of a will, defending a will contest, or filing a wrongful death action. For additional checklists, see Chapter 1 of this manual. Assist with burial arrangements of the decedent. Instructions may appear in the will. See §§ 1.2.A–1.2.B of this manual. Determine whether the decedent was domiciled in Florida at the time of his or her death and, if so, determine the county of the decedent’s domicile. See § 1.2.C of this manual. Determine whether the decedent had a will, and, if so, obtain the original to be deposited with the court. F.S. 732.901. If it cannot be found, or, if it is in the decedent’s safe-deposit box in a bank, obtain a court order to enter the box and remove the will, if located within. F.S. 655.935. Locate and take possession of the records of the decedent. If there is a will, read it and discuss its provisions with the family. Take measures to protect jewelry, automobiles, and other tangible personal property and arrange for the protection of real estate. Take extra care to ensure that any automobiles, boats, or other recreational vehicles owned by the decedent are not being used by other persons to avoid exposing the estate to potential liability. Examine existing insurance coverage and determine whether there is sufficient coverage on real estate and personal property. Increase or obtain new insurance when necessary. F.S. 733.612(13). Determine whether administration of the estate is necessary and, if so, to what extent. See F.S. 735.201 (summary administration); F.S. 735.301 (disposition without administration). If administration is necessary, determine whether the designated person under the decedent’s will or the person entitled to appointment as personal representative in an intestate estate is qualified to serve as personal representative, and petition the court

for an order of appointment of a personal representative. F.S. 733.301, 733.3101, 733.302-733.305. If there is a will, petition the court for an order admitting the will and any codicils to probate. File a designation of resident agent, if required; oath of personal representative; and, if required, agent’s bond. Fla. Prob. R. 5.110. Obtain letters of administration. File and serve notice of administration. F.S. 733.212. Publish and file notice to creditors. F.S. 733.2121. Determine whether there are any reasonably ascertainable creditors and promptly serve them with the notice to creditors. Apply for an Employee Identification Number for the estate. Determine the extent of checking and savings accounts and open an account in the name of the personal representative in his or her representative capacity. After obtaining a court order (if before issuance of letters), inventory the contents of the safe-deposit box and see that the inventory is filed with the court, along with the entry record of the safe deposit box for a period that is six months before the decedent’s date of death through the date the inventory of the box is filed. Take possession of the box or remove the contents entirely, as the situation demands. If the box is released, obtain a refund for the keys. F.S. 733.6065. Examine and study all records of the decedent to locate and collect all other assets of the estate. This should include taking possession of any computer owned by the decedent, as valuable information regarding assets and liabilities may be contained on the hard drive. Consider performing Internet searches or making other inquiry regarding the existence of escheated property in the name of the decedent. Obtain possession of all digital assets pursuant to F.S. Chapter 740

and cancel any automatic bill-pay accounts to minimize the dissipation of decedent’s assets. If any assets, real or personal, are located outside Florida, determine what must be done with respect to that property, including whether any ancillary proceedings need to be instituted in another state. Determine whether family allowance is necessary, F.S. 732.403, and whether there is any property that may qualify as exempt property, F.S. 732.402. If the decedent owned a residence in Florida, determine whether the property may be homestead property or an asset of the estate. See Chapter 19 of this manual. Arrange for the redirecting of mail. Determine whether there are any unpaid salaries or benefits due from an employer of the decedent. See § 6.5.P of this manual. Determine whether the decedent had any rights under stock purchase agreements, stock options, or deferred compensation that could benefit the estate. Determine if there is insurance on the life of the decedent. Collect whatever proceeds are payable to estate. Often it is desirable to assist the beneficiaries in collecting insurance payable to them. Obtain IRS Form 712 (life insurance statement for a decedent) for each insurance policy, to be filed with federal estate tax return if one is required. See §§ 1.2.E.4.b.i–1.2.E.4.b.ii of this manual. Determine whether the estate is entitled to any death benefits under the Social Security Act, veterans’ acts, or any pension or profitsharing plan, or, conversely, whether there were automatic payments of social security or other benefits to decedent’s accounts that need to be refunded. Obtain information on all other nonprobate assets such as inter vivos trusts, joint tenancies, annuities, inter vivos gifts, pay-on-death accounts, and property subject to a power of appointment.

Determine whether expenses of last illness are to be paid in part by accident and health policies or hospitalization insurance. If so, make collection. Determine all sums due to the estate on any promissory notes, loans, or accounts receivable. If the decedent held an ownership interest in a partnership, corporation, or other closely held business entity, study the terms of applicable documents governing the death of an interest owner. Determine how best to handle the decedent’s ownership interest. See § 9.4.C of this manual. If the decedent left an ongoing and operating business, determine whether it should be liquidated and, if so, how. If a business is to be continued, make plans for continuation and obtain a court order if needed. F.S. 733.612(22); Rule 5.350. If a business is unincorporated, make arrangements to keep records separate from the estate going forward. Rule 5.350. See Chapter 9 of this manual. Determine whether there may be any potential environmental issues that may cause liability to the estate. F.S. 733.6121. Prepare an inventory of the estate and file with the court within 60 days of issuance of letters. Rule 5.340(a); F.S. 733.604(1). See Chapter 6 of this manual. Obtain services of an appraiser when needed. See Chapter 6 of this manual. If the estate will not file an IRS Form 706, file an affidavit (Form DR-312) attesting that the estate is not taxable. File Notice Concerning Fiduciary Relationship (IRS Form 56) with the IRS. IRC § 6903. If the estate will file an IRS Form 706, file a notice within 12 months from the date letters of administration are issued, stating the due date of the return. Rule 5.395. If there is a surviving spouse, address possible elective share issues.

F.S. 732.201 et seq. See Chapter 7 of this manual. Investigate all claims against the estate, file timely objections when necessary, and, if a lawsuit is commenced by a claimant, defend the estate. See Chapter 8 of this manual. Analyze assets of the estate and estimate the needs for liquidity to meet all debts, funeral and administration expenses, and taxes, family allowance, and monetary legacies; petition the court, if required, for sale of sufficient assets to meet liquidity requirements and for temporary reinvestment in liquid assets. See F.S. 733.608(1). Within reasonable time after issuance of letters of administration, examine the assets of the estate to determine if any action needs to be taken to comply with F.S. 518.11 (prudent investor rule). See F.S. 733.602(1). Examine all contracts and leases of the decedent. Complete, terminate, or negotiate those contracts and leases. If real property is to be sold or leased and if there is no power of sale granted by the will, obtain a court order; then proceed to sell or lease without delay. Take steps to collect debts due estate, including court action when necessary, or effect settlement or abandonment of claims when appropriate and obtain a court order authorizing the action if required. Prepare and file the decedent’s final income tax return or returns, IRS Form 1040. Prepare and file the U.S. Income Tax Return for Estates and Trusts, IRS Form 1041. Prepare and file any Florida affidavits, or other forms required. Prepare and file interim accountings if appropriate. Rule 5.345. Make partial distribution of personal property if not needed for payment of debts of the estate, funeral and administration expenses, taxes, and monetary legacies. (Be careful to determine whether the

distribution carries out distributable net income.) See Chapter 13 of this manual. Obtain a transfer of title of automobile to the beneficiary. See F.S. 732.402(2)(b). Pay promptly all claims against the estate properly filed to which no objection was made. Claims bear interest after five months from the first publication of the notice to creditors. F.S. 733.705(9). For a United States citizen or resident, if the value of gross estate (less adjustments for certain gifts) is over the estate tax threshold amount (see § 4.3.A.8.a), prepare and file the federal estate tax return (IRS Form 706) within nine months after date of death, or within 15 months of date of death if a six-month automatic extension is validly obtained. If handling an estate of a decedent who died before January 1, 2005, file a copy of the federal return with Florida Department of Revenue. See F.S. 198.13(1), (4). If the value of the gross estate is under the estate tax exemption amount, but there is a surviving spouse, determine whether a federal estate tax return (IRS Form 706) should still be filed to take advantage of the unused exemption amount and the portability of the exemption to the surviving spouse. IRC § 2010(c). Consider whether apportionment of estate taxes is required. If so, collect contributions due from beneficiaries or third parties who received assets as a result of the decedent’s death, or petition the court for relief from the duty to collect taxes. F.S. 733.817. See Chapter 11 of this manual. Pay administration expenses. File a notice of termination of fiduciary relationship and obtain a closing letter from IRS in connection with estate tax return. Consider obtaining a release of personal representative from personal liability for estate tax deficiencies. IRC § 2204. File an accounting (or seek waivers of accounting) and petition for discharge within one year from issuance of letters, for estates not

required to file a federal estate tax return, or 12 months from date federal estate tax return is due. Rule 5.400(c). The petition or attached schedule should include a statement of amount of compensation paid or to be paid to the personal representative, lawyers, accountants, appraisers, or other agents employed by personal representative, and how that compensation was determined. Rule 5.400(b)(4). If the estate cannot be closed within the time required by Rule 5.400(c), petition for an extension of time. Id. Send a copy of the final accounting and petition for discharge to all beneficiaries, with a copy of notice of filing it. If no objections to the petition for discharge are filed, make final distribution, obtain receipts from all distributees, and file receipts with the court. Rules 5.400(d)–(e). If objections are filed, obtain an order approving the final accounting and directing distribution. Rule 5.401. File a report of distribution and obtain an order of final discharge. Send a certified copy of the order of final discharge to the surety (requesting a refund of any unused premium) and a copy to each residuary beneficiary. Advise all debtors that the obligations have been transferred to new obligees. Deliver to beneficiaries all data not necessary to be retained. « Ch. 4 », « § 4.3 », « B » 1 Practice Under Florida Probate Code § 4.3.B (2022)

B. Powers « Ch. 4 », « § 4.3 », « B », • 1 » 1 Practice Under Florida Probate Code § 4.3.B.1 (2022)

1. Power To Hire Lawyers, Accountants, Tax Specialists, And Other Experts « Ch. 4 », « § 4.3 », « B », • 1 », • a »

1 Practice Under Florida Probate Code § 4.3.B.1.a (2022)

a. In General F.S. 733.612(19), concerning transactions authorized for the personal representative, permits the personal representative, without the necessity of a court order, to employ persons, including lawyers, accountants, auditors, appraisers, investment advisors, and other persons, to both advise and assist the personal representative in the administration of the estate. Additionally, the personal representative is authorized to employ agents to perform “any act of administration.” Id. As stated above, regardless of whether the power to employ a lawyer is given by will, it clearly is within the power of the personal representative to employ counsel to represent him or her in the administration of the estate. Furthermore, except in limited circumstances, the personal representative must retain a lawyer for the probate administration. See Fla. Prob. R. 5.030(a). For a more complete discussion of the compensation of personal representatives, see Chapter 15 of this manual. « Ch. 4 », « § 4.3 », « B », • 1 », « b » 1 Practice Under Florida Probate Code § 4.3.B.1.b (2022)

b. Payment For Services Payment for the services of lawyers, accountants, investment advisors, and other experts may be made from the estate. See F.S. 733.612(16). A person hired by the personal representative must look to the fiduciary for payment. The personal representative will be entitled to credit on his or her account for those expenditures if they are reasonable and necessary and in amounts customarily paid for similar services. If not, the personal representative must pay the excess out of his or her own pocket. F.S. 733.6171 provides a statutory framework for calculating the amount of the fees for the lawyer for the personal representative but there is no other statutory guidance for the calculation of fees for other professionals hired by the personal representative. See § 4.3.B.1.c of this manual for a further discussion of the calculation of fees for the lawyer for the personal representative.

Although the personal representative has the express power to employ and pay persons to assist in the administration of the estate without court order, care should be taken to hire only those persons necessary to properly administer the estate. If the personal representative hires persons who are performing work that the personal representative should properly perform, the personal representative may be subject to surcharge and his or her compensation under F.S. 733.617 will be affected. The compensation of a personal representative under F.S. 733.617 is based on all acts in the management and administration of the estate that the personal representative properly and normally may perform personally. The personal representative cannot charge the estate for services performed by others that are solely for his or her own benefit or convenience. It appears that in all except the most unusual circumstances, the personal representative would not be authorized to employ secretaries or administrative assistants. F.S. 733.6175(1) provides that the court may review both the propriety of employment and the reasonableness of any compensation paid to persons employed by the personal representative. F.S. 733.6175(3) provides that the burden of proof for the propriety of the employment and the reasonableness of the fees falls on both the personal representative and the person employed by the personal representative. Court proceedings to determine these issues are considered part of the normal estate administration process, and the costs, including reasonable attorneys’ fees, of the parties assuming the burden of proof are to be paid from the assets of the estate unless the court finds the requested compensation to be “substantially unreasonable.” Furthermore, the court must direct which part of the estate will be charged with the payment. See F.S. 733.6175(2). Care should be taken when personal representatives are seeking to challenge the reasonableness of fees for their own lawyers, as courts have held the personal representative personally liable for all fees when the court finds the challenge to be frivolous. See Geary v. Butzel Long, P.C., 13 So. 3d 149 (Fla. 4th DCA 2009). F.S. 733.6175(4) permits the court to “determine reasonable compensation for the personal representative or any person employed by the personal representative without receiving expert testimony[, but] any party may offer expert testimony after notice to interested persons.” If expert

testimony is offered as part of the proof of reasonable compensation, the statute requires the court to allow a reasonable expert witness fee from the assets of the estate. The court is given the discretion to direct from what part of the estate the expert fee is to be paid. The procedural aspects of filing objections and giving notice if the fees are disclosed as part of a petition for discharge or accounting by the personal representative are provided in Fla. Prob. R. 5.400(b)(6)–(b)(7) and 5.401(a)–(e). The personal representative must show in the petition for discharge the amount of compensation paid or to be paid not only to the lawyer but also to the personal representative and other agents employed by the personal representative, and the manner of determining that compensation. Rule 5.400(b)(4). « Ch. 4 », « § 4.3 », « B », • 1 », « c » 1 Practice Under Florida Probate Code § 4.3.B.1.c (2022)

c. Payment Of Fees To Lawyer For Personal Representative F.S. 733.6171 addresses both the right to compensation for a lawyer representing a personal representative and the method of calculating the amount of that compensation. F.S. 733.6171(1) provides specific authority for the payment of “reasonable compensation” to the lawyer for the personal representative from estate assets without the necessity of a court order. In 2021, F.S. 733.6171(2) was amended to require a lawyer representing a personal representative in an estate administration who intends to charge a fee based on the graduated fee schedule described in F.S. 733.6171(3) to make a series of disclosures in writing to the personal representative. These include the following: 1. There is not a mandatory statutory attorney fee for estate administration; 2. The fee is not required to be based on the size of the estate, and the presumed reasonable fee may not be appropriate in all estate administrations; 3. The fee is subject to negotiation between the personal representative and the attorney;

4. The selection of the attorney is made at the discretion of the personal representative, who is not required to select the attorney who prepared the will; and 5. The personal representative is entitled to a summary of ordinary and extraordinary services rendered for the fees at the end of the representation. F.S. 733.6171(2)(b). The lawyer must obtain the personal representative’s signature acknowledging these disclosures, and, if the lawyer fails to make these disclosures, the lawyer may not be paid for legal services without prior court approval of the fees or the written consent of all interested parties. F.S. 733.6171(2)(c)–(2)(d). If the proper disclosures are made under F.S. 733.6171(2), the statute provides a method of determining a presumed reasonable fee for the lawyer for the personal representative in subsections (3)–(5). Subsection (3) sets forth a graduated fee schedule based on the estate inventory and the income earned during the administration. Subsection (4) pertains to extraordinary services and lists specific services that may be considered extraordinary for which the lawyer would be allowed further compensation. If fees are awarded for extraordinary services, the court has the discretion to apportion those extraordinary fees against the share of a beneficiary if warranted pursuant to the factors listed in F.S. 733.106(4)(c). Subsection (5) permits any interested person to petition the court to increase or decrease the ordinary compensation of the lawyer or to award compensation for extraordinary services. It also sets out ten factors, all of which the court must consider in determining reasonable compensation. Subsection (6) provides that if there is a written fee agreement between the decedent and the lawyer, the lawyer must furnish a copy to the personal representative before commencement of employment and, if employed, the lawyer must promptly file and serve a copy on all interested persons. The compensation paid must not exceed the compensation provided for in the agreement. Lawyers who work with accountants in preparing IRS Form 706 for the decedent’s estate should also be aware of Venis v. Greenspan, 833 So. 2d 208 (Fla. 4th DCA 2002). In Venis, the court denied the lawyer for the personal representative the presumed reasonable statutory fee under F.S. 733.6171(4) (e) of one half of 1% of the gross estate for preparing Form 706 for the

decedent’s estate because the lawyer prepared the estate tax return jointly with the personal representative who was a certified public accountant. The court ruled that the presumed statutory fee of one half of 1% of the gross estate applies only if the return is prepared by a lawyer. Because the lawyer and the personal representative/CPA both worked on the preparation of the return, the statute was inapplicable and the court awarded an hourly compensation. For a detailed discussion of F.S. 733.6171, see Chapter 15 of this manual. « Ch. 4 », « § 4.3 », « B », • 1 », « d » 1 Practice Under Florida Probate Code § 4.3.B.1.d (2022)

d. Necessity For Prior Court Approval As stated in § 4.3.B.1.b, a personal representative having a proper need for the assistance of experts has the power to hire them without prior court approval. Although there is no necessity for obtaining a court order before retaining persons to advise or assist the personal representative, there may be situations in which it may be deemed advisable, especially when the estate is involved in litigation and the fees of the litigation lawyer or other professionals involved may be high. F.S. 733.603, which provides that a personal representative may petition the court to resolve questions concerning the estate or its administration, provides the statutory basis for filing such a petition. If the personal representative petitions the court for an order authorizing the hiring of an expert or other professional, the petition should set forth the service to be performed and the need for it. It should show that normally the services to be performed are not such as would or could be performed by the personal representative and that the services of the expert will benefit the estate. A suggested form for a petition is set forth in § 4.3.B.1.e. The philosophy of the Florida Probate Code, however, is to encourage the personal representative to expedite the administration of the estate and act without the necessity of obtaining court orders unless specifically required by law or to settle a dispute. See F.S. 733.603, which provides in pertinent part: “A personal representative shall proceed expeditiously with the settlement and distribution of a decedent’s estate and, except as otherwise specified by this code or ordered by the court, shall do so without adjudication, order, or direction of the court.”

« Ch. 4 », « § 4.3 », « B », • 1 », « e » 1 Practice Under Florida Probate Code § 4.3.B.1.e (2022)

e. Form For Petition For Authority To Employ Accountant (Title of Estate)

(Title of Court)

PERSONAL REPRESENTATIVE’S PETITION TO HIRE ACCOUNTANT Petitioner, _________ as personal representative of the above estate, files this petition pursuant to F.S. 733.603 and F.S. 733.612, and alleges: 1. At [his] [her] death, the decedent was the owner and sole proprietor of a business known as _________ and located at _________. [He] [She] also was involved in numerous transactions with other persons; [he] [she] was a member of a partnership known as _________ engaged in the business of _________; and [he] [she] was engaged in joint ventures with other persons involving _________. 2. Petitioner finds that it will not be possible to account properly for the numerous transactions that have taken place during the final months of the decedent’s life, or to complete the administration of the estate properly, without the assistance of a duly qualified accountant. 3. _________, who is devisee to the extent of a _________ interest in the residuary estate, has objected to the hiring of an accountant as an unnecessary expense. 4. Due to this controversy, petitioner is seeking to resolve this issue and obtain the authorization of the court pursuant to F.S. 733.603. WHEREFORE Petitioner asks for an order authorizing [him] [her] to employ an accountant and to pay a reasonable fee to the accountant for [his] [her] services. (Verification) /s/ Petitioner (Certificate of Service)

/s/ (name of attorney) Attorney for Petitioner (address and phone number) (e-mail address(es)) Florida Bar No. ___ « Ch. 4 », « § 4.3 », « B », • 1 », « f » 1 Practice Under Florida Probate Code § 4.3.B.1.f (2022)

f. Disagreement Between Personal Representatives Concerning Hiring When there are multiple personal representatives of an estate, all must join in discharging their functions, with few exceptions. See F.S. 733.615. See also Costello v. Davis, 890 So. 2d 1179 (Fla. 2d DCA 2004), in which the court held that an estate could not be held liable for payment on a lawyer’s contingency fee contract entered into by one of the co-personal representatives without the consent of the other co-personal representative. Furthermore, the court held that there were no equities that could be applied to charge the estate with a portion of the contingency fee even though the lawyer had recovered a sizable wrongful death settlement. If there are two personal representatives serving and they cannot agree on whom to employ for specialized services, there would be no alternative but to present the problem to the court by petition. A form for a petition for appointment of a specialist by the court is set forth in § 4.3.B.1.g. If there are three or more personal representatives serving, the decision to hire necessary persons to assist in the administration of the estate may be made by a majority under most circumstances. See F.S. 733.615(1). If a fundamental and irreconcilable conflict between the personal representatives exists to the extent that it could damage the estate, the court may remove them and appoint a successor. See Henderson v. Ewell, 111 Fla. 324, 149 So. 372 (1933). See also Pearce v. Foster, 454 So. 2d 721 (Fla. 4th DCA 1984), citing In re Estate of Goldner, 389 So. 2d 334 (Fla. 4th DCA 1980). Additionally, if it is necessary to repeatedly resort to court intervention to resolve disagreements between co-personal representatives, courts have been willing to remove one or both of the fiduciaries. See

Robinson v. Tootalian, 691 So. 2d 52 (Fla. 4th DCA 1997). « Ch. 4 », « § 4.3 », « B », • 1 », « g • 1 Practice Under Florida Probate Code § 4.3.B.1.g (2022)

g. Form For Petition On Conflict In Hiring (Title of Estate)

(Title of Court)

PERSONAL REPRESENTATIVES’ PETITION ON CONFLICT IN HIRING Petitioners, _________ and _________, as personal representatives of the above estate, file this petition pursuant to F.S. 733.603, and allege: 1. Petitioners have made a diligent effort to sell for the best price obtainable all of the furniture and furnishings in the residence left by the decedent as a part of [his] [her] estate. Petitioners have been unable to obtain any offers that are reasonably satisfactory. 2. Petitioners are of the opinion and have been so advised by competent persons having knowledge of the sale of furniture and furnishings that a better price could be obtained by sale at an auction. 3. Petitioners have been unable to agree on the selection of an auctioneer, _________ as joint personal representative desiring to hire _________ and _________ as joint personal representative desiring to hire _________. WHEREFORE Petitioners ask for an order (1) authorizing them to sell the furniture and furnishings at auction; (2) authorizing them to hire an auctioneer and to pay the auctioneer for his or her services out of the assets of the estate; and (3) appointing for this purpose an auctioneer of the court’s selection. (Verification) /s/ Petitioners (Certificate of Service)

/s/ (name of attorney) Attorney for Petitioners (address and phone number) (e-mail address(es)) Florida Bar No. ___ « Ch. 4 », « § 4.3 », « B », « 2 • 1 Practice Under Florida Probate Code § 4.3.B.2 (2022)

2. Practical Problems Of Joint Personal Representatives In certain situations, letters of administration may be issued to some but not all of the personal representatives named in a will. Stewart v. Mathews, 19 Fla. 752 (1883). If two or more persons are named but not all of them qualify, those who qualify have the same powers given to all the personal representatives unless limited by the terms of the will. F.S. 733.616. If two or more qualify, all of the qualifying personal representatives should join in all acts as joint personal representatives. If there are only two personal representatives, and the will does not provide otherwise, unanimity is required on all acts connected with the administration and distribution of the estate. If there are more than two personal representatives serving, and the will does not provide otherwise, a majority can act on behalf of the estate. F.S. 733.615(1). There is an exception provided to the majority rule if the will was executed before October 1987, or if the estate is intestate and the decedent died before October 1987, in which case unanimity is required. Id. Additionally, the requirement of the concurrence of multiple personal representatives to act on behalf of the estate does not apply (1) when any joint personal representative receives property due the estate, (2) when emergency action is necessary to preserve the estate and concurrence cannot readily be obtained in the limited time period, or (3) when a joint personal representative has been delegated to act for the others. Id. The statute does not indicate under what circumstances or which duties may be delegated between the personal representatives. In an early case, Sullivan v. McMillan, 26 Fla. 543, 8 So. 450 (1890), the Florida Supreme Court established the general rule that acts of one personal

representative in the scope of his or her duties are deemed to be the acts of all and are binding on the other joint personal representatives. It appears that when the 1933 probate law was enacted, it superseded this general rule, but in Williams v. Howard Cole & Co., 159 Fla. 151, 31 So. 2d 914 (1947), adhered to 38 So. 2d 224, the Florida Supreme Court stated that for the act of one personal representative to bind the other, it must be within the scope of his or her duties as personal representative or in the discharge of the usual functions of a personal representative, which duties are generally to collect the effects of the decedent, to pay claims against the estate, and to distribute the residue to those entitled thereto. The statement was dictum, however, because the decision was based on former F.S. 732.50 and held invalid an extension of an option contract executed by one of two personal representatives without authorization by the court. The exceptions to the requirement of joint action now allowed under F.S. 733.615 may revive the rule of Sullivan to a limited extent, especially when the act of one is pursuant to a delegation of authority from the others. F.S. 733.615(2), however, may provide protection to the nonparticipating personal representatives with regard their individual liability. See also Costello v. Davis, 890 So. 2d 1179 (Fla. 2d DCA 2004), in which the court held that one personal representative could not bind the estate to a contract without the assent of the other personal representative, and Pearce v. Foster, 454 So. 2d 721 (Fla. 4th DCA 1984), in which the court held that when none of the exceptions under F.S. 733.615(1) applied, one co-personal representative could not appeal an order revoking probate of a will without the concurrence of the other co-personal representative. If a safe-deposit box is opened in the name of two or more personal representatives, the bank may allow any one of them to have access to the box unless the lease or other writings under which the personal representatives are acting expressly provide to the contrary. F.S. 655.933. When a box has been rented in the name of the estate with two or more signatures, some banks, pursuant to their own policies, require a court order to permit one of the personal representatives to enter the box alone. Because F.S. 655.933 is primarily a permissive standard of conduct for banks, any conflict between that statute and F.S. 733.615 should be controlled by the latter from the standpoint of the personal representatives’ authority. In the absence of an emergency or a delegation of authority, one personal

representative probably cannot require a bank to grant that person entry to the safe-deposit box without the others. F.S. 733.617(5) allows two statutory commissions if there are two or more joint personal representatives and the value of the probate estate is at least $100,000. If there are more than two personal representatives serving under those circumstances, the personal representative who has possession of and primary responsibility for administration of the estate is to receive one full commission and the remaining commission is to be split among the remaining personal representatives according to the services provided by each of them. If the estate is under $100,000 and there are two or more personal representatives, one full commission is apportioned among them according to the services rendered by each of them respectively. Id. « Ch. 4 », « § 4.3 », « C » 1 Practice Under Florida Probate Code § 4.3.C (2022)

C. Changing Personal Representatives « Ch. 4 », « § 4.3 », « C », • 1 » 1 Practice Under Florida Probate Code § 4.3.C.1 (2022)

1. Renunciation Or Resignation A personal representative named in a will who does not wish to serve or to accept the responsibility of the office may renounce or waive the right to have letters issued. Although the named personal representative’s failure to take affirmative action with regard to issuance of letters of administration may be considered an implied or constructive renunciation, it is better practice, when possible, to obtain a written waiver of the appointment. If there is no written waiver of the designated personal representative filed with the petition for administration, Fla. Prob. R. 5.201 requires that formal notice be served on the designated personal representative before the court issuing letters of administration. A waiver may be retracted if the retraction is made before letters are granted to another (or after letters are granted to another if the office of personal representative later becomes vacant). Fouraker v. Carter, 507 So. 2d 749 (Fla. 5th DCA 1987). A personal representative who was not qualified to act at the time of

appointment must immediately resign “if the personal representative knows that he or she was not qualified to act at the time of appointment.” F.S. 733.3101(1). If a personal representative becomes disqualified to act any time after appointment and knows of the conditions causing the disqualification, that personal representative is required to provide a notice to all interested persons that he or she is not qualified to act, the reasons that he or she is not qualified, and that any interested person may petition to remove the personal representative. Rule 5.310 and F.S. 733.3101(2). Upon receipt of such a notice, an interested person has 30 days to file a petition requesting the removal of that personal representative. Id. The notification does not automatically affect the authority of the personal representative to act, but in most situations, prudence would dictate that the personal representative voluntarily resign, especially if a removal proceeding will be forthcoming. See In re Estate of Montanez, 687 So. 2d 943 (Fla. 3d DCA 1997), in which all fees were disallowed for a personal representative and the lawyer for the personal representative when the personal representative was not qualified to serve and had various conflicts of interest. A personal representative who fails to immediately resign pursuant to subsection (1), or who fails to send the notice required under subsection (2), of F.S. 733.3101 “shall be personally liable for costs, including attorney fees, incurred in any removal proceeding,” if successful. F.S. 733.3101(3). Personal liability also extends to a personal representative who does not have actual knowledge of the underlying facts requiring removal but who “should have known … of the facts that would have required him or her to resign under subsection (1) or to file and serve notice under subsection (2).” Id. To resign, a personal representative must file a verified petition for resignation. Rule 5.430(b). Before the court will allow a personal representative to resign, the personal representative must satisfy the court that the interest of the estate will not be jeopardized by his or her resignation. Rule 5.430(e); F.S. 733.502. Notice of the application for leave to resign must be served by formal notice on all interested persons, including the surety or sureties on the bond, unless they file waivers. Rule 5.430(c). Furthermore, if the resigning personal representative is the only fiduciary serving, the court must appoint a successor fiduciary before the sole personal representative may be relieved of his or her duties and obligations. Rule 5.430(d); F.S. 733.503. An order accepting the resignation does not exonerate the personal

representative or the sureties from any previously incurred liabilities. Rule 5.430(e); F.S. 733.502. Upon acceptance of the resignation by the court, the resigning personal representative must deliver immediately to the successor or joint personal representative all assets of the estate and all of the records of the estate under the personal representative’s control. Rule 5.430(f); F.S. 733.5035. The court may establish conditions and specify records that the resigning personal representative may retain until the final accounting has been approved. F.S. 733.5035. Additionally, within 30 days of the acceptance of the resignation by the court, the personal representative must file a verified petition for discharge and a true and correct accounting of his or her administration. Rule 5.430(g); F.S. 733.5036. Failure to do so will subject the resigning personal representative to contempt proceedings. Rule 5.430(j). After all of the records and property of the estate have been delivered to the remaining or successor fiduciary, all objections to the petition for discharge and the accounting have been resolved, the liability, if any, of the resigning personal representative has been determined and satisfied, and the resigning personal representative, lawyer, and other persons have been compensated, the resigning personal representative is to be discharged. Rule 5.430(k); F.S. 733.5036(2). The discharge from estate tax liability provided by the procedure contained in IRC § 2204 would not be available to a resigning personal representative who had not yet effected full estate tax payment. However, the resigning personal representative should file a notice of termination of fiduciary relationship, IRC § 6903, to be relieved of further duty or liability in his or her fiduciary capacity. For example, in Estate of Borden v. Commissioner, ¶ 50,185 T.C.M. (P-H), 9 T.C.M. (CCH) 630 (1950), in reliance on IRC § 6904 (former IRC § 901 (1939)), an estate tax deficiency was sustained against a personal representative who failed to file notice of termination of fiduciary capacity with the IRS. See also Krueger v. Commissioner, 48 T.C. 824 (1967) (personal representative who failed to file notice of termination of fiduciary relationship could still bind estate by agreeing to stipulated decisions before tax court); Estate of Rhodes v. Commissioner, 44 B.T.A. 1315 (1941) (personal representative who failed to file notice of termination of fiduciary relationship was proper person to

receive deficiency notice relating to income tax liability of decedent). TAX NOTE: If the predecessor fiduciary has not filed notice of termination of fiduciary relationship under IRC § 6903, the predecessor fiduciary may have authority to bind the estate even though discharged from his or her functions under state law. See Krueger. The successor trustee should also file notice of fiduciary relationship under IRC § 6903. A form for a petition for leave to resign is set forth in § 4.3.C.2. A form for a notice of a disqualification occurring after appointment appears in § 4.3.C.3, and a petition for qualification of a successor personal representative named in the will is set forth in § 4.3.C.4. « Ch. 4 », « § 4.3 », « C », « 2 » 1 Practice Under Florida Probate Code § 4.3.C.2 (2022)

2. Form For Petition For Resignation Of Personal Representative (Title of Estate)

(Title of Court)

VERIFIED PETITION FOR RESIGNATION OF PERSONAL REPRESENTATIVE Petitioner, _________, as personal representative of this estate, pursuant to Fla. Prob. R. 5.430 and F.S. 733.502, petitions for resignation as personal representative and alleges: 1. Petitioner desires to resign as the personal representative and be relieved of all powers, duties, and obligations as personal representative for the following reasons: _________. 2. Within 30 days of acceptance of the resignation of Petitioner by the court, Petitioner will file a petition for discharge and a true and correct account of [his] [her] administration. 3. Petitioner alleges that [he] [she] is ready, able, and willing to pay over and deliver to [his] [her] successor the property of the estate and books of account, documents, and papers of or concerning the estate, and all sums of money due the estate by [him] [her]. 4. The names and addresses of persons interested in the estate are:

(List names and addresses.) 5. The status of the estate is as follows:

(Provide status of estate administration.) 6. The interests of the estate will not be placed in jeopardy by Petitioner’s resignation. 7. There is [a] [no] proceeding pending for accounting, surcharge, indemnification, or other proceedings against Petitioner. (If proceeding is pending, describe the type of proceeding and identify parties.) 8. The appointment of a successor fiduciary [is] [is not] necessary because (state reasons why a successor is or is not required; if a successor is nominated, then state the nominee’s priority under the Florida Probate Code and that the nominee is qualified to serve under the laws of Florida). WHEREFORE Petitioner asks that an order be entered accepting [his] [her] resignation and relieving Petitioner of all further powers, duties, and obligations as personal representative of this estate. (Verification) /s/ [Personal Representative] [Joint Personal Representative] of the Estate of _________ /s/ (name of attorney) Attorney for Petitioner (address and phone number) (e-mail address(es)) Florida Bar No. ___ COMMENT:

Formal notice of the petition is required under Fla.

Prob. R. 5.430(c). « Ch. 4 », « § 4.3 », « C », « 3 » 1 Practice Under Florida Probate Code § 4.3.C.3 (2022)

3. Form For Notice Of Disqualification Of Personal Representative (Title of Estate)

(Title of Court)

NOTICE OF DISQUALIFICATION OF PERSONAL REPRESENTATIVE TO: (List all interested persons.) I, _________, as personal representative of this estate, allege: 1. I was appointed as personal representative of this estate pursuant to letters of administration issued on (date). 2. I was not qualified to act as personal representative at the time of my appointment, because (state reasons). OR 2. I am presently not qualified to act as personal representative, because on [state date the disqualifying event occurred and describe event], which would prevent my appointment if application for my appointment were now made. 3. Any interested person may petition to remove me as personal representative. /s/ Personal Representative (Certificate of Service) /s/ (name of attorney) Attorney for Personal Representative (address and phone number)

(e-mail address(es)) Florida Bar No. ___ « Ch. 4 », « § 4.3 », « C », « 4 » 1 Practice Under Florida Probate Code § 4.3.C.4 (2022)

4. Form For Petition For Qualification Of Successor Personal Representative (Title of Estate)

(Title of Court)

PETITION FOR QUALIFICATION OF SUCCESSOR PERSONAL REPRESENTATIVE Petitioner, _________, alleges: 1. _________ was the duly appointed and qualified personal representative under the Last Will and Testament of _________, deceased, letters having been issued to [him] [her] on (date). 2. On or about resign].

(date), _________

[died] [was permitted to

3. Article ___ of the Last Will and Testament contains the following provision: “If for any reason ________ fails to qualify or, having qualified, ceases to act as personal representative, I nominate and appoint as personal representative in [his] [her] place (petitioner).” OR 3. As this estate is intestate, Petitioner is the person entitled to preference in appointment as the personal representative pursuant to F.S. 733.301 as (state statutory basis for preference). 4. _________ having ceased to act as personal representative, it therefore is proper for Petitioner to qualify as personal representative and to assume the duties and obligations of this office. 5. Petitioner is qualified to serve as personal representative under the laws of the State of Florida.

WHEREFORE Petitioner asks that on filing of the proper oath and designation of resident agent, letters of administration be granted to [him] [her] as successor personal representative. (Verification) /s/ Petitioner (Certificate of Service) /s/ (name of attorney) Attorney for Petitioner (address and phone number) (e-mail address(es)) Florida Bar No. ___ COMMENT: If there are joint personal representatives and one of them dies, resigns, or is removed, the remaining personal representative may continue to act without being reappointed as successor personal representative unless the will or a court order provides otherwise. F.S. 733.616. « Ch. 4 », « § 4.3 », « C », « 5 » 1 Practice Under Florida Probate Code § 4.3.C.5 (2022)

5. Removal Proceedings « Ch. 4 », « § 4.3 », « C », « 5 », • a » 1 Practice Under Florida Probate Code § 4.3.C.5.a (2022)

a. Jurisdiction And Venue Jurisdiction of proceedings for the removal of a personal representative is in the circuit court (probate division), and “[a] petition for removal shall be filed in the court having jurisdiction of the administration.” F.S. 733.505. For a more in-depth discussion of jurisdictional issues, see Chapter 3 of this manual.

« Ch. 4 », « § 4.3 », « C », « 5 », « b » 1 Practice Under Florida Probate Code § 4.3.C.5.b (2022)

b. Grounds For Removal The specific grounds for removal of a personal representative are set forth in F.S. 733.504. The statute directs that “[a] personal representative shall be removed and the letters [of administration] revoked” if the personal representative “was not qualified to act at the time of appointment.” Id. The statute also lists 12 additional grounds for which a personal representative “may be removed,” but these additional statutory grounds for removal are not mandatory. The court has wide discretion and is not required to remove a personal representative unless “ ‘a tangible and substantial reason’ ” exists to believe that damage will accrue to the estate if removal is denied. Vaughn v. Batchelder, 633 So. 2d 526, 528 (Fla. 2d DCA 1994), quoting Kolb v. Levy, 104 So. 2d 874, 878 (Fla. 3d DCA 1958). When a conflict of interest justifying removal becomes apparent, the court need not wait until the merits of the personal representative’s conflict are determined before removing the personal representative. Kolb. See In re Estate of Montanez, 687 So. 2d 943 (Fla. 3d DCA 1997), in which the court removed a corporation as personal representative because it both failed to qualify as personal representative, and had a conflict of interest; the court refused to award fees to either the removed personal representative or its lawyer. A lawyer should always inquire whether the designated personal representative has been convicted of a felony or of abuse, neglect, or exploitation of an elderly person or a disabled adult, because persons with such convictions are disqualified from serving. F.S. 733.303(1)(a)–(b). See, e.g., In re Estate of Butler, 189 So. 3d 1050 (Fla. 4th DCA 2016), in which the court held that even though the petitioner was the sole heir of an estate, he still could not serve as personal representative because he was a convicted felon. If the resident agent dies or becomes a nonresident of the county and the personal representative refuses to designate a successor, that refusal may be a ground for removal. See Fla. Prob. R. 5.110(g); § 5.3.C.2.a of this manual. Failure to object to an improper claim or to defend an action against the estate may also be a ground for removal of the personal representative. In re Estate of Freedman, 180 So. 2d 370 (Fla. 3d DCA 1965), 14 A.L.R. 3d 1029.

Failure to serve notice of administration on a person entitled to preference is a ground for a petition for removal by the person entitled to preference. In In re Estate of Baker, 339 So. 2d 240 (Fla. 3d DCA 1976), the court held that the initial letters granted in the case were void ab initio. However, in Cooper v. Ford & Sinclair, P.A., 888 So. 2d 683 (Fla. 4th DCA 2004), the District Court of Appeal, Fourth District, held that letters of administration improperly issued were voidable by the court, not void ab initio, when a later will subsequently offered for probate gave preference to a person other than the person originally appointed by the court. The fact that the person appointed is a debtor or creditor of the estate does not automatically constitute a conflict of interest that makes that person ineligible to serve as personal representative. See F.S. 733.303, 733.306. Seldom will the filing of a claim by a personal representative require removal. When such a claim is filed, the court may appoint an administrator ad litem to represent the estate concerning the claim. Rule 5.120. “The fact that the personal representative is seeking reimbursement for claims against the decedent [that the personal representative has paid] does not require appointment of an administrator ad litem.” F.S. 733.308; Rule 5.120(g). See §§ 4.3.C.7 and 8 4.3.D.2.a of this manual for further discussion. As reflected in the form at § 4.3.B.1.g, when joint personal representatives are in irreconcilable conflict with each other to the extent that the proper and profitable handling of the estate is jeopardized, one or both may be removed on the ground of maladministration. See Henderson v. Ewell, 111 Fla. 324, 149 So. 372 (1933); Robinson v. Tootalian, 691 So. 2d 52 (Fla. 4th DCA 1997). A form for a petition for removal appears in § 4.3.C.5.f. Also, a petition is set out in the court’s opinion in Kolb. For further discussion, see LITIGATION UNDER FLORIDA PROBATE CODE Chapter 9 (Fla. Bar 13th ed. 2022). « Ch. 4 », « § 4.3 », « C », « 5 », « c » 1 Practice Under Florida Probate Code § 4.3.C.5.c (2022)

c. Commencement Of Removal Proceedings Proceedings for the removal of the personal representative may be commenced by the court or any interested person. F.S. 733.506; Fla. Prob. R.

5.440(a). The term “interested person” is defined as “any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved.” F.S. 731.201(23). Subsection (23) includes the trustee of a trust described in F.S. 733.707(3) as an interested person in any proceeding involving an obligation of a decedent’s estate in addition to proceedings affecting the expenses of administration. All interested persons must be given formal notice in a proceeding to remove a personal representative, which is an adversarial proceeding under Rule 5.025. If the petition for removal of a personal representative is being initiated because the personal representative committed a breach of fiduciary duty, the petitioner should request that attorneys’ fees and costs be awarded from either the removed personal representative or the estate pursuant to F.S. 733.609 and 733.106. Care needs to be taken that the proper notices are provided to the personal representative and an opportunity for an evidentiary hearing are provided to the personal representative before removal. Simply because the proceedings are taking place within the estate proceeding does not alleviate the requirement for due process for the personal representative. See Zulon v. Peckins, 81 So. 3d 647 (Fla. 3d DCA 2012) (because order removing personal representative was without notice or evidentiary hearing, court reversed order with direction to conduct duly noticed evidentiary hearing). For further discussion, see LITIGATION UNDER FLORIDA PROBATE CODE § 9.3 (Fla. Bar 13th ed. 2022). « Ch. 4 », « § 4.3 », « C », « 5 », « d » 1 Practice Under Florida Probate Code § 4.3.C.5.d (2022)

d. Procedure After Removal Immediately after removal, the removed personal representative must deliver all estate assets, records, and other property of or concerning the estate to the remaining personal representative or successor fiduciary. F.S. 733.509; Fla. Prob. R. 5.440(c). Additionally, within 30 days after removal, the personal representative must file a final accounting of the administration of the estate. F.S. 733.508; Rule 5.440(b). A personal representative who fails to comply with the rule or court order will be subject to contempt proceedings. Rule 5.440(d).

When the removed personal representative is in default in turning over assets or balances due, an action may be brought on the bond. See Old Republic Surety Co. v. Reischmann, 713 So. 2d 434 (Fla. 2d DCA 1998). If the exercise of the personal representative’s power was improper or in bad faith, the personal representative may be liable to interested persons for damage or loss resulting from this breach of fiduciary duty, including attorneys’ fees and costs for the prevailing party. F.S. 733.609. Issues of liability between the personal representative individually and the estate may be determined in a proceeding for accounting, surcharge, or indemnification, or in another appropriate proceeding. F.S. 733.619(4). « Ch. 4 », « § 4.3 », « C », « 5 », « e » 1 Practice Under Florida Probate Code § 4.3.C.5.e (2022)

e. Appointment Of Successor When a sole personal representative is removed, a successor will be appointed, and a curator may be appointed in the interim. F.S. 733.5061. The successor’s bond requirements are those of an original personal representative except that the bond may be modified to suit the nature of the case. F.S. 733.402(1), 733.403. When one joint personal representative is removed, the other will complete the administration of the estate, and no successor will be appointed unless the will or a court order provides otherwise. F.S. 733.616. « Ch. 4 », « § 4.3 », « C », « 5 », « f • 1 Practice Under Florida Probate Code § 4.3.C.5.f (2022)

f. Form For Petition For Removal Of Personal Representative (Title of Estate)

(Title of Court)

________, Petitioner, vs. ________, Respondent.

PETITION FOR REMOVAL OF PERSONAL REPRESENTATIVE

Petitioner, _________, files this petition seeking removal of Respondent as personal representative of this estate, and alleges: 1. Respondent was appointed personal representative of the estate of _________ by this court on (date) and has been serving in that capacity since [his] [her] appointment. 2. Petitioner is an heir at law of the decedent and is an interested person in this estate. 3. Respondent should be removed as personal representative and Respondent’s letters of administration should be revoked on the following grounds: (set forth grounds.) 4. Petitioner has retained _________ as [his] [her] attorney in this matter and is obligated to pay a reasonable fee for the attorney’s services. WHEREFORE Petitioner requests that this court revoke the letters of administration issued to Respondent, remove Respondent as personal representative, appoint a successor, and award Petitioner [his] [her] attorneys’ fees and costs pursuant to F.S. 733.609 and 733.106, including entry of a judgment against Respondent for those fees, if appropriate. (Verification) /s/ Petitioner /s/ (name of attorney) Attorney for Petitioner (address and phone number) (e-mail address(es)) Florida Bar No. ___ COMMENT: An adversary caption is required for this proceeding. See Committee Notes to Fla. Prob. R. 5.025. Formal notice to all

interested persons is required under subdivision (d) of that rule. This petition does not include a cause of action for surcharge, which should also be brought if the personal representative has breached a fiduciary duty resulting in damages to the estate. « Ch. 4 », « § 4.3 », « C », « 6 » 1 Practice Under Florida Probate Code § 4.3.C.6 (2022)

6. Preferences In Appointments And Qualification To Serve When a personal representative dies, resigns, or is removed, the choice of a successor is governed generally by the rules that apply to selection of an original personal representative. See §§ 1.2.D.7, 1.3.B.1–1.3.B.3, and 5.2.A.2–5.2.B of this manual. Although courts do have some latitude in appointing personal representatives, a person entitled to preference under F.S. 733.301 should be appointed absent evidence that the person is unfit to serve. Bowdoin v. Rinnier, 81 So. 3d 582 (Fla. 2d DCA 2012), citing Garcia v. Morrow, 954 So. 2d 656 (Fla. 3d DCA 2007), and DeVaughn v. DeVaughn, 840 So. 2d 1128 (Fla. 5th DCA 2003). See also Long v. Willis, 100 So. 3d 4 (Fla. 2d DCA 2011) (probate court was not obligated to appoint nominated personal representative if sufficient conflict of interest existed that would prevent nominated personal representative from representing all of beneficiaries of estate in fair and impartial manner). « Ch. 4 », « § 4.3 », « C », « 7 » 1 Practice Under Florida Probate Code § 4.3.C.7 (2022)

7. Administrators Ad Litem An administrator ad litem will be appointed to represent the estate when it is necessary that the estate be represented and there is no personal representative, the personal representative is or may be interested adversely to the estate, or the personal representative is enforcing his or her own claim against it. Fla. Prob. R. 5.120(a); F.S. 733.308. An administrator ad litem may also be appointed by the court to represent the interests of an incapacitated person, an unborn or unascertained person, or a minor or other person under a legal disability if the court determines that those persons have an interest in the estate or a specific estate proceeding and representation of such person or class of persons is otherwise inadequate. Rule 5.120(a). The appointment may be without notice. No bond is required and no

process is required to be served on the administrator ad litem, who must appear and defend as directed by the court. The administrator ad litem must file an oath to discharge his or her duties faithfully. Id. The proceedings to appoint an administrator ad litem are not adversarial in nature; in other words, formal notice of the petition is not required for these proceedings. Lif v. In re Estate of Lif, 325 So. 3d 968 (Fla. 3d DCA 2021). If the personal representative files a claim individually or in any other capacity, creating a conflict of interest between the personal representative and any interested person, the personal representative must file a separate notice on all interested persons. The separate notice, which must be accompanied by a copy of the claim, must state that an interested person may object to the claim as provided by law and Rule 5.496. Rule 5.490(e). Additionally, the language in Rule 5.120(a) specifically contemplates the appointment of an administrator ad litem in situations in which a personal representative is “enforcing the personal representative’s … own debt or claim against the estate.” Therefore, the court may still wish to appoint an administrator ad litem unless the claim is for an insignificant amount, all parties beneficially interested in the estate have consented to the allowance of the claim and its allowance will not result in prejudice to any other creditor, or one or more of the interested parties served with the notice takes on the responsibility of responding, and possibly objecting to, the claim. Any money collected by the administrator ad litem must be paid over to the personal representative. Rule 5.120(f). The appointment of an administrator ad litem is not required if the claim merely seeks reimbursement for claims against the decedent that were paid by the personal representative. F.S. 733.308; Rule 5.120(g). An interesting expansion of the administrator ad litem procedure attesting to the ingenuity of counsel is found in Continental National Bank v. Brill, 636 So. 2d 782 (Fla. 3d DCA 1994), subsequently modified by Continental National Bank v. Brill, 638 So. 2d 1056 (Fla. 3d DCA 1994). The case involved the Florida Wrongful Death Act, which requires the personal representative of a decedent’s estate to seek recovery for all damages caused by the injury resulting in the decedent’s death for the benefit of the decedent’s survivors and the estate, and to apportion them between the survivors and the estate. F.S. 768.20–768.21. In Continental National Bank,

the personal representative, who was the decedent’s widow, obtained and apportioned the wrongful death settlement for the main benefit of the decedent’s survivors. A creditor of the estate petitioned the court for the appointment of an individual without self-interest as administrator ad litem to review the allocation of the wrongful death settlement proceeds. The trial court refused, but the appellate court, in picturesque language, agreed with the creditor and reversed. The compensation of an administrator ad litem is discussed in § 2.9.C of this manual. A sample petition for appointment of an administrator ad litem appears in § 4.3.C.8. « Ch. 4 », « § 4.3 », « C », « 8 • 1 Practice Under Florida Probate Code § 4.3.C.8 (2022)

8. Sample Petition For Appointment Of Administrator Ad Litem IN THE CIRCUIT COURT FOR BLANK COUNTY, FLORIDA File Number CP-257 IN RE: ESTATE OF MINNIE JONES, Deceased.

PETITION FOR APPOINTMENT OF ADMINISTRATOR AD LITEM Petitioner, Margo Jones, petitions this court for the appointment of an administrator ad litem, and in support of this petition alleges: 1. Petitioner is a niece of the decedent and one of her heirs at law. In addition, Petitioner is the residuary beneficiary under the decedent’s Last Will and Testament admitted to probate by this court. 2. The names and residence addresses for each minor or incapacitated person and year of birth of each minor who has an interest in the proceedings, and a description of their interest, is as follows:

Sarah Jones, 123 Main Street, Anytown, Florida 33333 Year of birth: 2019 Interest: Beneficiary under Article III of the decedent’s Last Will and Testament. 3. The names and addresses of any guardian appointed for each minor or incapacitated person, or if there is no appointed guardian, the name and residence address of any living natural guardians or living natural guardian having legal custody is as follows: Susan Jones, 123 Main Street, Anytown, Florida 33333, natural guardian of Sarah Jones. 4. Petitioner has investigated the circumstances surrounding certain inter vivos transfers of ABC Corporation stock made by the decedent to Robert Jones and to Thomas Jones, who are the joint personal representatives of the estate. 5. Upon information and belief, those inter vivos transfers were made without consideration at a time when the decedent did not have the mental capacity to make a valid gift and, furthermore, the inter vivos transfers were the result of undue influence exercised on the decedent by Robert Jones and Thomas Jones. 6. In support of the above allegations are the following: a. In 2016 the decedent was a widow and was approximately 75 years of age. b. In 2006 the decedent suffered a stroke. In 2012, she suffered a second severe stroke that permanently affected her speech and writing. Following the latter stroke, it was necessary to have fulltime nurses with her. c. In the summer of 2015, the decedent again was hospitalized with another severe stroke. d. On January 15, 2016, the decedent signed purported transfers of 1,000 shares of ABC Corporation stock to Robert Jones and 1,000 shares to Thomas Jones.

e. Within a period of 15 days following the transfer, the decedent was admitted again to the hospital where she remained for a period of two months. 7. The joint personal representatives are interested adversely to the estate. WHEREFORE Petitioner asks for an order appointing an administrator ad litem to investigate the transfers and make recommendations to the court regarding the transfers, including bringing further action against the personal representatives for recovery of the assets. Under penalties of perjury, I declare that I have read the foregoing, and the facts alleged are true, to the best of my knowledge and belief. /s/ Margo Jones Petitioner /s/ Larry Lawyer Larry Lawyer Attorney for Petitioner P.O. Box XYZ Anytown, Florida 33333 813/848-8484 [email protected] Florida Bar No. 123456 COMMENT: Formal notice is recommended to all interested persons as provided for in Fla. Prob. R. 5.040(d). « Ch. 4 », « § 4.3 », « D • 1 Practice Under Florida Probate Code § 4.3.D (2022)

D. Liabilities And Rights « Ch. 4 », « § 4.3 », « D •, • 1 » 1 Practice Under Florida Probate Code § 4.3.D.1 (2022)

1. Claims Of Representative Against Estate A personal representative has a right to file a claim against the estate. See Fla. Prob. R. 5.120(a). As noted at § 4.3.C.8, if the personal representative files a claim individually or in any other capacity, creating a conflict of interest between the personal representative and any interested person, the personal representative must file a separate notice on all interested persons. The separate notice, which must be accompanied by a copy of the claim, must state that an interested person may object to the claim as provided by law and Rule 5.496. Rule 5.490(f). Even though the notice has been served by the personal representative, the court may still wish to appoint an administrator ad litem to investigate the claim. But see F.S. 733.308; Rule 5.120(g). The incidental procedure is discussed in § 4.3.C.7. A sample petition for appointment of an administrator ad litem is set forth in § 4.3.C.8. The functions of the administrator ad litem after being appointed are similar to those of an original personal representative concerning the claims of others. See Chapter 8 of this manual. For a case in which the appellate court ruled that it was improper for a personal representative to make a payment to himself from estate assets in the absence of filing a claim, see Stilwell v. Estate of Crosby, 519 So. 2d 68 (Fla. 5th DCA 1988). « Ch. 4 », « § 4.3 », « D •, « 2 » 1 Practice Under Florida Probate Code § 4.3.D.2 (2022)

2. Claims Of Estate Against Representative « Ch. 4 », « § 4.3 », « D •, « 2 », • a » 1 Practice Under Florida Probate Code § 4.3.D.2.a (2022)

a. Debt Owed Estate By Personal Representative “A personal representative is under a duty to collect debts due the estate, whether due from himself or someone else,” and is expected to have in the personal representative’s possession, in a fiduciary capacity, enough cash to cover the amount for which the personal representative is accountable. Dacus v. Blackwell, 90 So. 2d 324, 329 (Fla. 1956). In that situation, the personal representative must obtain the necessary funds as soon as possible and add them to other assets of the estate. Fla. Prob. R. 5.120 provides for the appointment of an administrator ad litem when the personal representative is interested adversely to the estate, as is noted in § 4.3.C.7.

If the personal representative inherits from the estate but fails to pay a debt owed individually to the estate or fails to pay the personal representative’s share of the estate taxes, that share of the estate assets is considered to be held by the personal representative as a trustee even after discharge, and the personal representative’s estate is liable for that amount. See Dacus. « Ch. 4 », « § 4.3 », « D •, « 2 », « b » 1 Practice Under Florida Probate Code § 4.3.D.2.b (2022)

b. Liability For Mismanagement A personal representative is presumed to have carried out his or her duties properly in administering funds of the estate. Glidden v. Gutelius, 96 Fla. 834, 119 So. 140 (1928). “A personal representative’s fiduciary duty is the same as the fiduciary duty of a trustee of an express trust.” F.S. 733.609. However, a personal representative is not an insurer of the assets of an estate. In re Estate of Rosenthal, 189 So. 2d 507 (Fla. 3d DCA 1966). The standard of care required of the personal representative is discussed further in § 4.3.A.2. The personal representative is liable to interested persons for any damage or loss resulting from any breach of fiduciary duties to the same extent as a trustee of an express trust. F.S. 733.609. Additionally, the party who brought the action against the personal representative is entitled to collect that party’s taxable costs, including attorneys’ fees. Id. The effectiveness of exculpation clauses contained in wills, which are designed to eliminate the liability of a personal representative for breach of fiduciary duty committed by that personal representative during the course of the administration of an estate, are strictly limited by statutory law. Any provision in a will that was inserted into the will as the result of an abuse by the personal representative of a fiduciary or confidential relationship with the testator or any provision relieving a personal representative of liability for breach of fiduciary duty is not enforceable to the extent that the provision attempts to relieve the personal representative of liability for breaches “committed in bad faith or with reckless indifference to the purposes of the will or the interests of interested persons.” F.S. 733.620(1)(a). An exculpation clause “drafted or caused to be drafted” by the personal representative is deemed invalid unless the personal representative can prove that the

exculpatory clause is fair under the circumstances, and that the contents were adequately communicated directly to the testator or an independent lawyer representing the testator. F.S. 733.620(2). These statutory limitations on exculpation clauses apply only to wills created on or after July 1, 2007. Id. The personal representative is not a necessary party in an action against the surety, although they may be sued together. In re Estate of Freedman, 180 So. 2d 370 (Fla. 3d DCA 1965), 14 A.L.R.3d 1029, citing Dixon v. Travelers Indemnity Co., 174 So. 2d 53 (Fla. 3d DCA 1965). Action on the bond should be brought in the name of the Governor for the use of the party damaged. See F.S. 733.402(1); Dixon. No surety for a personal representative may be charged beyond the value of the assets of the estate because of an omission or mistake in pleading or of false pleading. F.S. 733.404. But see F.S. 733.901(2), which appears to bar most actions against a personal representative and the surety once the personal representative has been judicially discharged, unless the personal representative’s actions were fraudulently concealed or intentionally misreported. See Van Dusen v. Southeast First National Bank of Miami, 478 So. 2d 82 (Fla. 3d DCA 1985); Karpo v. Deitsch, 196 So. 2d 180 (Fla. 3d DCA 1967). The personal representative is not an insurer of the assets of an estate, and to some extent may rely on advice of counsel. A personal representative who uses ordinary care in the selection of a lawyer and exercises proper supervision over the business entrusted to the lawyer cannot be held liable for the lawyer’s indiscretion resulting without fault on the part of the personal representative. In re Estate of Rosenthal, 189 So. 2d 507 (Fla. 3d DCA 1966). The personal representative may not delegate to the lawyer or any other person the functions and duties of personal representative, however, or acquiesce in the complete management and control of the estate by the lawyer, without becoming liable for losses sustained by the beneficiaries of the estate by reason of the acts of the lawyer. The advice of counsel will not be a defense to an action for failure to protect the estate by taking the assets into possession. See Laramore v. Laramore, 64 So. 2d 662 (Fla. 1953). The court has discretion to refuse to allow compensation to a personal representative who does not give proper attention to fiduciary duties so that property loses its value to the estate. See In re Paine’s Estate, 128 Fla. 151, 174 So. 430 (1937).

Failure to object to an improper claim will require its payment, but without prejudice to the beneficiaries of the estate to surcharge the personal representative. See Goggin v. Shanley, 81 So. 2d 728 (Fla. 1955). In In re Estate of Pearce, 507 So. 2d 729 (Fla. 4th DCA 1987), the court held that a personal representative, who in good faith attempted to appeal the determination of the probate court that the will the personal representative offered for probate was obtained by another person’s undue influence, was not personally liable for attorneys’ fees incurred in erroneously appealing the probate court’s order revoking probate of the will. In so holding, the court, referring to F.S. 733.609, stated that [F.S.] 733.609 provides for holding a personal representative accountable for malfeasance and misfeasance in conducting the affairs of the estate and should not be construed to concern what is no more than an effort to carry out one’s obligations to the estate as one sees them, while being ignorant of the fact an appeal will not lie if only one of two co-personal representatives attempts to maintain it. Pearce, 507 So. 2d at 732. « Ch. 4 », « § 4.3 », « D •, « 2 », « c » 1 Practice Under Florida Probate Code § 4.3.D.2.c (2022)

c. Liability For Torts, Negligence, And Other Acts F.S. 733.619(2) provides that “[a] personal representative is individually liable for obligations arising from ownership or control of the estate or for torts committed in the course of administration of the estate only if personally at fault.” F.S. 733.609(1) provides that a personal representative is liable to interested persons for losses resulting from a breach of fiduciary duty. The statute also provides that ‘the court shall award taxable costs, … including attorney’s fees,” as in chancery actions for actions alleging a breach of fiduciary duty by the personal representative. Id. F.S. 733.619(4) provides: “Issues of liability as between the estate and the personal representative individually may be determined in a proceeding for accounting, surcharge, or indemnification, or other appropriate proceeding.” The liability of a personal representative is most commonly brought before the court in response to an accounting or a petition for discharge filed by the personal representative or a separate action brought by

a beneficiary against the personal representative seeking removal and surcharge of the personal representative. “Claims based on contracts, except a contract for attorney’s fee, entered into by a personal representative as a fiduciary, on obligations arising from ownership or control of the estate, or on torts committed in the course of administration, may be asserted against the estate by proceeding against the personal representative” in the personal representative’s fiduciary capacity. F.S. 733.619(3). This is true regardless of whether the personal representative is individually liable. Id. One of the obvious protective measures for the personal representative is to obtain liability insurance at the expense of the estate. F.S. 733.612(13). Unless otherwise provided in a contract, the personal representative is not individually liable on a contract entered into in a fiduciary capacity unless the personal representative fails to reveal the fiduciary capacity and identify the estate in the contract. F.S. 733.619(1). There is a specific exception to this rule if the contract is one for a lawyer’s fee. Id. As a protective measure, the personal representative should insert in any contract to which the personal representative is a party a provision similar to the following: It is agreed that ________________, the undersigned personal representative of the Estate of ________________, deceased, shall not be liable personally or individually under the terms of this contract; any liability shall be limited to the assets of the estate available for satisfaction of any damages arising out of the performance or nonperformance of the contract. Another suggestion is that a person signing as personal representative write under his or her name: As personal representative of the Estate of ________, deceased, but not individually. See Taylor v. Mayo, 110 U.S. 330, 4 S. Ct. 147, 28 L. Ed. 163 (1884). « Ch. 4 », « § 4.3 », « D •, « 2 », « d • 1 Practice Under Florida Probate Code § 4.3.D.2.d (2022)

d. Executor De Son Tort

Any person who without authority meddles in the affairs of an estate by doing acts that properly should be done by the personal representative, such as taking possession of assets or selling property, or paying out money of the estate, is termed an “executor de son tort.” See F.S. 733.309. The true personal representative may accept the acts of an executor de son tort if the acts would have been appropriate to the office of personal representative. F.S. 733.601. “[A]ny person taking, converting, or intermeddling with the property of a decedent [is] liable to the personal representative or curator, when appointed, for the value of all the property so taken or converted and for all damages to the estate caused by [that person’s] wrongful action.” F.S. 733.309. However, the executor de son tort will be allowed credit for debts the executor de son tort discharged that were legal claims against the estate. Albritton v. Estate of Albritton, 731 So. 2d 154 (Fla. 1st DCA 1999). The true personal representative is the proper party to enforce liability against an executor de son tort. See F.S. 733.309. A creditor may not sue an executor de son tort as such but may bring an action against a person in possession of property fraudulently conveyed by the decedent for the purpose of setting aside the fraudulent conveyance. Id. If acts performed by an executor de son tort who is later appointed personal representative were beneficial to the estate, the personal representative’s powers relate back to give those acts by the executor de son tort the same effect as acts by the personal representative occurring after appointment. F.S. 733.601. « Ch. 4 », « § 4.3 », « D •, « 3 • 1 Practice Under Florida Probate Code § 4.3.D.3 (2022)

3. Liability For Environmental Problems Although a discussion of the subject is beyond the scope of this chapter, the lawyer for the personal representative should be aware of the potential liability of the personal representative for environmental damages to real property administered as part of the decedent’s estate. See §§ 9.6.A–9.6.C of this manual. F.S. 733.6121, which applies to any estate admitted to probate after June 1995, gives the personal representative powers to perform specified acts pertaining to such properties without court order. Liability may arise under the provisions of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or “Superfund”), 42 U.S.C. §§

9601 et seq., although fiduciaries may be able to take advantage of the socalled “innocent purchaser” defense provided in 42 U.S.C. § 9601(35). This defense and its applicability to fiduciaries is discussed further in FLORIDA REAL PROPERTY COMPLEX TRANSACTIONS § 12.2.B.1 (Fla. Bar 10th ed. 2020).

« Ch. 4 », « § 4.4 • 1 Practice Under Florida Probate Code § 4.4 (2022)

§ 4.4. THE LAWYER « Ch. 4 », « § 4.4 •, • A » 1 Practice Under Florida Probate Code § 4.4.A (2022)

A. Responsibilities Of Lawyer To Court « Ch. 4 », « § 4.4 •, • A », • 1 » 1 Practice Under Florida Probate Code § 4.4.A.1 (2022)

1. Notice A lawyer’s first pleading constitutes notification to the court that the lawyer is appearing on behalf of the personal representative. This usually is a verified petition for an order admitting the will to probate and appointing a personal representative. If a lawyer is going to be appearing on behalf of the personal representative for a limited purpose, such as instituting or defending litigation on behalf of the personal representative, the lawyer may limit that appearance by filing a notice indicating the limited role. Fla. Prob. R. 5.030(b). Throughout the proceedings, the lawyer must exhibit the utmost frankness to the court and inform it fully with respect to specific matters submitted. The lawyer cannot properly withhold from the court any information that is of importance to the creditors and beneficiaries. The authors recommend that all lawyers who practice in this area review the decision in Dean v. Bentley, 848 So. 2d 487 (Fla. 5th DCA 2003). In Dean, a lawyer was appointed by the court to serve as personal representative of the estate pursuant to a will of the decedent executed in 1974. The lawyer/personal representative became aware of a later-executed will before the conclusion of the probate of the 1974 will, but failed to disclose the existence of that will to the probate court in his petition for discharge and did not furnish notice to the beneficiary of that later will before filing the petition for discharge. After the order of discharge was entered discharging the lawyer/personal representative, a disaffected beneficiary under the later executed will sought to reopen the probate proceedings to challenge the probate of the 1974 will. The court reopened the probate proceedings because it found the lawyer/personal representative had committed a fraud on the

court. In displaying its disapproval of the lawyer/personal representative’s conduct, the trial court noted in its order, “Dean, the Personal Representative, is also a lawyer licensed to practice law in the State of Florida and, as an officer of the Court, has specific obligations to the Court.” Id. at 490. The district court observed that the lawyer’s failure to bring the will to the attention of the trial court and the misstatement of fact are not only violations of the duties of a personal representative, they violate that part of the attorney’s oath which provides: “I will employ for the purpose of maintaining the causes confided to me such means only as are consistent with truth and honor, and will never seek to mislead the judge or jury by any artifice or false statement of fact or law.” Id. As a final signal of disapproval, the district court then directed the trial court’s attention to Canon 3D(2) of the Florida Code of Judicial Conduct, which, the court pointed out, “requires a judge to take appropriate action ‘when a judge receives information or has actual knowledge that substantial likelihood exists that a lawyer has committed a violation of the Rules Regulating The Florida Bar.’ ” Dean, 848 So. 2d at 490–491. « Ch. 4 », « § 4.4 •, • A », « 2 • 1 Practice Under Florida Probate Code § 4.4.A.2 (2022)

2. Pleadings And Orders All pleadings, notices, and orders must be filed with the clerk of the court. See F.S. 731.201(5), (7); Fla. R. Gen. Prac. & Jud. Admin. 2.516(d), (e). All pleadings filed in a probate proceeding must be signed by the attorney of record. Fla. Prob. R. 5.020(a). The personal representative does not need to sign pleadings unless specifically required by the applicable probate rule. Id. The pleadings should bear the lawyer’s name, address, telephone number, e-mail address(es), and Florida Bar number. Although the firm name should be stated, the name of one individual lawyer to whom the court may look with respect to the matters pleaded should appear clearly. See Rule 2.515(a). The signature of a lawyer is a certification to the court that the lawyer has read the pleading, that there is good ground to support it, and that it is not

interposed for delay. Id. In all ex parte matters, it is proper for the lawyer to prepare and submit to the judge a proposed order on the petition being presented. In other matters the judge, after ruling, will either indicate that the judge will prepare the order or designate the parties to submit proposed orders. The lawyer preparing an order should give a copy of the proposed order to the other parties before submitting it for the judge’s signature. If the judge makes any changes, the adversary, if not present, should be advised by a conformed copy of the order. When verification is required by the rules or the Florida Probate Code, the documents must include the following statement: “Under penalties of perjury, I declare that I have read the foregoing, and the facts alleged are true, to the best of my knowledge and belief.” Rule 5.020(e); see F.S. 731.104. The practitioner should note that the Florida Supreme Court has promulgated Fla. R. App. P. 9.170, which applies to appellate proceedings in probate and guardianship cases. This sets forth a non-exclusive list of appealable orders that are considered orders that finally determine a right or obligation of an interested person as well as provisions for the scope of review of such orders, preparation of the record, and submission of appellate briefs. Rules 9.170(a)–(e). All lawyers practicing in this area should be familiar with this rule so that appellate deadlines are not inadvertently missed by the personal representative. Many orders entered during the probate process are considered final appealable orders. « Ch. 4 », « § 4.4 •, « B » 1 Practice Under Florida Probate Code § 4.4.B (2022)

B. Responsibilities Of Lawyer To Client And Beneficiaries « Ch. 4 », « § 4.4 •, « B », • 1 » 1 Practice Under Florida Probate Code § 4.4.B.1 (2022)

1. In General The responsibility of the lawyer to the personal representative is the same as the responsibility of any lawyer to a client. With all reasonable care and diligence, the lawyer must exercise the legal skill and knowledge ordinarily possessed by members of the profession, and the lawyer is also bound to

conduct himself or herself as one in a position of the highest trust and confidence. The relationship of the lawyer to the client is that of a fiduciary. See Armour & Co. v. Lambdin, 154 Fla. 86, 16 So. 2d 805 (1944). As is the case with the personal representative, estate funds must not be commingled with the lawyer’s funds and, of course, may not be used for any other purpose. See Rule Reg. Fla. Bar 4-1.15. The relationship of a personal representative to the estate assets is that of a trustee for the use and benefit of the beneficiaries and creditors, and the personal representative’s lawyer’s functions coincide with that relationship. The lawyer for the personal representative must assist the personal representative in all legal matters pertaining to the estate, including payment of proper claims of creditors and distribution of the estate to the proper persons. To this extent, the lawyer must indirectly exert efforts on behalf of the beneficiaries and creditors. This relationship, however, does not make the lawyer the beneficiaries’ and creditors’ lawyer, and the personal representative cannot charge the estate accounts for any fees paid to the lawyer for services rendered directly to them. In re Estate of Gory, 570 So. 2d 1381 (Fla. 4th DCA 1990). See also §§ 1.3.C.1.a–1.3.C.3 of this manual. It may be wise for the lawyer to disclose this fact to beneficiaries (and creditors) from the inception of his or her representation. Much dispute related to this issue has been raised in situations in which beneficiaries have sought information involving communications between the fiduciary and the fiduciary’s lawyer related to administration matters, only to find that the fiduciary has challenged such disclosure based on the attorney-client privilege or the work-product doctrine, or both. Based on these disputes, the Notice of Administration must now disclose that the fiduciary lawyer-client privilege in F.S. 90.5021 applies with respect to the personal representative and any lawyer employed by the personal representative. F.S. 733.212(2)(b). Because lawyers are responsible to their clients for any loss resulting from failure to perform their duties with a reasonable degree of care, skill, and dispatch, all practicing probate lawyers should remain familiar with the Florida Probate Rules, the Florida Rules of General Practice and Judicial Administration, and the Florida Probate Code, including any changes and amendments. « Ch. 4 », « § 4.4 •, « B », « 2 »

1 Practice Under Florida Probate Code § 4.4.B.2 (2022)

2. Relationship Between Lawyer For Personal Representative And Lawyers For Beneficiaries The relationship between the lawyer for the personal representative and lawyers for beneficiaries may be at times that of associate counsel and at other times opposing counsel. A lawyer engaged by a beneficiary may assist in locating assets of the estate and cooperate in determining proper beneficiaries. The lawyer may observe closely the personal representative’s actions to determine whether they are proper as to the lawyer’s client. Counsel may object to acts that may be prejudicial to the client or that may favor some other beneficiary over the client. A beneficiary’s lawyer, on occasion, may file a will contest or other action adverse to the position of the personal representative, whose lawyer must defend the position of the personal representative instead of that of the complaining beneficiary. F.S. 733.106(3) provides: “Any attorney who has rendered services to an estate may be awarded reasonable compensation from the estate.” The factors for the court to consider when awarding fees and costs to an attorney are detailed in F.S. 733.106(4)(c), and subsection (4)(a) provides for the possibility of an award of fees against one beneficiary’s interest in the estate or from a beneficiary’s interest in a trust if there is a pour-over will and the “matter is interrelated with the trust.” Furthermore, subsection (4)(d) clarifies that there is no need for the court to make a finding of bad faith, wrongdoing, or frivolousness in order to assess fees against a beneficiary’s interest in an estate. Although the statute allows payment from the interests of a beneficiary in the estate, a court cannot enter a personal judgment against a beneficiary in excess of their interest in the estate. See Lopez v. Hernandez, 291 So. 3d 1007 (Fla. 5th DCA 2020); Anderson v. McDonough, 189 So. 3d 266 (Fla. 2d DCA 2016). « Ch. 4 », « § 4.4 •, « B », « 3 • 1 Practice Under Florida Probate Code § 4.4.B.3 (2022)

3. Notices And Copies Of Pleadings To Interested Persons The lawyer should keep the personal representative fully informed and give the personal representative a copy of all papers filed in the probate court.

Lawyers should be especially careful when providing notice of a petition or other proceeding to ensure that the proper type of notice is provided, and avoid having the pleadings dismissed for failing to provide adequate notice as required under the probate rules. Notice of a pleading or proceeding may be made by informal notice unless formal notice is required. Fla. Prob. R. 5.040(c), 5.041; F.S. 731.301(1). Rule 5.040(a) defines “formal notice,” and some of the probate rules specifically require the use of formal notice. See, e.g., Rule 5.025(d)(1). Formal notice is served by sending a copy by any commercial or mail delivery service requiring a signed receipt, “as provided in the Florida Rules of Civil Procedure for service of process [or] as otherwise provided by Florida law for service of process;” otherwise, it may be served by first class mail to provide in rem jurisdiction to the probate court. Rule 5.040(a)(3). F.S. 731.301(2) was amended in 2020 to specify that formal notice allows the court to exercise in rem jurisdiction, not in personam jurisdiction. Ch. 202067, § 5, Laws of Fla. Effective October 1, 2020, F.S. 731.301(2) provides: “In a probate proceeding, formal notice to a person is sufficient notice for the court to exercise its in rem jurisdiction over the person’s interest in the estate property or in the decedent’s protected homestead. The court does not acquire personal jurisdiction over a person by service of formal notice.” See § 3.6.O. Service by informal notice is service by e-mail (and/or by mail or delivery under certain circumstances) as set forth in Fla. R. Gen. Prac. & Jud. Admin. 2.516. Formal notice may be given in lieu of informal notice at the option of the person providing the notice. Rule 5.040(d). See § 21.4.D. Unless the court orders otherwise, every “petition or motion for an order determining rights of an interested person, and every other pleading or document filed in the particular proceeding which is the subject matter of such petition or motion” (other than applications for witness subpoenas) are to be served on interested persons. Rule 5.041. Service of formal notice is complete upon receipt of the notice, which must be proven by the filing of a verified statement by the person providing the notice with the “signed receipt or other evidence satisfactory to the court that delivery was made to the addressee or the addressee’s agent.” Rule 5.040(a)(4). Likewise, when a document is served in the manner provided for formal notice, it is also complete upon receipt of the document, and proof of

the service must be filed in the same manner as for formal notice. Rule 5.040(e). Any interested person who desires notice of proceedings in the estate can file a written request, as provided in Rule 5.060(a). The person filing the request must serve a copy on the lawyer for the personal representative and include a certificate of service. Id. Thereafter, that person will be served “with notice of further proceedings and with copies of subsequent pleadings and documents as long as [he or she] is an interested person.” Rule 5.060(b). The practitioner should note, however, that the filing of such a request does not necessarily entitle a person to participate in a proceeding, and the court must still consider the nature of the proceeding to determine a person’s status as an interested person. Hernandez v. Hernandez, 230 So. 3d 119 (Fla. 3d DCA 2017). Likewise, a person is not entitled to notice until such a request is filed as provided under Rule 5.060 so that the court may determine whether that person is in fact an interested person entitled to notice. Lovest v. Mangiero, 279 So. 3d 205 (Fla. 3d DCA 2019). Additionally, upon a reasonable written request, a “personal representative shall provide an interested person with information about the estate and its administration.” Rule 5.341. The key phrase “interested person” is defined under the Code as “any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved.” F.S. 731.201(23). A person, therefore, may be an “interested person” for the purpose of one proceeding but not another, because the meaning as it relates to particular persons may vary from time to time and must be determined according to the particular purpose of, and matter involved in, each proceeding. The term “interested person” specifically includes the personal representative and excludes a beneficiary who has received full and complete distribution. Id. “The personal representative of an estate is an interested person in virtually every proceeding affecting the administration of an estate.” Smith v. DeParry, 86 So. 3d 1228, 1235 (Fla. 2d DCA 2012). An “interested person,” as defined under F.S. 731.201(23), is to be considered a party under Rule 2.516. Rule 5.041. Even when a beneficiary is not entitled to mandatory notice, it may be desirable to provide the notice to promote goodwill. If the pleadings are

voluminous or it is otherwise a burden to furnish copies, the beneficiary may be advised that for a nominal fee, copies of all pleadings may be obtained from the clerk. All interested persons should receive copies of accountings filed in the court, including the final accounting and petition for discharge. See Rules 5.345(b), 5.400(c). Frequently, the filing and service of a final accounting are waived by interested persons as authorized under F.S. 731.302. See Rule 5.180. If the waiver pertains to compensation of personal representatives, lawyers, and other agents employed by the personal representative, to be valid, it must contain language that the waiving party has actual knowledge of the amount and manner of determining such compensation and, in addition, expressly acknowledges that the waiving party either (1) has agreed to the amount and manner of such determination and is waiving any objection to its payment, or (2) has the right to petition the court to decrease such compensation and is waiving that right. Rule 5.180(b). Even if interested persons have waived or may be willing to waive an accounting, a personal representative may still wish to prepare a final accounting and serve a copy on at least every residuary beneficiary, not only for their information but also to assist the personal representative and lawyer in responding to possible subsequent questions concerning administration of the estate. Also, the information contained on the accounting form will facilitate marshaling the necessary information for tax purposes. Often, forwarding a copy of the final accounting and explaining certain items will help the beneficiaries fully understand it, and thereby forestall any questions later. It is also recommended that the residuary beneficiaries be forwarded a copy of the United States fiduciary income tax return together with their individual copy of the Schedule K-1 form that is attached to the return, with the suggestion that they give it, along with their personal income tax information, to whomever will be preparing their individual income tax return. « Ch. 4 », « § 4.4 •, « C » 1 Practice Under Florida Probate Code § 4.4.C (2022)

C. Confidentiality Of Court Records

Many pleadings and other documents filed in a probate proceeding will contain sensitive information such as social security numbers, death certificates, or tax information, which is specifically defined as “confidential.” Under Fla. R. Gen. Prac. & Jud. Admin. 2.420, “confidential” information is defined as information contained within a record of the judicial branch that is exempt from public right of access under Article I, § 24(a), of the Florida Constitution, and includes information that is confidential as specifically defined under the rule or under a court order entered pursuant to the rule. Rule 2.420(b)(4). The rule sets forth a list of items automatically deemed “confidential” such as social security numbers, bank account and credit card numbers, death certificates, estate inventories and accountings, and guardianship reports. Rule 2.420(d)(1). Any person filing a document containing information automatically deemed confidential as set forth in the rule must file a “Notice of Confidential Information within Court Filing” concurrently with the document. Rule 2.420(d)(2). In addition to information specifically deemed “confidential” under the rule as set forth above, other types of information may be considered “confidential” if the information is of the type described in Rules 2.420(c) (1)–(c)(10). Confidential information that falls under this category includes “matters protected by a common law or privacy right not generally inherent in the specific type of proceeding sought to be closed” and information that is “confidential under the Florida and United States Constitutions and Florida and federal law.” Rules 2.420(c)(7), (c)(9)(vi). It is the duty of the person filing a document to determine if the document contains information that “may be confidential under subdivision (c) of this rule.” Rule 2.420(d)(3). If there is “confidential information” in the document not specifically listed in subdivision (d)(1), there is a duty to file a “Motion to Determine Confidentiality of Court Records” unless the person filing the document is the only individual whose confidential information is included or is the lawyer representing such individual and the person filing the document intends to make a knowing waiver of such confidentiality. Rules 2.420(d)(3) (A)–(B). Rule 2.425 also requires that certain sensitive information contained in documents filed with the court either be redacted before filing, or limited to the format set forth in subdivisions (a)(1)–(a)(6). These items include, but are not limited to, social security numbers, taxpayer identification numbers

(TINs), bank account numbers, credit card account numbers, financial account numbers, brokerage account numbers, and e-mail addresses. Rule 2.425(a). The rule provides exceptions when a statute or other rule of court provides otherwise and for an “account number which identifies the property alleged to be the subject of a proceeding.” Rules 2.425(a), (b)(1). For specific rules and statutes in probate proceedings that provide otherwise, see Fla. Prob. R. 5.200(b)–(c), 5.260(b), 5.346, and 5.460, and F.S. 733.604. « Ch. 4 », « § 4.4 •, « D • 1 Practice Under Florida Probate Code § 4.4.D (2022)

D. Liability Of Lawyer For Negligent Advice Or Failure To Act A client has a cause of action against his or her lawyer for breach of contract if the lawyer neglects to perform the services that the lawyer specifically or by implication agreed to perform. See Weekley v. Knight, 116 Fla. 721, 156 So. 625 (1934). See also 4 FLA. JUR. 2d Attorneys at Law § 522. Of course, it must be shown that a loss was suffered. Weekley; 4 FLA. JUR.2d Attorneys at Law § 526. Failure to give advice that is a necessary part of the performance of the contract between the personal representative and the lawyer, as well as negligence in the advice that is given, may be the basis of a cause of action. See Solomon v. Meyer, 116 So. 2d 37 (Fla. 3d DCA 1959). A lawyer should possess the skill and knowledge possessed by other members of the profession and must perform all duties with a reasonable degree of care, skill, and dispatch. The lawyer is responsible to the client for loss resulting from failure either to possess that degree of skill and knowledge or to exercise that care, skill, and dispatch. 4 FLA.JUR.2d Attorneys at Law § 522. Footnotes — Chapter 4: *

J.D., 1995, Stetson University; LL.M. in Taxation, 1999, University of Florida. Mr. Kelley is a member of The Florida Bar and is Florida Bar Board Certified in Wills, Trusts and Estates. He is a fellow of the American College of Trust and Estate Counsel and is a Florida Supreme Court Certified Circuit Court Mediator. Mr. Kelley is a member of Kelley & Kelley, P.L., in Saint Augustine. **

J.D., 2010, Harvard University. Ms. Rubin is a member of The Florida Bar and the American Bar Association. She is a fellow of the American College of Trust and Estate Counsel and is the Chair of the Elective Share Review Committee and Vice-Chair of both the Trust Law Committee and the Ad Hoc Electronic Wills Committee of the Real Property and Probate Law Section of The Florida Bar. Ms. Rubin is a member of Gutter Chaves Josepher Rubin Forman Fleisher Miller P.A., in Boca Raton.

Licensed to Otis K Pitts, Otis K Pitts

« Ch. 5 » 1 Practice Under Florida Probate Code Ch. 5 (2022)

Chapter 5 INITIAL STEPS IN PROBATE AND ADMINISTRATION RACHEL BARLOW OLIVER* Contents § 5.1. INTRODUCTION § 5.2. PREPARATION BEFORE FILING PETITION TO OPEN ESTATE A. Testate Estate 1. Production Of Will For Probate a. In General b. Forms i. Petition For Production Of Will ii. Order Requiring Production Of Will 2. Unwilling Or Unqualified Personal Representative B. Intestate Estate; Selection Of Personal Representative § 5.3. PROCEDURE FOR SECURING LETTERS OF ADMINISTRATION A. Petition For Administration 1. In General 2. Presenting Petition To Court 3. Notice B. Death Certificate C. Proof Of Will 1. Self-Proved Will 2. When Witness Appears Before Court 3. Oath Or Affirmation 4. When Witnesses To Will Are Unavailable a. In General

b. Form For Affidavit When Witnesses Are Unavailable 5. Commission To Prove Will D. Affidavit of Heirs (Intestate Estate) E. Order Of Probate (Testate Estate) F. Order Appointing Personal Representative (Intestate Estate) G. Oath Of Personal Representative H. Resident Agent I. Bond Of Personal Representative J. Letters Of Administration K. Notice Of Administration L. Notice To Creditors § 5.4. ADJUDICATION BEFORE ISSUANCE OF LETTERS A. In General B. Formal Notice Required C. Forms 1. Order Admitting Will To Probate And Appointing Personal Representative After Formal Notice (Testate Estate) 2. Order Appointing Personal Representative After Formal Notice (Intestate Estate) § 5.5. CAVEAT § 5.6. SOLVING SPECIFIC PROBLEMS A. Notarial Wills B. Nuncupative And Holographic Wills C. Probate Of Lost Or Destroyed Wills 1. In General 2. Forms a. Petition For Establishment And Probate Of Lost Or Destroyed Will And Appointment Of Personal Representative b. Order Admitting Lost Or Destroyed Will To Probate And Appointing Personal Representative D. Probate Of Will Of Florida Resident When Will Previously Admitted To Probate In Foreign State 1. In General 2. Forms

a. Petition For Establishment And Probate Of Will Probated In Another State And Appointment Of Personal Representative b. Order Establishing And Admitting To Probate Will Probated In Another State, And Appointing Personal Representative E. Probate Of Will In Foreign Language § 5.7. TAX CONSIDERATIONS A. Decedent’s Final Income Tax Return B. Notice Of Fiduciary Relationship C. Application For Employer Identification Number D. Estate (And Generation-Skipping Transfer) Tax And Income Tax Return(s) « Ch. 5 », • § 5.1 » 1 Practice Under Florida Probate Code § 5.1 (2022)

§ 5.1. INTRODUCTION This chapter contains a practical, step-by-step discussion of the procedure for opening the estate of a decedent. The procedures for opening both testate and intestate estates are discussed. Some procedures for resolving specific problems that occasionally arise in opening an estate are also discussed. The appointment of a curator is discussed in Chapter 16 of this manual and is not addressed in this chapter. No attempt has been made to discuss substantive points of Florida law that may arise in particular cases. The basic statutory provisions and rules pertaining to the initial steps in opening the estate of a decedent are found in F.S. Chapters 731–733 and in the Florida Probate Rules. In many instances, a topic is covered by both a rule and a statute. When conflicts arise between the provisions of the statute and rule, those issues that are substantive are governed by the directions of the statutes and those issues that are procedural are governed by the rules. In trying to determine what is substantive and what is procedural, there are infinite shades of gray. The Real Property, Probate and Trust Law Section of The Florida Bar, through Florida Lawyers Support Services, Inc.© (FLSSI), has developed probate forms for most of the probate procedures discussed in this chapter.

The forms are available by writing FLSSI at P.O. Box 568157, Orlando, FL 32856-8157, or by calling 800/404-9278 or 407/515-1501 (or online at www.flssi.org/forms). Lawyers should be careful to use current FLSSI forms. Other forms not included in the set of forms available through FLSSI are included throughout this chapter, and many forms are also available in THE FLORIDA BAR PROBATE SYSTEM (Fla. Bar 5th ed. 2018). In addition, lawyers should be careful to review the probate forms to ensure that they have been updated to reflect the current law and rules. The Florida Statutes, the Florida Probate Rules, and FLSSI forms, in many instances, previously required that the decedent’s social security number be included as part of the information to be submitted to the court. However, following the Florida Supreme Court’s amendment of Fla. R. Gen. Prac. & Jud. Admin. 2.420, the rule that governs public access to judicial branch records, social security numbers in court records are to remain confidential. Under Rule 2.420(d)(2), a filer of a court record containing confidential information must, at the time of filing, file with the clerk a “Notice of Confidential Information within Court Filing” to indicate that confidential information described in the rule is included within the document being filed. The notice must also either indicate that the entire document is confidential or identify the precise location of the confidential information within the document being filed. Id. A form of the notice is included in the rule. Additional procedural requirements are also set forth in the rule. The practitioner should note that the Florida Supreme Court amended Rule 2.420, effective July 1, 2021, to make the filer in certain civil cases solely responsible for designating confidential information in court filings. The amendments, however, did not impact the existing procedure requiring the clerk of court to designate and maintain court records as confidential in probate cases. In re: Amendments to Florida Rule of Judicial Administration 2.420, 320 So. 3d 626 (Fla. 2021). See FLSSI Form No. P-1.0640 for a Notice of Confidential Information within Court Filing and Form No. P-1.0641 for a Notice of Confidential Information within Court Filing (Contemporaneous Filing).

« Ch. 5 », « § 5.2 » 1 Practice Under Florida Probate Code § 5.2 (2022)

§

5.2. PREPARATION BEFORE PETITION TO OPEN ESTATE

FILING

« Ch. 5 », « § 5.2 », • A » 1 Practice Under Florida Probate Code § 5.2.A (2022)

A. Testate Estate « Ch. 5 », « § 5.2 », • A », • 1 » 1 Practice Under Florida Probate Code § 5.2.A.1 (2022)

1. Production Of Will For Probate « Ch. 5 », « § 5.2 », • A », • 1 », • a » 1 Practice Under Florida Probate Code § 5.2.A.1.a (2022)

a. In General The person nominated as personal representative in the will of the decedent and that person’s lawyer should immediately attempt to locate the will if it is not already in the possession of the nominated personal representative. The will may include a separate writing as described in F.S. 732.515. F.S. 732.901(5). Ordinarily, the nominated personal representative either has the will or knows where it is. The will should be deposited immediately with the circuit court having jurisdiction of the estate of the decedent. As provided in F.S. 732.901(1), the custodian of a will must deposit it with the clerk of the court in the appropriate venue “within 10 days after receiving information that the testator is dead.” Usually the nominated personal representative delivers the will to the lawyer, and the lawyer then deposits it with the court. F.S. 732.901(1) provides that the testator’s date of death or the last four digits of the testator’s social security number is to be supplied with the will for deposit with the clerk. An original will submitted to the clerk along with a petition or other pleading is deemed to have been deposited with the clerk. F.S. 732.901(3). A receipt from the court should be obtained. Upon receipt, the clerk must “retain and preserve the original will in its

original form for at least 20 years. If the probate of a will is initiated, the original will may be maintained by the clerk with the other pleadings during the pendency of the proceedings.” F.S. 732.901(4). However, the will must at all times be retained in its original form for the remainder of the 20-year period whether or not the will is admitted to probate or the proceedings are terminated. Transforming and storing a will on film, microfilm, magnetic, electronic, optical, or other substitute media or recording a will onto an electronic recordkeeping system, whether or not in accordance with the standards adopted by the Supreme Court of Florida, or permanently recording a will does not eliminate the requirement to preserve the original will. Id. Effective January 1, 2020, the Florida Legislature authorized the use of electronic wills, which are stored with a qualified custodian. Upon receiving information of the testator’s death, “a qualified custodian must deposit the electronic will with the court” as required under F.S. 732.901. F.S. 732.524(11). “A qualified custodian may not charge a fee for depositing the electronic will with the clerk … or [for] furnishing in writing any information requested by a court” under F.S. 732.524(2)(b). F.S. 732.524(11). “An electronic will that is [e-filed] with the clerk … through the Florida Courts EFiling Portal is deemed to have been deposited with the clerk as an original of the electronic will.” F.S. 732.526(1). Alternatively, a paper copy of an electronic will may also be offered and admitted to probate as an original of the electronic will, provided it is “certified by a notary public to be a true and correct copy of the electronic will.” F.S. 732.526(2). If the custodian fails to produce and deposit the will in accordance with F.S. 732.901(1), a petition to compel the custodian to do so may be filed with the court. F.S. 732.901(2). Costs, damages, and a reasonable attorney’s fee will be assessed “against the delinquent custodian if the court finds that the custodian had no just or reasonable cause for failing to deposit the will.” Id. A form for a petition for production of will is provided in § 5.2.A.1.b.i and a form for an order is in § 5.2.A.1.b.ii. To substantiate the allegation that the custodian of the will has failed to deposit it with the court, it is recommended that the request be in writing and

sent by certified mail with a return receipt requested. A copy of the letter with the return receipt may then be submitted with the petition as proof of the request, with appropriate allegations in the petition referring to the copy and return receipt. See the form at § 5.2.A.1.b.i. A potential conflict or inconsistency exists between efforts to obtain prompt possession of an original will and due process that is required to acquire jurisdiction of the person before imposing sanctions against a custodian who fails to promptly deposit the will with the court. “Persons given proper notice of a proceeding are bound by all orders entered in that proceeding.” F.S. 731.301(3). The statute and probate rules require that only informal notice be given of the petition and hearing to compel the custodian to produce and deposit the will. See F.S. 732.901(2); Fla. Prob. R. 5.040(c). In probate proceedings, there are two types of notice—formal notice and informal notice. See Rule 5.040. The term “notice” in the probate code means informal notice “unless formal notice is specified.” Rule 5.040(c). “[F]ormal notice to a person is sufficient notice for the court to exercise its in rem jurisdiction over the person’s interest in the estate property or in the decedent’s protected homestead. The court does not acquire personal jurisdiction over a person by service of formal notice.” F.S. 731.301(2). Under Rule 5.040(a), formal notice requires service on the interested person with a copy of the pleading or motion, notice that the person served is required to serve written defenses within 20 days, and notice that failure to answer may result in a judgment or order for the relief granted without further notice. Informal notice requires service on interested persons pursuant to Fla. R. Gen. Prac. & Jud. Admin. 2.516, which allows for several methods of service and does not require notice to the interested person that an answer is required. With regards to a proceeding to compel a custodian to produce and deposit a will, informal notice furthers the goal of obtaining prompt possession of the will. However, if the custodian has a beneficial interest in the estate and the petitioner wishes to impose sanctions against the delinquent custodian, due process suggests that the lawyer should serve the custodian with formal notice to acquire jurisdiction over the custodian’s beneficial interest in the estate property or in the decedent’s protected homestead (which will necessitate at least a 20-day delay before the petition is heard).

See F.S. 731.301(2); Rule 5.040(d). If the custodian does not have an interest in the estate and the petitioner wishes to impose sanctions, the lawyer should serve a summons on the delinquent custodian to acquire personal jurisdiction over the custodian. See also § 1.2.D.2 of this manual addressing the production of a will for probate. « Ch. 5 », « § 5.2 », • A », • 1 », « b • 1 Practice Under Florida Probate Code § 5.2.A.1.b (2022)

b. Forms « Ch. 5 », « § 5.2 », • A », • 1 », « b •, • i » 1 Practice Under Florida Probate Code § 5.2.A.1.b.i (2022)

i. Petition For Production Of Will IN THE CIRCUIT COURT FOR _________ COUNTY, FLORIDA PROBATE DIVISION File Number ___ IN RE: ESTATE OF _________, Deceased.

PETITION FOR PRODUCTION OF WILL Petitioner, _________, files this petition for production of will, and alleges: 1. Decedent, _________, whose last known address was _________, died on (date), at (place of death), and at the time of death was domiciled in _________ County, Florida. 2. Decedent owned an estate consisting of real and personal property and left a will in which Petitioner is named as (state the nature of the petitioner’s interest under the will). 3. Respondent, _________, is the [qualified] custodian of the will and

has it under [his] [her] [its] control or possession. On (date), Petitioner notified Respondent of the decedent’s death and requested Respondent to deposit the will with the Circuit Court of _________ County. A copy of Petitioner’s request dated _________, sent to Respondent by certified mail, return receipt requested, is attached to the petition as Exhibit “A”, together with the proof of mailing. 4. Respondent has willfully failed and refused to deposit the will with the court. 5. As a result, Petitioner was required to retain an attorney to handle these proceedings, to whom [he] [she] is obligated to pay a reasonable fee. 6. As a further result of Respondent’s willful failure to file the will, (allege the pertinent facts concerning other damages sustained by the petitioner). WHEREFORE Petitioner requests that Respondent be ordered to deposit the will as required by law and that a judgment be rendered against respondent for $_________ for damages sustained by Petitioner as a result of Respondent’s failure to deposit the will, including costs and a reasonable attorney’s fee. Under penalties of perjury, I declare that I have read the foregoing, and the facts alleged are true, to the best of my knowledge and belief. Signed on

(date).

(Certificate of Service) /s/ Petitioner /s/ (name of attorney) Attorney for Petitioner (address and phone number) (e-mail address(es)) Florida Bar No. ___

« Ch. 5 », « § 5.2 », • A », • 1 », « b •, « ii • 1 Practice Under Florida Probate Code § 5.2.A.1.b.ii (2022)

ii. Order Requiring Production Of Will (Title of Estate)

(Title of Court)

ORDER REQUIRING PRODUCTION OF WILL On the petition of _________, requesting that Respondent, _________, be required to deposit the will of the decedent, _________, with this court, the court finding that notice has been duly served upon Respondent, that [he] [she] [it] has failed to answer the petition [or failed to show any just or reasonable cause for failing to deposit the will], and that [he] [she] [it] has willfully failed to deposit the will, IT IS ADJUDGED: 1. Respondent, _________, immediately produce and deposit the will of the decedent, _________, with this court. 2.

(Set forth judgment for damages, attorneys’ fees, and costs) ORDERED on

(date). /s/____________ Circuit Judge

Copies furnished to: _________ « Ch. 5 », « § 5.2 », • A », « 2 • 1 Practice Under Florida Probate Code § 5.2.A.2 (2022)

2. Unwilling Or Unqualified Personal Representative In a testate estate, the person nominated as personal representative or, if appropriate, the successor, will ordinarily be granted letters of administration. F.S. 733.301(1)(a). Except in very limited circumstances, courts are without discretion to refuse to appoint the person nominated as personal representative “unless the person is expressly disqualified under the statute or discretion is granted within the statute.” Werner v. Estate of McCloskey, 943 So. 2d 1007, 1008 (Fla. 1st DCA 2006). See Hernandez v. Hernandez, 946 So. 2d 124 (Fla. 5th DCA 2007), and cases cited therein.

The lawyer is occasionally confronted with the situation in which the person nominated as personal representative in the will is deceased or declines to serve and no alternate personal representative is named, or with the situation in which the nominated personal representative is not qualified to serve in accordance with F.S. 733.301–733.305. See In re Estate of Greenberg, 390 So. 2d 40 (Fla. 1980), abrogated 563 So. 2d 64. See also § 1.2.D.7 of this manual addressing designation and qualification of the personal representative. The fact that the nominated personal representative is deceased or unqualified to act should be alleged in the petition for the appointment of another as personal representative. Documentary evidence of the death or disqualification of the nominated personal representative should also be presented to the court with the petition for administration. If the nominated personal representative cannot qualify and a qualified alternate is named in the will, letters will be issued to that alternate. F.S. 733.303(2); In re Estate of Jose, 164 So. 2d 888 (Fla. 2d DCA 1964). If the will does not name a qualified alternate personal representative, or if the personal representative, once appointed, dies or otherwise ceases to serve as personal representative, the appointment of a successor personal representative is governed by F.S. 733.301(1)(a), which gives the priority of appointment or the right to nominate the personal representative to those who take under the will. See In re Estate of Drummond, 341 So. 2d 225 (Fla. 1st DCA 1977); Pryor v. First National Bank of Leesburg, 97 So. 2d 143 (Fla. 2d DCA 1957). A personal representative who knows that he or she was not qualified to act at the time of appointment should resign immediately. F.S. 733.3101(1). A personal representative who was qualified to act at the time of appointment but then becomes unqualified is required to promptly file and serve a notice setting forth the reasons for the current unqualified status. The notice must state that any interested person may petition to have the personal representative removed by filing for removal within 30 days after notice is served. F.S. 733.3101(2). A personal representative who fails to comply with F.S. 733.3101 will be personally liable for costs and attorneys’ fees incurred in any removal proceeding if the personal representative is removed. This liability is incurred even if the personal representative did not know, but should have known, of

the facts that would have required him or her to resign or to file and serve notice, and the liability is cumulative to any other provided by law. F.S. 733.3101(3). See F.S. 733.504 listing causes for removal of a personal representative. If a majority in interest of the persons entitled to the estate cannot agree on a person to act as personal representative, and more than one devisee applies for appointment, the judge may select the one best qualified. F.S. 733.301(1)(a)3. The appointment may be made after all persons qualified to act and having a preference equal to or greater than the applicant are served with formal notice of the petition for administration, unless those entitled to preference waive notice in writing. Fla. Prob. R. 5.201(b). See § 5.3.A.3. Rule 5.200 governing the form for a petition for administration was amended, effective January 1, 2020, to require a statement as to “the priority, under [F.S. 733.301] of the person whose appointment as the personal representative is sought, whether or not any other person has equal or higher preference, and if so, their name and whether they will be served with formal notice,” in addition to the statement that the person is qualified. Rule 5.200(e). See § 5.3.A regarding petitions for administration. The nominated personal representative may sign a declination or otherwise waive the right to act as personal representative. A nominated personal representative may wish to decline the right to serve when two or more individuals are nominated as personal representative and the personal representatives wish for only one person to serve because of inconvenience of distance from the decedent’s domicile or otherwise. In that event, the declining personal representative should consider signing a conditional declination that provides that he or she declines to serve so that one of the nominated personal representatives can serve, but, if the other person ceases to serve for any reason, the declining personal representative retains the right to serve as personal representative. Before letters of administration are to be issued to any person who is not entitled to preference, formal notice is to be served on all known persons qualified to act as personal representative and entitled to preference equal to or greater than the applicant, unless those entitled to preference waive it in writing. Rule 5.201(b). See FLSSI Form No. P-1.0500.

A premarital agreement or a separation agreement waiving rights of dower, elective share, exempt property, or other statutory rights does not preclude the surviving spouse from serving as personal representative under the decedent’s will. Estate of Kenton v. Kenton, 423 So. 2d 531 (Fla. 5th DCA 1982). Forms for waiver of priority, consent to appointment of personal representative, and waiver of notice and bond are FLSSI Form Nos. P-3.0200 (single) and P-3.0210 (multiple). See generally Rule 5.180 as to the procedure for waiver and consent. See § 1.3.B.2 of this manual regarding disqualification, death, or failure of the will to name a personal representative. The procedure when the nominated personal representative is a minor is discussed in § 1.3.B.1. « Ch. 5 », « § 5.2 », « B • 1 Practice Under Florida Probate Code § 5.2.B (2022)

B. Intestate Estate; Selection Of Personal Representative When the decedent dies intestate, it is necessary to determine who is to act as personal representative of the estate. Preference in the appointment of a personal representative is set forth in F.S. 733.301(1)(b). The lawyer should always keep in mind the provisions of F.S. 733.302–733.305 as to the qualifications of those able to serve as a personal representative. See § 1.2.D.7 of this manual concerning designation and qualification of the personal representative. Occasionally, the person having preference to act may not qualify or, in the court’s opinion, may not have the qualities and character necessary to perform the duties of personal representative. See F.S. 733.302–733.303. In that situation, the court may refuse to appoint the party having preference. Long v. Willis, 113 So. 3d 80 (Fla. 2d DCA 2013); Padgett v. Estate of Gilbert, 676 So. 2d 440 (Fla. 1st DCA 1996). The record must demonstrate, however, that the party having preference is not fit to be appointed. Senopoulus v. Senopoulus, 253 So. 3d 1228 (Fla. 1st DCA 2018); Long; Garcia v. Morrow, 954 So. 2d 656 (Fla. 3d DCA 2007). See §§ 1.3.A– 1.3.B.3 of this manual for a discussion of appointment of the personal representative. In the majority of cases, either a surviving spouse or next of kin is willing

and qualified to act as personal representative. If the surviving spouse is qualified and willing to act, no consideration need be given to a person selected by a majority in interest of the heirs under F.S. 733.301(1)(b)2. The rights of a surviving spouse to preference in appointment as personal representative of an intestate estate may be waived before or after marriage. F.S. 732.702(1). However, a marital or separation agreement waiving rights to dower, elective share, and exempt property, without mention of the surviving spouse’s right to preference in appointment as personal representative of the deceased spouse’s intestate estate, does not constitute a waiver of that specific right. A waiver of “all rights,” on the other hand, will preclude service as a personal representative unless otherwise stated. Id. A surviving spouse does not automatically have a power of appointment to name a person to serve as personal representative. However, if the decedent is survived by one or more descendants, all of whom are also descendants of the surviving spouse, and the surviving spouse has no other descendant, the surviving spouse is entitled to the entire intestate estate. Accordingly, the surviving spouse is permitted to name a person to serve as personal representative. (See F.S. 732.102 on the share of a spouse in an intestate estate.) A “person” named as personal representative is not limited to a beneficiary and includes trust companies and other corporations described in F.S. 733.305. If there are several heirs, all of whom are sui juris and in equal degrees of relationship to the decedent, the one selected in writing by a majority of them will be appointed. F.S. 733.301(1)(b)2. A “majority in interest” means a majority in amount of the probate estate, not a majority in number of heirs. If a majority in interest of the heirs cannot agree on a person to act as personal representative, Harper v. Estate of Harper, 271 So. 2d 40 (Fla. 1st DCA 1973), or if the petitioner is not a person entitled to preference, such as a creditor, In re Estate of Raymond, 237 So. 2d 84 (Fla. 1st DCA 1970), the judge may select the one best qualified. F.S. 733.301(1)(b)3, (3). The appointment may be made after all persons qualified to act and having a preference equal to or greater than the applicant are served with formal notice. Fla. Prob. R. 5.201. See § 5.3.A.3. See also FLSSI Form No. P1.0500 for formal notice of a petition for administration for an intestate estate.

As a practical matter, the heirs having a majority in interest are usually agreeable to one of them acting as personal representative. This is particularly true when the heirs are adult children or brothers and sisters of the decedent. To facilitate the administration of the estate, it is recommended that an heir living in the area where the lawyer is practicing be appointed. This minimizes the necessity of mailing pleadings to the personal representative and generally facilitates the administration of the estate.

« Ch. 5 », « § 5.3 » 1 Practice Under Florida Probate Code § 5.3 (2022)

§ 5.3. PROCEDURE FOR SECURING LETTERS OF ADMINISTRATION « Ch. 5 », « § 5.3 », • A » 1 Practice Under Florida Probate Code § 5.3.A (2022)

A. Petition For Administration « Ch. 5 », « § 5.3 », • A », • 1 » 1 Practice Under Florida Probate Code § 5.3.A.1 (2022)

1. In General Fla. Prob. R. 5.200 sets forth in detail the required contents of the petition for administration. The petition for administration may be filed by “[a]ny interested person,” F.S. 733.202, and must be signed and verified by the petitioner, Rules 5.020, 5.200. Rule 5.020(e) requires the following verification: “Under penalties of perjury, I declare that I have read the foregoing, and the facts alleged are true, to the best of my knowledge and belief.” Although F.S. 733.202 and Rule 5.200 permit a verified petition for administration to be signed and filed by any interested person, it is the better and more common practice for the person seeking appointment as personal representative to sign the petition. The petition must contain a statement of the interest of the petitioner, the petitioner’s name and address, and the name and office address of the petitioner’s lawyer. Rule 5.200(a). It includes the name and last known address of the decedent, the last four digits of the decedent’s social security number, the date and place of death of the decedent, and the state and county of the decedent’s domicile. Rule 5.200(b). Although not required, it is helpful to give the age or approximate age of the decedent to further identify him or her, and the FLSSI probate forms (see § 5.1) include this information. The names and addresses of the surviving spouse, if any, and the beneficiaries, their relationship to the decedent, and the year of birth of any beneficiaries who are minors should be given. Rule 5.200(c). When there is a will, only the persons taking under the will (and not the decedent’s heirs at law) are

required to be shown, because the term “beneficiaries” in a testate estate, by definition, includes only devisees. F.S. 731.201(2). The petition must show that the court is the proper venue. Rule 5.200(d); see F.S. 733.101; State ex rel. McGreevy v. Dowling, 223 So. 2d 89 (Fla. 3d DCA 1969). As previously stated, the petition must state “the priority, under [F.S. 733.301], of the person whose appointment as the personal representative is sought, whether or not any other person has equal or higher preference, and if so, their name and whether they will be served with formal notice, and a statement that the person is qualified to serve under the laws of Florida.” Rule 5.200(e). Rule 5.200(k) provides that a person seeking appointment must include the following statements demonstrating his or her qualifications to serve under Florida law: (1) whether the person has been convicted of a felony; (2) whether the person has been convicted in any state or foreign jurisdiction of abuse, neglect, or exploitation of an elderly person or a disabled adult, as those terms are defined in [F.S.] 825.101; (3) that the person is mentally and physically able to perform the duties of a personal representative; (4) that the person is 18 years of age or older; and (5) whether the person is a resident of Florida and, if not a resident, a statement of the person’s relationship to the decedent in accordance with [F.S.] 733.304. The petition must state whether domiciliary or principal proceedings are pending in another state or country, if known, and the name and address of the foreign personal representative and the court issuing letters. Rule 5.200(f). A “statement of the approximate value and nature of the assets” must be included in the petition. Rule 5.200(g). If bond is required, the estimate of value is used by the court to determine the amount of bond that may be required. For an intestate estate, the petition must state that, after the exercise of reasonable diligence, the petitioner is unaware of any unrevoked wills or codicils. If any wills or codicils are known to exist, the petition must contain

a statement as to why the wills or codicils are not being probated. Rule 5.200(h). In a testate estate, the will being offered for probate should be identified by date of execution. The petition must also recite that the petitioner is unaware of any other unrevoked wills or codicils, or, if there are any, why they are not being offered for probate. Rule 5.200(i). Also, in a testate estate, the petition must state that the original will being offered for probate “is in the possession of the court or accompanies the petition, or that an authenticated copy of a will deposited with or probated in another jurisdiction or that an authenticated copy of a notarial will, the original of which is in the possession of a foreign notary, accompanies the petition.” Rule 5.200(j). « Ch. 5 », « § 5.3 », • A », « 2 » 1 Practice Under Florida Probate Code § 5.3.A.2 (2022)

2. Presenting Petition To Court If a will is being offered for probate, proof of the will in accordance with the procedures discussed below in §§ 5.3.C.1–5.3.C.5 is required before the petition for administration is presented to the court. The petition for administration may be presented to the judge ex parte in most instances. If, however, formal notice has been given to one or more parties, the petition may not be presented to the court until the party served has been allowed 20 days in which to file a responsive pleading. Fla. Prob. R. 5.040(a). Proceedings for the opening of an estate after formal notice are discussed in §§ 5.4.A–5.4.B. In almost all cases, the petition is presented by electronic filing for the judge to consider without the lawyer being present. This procedure minimizes time and expense when the probate administration is conducted in a county that is a substantial distance from the lawyer’s office. However, it may be necessary, or the lawyer may prefer, to attend a hearing because the judge may have questions that could cause delay in granting the petition if the lawyer is not present. Although most judges do not require the appearance of the petitioner with the lawyer, the lawyer is well advised to contact the court regarding its preferences because this is a matter of local practice and discretion of the individual judge. « Ch. 5 », « § 5.3 », • A », « 3 •

1 Practice Under Florida Probate Code § 5.3.A.3 (2022)

3. Notice Notice of the petition for administration is generally not required. However, when the petition seeks appointment of a personal representative who is not entitled to preference of appointment, formal notice must be given to all persons “entitled to preference equal to or greater than the applicant, unless those entitled to preference waive it in writing.” Fla. Prob. R. 5.201(b). See §§ 5.2.A.2–5.2.B. If notice is not given, a person who is entitled to and who has not waived preference may have the letters revoked and reissued to that person after formal notice and hearing. F.S. 733.301(4). See § 5.3.A.1 regarding requirements for a petition for administration. If the decedent was a nonresident of Florida and an ancillary (out-ofstate) administration is commenced, formal notice must be given to all persons entitled to preference as ancillary personal representatives equal to or greater than the applicant and who have not waived notice or joined in the petition, and “all domiciliary personal representatives who have not waived notice or joined in the petition.” Rule 5.470(b). See FLSSI Form No. P1.0500 for notice to the domiciliary personal representative and Form No. P3.0190 for waiver of notice by the domiciliary personal representative. All interested persons who have filed caveats, other than creditors, should be given formal notice. Rule 5.260(f); F.S. 731.110(3). See § 5.5 regarding caveats. All persons who receive formal notice must present any challenges to the petition or validity of the will within 20 days after notice and before letters are issued. Rule 5.040(a). See §§ 5.4.A–5.4.B. If formal notice is given, see FLSSI Form No. P-1.0510 for a form for the verified statement for proof of service. Regarding formal notice generally, see §§ 2.2.D.1–2.2.D.3 of this manual. Forms for the petition for administration for both resident and nonresident decedents are FLSSI Form Nos. P-3.0100 through P-3.0171. « Ch. 5 », « § 5.3 », « B » 1 Practice Under Florida Probate Code § 5.3.B (2022)

B. Death Certificate

Subject to the provisions of Fla. R. Gen. Prac. & Jud. Admin. 2.420 (discussed below and in § 5.1), an official record of the death of a decedent must be filed by the personal representative. Fla. Prob. R. 5.205(a). Rule 5.205(a)(1) requires that the death certificate be filed by the personal representative “not later than 3 months following the date of the first publication of the notice to creditors.” A short form certificate of death, which does not disclose the cause of death, should be filed. F.S. 382.008(6). Rule 2.420(d)(1)(B)(vi) provides that portions of death certificates are to remain confidential. See F.S. 382.008(6). The death certificate may be included with the petition for administration if the certificate is available when the petition is prepared. If for some reason the death certificate cannot be obtained, on a verified petition setting forth those reasons, the court may waive this requirement. This may be done ex parte without notice to any interested person. Rule 5.205(b). The court also has the authority, at any time and without notice or hearing, to require the personal representative or petitioner to file a copy of the death certificate with the court. Rule 5.205(c). See also §§ 1.2.A.3 and 3.5.A of this manual regarding death certificates. « Ch. 5 », « § 5.3 », « C » 1 Practice Under Florida Probate Code § 5.3.C (2022)

C. Proof Of Will « Ch. 5 », « § 5.3 », « C », • 1 » 1 Practice Under Florida Probate Code § 5.3.C.1 (2022)

1. Self-Proved Will Any will that is self-proved in accordance with F.S. 732.503 may be admitted to probate without testimony of the attesting witnesses. F.S. 733.201(1); Blits v. Blits, 468 So. 2d 320 (Fla. 3d DCA 1985). F.S. 732.523 establishes the unique requirements for an electronic will to be self-proved. Self-proved electronic wills may also be admitted to probate without further proof. F.S. 733.201(1). Thus, unless the probate of the self-proved will is challenged, the problems of locating a witness are eliminated. See In re Estate of Charry, 359 So. 2d 544 (Fla. 4th DCA 1978), which held valid the execution of a codicil that used a self-proof affidavit that doubled as the attestation clause.

Even when the testator has completed a self-proof affidavit, the execution of the will itself must still comply with the strict requirements of F.S. 732.502. See Bitetzakis v. Bitetzakis, 264 So. 3d 297 (Fla. 2d DCA 2019) (will failed to conform to requirements of F.S. 732.502 when decedent did not sign at end of will and self-proof affidavit was insufficient to rectify decedent’s incomplete signature). « Ch. 5 », « § 5.3 », « C », « 2 » 1 Practice Under Florida Probate Code § 5.3.C.2 (2022)

2. When Witness Appears Before Court Wills that are not self-proved may be admitted to probate on the oath of any attesting witness taken before any circuit judge, court-appointed commissioner, or the clerk or deputy clerk of the circuit court. F.S. 733.201(2). (See F.S. 731.201(5), which defines “clerk” as “the clerk or deputy clerk of the court.”) The oath of only one witness is necessary and can usually be secured if the will was drafted in the county of the court having jurisdiction. If the will was drafted by a lawyer in the local area, the lawyer or a member of the lawyer’s staff may have been a witness and may be available to sign the oath of witness on short notice. The lawyer prepares the oath, leaves it with the clerk, and makes arrangements to have one of the attesting witnesses appear before the judge or clerk to sign the appropriate oath. As a practical matter, this appearance is generally made before the clerk or the deputy clerk. A “purportedly self-proved electronic will” may be admitted to probate upon the oath of an attesting witness (under F.S. 733.201(2)) only if there was a “substantial failure” to comply with the remote online notarization procedures required under F.S. 117.265 for the execution of the electronic will or the acknowledgement by the testator or affidavits of witnesses. F.S. 733.201(1). If a witness is in Florida but is at an inconvenient distance from the county of domicile of the decedent, an oath of witness may be attached to the original will or a photographic copy of the will. Because a photographic copy is sufficient, it is recommended that a copy of the will be used to avoid the risk that the original may be lost or damaged. The witness may then appear with it before any circuit judge or any clerk or deputy clerk in Florida and complete the oath. F.S. 733.201(2). The statute is silent as to who then files

the oath with the circuit court having jurisdiction of the probate estate. The lawyer should ascertain whether under the local practice the court clerk before whom the oath was taken will send the oath to the probate court (on the theory that the oath, once taken, is a court pleading) or whether the affiant or the petitioner’s lawyer does so. A form for the oath of a witness to a will is FLSSI Form No. P-3.0300. See Form P-3.0301 for the oath of a witness to a copy of a will, Form No. P3.0310 for the oath of a witness to a codicil, and Form No. P-3.0311 for the oath of a witness to a copy of a codicil. « Ch. 5 », « § 5.3 », « C », « 3 » 1 Practice Under Florida Probate Code § 5.3.C.3 (2022)

3. Oath Or Affirmation If the affiant desires to affirm rather than to take an oath, the terminology “who says on solemn affirmation” may be substituted for “being duly sworn says.” The jurat accordingly may be: “Affirmed and subscribed before me.” See F.S. 1.01(5), 92.52. « Ch. 5 », « § 5.3 », « C », « 4 » 1 Practice Under Florida Probate Code § 5.3.C.4 (2022)

4. When Witnesses To Will Are Unavailable « Ch. 5 », « § 5.3 », « C », « 4 », • a » 1 Practice Under Florida Probate Code § 5.3.C.4.a (2022)

a. In General If the attesting witnesses cannot be found, have become incapacitated after execution of the will, or are unavailable due to death, or if their testimony cannot be obtained within a reasonable time, a will may be admitted to probate upon the oath of the personal representative nominated by the will as provided in [F.S. 733.201(2)], whether or not the nominated personal representative is interested in the estate, or upon the oath of any person having no interest in the estate under the will stating that the person believes the writing exhibited to be the true last will of the decedent. F.S. 733.201(3).

As stated in § 5.3.C.2, a “purportedly self-proved electronic will” may be admitted to probate upon the oath of personal representative (under F.S. 733.201(3)) only if there was a “substantial failure” to comply with the remote online notarization procedures required under F.S. 117.265 for the execution of the electronic will or the acknowledgement by the testator or affidavits of witnesses. F.S. 733.201(1). If the nominated personal representative or a disinterested person has knowledge of any facts concerning the unavailability of the attesting witnesses, these facts can be included in the proof of will by such person. If the nominated personal representative or other person signing the proof of will does not have knowledge of the facts concerning the availability of the attesting witnesses, an affidavit can be signed by a person having knowledge of such facts. This could include the lawyer for the estate who has investigated the whereabouts of the witnesses. The form for an affidavit is set out in § 5.3.C.4.b. The affidavit should be followed by the proof of will. A form for a proof of will (oath) by a personal representative or a disinterested person is FLSSI Form No. P-3.0320. See Form No. P-3.0330 for a proof of codicil when the witnesses are unavailable. In most instances, this procedure can be used if a close family member is the nominated personal representative, or if the decedent resided in the same area for a substantial period of time so that it would be likely that someone there would have the necessary familiarity with the decedent and his or her affairs. « Ch. 5 », « § 5.3 », « C », « 4 », « b • 1 Practice Under Florida Probate Code § 5.3.C.4.b (2022)

b. Form For Affidavit When Witnesses Are Unavailable (Title of Estate)

(Title of Court)

AFFIDAVIT STATE OF FLORIDA COUNTY OF ____________. The undersigned, _________, being duly sworn, says:

1. A petition was filed in this court on (date), requesting that a certain written instrument dated _________, be admitted to probate as the Last Will and Testament of _________, and that _________, who is nominated as personal representative in the will, be appointed personal representative of the estate. 2. That instrument was subscribed by _________ and _________ as attesting witnesses. COMMENT: Paragraph 3 contains four choices. Select the language that applies. 3. The attesting witnesses to that will [are now deceased and their death certificates attached] [cannot be found after reasonable and diligent inquiry] [are unavailable so that their testimony cannot be taken within a reasonable time because (state reasons)] [have become incapacitated since the execution of the will]. Dated: ______ /s/ Affiant Sworn to (or affirmed) and subscribed before me by means of ☐ physical presence or ☐ online notarization on this ___ day of ______, 20___, by (name of affiant). /s/ Notary Public—State of Florida (Print, Type, or Stamp Commissioned Name of Notary Public) Personally Known _________ OR Produced Identification _________ Type of Identification Produced _________ (Seal) COMMENT: Effective January 1, 2020, the jurat or certificate of acknowledgment must state whether the affiant physically or through audio-visual technology personally appeared before the notary. F.S.

117.05(4). The above notarial certification is deemed sufficient and does not preclude other forms as long as the certificate is completed with the required information. F.S. 117.05(13). « Ch. 5 », « § 5.3 », « C », « 5 • 1 Practice Under Florida Probate Code § 5.3.C.5 (2022)

5. Commission To Prove Will The court may appoint a commissioner to take the oath of any attesting witness who can be located but who cannot, without inconvenience, appear before the court to take the oath of witness. It is within the discretion of the court to determine what constitutes inconvenience. Examples of inconvenience include when the witness resides a great distance from the court having jurisdiction, or is away from the jurisdiction of the court and will not return in the near future. The petition must set forth the date of the will and the place where it was executed (if known), the names of the witnesses, the address of the witness taking the oath, and the name, title, and address of the proposed commissioner. Fla. Prob. R. 5.230(a). If the court finds that a commission to prove the will should be granted, a commission is issued directing and empowering a named individual authorized to administer oaths to take proof of the attestation of the witness to the will in question and to certify the proof. The commission must be directed to a person who is authorized to administer an oath by the laws of Florida, the United States, or the state or country where the witness may be found. Rule 5.230(b). The commission is mailed or delivered to the commissioner by the petitioner or the petitioner’s lawyer. The oath, a copy of the will, and a certificate of commissioner are attached. Rule 5.230(c). The original will should already have been filed with the court. The witness appears personally before the individual named in the commission. The commissioner takes the written oath of the witness as to proof of the will, certifies the oath, and returns the executed commission, copy of the will, oath of witness, and certificate of commissioner to the court. Rule 5.230(b). With the certification, the oath of the witness has the same operation and effect as if it had been made before the court issuing the

commission. The commissioner is not required to take an oath. Id. A practical method of proceeding is to contact a lawyer in the general area where the witness resides and request that the lawyer, if authorized to administer oaths, or a notary of the lawyer’s choice, act as commissioner to prove the will. Assuming that the lawyer is qualified and willing to act as commissioner, the lawyer is then advised as to the name and address of the witness, and the witness should be asked to contact the lawyer to arrange a suitable time. In many instances, the will was prepared by a lawyer in another state where the decedent resided before moving to Florida. When that lawyer or a member of the lawyer’s staff was a witness to the will, a notary in the lawyer’s office may be willing to act as commissioner. This procedure greatly facilitates the taking of the proof of will and enables the Florida lawyer to open the estate without undue delay. After the executed commission, a copy of the will, the oath, and the certificate of commissioner are filed under Rule 5.230(d), the will may be admitted to probate. Forms for the petition for the appointment of a commissioner and a commission to prove the will (with oath of witness and certificate of commissioner) are FLSSI Form Nos. P-3.0350 and P-3.0360, respectively. A form for an order appointing the commissioner is Form No. P-3.0355. « Ch. 5 », « § 5.3 », « D » 1 Practice Under Florida Probate Code § 5.3.D (2022)

D. Affidavit of Heirs (Intestate Estate) In an intestate estate, the decedent’s heirs must be determined by the court under F.S. 732.101–732.111. Any interested person may petition the court to determine the beneficiaries of the estate or their shares. F.S. 733.105. Fla. Prob. R. 5.385 sets out the requirements for the petition to determine beneficiaries. Although a proceeding to determine beneficiaries may be brought at any time, a person petitioning to be appointed as personal representative should consider, or may be required by local rules, to file an affidavit of heirs with the petition for administration. The affidavit of heirs allows the court to determine who has preference to serve as the personal representative of an intestate estate under F.S. 733.301. An affidavit of heirs should contain information about the potential heirs of the estate, including

their names, ages or dates of birth, and addresses, as well as information about spouses or relatives who predeceased the decedent. Some judges will not sign an order appointing personal representative or letters of administration without the affidavit of heirs filed with the court. The affidavit must be sworn to by the affiant as true under penalties of perjury. The affiant must sign the affidavit before a notary public. Most circuit courts have standard form affidavits of heirs, available for download, to be completed by the petitioner. The lawyer for the petitioner should contact the relevant circuit court to determine the local practice preferences for required pleadings to open an intestate estate. « Ch. 5 », « § 5.3 », « E » 1 Practice Under Florida Probate Code § 5.3.E (2022)

E. Order Of Probate (Testate Estate) If the court determines that the petition for administration should be granted and if the execution of the will is satisfactorily proved, an order admitting the will to probate is entered. The order admits the will of the decedent to probate and requires letters to be issued to the personal representative upon the taking of an oath of office. See § 5.3.F. The order also provides that the filing of designation and acceptance of a resident agent is a prerequisite to issuance of letters. See § 5.3.H. If a bond is required of the personal representative, the order will establish the amount of the initial bond. See § 5.3.I. If bond is not required, either the court makes no reference to bond in the order or the court will write “none” or “waived” in the order of probate on the line provided for the amount of bond. Forms for an order admitting a will to probate and appointing the personal representative are FLSSI Form Nos. P-3.0400 through P-3.0430. See also Form Nos. P-3.0460 and P-3.0470 (codicils) and P-3.0480 and P-3.0481 (nonresident decedents). « Ch. 5 », « § 5.3 », « F » 1 Practice Under Florida Probate Code § 5.3.F (2022)

F. Order Appointing Personal Representative (Intestate Estate) When there is no will, if the court determines that the person whose

appointment as personal representative is sought is qualified and has priority under F.S. 733.301(1)(b), an order appointing the personal representative is entered. The order provides that, upon taking the oath of office (see § 5.3.G), filing designation of resident agent and acceptance (see § 5.3.H), and posting bond in the amount set by the order (see § 5.3.H), letters of administration will be issued. Forms for orders appointing personal representatives are FLSSI Form Nos. P-3.0440 through P-3.0450 (resident decedents) and P-3.0490 and P3.0491 (nonresident decedents). « Ch. 5 », « § 5.3 », « G » 1 Practice Under Florida Probate Code § 5.3.G (2022)

G. Oath Of Personal Representative A personal representative must file an oath that the personal representative will faithfully administer the estate of the decedent. Fla. Prob. R. 5.320. The oath must include a statement that the personal representative has reviewed the statutes addressing the requirements for being appointed as personal representative, is qualified to serve, and has a continuing duty to file and serve a notice if the personal representative becomes disqualified to serve. Id. This oath must be executed and filed before letters will be granted. Id. If the petition for administration “is verified by the prospective personal representative individually, the oath may be incorporated in the petition.” Id. The oath may also be combined with the designation of resident agent. Id.; Rule 5.110(e). Corporate personal representatives are required to file an oath but are not required to designate a resident agent. Rule 5.110(b). Forms for the personal representative’s oath are FLSSI Form Nos. P3.0600 (individual) and P-3.0620 (corporate). Form No. P-3.0600 combines the oath with the designation and acceptance of a resident agent. « Ch. 5 », « § 5.3 », « H » 1 Practice Under Florida Probate Code § 5.3.H (2022)

H. Resident Agent A resident agent is a corporate fiduciary or lawyer in Florida designated to receive service of process or notice. Customarily, the lawyer for the estate

will be designated as the resident agent. Before letters are issued, a personal representative must notify the court of its address and must designate a resident agent to receive service of process or notice on behalf of the personal representative. Fla. Prob. R. 5.110(a) and (b). Typically, the designation of the personal representative’s address and designation of resident agent will be made part of the oath of personal representative as one filing. See FLSSI Form No. P-3.0600, which combines the oath with the designation and acceptance of a resident agent. The designation of the personal representative’s address must include both the personal representative’s street address and mailing address. “If the personal representative … is an individual, the designation must also include the individual’s residence address. The personal representative … must notify the court of any change in its residence address, street address, or mailing address within 20 days of the change.” Rule 5.110(a). “The resident agent must sign a written acceptance of designation.” Rule 5.110(d). Under Rule 5.110(b), designation of a resident agent is not required if the personal representative is either “(1) a corporate fiduciary having an office in Florida, or (2) a Florida Bar member who is a resident of and has an office in Florida.” The resident agent must be a resident of the county where the proceedings are pending or a member of The Florida Bar who resides in Florida. Rules 5.110(b)–(c). Upon the resident agent’s death or resignation, or if the resident agent is otherwise unable to continue to serve, the personal representative must appoint a successor agent within 10 days after receiving notice of that event. Rule 5.110(g). See FLSSI Form No. P-3.0610 for designation of a successor resident agent and acceptance. By filing a designation and acceptance of resident agent, the personal representative consents to being bound by service of process on the agent in any action against the personal representative in the personal representative’s fiduciary capacity. Service of process on the designated agent is also sufficient to bind the personal representative in those actions in which the personal representative is sued personally for claims arising from the administration of the estate. Rule 5.110(f). The designation of the address of the personal representative, the

designation of resident agent, or acceptance may be incorporated in the petition for administration. Rule 5.110(e). The more common practice is that the designation and acceptance are included in the oath of the personal representative. A form for a combination oath, designation, and acceptance is FLSSI Form No. P-3.0600. « Ch. 5 », « § 5.3 », « I » 1 Practice Under Florida Probate Code § 5.3.I (2022)

I. Bond Of Personal Representative The personal representative must execute a bond and file it with the court, unless the personal representative is a qualified bank or trust company, F.S. 733.402(3); the testator specifically waives the requirement in the will, F.S. 733.402(1); or the court on petition by any interested person or on its own motion waives the requirement, F.S. 733.402(4); Fla. Prob. R. 5.235(c). In most cases, the testator has waived, or the beneficiaries will petition the court to waive, the requirement of bond. Unless bond is waived by the will, the court will generally not waive bond unless requested to do so by all of the beneficiaries. The bond must contain two or more sufficient sureties or an authorized surety company as surety to be approved by the clerk. F.S. 45.011, 733.402(1). The bond is payable to the Governor and the Governor’s successors in office and is “conditioned on the performance of all duties as personal representative according to law.” F.S. 733.402(1). See Cone v. Benjamin, 150 Fla. 419, 430, 8 So. 2d 476 (1942) (“the obligation to administer the estate according to law means to administer the estate according to the will of the deceased”). The bond must also be joint and several in form. F.S. 733.402(1). Although F.S. 733.402(1) provides for approval by the clerk, the judge determines the amount of the bond. F.S. 733.403; Rule 5.235(a)(2). The court fixes the amount of the bond after taking into consideration “the gross value

of the estate, the relationship of the personal representative to the beneficiaries, exempt property and any family allowance, the type and nature of assets, known creditors, and liens and encumbrances on the assets.” F.S. 733.403. Even if the testator relieves the personal representative from posting bond, the court may require the personal representative to post bond upon the petition of any interested person or upon the court’s own motion. F.S. 733.402(4); Rule 5.235(c). A bond may also be required if the personal representative is not a resident of the State of Florida. The lawyer for the personal representative should contact the relevant court for information regarding the practice preferences of the probate judge(s) in the county of the probate administration. In addition, upon petition by an interested person, or upon the court’s own motion, the court may increase or decrease the amount of bond or require additional surety. Id. See F.S. 733.402(4). Evidence that the personal representative is mismanaging, wasting, or diverting assets of the estate, or will likely do so, should be sufficient to obtain an order requiring or increasing bond. The personal representative has the right to appear and contest the petition and is entitled to notice of the petition. A form for a personal representative’s bond is FLSSI Form No. P-3.0520. A petition to waive the bond is Form No. P-3.0500, and a waiver of the bond by an interested person is Form No. P-3.0510. « Ch. 5 », « § 5.3 », « J » 1 Practice Under Florida Probate Code § 5.3.J (2022)

J. Letters Of Administration After the filing of the petition for administration, the personal representative’s oath, the designation and acceptance of a resident agent, the posting of bond, if required, the admission of the will, if any, to probate, and the appointment of a personal representative, the court issues letters of administration to the personal representative granting authority to administer the estate. Fla. Prob. R. 5.235. All such letters are to be designated letters of administration. F.S. 731.201(24). See § 5.5 for a discussion of the issuance of letters when a caveat has been filed. When letters are issued, the lawyer may wish to obtain several certified

copies at that time for the personal representative to use as proof of authority to administer the estate. Forms for letters of administration include FLSSI Form Nos. P-3.0700 (single personal representative), P-3.0710 (multiple personal representatives), and P-3.0720 (ancillary administration). « Ch. 5 », « § 5.3 », « K » 1 Practice Under Florida Probate Code § 5.3.K (2022)

K. Notice Of Administration The notice of administration is a formal document that informs interested persons of their due process rights related to the decedent’s death. F.S. 733.212 governs notice of administration and provides that the personal representative must prepare the notice after letters have been issued. The notice of administration must state: (a) The name of the decedent, the file number of the estate, the designation and address of the court in which the proceedings are pending, whether the estate is testate or intestate, and, if testate, the date of the will and any codicils. (b) The name and address of the personal representative and the name and address of the personal representative’s attorney, and that the fiduciary lawyer-client privilege in [F.S.] 90.5021 applies with respect to the personal representative and any attorney employed by the personal representative. (c) That any interested person on whom a copy of the notice of administration is served must file on or before the date that is 3 months after the date of service of a copy of the notice of administration on that person any objection that challenges the validity of the will, the venue, or the jurisdiction of the court. The 3-month time period may only be extended for estoppel based upon a misstatement by the personal representative regarding the time period within which an objection must be filed. The time period may not be extended for any other reason, including affirmative representation, failure to disclose information, or misconduct by the personal representative or any other person. Unless sooner barred by subsection (3), all objections to the validity of a will, venue, or the jurisdiction of the court must be filed no later than the earlier of the entry of an order of final discharge of the personal

representative or 1 year after service of the notice of administration. (d) That persons who may be entitled to exempt property under [F.S.] 732.402 will be deemed to have waived their rights to claim that property as exempt property unless a petition for determination of exempt property is filed by such persons or on their behalf on or before the later of the date that is 4 months after the date of service of a copy of the notice of administration on such persons or the date that is 40 days after the date of termination of any proceeding involving the construction, admission to probate, or validity of the will or involving any other matter affecting any part of the exempt property. (e) That, unless an extension is granted pursuant to [F.S.] 732.2135(2), an election to take an elective share must be filed on or before the earlier of the date that is 6 months after the date of service of a copy of the notice of administration on the surviving spouse, or an attorney in fact or a guardian of the property of the surviving spouse, or the date that is 2 years after the date of the decedent’s death. (f) That, under certain circumstances and by failing to contest the will, the recipient of the notice of administration may be waiving his or her right to contest the validity of a trust or other writing incorporated by reference into a will. F.S. 733.212(2). See Fla. Prob. R. 5.240(b). FLSSI Form Nos. P-3.0802 and P-3.0804 are notices of administration for testate and intestate estates, respectively. The notice of administration must be served promptly in the manner provided for service of formal notice on the following persons who are known to the personal representative: (a) The decedent’s surviving spouse; (b) Beneficiaries; (c) The trustee of any trust described in s. 733.707(3) and each qualified beneficiary of the trust as defined in s. 736.0103, if each trustee is also a personal representative of the estate; and (d) Persons who may be entitled to exempt property.

F.S. 733.212(1). See Rule 5.240(a). However, such notice is not required to be served to those who were previously served with formal notice of the petition for administration under F.S. 733.2123. F.S. 733.212(1); Rule 5.240(a). An interested person may waive service of notice of administration. F.S. 731.302; see Rule 5.180. (Forms for a waiver are FLSSI Form Nos. P3.0810 (testate) and P-3.0820 (intestate).) Generally, the notice is served by certified mail, return receipt requested. Proof of service of the notice of administration is then signed by the person responsible for giving the notice, which can be the personal representative but will more likely be the personal representative’s lawyer. Rule 5.040(a)(4). Similarly, proof of service is generally made with the signed receipts of certified mail. The proof of service (FLSSI Form No. P-3.0830) is filed with the court. A receipt of notice of administration (FLSSI Form No. P-3.0811) can also be signed by an interested person and filed with the court. Objections to the will or the estate proceeding must be made within three months after service. Specifically, F.S. 733.212(3) provides that “[a]ny interested person on whom a copy of the notice of administration is served must object to the validity of the will, the venue, or the jurisdiction of the court by filing a petition or other pleading” for such relief in a manner provided in the Florida Probate Rules “on or before the date that is [three] months after the date of service of a copy of the notice of administration on the objecting person.” The three-month time period may be extended only for estoppel. Id. If an interested person on whom a copy of the notice of administration was served fails to object as instructed in F.S. 733.212(3), such objection is forever barred. See also Rule 5.240(d) (requiring all objections as to validity of will to be in same format as rules required for revocation of probate, and requiring all objections to court’s venue or jurisdiction to be in form required under Florida Rules of Civil Procedure). The appointment of a personal representative or a successor personal representative does not extend or renew the period for filing objections, unless a new will or codicil is admitted. F.S. 733.212(4). Rule 5.240(c) provides that “[u]nless the court directs otherwise, the personal representative of a testate estate [must], upon written request, furnish a copy of the will and all codicils admitted to probate to any person on whom the notice of administration was served.”

The personal representative may elect to serve the notice of administration on the decedent’s heirs or the devisees under a known prior will, “or others who claim or may claim an interest in the estate.” F.S. 733.212(1); Rule 5.240(a). However, serving persons who would receive assets of the estate if the probated will was set aside is generally not done unless the lawyer anticipates that the will may be defective in some way or otherwise anticipates a will contest or challenge to the personal representative’s qualifications. Serving the heirs or beneficiaries under a prior will enables the personal representative to limit the time within which those persons may file their challenges to within three months after the date of service of a copy of the notice on them. F.S. 733.212(3). Otherwise, such persons may challenge the will, venue, or jurisdiction of the court no later than the earlier of the entry of the order of discharge or one year after service of the notice. Id. See F.S. 733.109(1) regarding revocation of probate. “The personal representative is not individually liable to any person for giving notice, … regardless of whether it is later determined that [such] notice was not required.” F.S. 733.212(5). Service of notice does not confer any right. Id. Moreover, if a personal representative in good faith fails to give notice, “the personal representative is not liable to any person for the failure.” F.S. 733.212(6). Any liability falls on the estate. Id. “If a will or codicil is subsequently admitted to probate, the personal representative [must] promptly serve a copy of a new notice of administration as required for an initial will admission.” F.S. 733.212(7). “For the purpose of determining deadlines established by reference to the date of service of a copy of the notice of administration in cases in which service has been waived, service [is] deemed to occur on the date the waiver is filed.” F.S. 733.212(8); Rule 5.240(e). Rule 5.2405 provides for service of the notice of administration on a personal representative. Unless service of the notice of administration is waived pursuant to Rule 5.240(e), when a person who is entitled to service of the notice of administration … is also a personal representative, the notice of administration [is] deemed served [on the personal representative] on the earliest of the following dates: (1) the date on which the person acknowledges in writing receipt of

the notice of administration; (2) the date on which the notice of administration is first served on any other person entitled to service of the notice of administration (or the first among multiple persons entitled to service); or (3) the date that is 30 days after the date letters of administration are issued. Rule 5.2405(a). When a person who is entitled to service of notice under the Florida Probate Rules or the Florida Probate Code (other than the notice of administration) is also a personal representative, any notice is deemed as having been served on the personal representative on the earliest of (1) the date on which the person acknowledges in writing receipt of the notice; (2) the date on which the notice is required to be served by the personal representative under these rules or the Florida Probate Code; or, (3) the date on which the notice is first served by the personal representative on any other person entitled to service of the same notice. Rule 5.2405(b). « Ch. 5 », « § 5.3 », « L • 1 Practice Under Florida Probate Code § 5.3.L (2022)

L. Notice To Creditors Unless creditors’ claims are otherwise barred by F.S. 733.710, every personal representative must cause notice to creditors to be published and served under F.S. 733.2121. F.S. 733.701. Under F.S. 733.2121, the personal representative must promptly publish a notice to creditors after letters have been issued. The notice to creditors must contain the name of the decedent, the file number of the estate, the designation and address of the court in which the proceedings are pending, the name and address of the personal representative, the name and address of the personal representative’s attorney, and the date of first publication. The notice shall state that creditors must file claims against the estate with the

court during the time periods set forth in [F.S.] 733.702, or be forever barred. F.S. 733.2121(1). See Fla. Prob. R. 5.241(b). The notice to creditors must be published once a week for two consecutive weeks in a newspaper published in the county where the estate is administered. A newspaper in general circulation in that county is to be used if there is no local paper. F.S. 733.2121(2); Rule 5.241(c). A form for the notice to creditors is FLSSI Form No. P-3.0740. The personal representative must “promptly make a diligent search to determine the names and addresses of creditors of the decedent who are reasonably ascertainable, even if the claims are unmatured, contingent, or unliquidated, and [must] promptly serve a copy of the notice on those creditors.” F.S. 733.2121(3)(a). “Impracticable and extended searches are not required.” Id. “Service of the notice [must] be either by informal notice, or in the manner provided for service of formal notice at the option of the personal representative. See § 5.2.A.1.A. Service on one creditor by a chosen method [does] not preclude service on another creditor by another method.” Rule 5.241(a). “Service is not required on any creditor who has filed a claim,” or on a creditor “whose claim has been paid in full, or whose claim is listed in a personal representative’s timely filed proof of claim.” F.S. 733.2121(3)(a). See FLSSI Form No. P-3.1001 for a personal representative’s proof of claim for debts paid, and Form No. P-3.1002 for a personal representative’s proof of claim for debts to be paid. Although informal notice is permitted, many practitioners serve notice by certified mail, return receipt requested. Proof of service of the notice to creditors may then be filed with the court and is generally made with the signed receipts of certified mail. See FLSSI Form No. P-1.0512 for a general form Proof of Service in the Manner of Formal Notice that may be modified and used to show proof of service of the notice to creditors. Copies of the signed receipts of certified mail should be attached and filed with the Proof of Service. As stated in § 5.3.K, “[t]he personal representative is not individually

liable to any person for giving notice, [even if] it is later determined that notice was not required.” F.S. 733.212(5). The service of notice to creditors will not be construed as admitting the validity or enforceability of a claim. F.S. 733.2121(3)(b). If, at the time of death, a decedent was 55 years old or older, the personal representative is required to serve a copy of the notice to creditors along with a copy of the death certificate on the Agency for Health Care Administration. This should be done within three months after the first publication of the notice to creditors, unless the agency has already filed a claim in the estate proceedings. F.S. 733.2121(3)(d); Rules 5.241(a), (e); see F.S. 409.9101. The personal representative may serve a notice to creditors on the Department of Revenue only when the Department of Revenue is determined to be a creditor under F.S. 733.2121(3)(a). F.S. 733.2121(3)(e). The requirement that creditors be given notice resulted from the United States Supreme Court’s decision in Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 108 S. Ct. 1340, 99 L. Ed. 2d 565 (1988), which held that a published notice to creditors is ineffective to limit the time within which known or reasonably ascertainable creditors can assert their claims against the estate. Actual notice by mail is required for all known and ascertainable creditors. Examples of known or reasonably ascertainable creditors are medical care providers or suppliers, credit card companies, mortgagees, and utility companies, among others. The claims of any creditor who is not “known or ascertainable” are still barred by publication. Jones v. Golden, 176 So. 3d 242 (Fla. 2015). See also Cantero v. Estate of Caswell, 305 So. 3d 37 (Fla. 3d DCA 2019) (claimant who contacted personal representative to give condolences and pick up items but presented no evidence of claim against estate was not deemed reasonably ascertainable creditor). “If the personal representative in good faith fails to give notice … the personal representative is not liable to any person for the failure. Liability, if any, for the failure is on the estate.” F.S. 733.2121(3)(c). The personal representative must file proof of publication of the notice to creditors with the court within 45 days after the date of first publication of the notice. Rule 5.241(c).

Rule 5.241(d) provides: Within 4 months after the date of the first publication of notice to creditors, the personal representative shall file a verified statement that diligent search has been made to ascertain the name and address of each person having a claim against the estate. The statement shall indicate the name and address of each person at that time known to the personal representative who has or may have a claim against the estate and whether such person was served with the notice to creditors or otherwise received actual notice of the information contained in the notice to creditors; provided that the statement need not include persons who have filed a timely claim or who were included in the personal representative’s proof of claim. Forms for a statement regarding creditors are FLSSI Form Nos. P-3.0831 (individual) and P-3.0832 (corporate). Claims are barred as provided in F.S. 733.702 and F.S. 733.710. See Chapter 8 of this manual for more information regarding creditors’ claims.

« Ch. 5 », « § 5.4 » 1 Practice Under Florida Probate Code § 5.4 (2022)

§ 5.4. ADJUDICATION BEFORE ISSUANCE OF LETTERS « Ch. 5 », « § 5.4 », • A » 1 Practice Under Florida Probate Code § 5.4.A (2022)

A. In General In some instances, it may be advantageous before letters of administration are issued to use the provisions of F.S. 733.2123 to settle the following questions: the validity of the will; the testacy of the decedent; or the venue or jurisdiction of the court. This may be accomplished by serving formal notice of the petition for administration on interested persons. Service of formal notice should be made on all persons the petitioner seeks to bind by this adjudication. In appropriate instances, this may include heirs at law in a testate estate, a person who may claim to be a spouse, and devisees under a prior or disputed will. « Ch. 5 », « § 5.4 », « B » 1 Practice Under Florida Probate Code § 5.4.B (2022)

B. Formal Notice Required Formal notice must be given in order to obtain adjudication before issuance of letters. F.S. 733.2123. If there is a will, a copy of the will offered for probate must be attached to the notice. Fla. Prob. R. 5.201(c). Proof of mailing to which the signed receipts should be attached should be filed with the court. See FLSSI Form No. P-1.0510 for proof of service of formal notice. Although this proceeding is not included in the “laundry list” of adversary proceedings in Fla. Prob. R. 5.025(a), as a practical matter, the proceeding will be conducted as such. If the petitioner wishes to have the Florida Rules of Civil Procedure apply, the petitioner declares the proceeding to be adversary. Rules 5.025(b), (d). Otherwise, only the Florida Probate Rules will apply.

The persons served have 20 days after service within which to file their written defenses. Rule 5.040(a)(1). Failure to file within the time allowed appears to bar the person served from opposing the will, and the petitioner may proceed ex parte to have letters issued. Rule 5.040(a)(2). If the letters are issued sooner (for example, ex parte before the end of the 20-day period), the issuance of letters can be challenged after the 20-day period expires. See Nardi v. Nardi, 390 So. 2d 438 (Fla. 3d DCA 1980). If served under F.S. 733.2123, service of notice of administration on the persons previously served in the adjudication proceeding is not required. F.S. 733.212(1). The holding in Nardi indicates that it is essential for the personal representative to precisely follow all requirements of the adjudication-beforeletters procedure. Furthermore, even if no written defenses are filed, persons who respond in any manner to the formal notice should probably be given notice of the hearing. See Feather v. Estate of Sanko, 390 So. 2d 746 (Fla. 5th DCA 1980). « Ch. 5 », « § 5.4 », « C • 1 Practice Under Florida Probate Code § 5.4.C (2022)

C. Forms « Ch. 5 », « § 5.4 », « C •, • 1 » 1 Practice Under Florida Probate Code § 5.4.C.1 (2022)

1. Order Admitting Will To Probate And Appointing Personal Representative After Formal Notice (Testate Estate) (Title of Estate)

(Title of Court)

ORDER ADMITTING WILL TO PROBATE AND APPOINTING PERSONAL REPRESENTATIVE AFTER FORMAL NOTICE On the petition of _________ for administration of the estate of _________, deceased, THE COURT FINDS:

1. Decedent died on

(date).

2. Formal notice of the petition for administration was served on interested persons named in the affidavit of service filed in this proceeding on (date). 3. [No written objections or defenses were filed by those persons served.] [The court has considered the objections or defenses filed, testimony given, and arguments of counsel.] 4. The instrument presented to this court as the Last Will and Testament of _________, deceased, has been established by the testimony of _________, a subscribing and attesting witness, as being the will of Decedent. 5. _________ is entitled to appointment as personal representative by reason of _________, and is qualified to be personal representative, IT IS ADJUDGED: 1. The will dated _________, and attested by _________ and _________ as subscribing and attesting witnesses, is admitted to probate according to law as the Last Will and Testament of Decedent. 2. _________ is appointed personal representative of the estate of Decedent, and that upon taking the prescribed oath, filing designation and acceptance of resident agent, [and entering into bond in the sum of _________,] letters of administration shall be issued. ORDERED on

(date) . /s/____________ Circuit Judge

Copies furnished to: _________ COMMENT: This is similar to FLSSI Form No. P-3.0400. The affidavit of service is discussed in § 2.2.D.3 of this manual. « Ch. 5 », « § 5.4 », « C •, « 2 • 1 Practice Under Florida Probate Code § 5.4.C.2 (2022)

2. Order Appointing Personal Representative After Formal Notice

(Intestate Estate) (Title of Estate)

(Title of Court)

ORDER APPOINTING PERSONAL REPRESENTATIVE AFTER FORMAL NOTICE (Intestate—Single) On the petition of _________ for administration of the estate of _________, deceased, THE COURT FINDS: 1. Decedent died on

(date).

2. Formal notice of the petition for administration was served on interested persons named in the affidavit of service filed in this proceeding on (date). 3. [No written objections or defenses were filed by those persons served.] [The court has considered the objections or defenses filed, testimony given, and arguments of counsel.] 4. _________ is entitled to appointment as personal representative by reason of _________, and is qualified to be personal representative. IT IS ADJUDGED: 1. _________ is appointed personal representative of the estate of Decedent. 2. Upon taking the prescribed oath, filing designation and acceptance of resident agent, [and entering into bond in the sum of _________,] letters of administration shall be issued. ORDERED on

(date) . /s/____________ Circuit Judge

Copies furnished to: _________

COMMENT: This is similar to FLSSI Form No. P-3.0440.

« Ch. 5 », « § 5.5 » 1 Practice Under Florida Probate Code § 5.5 (2022)

§ 5.5. CAVEAT A caveat may be filed with the court by any interested person, including a creditor of the decedent, who is apprehensive that the estate will be administered or that a will may be admitted to probate without the person’s knowledge. F.S. 731.110(1); Fla. Prob. R. 5.260(a). An interested person is “any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved.” F.S. 731.201(23). The caveat of an interested person, other than a creditor, may be filed either before or after the death of the person for whom the estate is or will be administered. Id. A creditor’s caveat may be filed only after the person’s death. Id. A caveat filed before the decedent’s death expires two years after filing. F.S. 731.110(4). The caveat must “contain the name of the person for whom the estate will be, or is being, administered, the last 4 digits of the person’s social security number or year of birth, if known, a statement of the interest of the caveator in the estate, and the name and specific mailing address of the caveator.” Rule 5.260(b). If the caveator is a nonresident and is not represented by a Florida lawyer who has signed the caveat, the caveator must designate a resident agent who resides in the county where the caveat is filed and on whom service may be made. A resident agent is not required if the caveator is represented by a Florida lawyer who has signed the caveat. F.S. 731.110(2); Rule 5.260(c). The written acceptance by the person appointed as resident agent must also be filed with the designation or included in the caveat. Service on the lawyer or agent thereafter binds the caveator. Rule 5.260(c). After a caveat has been properly filed by an interested person other than a creditor, F.S. 731.110(3) and Rule 5.260(f) provide that the court will not admit the will of the decedent to probate or appoint a personal representative without service of formal notice on the caveator or designated agent, giving the caveator an opportunity to respond and be heard by the court. A caveator is not required to be served with formal notice of its own petition for administration. F.S. 731.110(3); Rule 5.260(f). See Crescenzo v. Simpson, 239 So. 3d 213 (Fla. 2d DCA 2018). If the caveator or the caveator’s lawyer does not file any written response within 20 days after notice, see Rule

5.040(a), the court may admit the will to probate or issue letters of administration ex parte. If the decedent’s will has already been admitted to probate or letters have been issued before the caveat is filed, the clerk must send a notice giving the caveator the names and addresses of the personal representative and the personal representative’s lawyer and advising the caveator of the date letters were issued. Rule 5.260(d). Forms for a caveat are FLSSI Forms Nos. P-1.0300—by creditor (nonresident pro se), P-1.0301—by creditor (nonresident represented by Florida attorney), P-1.0305—by creditor (resident), P-1.0310—by interested person other than a creditor (nonresident pro se), P-1.0311—by other than creditor (nonresident represented by Florida attorney), and P-1.0315—by interested person other than creditor (resident). When letters are issued after the filing of a caveat by a creditor, the clerk must send the caveator a similar notice. Rule 5.260(e). A copy of the notice, together with a certificate of mailing, must be filed with the court. Id. However, the clerk is not required to send a copy of the notice or certificate of mailing to the personal representative or the personal representative’s lawyer. Caveat proceedings are discussed further in §§ 1.2.G.1–1.2.G.2 of this manual.

« Ch. 5 », « § 5.6 » 1 Practice Under Florida Probate Code § 5.6 (2022)

§ 5.6. SOLVING SPECIFIC PROBLEMS « Ch. 5 », « § 5.6 », • A » 1 Practice Under Florida Probate Code § 5.6.A (2022)

A. Notarial Wills A notarial will is one in the possession of a notary entitled to the custody of a will in a foreign state or country whose laws require that it remain in the notary’s custody. As a practical matter, notarial wills are seldom seen in Florida. F.S. 733.205 specifically provides for the probate of a notarial will. If the notarial will is executed in accordance with F.S. 732.502, governing the execution and validity of wills, a copy of the will may be admitted to probate in Florida. See Rizk v. Rizk, 260 So. 3d 467 (Fla. 3d DCA 2018). To secure the probate of a notarial will, a copy duly authenticated by the notary may be presented for admission to probate to the court having jurisdiction. The notary’s “official position, signature, and seal of office [must be] authenticated by an American consul, vice consul, or other American consular officer within whose jurisdiction the notary is a resident, or whose official position, signature, and seal of office have been authenticated according to the requirements of the Hague Convention of 1961.” F.S. 733.205(1). The duly authenticated copy is “prima facie evidence of its purported execution and of the facts stated in the certificate.” F.S. 733.205(2). Any interested person may oppose the probate of a notarial will or may petition for its revocation. All proceedings involving notarial wills are similar to those concerning wills originally probated in Florida. F.S. 733.205(3). « Ch. 5 », « § 5.6 », « B » 1 Practice Under Florida Probate Code § 5.6.B (2022)

B. Nuncupative And Holographic Wills A nuncupative will is a will of personal property expressed verbally by the decedent at the time of the decedent’s last illness. See In re Estate of Vaughn, 165 So. 2d 241 (Fla. 1st DCA 1964); 8 A.L.R. 3d 947. A

holographic will is a will in the testator’s handwriting. F.S. 732.502(2). Nuncupative wills are not recognized in Florida. The Florida Probate Code provides strict requirements for the execution of wills. F.S. 732.502 requires that all wills be in writing, and nuncupative (oral) wills do not meet the required formalities. A nuncupative will of a nonresident is expressly invalid. F.S. 732.502(2). See Malleiro v. Mori, 182 So. 3d 5 (Fla. 3d DCA 2016). This is an exception to the general rule that wills of nonresidents are valid in Florida if they were valid in the state or country where they were executed. In addition, holographic wills, even if valid under the laws of another state or country, are not recognized in Florida unless the will is executed in accordance with the formalities required under F.S. 732.502(1), in which case it “shall not be considered a holographic will.” F.S. 732.502(2). See Zaidman v. Zaidman, 305 So. 3d 330 (Fla. 3d DCA 2020). « Ch. 5 », « § 5.6 », « C » 1 Practice Under Florida Probate Code § 5.6.C (2022)

C. Probate Of Lost Or Destroyed Wills « Ch. 5 », « § 5.6 », « C », • 1 » 1 Practice Under Florida Probate Code § 5.6.C.1 (2022)

1. In General When a will was last seen in the possession of the testator and cannot be found following the testator’s death, a rebuttable presumption arises that the testator destroyed the will with the intention of revoking it. In re Estate of Carlton, 276 So. 2d 832 (Fla. 1973); Pierre v. Estate of Pierre, 928 So. 2d 1252 (Fla. 3d DCA 2006). The burden of proving the contrary is on the proponent of the will. Balboni v. LaRoque, 991 So. 2d 993 (Fla. 4th DCA 2008), citing In re Washington’s Estate, 56 So. 2d 545 (Fla. 1952). Possession of the will by the testator is essential to the presumption. Schultz v. Estate of Roach, 549 So. 2d 1156 (Fla. 3d DCA 1989). The presumption may be overcome by evidence that the will was lost or destroyed without the consent of the testator or by evidence that the testator was incapable of revoking the will while it was in his or her possession. In re Washington’s Estate; In re Niernsee’s Estate, 147 Fla. 388, 2 So. 2d 737 (1941); see also Balboni and cases cited therein. More than speculation and conjecture are

needed to overcome the presumption. Balboni, citing In re Estate of Baird, 343 So. 2d 41 (Fla. 4th DCA 1977). If, however, the provisions of the purported will run counter to the natural affections of the testator, the burden shifts to the proponent of the will to prove by a preponderance of the evidence that the purported will was in fact the voluntary and freely expressed will of the testator. In re Estate of Deane, 153 So. 2d 26 (Fla. 3d DCA 1963). “Any interested person may establish the full and precise terms of a lost or destroyed will and offer the will for probate. The specific content of the will must be proved by the testimony of two disinterested witnesses, or, if a correct copy is provided, it [can] be proved by one disinterested witness.” F.S. 733.207. A “correct copy” is defined as “a copy conforming to an approved or conventional standard and … this requires an identical copy such as a carbon or photostatic copy.” In re Estate of Parker, 382 So. 2d 652, 653 (Fla. 1980). A draft is not a “correct copy,” even though it may be “an accurate and correct reflection of the contents of a lost will.” Id. at 654. With the transition to computers and other technological developments, this definition has also been interpreted to include a copy “retrieved from the hard drive of a computer or from a cloud database.” Smith v. DeParry, 86 So. 3d 1228, 1234 (Fla. 2d DCA 2012). It is advisable for the lawyer who prepares a will to retain a correct copy to assist in establishing the contents of the will in the event the original is lost or destroyed. See § 21.3.A.1.e.ii of this manual. The fact that the signatures of the testator or attesting witnesses are missing from the offered copy does not prevent establishment of the missing will. The copy is admissible not for the purpose of showing the execution but because it is the best evidence available as to the actual contents of the will. Stewart v. Johnson, 142 Fla. 425, 194 So. 869 (1940). The petition to probate a lost or destroyed will is an adversary proceeding listed in Fla. Prob. R. 5.025(a), and formal notice of the proceeding must be served. Rules 5.025(d), 5.510(d). The petition, in addition to reciting the information required for a petition for administration, must include a statement of the facts constituting the grounds on which relief is sought and either a statement of the contents of the will or a copy of the will if it is available. Rule 5.510(b). The order admitting the will to probate must recite its full and precise

terms and provisions. Rule 5.510(e). The establishment and probate must be in one proceeding. Rule 5.510(a). A “proof of will” by an ex parte affidavit would serve no purpose in a case involving a lost or destroyed will. The proof must consist of a copy of the will, if any, and the testimony presented at the hearing. The testimony of each witness to the will must be reduced to writing and filed. In this manner, the testimony is preserved for any later contest of the will if the witness has died or moved away from Florida. Rule 5.510(c). For further discussion of the subject of lost wills, see LITIGATION UNDER FLORIDA PROBATE CODE § 3.2.A.4.b (Fla. Bar 13th ed. 2022). See also Rivas, Probate of a Lost Will in Florida, 65 Fla. Bar J. 9 (Oct. 1991). « Ch. 5 », « § 5.6 », « C », « 2 • 1 Practice Under Florida Probate Code § 5.6.C.2 (2022)

2. Forms « Ch. 5 », « § 5.6 », « C », « 2 •, • a » 1 Practice Under Florida Probate Code § 5.6.C.2.a (2022)

a. Petition For Establishment And Probate Of Lost Or Destroyed Will And Appointment Of Personal Representative In Re: Estate of

(Title of Court)

________, Deceased, ________, Petitioner, v. ________, Respondents.

PETITION FOR ESTABLISHMENT AND PROBATE OF LOST OR DESTROYED WILL AND APPOINTMENT OF PERSONAL REPRESENTATIVE

Petitioner, _________, alleges: 1. Petitioner has an interest in this estate as _________. Petitioner’s address is _________, and the name and office address of Petitioner’s attorney are set forth at the end of this petition. 2. Decedent, _________, whose last known address was _________, and whose age was _________, and the last four digits of whose social security number are _________, died on (date), at (place of death) . On the date of death, decedent was domiciled in _________ County, Florida. 3. On (date), the decedent executed, published, and declared a written document as [his] [her] Last Will and Testament before (name) and (name) as attesting witnesses. 4. The original Last Will and Testament dated _________ cannot be located as of the date of this petition. Because of the following facts, Petitioner believes that the original of the will was lost or destroyed without the knowledge or consent of the decedent and without any intent on the part of the decedent to revoke the instrument: a.

(Insert facts).

b.

(Insert facts).

5. Attached to and made a part of this petition is a photocopy of the executed will. Petitioner believes that the will is the true last will of the decedent. 6. The persons who, but for the will, would be entitled to the property devised are [the following surviving heirs at law of the decedent] [the beneficiaries under the decedent’s prior will dated ______] Name

Address

Date of Birth Relationship (if Minor)

____________ ____________ ____________ ____________ ____________ ____________ ____________ ____________ ____________ ____________ ____________ ____________ ____________ ____________ ____________ ____________

7. Venue of this proceeding is in this county because _________.

8. (Name of personal representative), whose address is ____________, is qualified under the laws of the State of Florida to serve as personal representative of the decedent’s estate and is entitled to preference in appointment as personal representative because (set out reason). 9. No person has equal or higher preference to be appointed personal representative.

OR 9. The following [person has] [persons have] equal or higher preference to be appointed personal representative and will be served with formal notice as indicated: Name Address

Served with Formal Notice

____________

____________

____________

____________

10. The nature and approximate value of the assets in this estate are: (Insert list). 11. This estate tax return.

[will] [will not] be required to file a federal estate

[12. The will waives the filing of bond by the personal representative.] [12.] [13.] Petitioner is unaware of any unrevoked will or codicil of decedent other than as set forth in paragraph 3. WHEREFORE Petitioner requests that an order be entered establishing the Last Will and Testament of _________, reciting and preserving the full and precise terms and provisions of that will as contained in the attached copy, and admitting it to probate; and that _________ be appointed personal representative of the estate of the decedent [and that bond be waived]. Under penalties of perjury, I declare that I have read the foregoing, and the facts alleged are true, to the best of my knowledge and belief.

Signed on

(date). /s/ Petitioner /s/ (name of attorney) Attorney for Petitioner (address and phone number) (e-mail address(es)) Florida Bar No. ___ « Ch. 5 », « § 5.6 », « C », « 2 •, « b •

1 Practice Under Florida Probate Code § 5.6.C.2.b (2022)

b. Order Admitting Lost Or Destroyed Will To Probate And Appointing Personal Representative (Title of Estate and Party Designation)

(Title of Court)

ORDER ESTABLISHING AND PROBATING LOST OR DESTROYED WILL AND APPOINTING PERSONAL REPRESENTATIVE On the petition of _________ for an order establishing and probating the Last Will and Testament of _________, the decedent, the original of which was either lost or destroyed, all interested persons having been served proper notice of the petition and hearing, or having waived notice, THE COURT FINDS: 1. (Name of decedent) died on (date), and at the time of death was domiciled in _________ County, Florida. 2. The decedent executed [his] [her] last will on (date), and that will remained in full force and effect without being intentionally

destroyed or otherwise revoked by the decedent. 3. The terms and provisions of the original will are established to be as follows: (Recite contents of will.) 4. Clear and distinct proof of the execution, attestation, and contents of the will has been made [by two disinterested witnesses] [by one disinterested witness and a correct copy of the will]. IT IS ADJUDGED: 1. The will dated _________, and attested to by _________ and _________, is established as recited above and that it is admitted to probate according to law as and for the last will of _________, deceased. 2. _________ is appointed personal representative of the estate of the decedent, and that upon taking the prescribed oath, [and] filing designation of resident agent and acceptance, [and entering into bond in the sum of _________,] letters of administration shall be issued. ORDERED on

(date) . /s/____________ Circuit Judge Copies furnished to: _________ « Ch. 5 », « § 5.6 », « D »

1 Practice Under Florida Probate Code § 5.6.D (2022)

D. Probate Of Will Of Florida Resident When Will Previously Admitted To Probate In Foreign State « Ch. 5 », « § 5.6 », « D », • 1 » 1 Practice Under Florida Probate Code § 5.6.D.1 (2022)

1. In General The lawyer may occasionally find that the will of a resident of Florida is admitted to probate in another state prior to probate of the will in Florida. In this situation, the will may be established and admitted to probate in Florida if the original will would have been entitled to be admitted to probate in this

state. F.S. 733.206(1). Instead of the original will, an authenticated copy of the will must be filed in the court where application is made for probate of the will, together with foreign proof of the will, the foreign order of probate, and any letters that were issued. F.S. 733.206(2); see also Fla. Prob. R. 5.215. These documents are prima facie evidence of the execution and admission of the will to probate in the foreign state. F.S. 733.206(2). Any interested person may oppose the probate of the will or apply for revocation of its probate in Florida as in the original probate of a will in this state. F.S. 733.206(3). If the foreign probate proceedings were on the basis that the testator was a resident of that state, a party who participated in or is otherwise bound by those proceedings is estopped to petition for original probate in Florida by asserting that the testator was a resident of Florida. See Loewenthal v. Mandell, 125 Fla. 685, 170 So. 169 (1936). In that situation, however, ancillary proceedings in Florida may be proper. See Chapter 17 of this manual. Upon timely action and due proof that the testator’s domicile was in Florida at the time of death, original probate may be procured in Florida at the request of a party not bound by the foreign proceedings, even though the estate has also been opened in a foreign court. See Biederman v. Cheatham, 161 So. 2d 538 (Fla. 2d DCA 1964). « Ch. 5 », « § 5.6 », « D », « 2 • 1 Practice Under Florida Probate Code § 5.6.D.2 (2022)

2. Forms « Ch. 5 », « § 5.6 », « D », « 2 •, • a » 1 Practice Under Florida Probate Code § 5.6.D.2.a (2022)

a. Petition For Establishment And Probate Of Will Probated In Another State And Appointment Of Personal Representative (Title of Estate)

(Title of Court)

PETITION FOR ESTABLISHMENT AND PROBATE OF WILL PROBATED IN ANOTHER STATE AND APPOINTMENT OF PERSONAL

REPRESENTATIVE Petitioner, _________, alleges: 1. Petitioner has an interest in this estate as _________. Petitioner’s address is _________, and the name and office address of Petitioner’s lawyer are set forth at the end of this petition. 2. Decedent, _________, whose last known address was _________, and whose age was _________, died on (date), at (place of death). On the date of death, decedent was domiciled in _________ County, Florida. 3. On (date), the decedent executed, published, and declared a written document as [his] [her] Last Will and Testament before _________ and _________ as attesting witnesses. 4. Through error, that will was admitted to probate in the state of ____________ and the original will is on file in the ____________ Court of ____________ County, ____________. 5. Attached to and made a part of this petition are authenticated copies of the will, the foreign proof of will, and the order of probate of the _________ Court of _________ County, _________ admitting the will to probate, and an authenticated copy of letters issued pursuant to that order. 6. So far as is known, the names of the beneficiaries of this estate and of the decedent’s surviving spouse, if any, their addresses and relationships to decedent, and the years of birth of any who are minors are: Name

Address

Relationship

Year of Birth (if Minor)

____________ ____________ ____________ ____________ ____________ ____________ ____________ ____________ ____________ ____________ ____________ ____________

7. Venue of this proceeding is in this county because _________.

8. (Name of personal representative), whose address is _________, is qualified under the laws of the State of Florida to serve as personal representative of the decedent’s estate and is entitled to preference in appointment as personal representative because (set out reason). 9. No person has equal or higher preference to be appointed personal representative.

OR 9. The following [person has] [persons have] equal or higher preference to be appointed personal representative and will be served with formal notice as indicated: Name Address

Served with Formal Notice

____________

____________

____________

____________

10. The nature and approximate value of the assets in this estate are: (Insert list.) 11. The estate tax return.

[will] [will not] be required to file a federal estate

[12. The will waives the filing of bond by the personal representative.] [12.] [13.] Petitioner is unaware of any unrevoked will or codicil of the decedent other than as set forth in paragraph 3. WHEREFORE Petitioner requests that an order be entered establishing the last will of _________, reciting and preserving the full and precise terms and provisions of that will as contained in the authenticated copy of the will submitted herewith, the original of which was previously admitted to probate in the State of _________, and admitting the will to probate in Florida; and that _________ be appointed personal representative of the estate of the decedent [and that bond be waived].

Under penalties of perjury, I declare that I have read the foregoing, and the facts alleged are true, to the best of my knowledge and belief. Signed on

(date). /s/ Petitioner /s/ (name of attorney) Attorney for Petitioner (address and phone number) (e-mail address(es)) Florida Bar No. ___ « Ch. 5 », « § 5.6 », « D », « 2 •, « b •

1 Practice Under Florida Probate Code § 5.6.D.2.b (2022)

b. Order Establishing And Admitting To Probate Will Probated In Another State, And Appointing Personal Representative (Title of Estate)

(Title of Court)

ORDER ESTABLISHING AND ADMITTING TO PROBATE WILL PROBATED IN ANOTHER STATE, AND APPOINTING PERSONAL REPRESENTATIVE The petition of (name) requesting an order establishing and admitting to probate the Last Will and Testament of _________, which through error was probated in the State of _________, having been considered by this court, and THE COURT FINDS: 1. _________ died on (date), and at the time of death was domiciled in _________ County, Florida. 2. The decedent executed

[his] [her] last will on

(date), and

this will, through error, was admitted to probate in the State of _________. 3. The will was executed and attested to in a manner entitling it to probate in the State of Florida, and proof of the attestation and execution of the will has been made as required by law. 4. The contents of the original will as evidenced by the authenticated copy of the will submitted with the petition have been satisfactorily proved. IT IS ADJUDGED: 1. The will dated _________, and attested to by _________ and _________, is established as recited above and that it be admitted to probate according to law as and for the last will of _________, deceased. 2. _________ is appointed personal representative of the estate of the decedent, and that upon taking the prescribed oath, [and] filing designation and acceptance of resident agent, [and entering into bond in the sum of _________,] letters of administration shall be issued. ORDERED on

(date) . /s/____________ Circuit Judge Copies furnished to: _________ « Ch. 5 », « § 5.6 », « E •

1 Practice Under Florida Probate Code § 5.6.E (2022)

E. Probate Of Will In Foreign Language If a will to be offered for probate is written in a foreign language, the first step is to obtain a true and complete translation in English. The petition for probate must contain the full English language translation of the will. F.S. 733.204(1). Fla. Prob. R. 5.216 provides that the court shall establish the correct English translation of the will in its order admitting the will to probate. If possible, the original will in the foreign language should be filed. Any interested person may have the correctness of the translation redetermined at

any time during the administration of the estate after formal notice to all other interested persons. Id. “No personal representative who complies in good faith with the English translation of the will as established by the court [is] liable for doing so.” F.S. 733.204(2). Beneficiaries who have improperly received property based on an incorrect translation previously approved by the court may be required to return the assets to the estate under F.S. 733.812. However, as previously noted, a personal representative who acts in good faith on the English translation established by the court will not be liable if the translation is later modified. F.S. 733.204(2). The personal representative should include a statement in any receipt to be signed by the beneficiary to the effect that, if the assets need to be recovered by the personal representative at any time during the administration, the recipient will return them promptly. See § 13.3.C.2.b of this manual for a sample receipt for partial distribution of assets of an estate.

« Ch. 5 », « § 5.7 • 1 Practice Under Florida Probate Code § 5.7 (2022)

§ 5.7. TAX CONSIDERATIONS « Ch. 5 », « § 5.7 •, • A » 1 Practice Under Florida Probate Code § 5.7.A (2022)

A. Decedent’s Final Income Tax Return The personal representative must generally file the final income tax return of the decedent. IRC § 6012(b)(1). See § 4.3.A.7 of this manual for further discussion of this requirement. « Ch. 5 », « § 5.7 •, « B » 1 Practice Under Florida Probate Code § 5.7.B (2022)

B. Notice Of Fiduciary Relationship The personal representative must give notice to the District Director of the Internal Revenue Service that the personal representative is acting for the estate and must state the nature of the decedent’s tax liability. The notice is filed with the Internal Revenue Service (IRS) Center where the return of the person for whom the personal representative is acting is required to be filed. Treas. Reg. §§ 301.6903-1(a)–(b). See § 4.3.A.7 of this manual. The notice, IRS Form 56, Notice Concerning Fiduciary Relationship, is signed by the personal representative and the personal representative must be prepared to furnish evidence that substantiates his or her authority to act as a fiduciary, such as a certified copy of the letters of administration. A notice of deficiency of income or gift tax that is sent to the decedent’s last known address before receipt of the notice of fiduciary relationship will be sufficient to start the running of the statutory period within which a petition for a redetermination of the deficiency must be filed in the United States Tax Court. If no petition is filed, the tax will be assessed immediately on the expiration of the statutory period, and demand for payment will be made. Reg. § 301.6903-1(c). Because the personal representative could be personally liable for any harm to the estate as a result of the failure to file a timely petition in the Tax Court, the requirement for filing the notice of fiduciary relationship should not be lightly disregarded. If the decedent

recently moved from one IRS district into another, a notice of fiduciary relationship should also be sent to the former district if the decedent’s tax liability is not barred by an applicable statute of limitations. The personal representative must file Form 56 both to notify the IRS of the creation of his or her fiduciary relationship and, after the estate administration is complete, to notify the IRS of the termination of his or her fiduciary relationship. For more information, visit the IRS’s website (available at www.irs.gov/instructions/i56). « Ch. 5 », « § 5.7 •, « C » 1 Practice Under Florida Probate Code § 5.7.C (2022)

C. Application For Employer Identification Number The personal representative should obtain an employer identification number (EIN) if the estate must file a tax return, statement, or other document with the IRS, or if the estate’s identification number is required on stock, bank accounts, or similar assets owned by the estate. Reg. § 301.61091. IRS Form SS-4, Application for Employer Identification Number, is used for this purpose. The estate’s EIN may also be obtained on the IRS’s website (available at www.irs.gov). The application requires the decedent’s name and social security number; the personal representative’s name, address, and social security number; and the decedent’s date of death. For information about how to apply for an EIN, visit the IRS’s website (available at www.irs.gov/businesses/small-businesses-self-employed/how-to-apply-foran-ein). See also IRS Form SS-4 for information required to obtain an EIN (available at www.irs.gov/pub/irs-pdf/fss4.pdf). « Ch. 5 », « § 5.7 •, « D • 1 Practice Under Florida Probate Code § 5.7.D (2022)

D. Estate (And Generation-Skipping Transfer) Tax And Income Tax Return(s) There are two kinds of taxes owed by an estate: (1) a tax upon the transfer of assets from the decedent to the beneficiaries and heirs of the estate (i.e., the estate tax); and (2) a tax on income generated by assets of the decedent’s estate during the period of the estate administration (i.e., the income tax). The decedent’s estate is a taxable entity separate from the decedent that

comes into existence at the time of the decedent’s death. The estate exists beginning on the date of the decedent’s death until the final distribution of the estate’s assets is made to the heirs and other beneficiaries of the estate. IRS Form 1041, U.S. Income Tax Return for Estates and Trusts, must be filed by the personal representative if the estate generates more than $600 in annual gross income. Examples of assets that may generate income to the decedent’s estate include, but are not limited to, rental property, interest bearing money market or savings accounts, CDs, stocks, bonds, and mutual funds. Estate tax, if any, upon the transfer of assets from the decedent to the beneficiaries and heirs of the estate, is reported on IRS Form 706, United States Estate (and Generation-Skipping Transfer) Tax Return. See §§ 14.3.B and 14.3.D.2–D.3 of this manual for information on tax considerations in the final distribution and discharge of the estate. Footnotes — Chapter 5: *

J.D., with honors, 2012, Stetson University; LL.M. in Taxation, 2013, University of Florida. Ms. Oliver is a member of The Florida Bar and the St. Petersburg Bar Association. She is also a member of the Real Property, Probate and Trust Law Section of The Florida Bar and serves on the Section’s Executive Council. Ms. Oliver practices with The Diamond Law Firm, P.A., in St. Petersburg. Randall L. Marker was the author of this chapter in the previous edition of this manual.

Licensed to Otis K Pitts, Otis K Pitts

« Ch. 6 » 1 Practice Under Florida Probate Code Ch. 6 (2022)

Chapter 6 INVENTORY AND APPRAISAL ROSE M. LA FEMINA* Contents § 6.1. INTRODUCTION § 6.2. FUNCTIONS OF INVENTORY AND APPRAISAL A. In General B. Valuation Of Assets C. Casualty Loss § 6.3. MARSHALING THE ASSETS A. Property Of The Estate B. Physical Inspection C. Summary Administration; Disposition Without Administration D. Possession Of Estate Property E. Working Inventory Of Gross Estate F. Affidavit Of No Florida Estate Tax Due § 6.4. APPRAISERS; APPRAISAL REPORT A. Appointment, Selection, And Qualifications 1. Number Of Appraisers And Scope Of Appraisal 2. Selection Of Appraisers 3. Appraiser As Broker For Estate 4. Alternatives To Formal Appraisal 5. Sale To Appraiser 6. Nonresident Appraisers 7. Corporations As Appraisers B. Instructing Appraisers C. Compensation Of Appraisers

D. Filing Appraisal With Court E. Form For Appraisal Report § 6.5. EXAMPLES OF PARTICULAR ASSETS A. Partnerships B. Registered Limited Liability Partnerships C. Limited Liability Companies D. Close Corporations And Sole Proprietorships E. Decedent’s Claims Against Other Parties F. Cash G. Clothing H. Options And Contracts I. Furniture And Household Goods J. Cemetery Lots K. Contributions For Estate Taxes L. Advancements M. Revocable Trusts N. Rights To Benefits From Trusts O. Assets Subject To Condition P. Wages, Travel Expenses, And Unemployment Compensation Q. Special Rules For Life Insurance Proceeds R. Property Under Contract For Purchase S. Jointly Owned Property T. Totten Trusts U. Homestead Real Property V. Other Real And Personal Property § 6.6. PREPARATION, FILING, AND SERVICE OF INVENTORY A. Preparation B. Filing C. Inspection D. Service E. Extensions Of Time To File F. Preservation Of Appraisals, Supporting Documents, And Original Listings

G. Objections H. Amending The Inventory § 6.7. SAMPLE INVENTORY « Ch. 6 », • § 6.1 » 1 Practice Under Florida Probate Code § 6.1 (2022)

§ 6.1. INTRODUCTION This chapter offers practical suggestions concerning the preparation of estate inventories. Other aspects of estate administration are cross-referenced, where appropriate. As required by the Florida Constitution, legal procedure pertaining to the Florida Probate Code appears in the court rules rather than in the statutes. Accordingly, before preparing an inventory, the lawyer should review Fla. Prob. R. 5.340 to determine the legal procedure and F.S. 733.604 regarding substantive issues.

« Ch. 6 », « § 6.2 » 1 Practice Under Florida Probate Code § 6.2 (2022)

§ 6.2. FUNCTIONS OF INVENTORY AND APPRAISAL « Ch. 6 », « § 6.2 », • A » 1 Practice Under Florida Probate Code § 6.2.A (2022)

A. In General One of the most basic and essential documents the personal representative is required to prepare and file is an accurate inventory. F.S. 733.604(1)(a). The inventory of estate assets is the natural beginning step of an administration and should be undertaken in a thorough, conscientious, and expeditious manner because it will influence substantially all of the remaining decisions in the administration of an estate. See generally 18 FLA. JUR. 2d Decedents’ Property §§ 591–593. The inventory gives the beneficiaries who receive a copy the information necessary to protect their interests. It informs beneficiaries about the property that is included in the decedent’s probate estate. Through service of an inventory, beneficiaries who have knowledge of the decedent’s assets may contact the personal representative if it is observed that a particular asset is not included. Often, by virtue of communications from the beneficiaries, a personal representative who is not familiar with the decedent’s property may be aided in the collection of estate assets that are not otherwise disclosed in the decedent’s records. Preparation of the inventory of estate assets involves a search for every business or personal property interest of the decedent. If this search is carried out in a diligent manner, the personal representative should discover most, if not all, of the information necessary to determine the estate’s obligation to file the estate’s income tax and estate tax returns, as well as other tax reports or notices. This is especially true in complex estates as well as in any estate in which the decedent’s records are incomplete or in disarray. An accurate and thorough inventory can prevent or alleviate many problems that may arise between the personal representative and the beneficiaries.

Decisions of the personal representative in administering the various assets of an estate are often dependent on the nature of the assets listed on the inventory. The sale of real or personal property, the continuation or termination of an operating business, proceedings for elective share or exempt property, postmortem tax planning, and meeting the cash needs of the estate for taxes and other purposes cannot be considered until the personal representative is aware of the nature and approximate value of the property that is involved. « Ch. 6 », « § 6.2 », « B » 1 Practice Under Florida Probate Code § 6.2.B (2022)

B. Valuation Of Assets If there is reasonable doubt as to the value of estate assets, an appraisal should be obtained. Federal estate tax considerations make appraising certain assets mandatory. As a general rule, the value of the assets as of the decedent’s death becomes the tax basis of the assets. Therefore, it is important that an accurate value be ascertained at death. Appraisals are discussed in § 6.4. « Ch. 6 », « § 6.2 », « C • 1 Practice Under Florida Probate Code § 6.2.C (2022)

C. Casualty Loss The personal representative should be advised to identify and establish control over the estate assets as soon as possible. Once the inventory and the personal representative’s inspection of the decedent’s property interests are completed, the inventory may serve as a basis to establish loss in the unlikely event of theft or other casualty. The decedent’s existing casualty insurance policies should promptly be located and examined. If the insurance coverage is inadequate, the personal representative should increase the coverage. Risk of theft or other casualty loss may be minimized by making a physical inventory of the contents of the decedent’s residence or any location where the estate assets are exposed to risk, and then taking appropriate action to secure such assets. This should be done as soon as possible, especially if the estate contains tangible personal property including vehicles, works of art, and other collectibles or movable items. Videotaping these items or

preparing some other form of photographic record may prove valuable in the event a loss occurs.

« Ch. 6 », « § 6.3 » 1 Practice Under Florida Probate Code § 6.3 (2022)

§ 6.3. MARSHALING THE ASSETS « Ch. 6 », « § 6.3 », • A » 1 Practice Under Florida Probate Code § 6.3.A (2022)

A. Property Of The Estate Property of the estate must be listed in the inventory. F.S. 733.604(1)(a). “Estate” is defined as “property of a decedent that is the subject of administration.” F.S. 731.201(14). A general test that is sometimes applied is whether the property in question is subject to the payment of the debts of the decedent. 31 AM. JUR. 2d Executors and Administrators § 437. Another test is whether the title will pass through intestate succession to the decedent’s heirs at law in an intestate estate or if it can be transferred by will. In contrast, typically assets that pass by operation of law, such as pay-on-death accounts or joint accounts that pass by right of survivorship, are not included in the estate inventory. The lawyer for the personal representative must advise the personal representative regarding both the duty and the responsibility to marshal assets of the estate promptly upon appointment. Once the personal representative is appointed, the lawyer should advise the personal representative in writing of the personal representative’s duties and responsibilities. This cannot be overemphasized when a family member, a friend of the decedent, or another lay person serves as personal representative. As a practical matter, lay fiduciaries are almost totally dependent on the lawyer for advice as to how to proceed but frequently do not have enough experience or “know-how” to ask the appropriate questions. A careful practitioner should not expect too much of inexperienced individuals regardless of how knowledgeable they may be in business or other matters. Even when representing a professional fiduciary, the lawyer must be certain that the fiduciary has a clear understanding of its duties. All information in the lawyer’s files should be made available to the personal representative. Sometimes the estate may have an interest in assets that are apparently registered jointly or in trust for another person. The court may exercise

jurisdiction over certain assets in which the estate may own an interest. This may take the form of an order freezing certain assets, Perez v. Lopez, 454 So. 2d 777 (Fla. 3d DCA 1984), or an order directing turnover of the disputed assets to a personal representative or curator acting for the estate, In re Estate of Katz, 501 So. 2d 68 (Fla. 3d DCA 1987). « Ch. 6 », « § 6.3 », « B » 1 Practice Under Florida Probate Code § 6.3.B (2022)

B. Physical Inspection As noted at § 6.2.A, the personal representative should be advised to make a thorough physical search of the decedent’s personal and business premises. The personal representative should be cautioned regarding delegation of this function and reliance on verbal or other undocumented sources of information. It is prudent to have another person accompany the personal representative and to prepare a physical inventory. This is particularly important when making an inventory of a safe-deposit box leased by the decedent and any other person, and its contents should be identified and photographed as soon as possible after the decedent’s death. See § 1.2.E.2.b of this manual. All documents should be physically examined and copied when appropriate. The locations and methods employed in completing an inspection will vary depending on the decedent’s habits and the extent to which the decedent’s property interests can be confirmed from collateral sources such as business associates, family members, and other professionals. The personal representative should maintain written records showing the sources that were examined, the date of the inspection, and complete notes about how the inspection was conducted. A written list should be prepared of all property interests that the inspection indicates either exist or may exist. It should also include an explanation of any known assets that no longer exist. The decedent may have been secretive about financial matters, and it may be as important to note each source examined and the fact that no assets were found as it is to list the assets that are found. This is especially true with respect to any assets or sources that are believed to exist. This inspection may impose some inconvenience on the decedent’s family and business associates and should be conducted as quickly as

possible. If the personal representative is refused access for purposes of making the inspection, it may be necessary to obtain a court order, although presentation of certified letters of administration ordinarily should be sufficient. In the early stages of a proceeding, the personal representative may not be aware of the need to keep detailed lists of tangible personal property or other items that are sometimes grouped together by general description. This can be a very burdensome task, and the use of a video or digital camera to record or photograph objects that are either difficult or time-consuming to describe can make this task easier with no loss of accuracy. The personal representative should arrange to get access to the decedent’s mail and pertinent digital assets such as e-mail, electronic bill pay, and other electronic records. Access to the decedent’s mail often can be done with the cooperation of the family but may involve filing a change of address with the United States Postal Service. Access to the decedent’s e-mail and other electronic communications can be obtained by the personal representative under F.S. 740.001, the Florida Fiduciary Access to Digital Assets Act. Mail and electronic records received within a few months after the decedent’s death may lead to the identification of assets not otherwise easily discovered. The personal representative should be alert to correspondence, invoices, and any other documents or information among the decedent’s personal effects that indicate the names and addresses of potential creditors of the estate. The personal representative is obligated to promptly conduct a diligent search to ascertain names and addresses of all creditors for the purpose of giving actual notice to each creditor whose name and address is ascertainable. F.S. 733.2121. The personal representative should be advised to accumulate any documents that identify creditors’ names and addresses for the purpose of giving notice. This can be most efficiently done during the initial physical inspection of the decedent’s residence, place of business, and personal effects. In all events, a method for completing the job of marshaling and accounting for the assets of an estate should be determined in advance and clearly explained to the personal representative. During the process of marshaling the assets, the personal representative should be alert to the need for insurance coverage or special security

arrangements for protection of particular estate assets, such as silver, jewelry, antiques, firearms, vehicles, boats, farm animals, business assets, and securities. In some instances, an appraisal may be necessary for items of tangible property, including household furniture and furnishings. This may be necessary, for example, when items of tangible personal property will be distributed at an early stage of the administration or will be placed in storage. This may be controlled by the decedent’s will. It may be desirable to have the appraisal made concurrently with the physical inventory. « Ch. 6 », « § 6.3 », « C » 1 Practice Under Florida Probate Code § 6.3.C (2022)

C. Summary Administration; Disposition Without Administration Proceedings involving small estates are governed by F.S. Chapter 735. In these proceedings, no personal representative is appointed and no inventory is required to be prepared and filed. Under Florida law, there are two types of proceedings available for small estates: (1) summary administration and (2) disposition without administration. Summary administration is widely used for abbreviated probate administration proceedings. In a summary administration, the petition must allege that the value of the property of the estate is no more than $75,000 or that the decedent has been dead for more than two years. F.S. 735.201(2). A list of debts of the decedent, all estate assets, and the estimated value of each asset must be included. Fla. Prob. R. 5.530(a). In addition, a separate description of any protected homestead and exempt property must be included. Rule 5.530(a)(8). No reference to the gross estate for federal estate tax purposes is required. See F.S. Chapter 735, Part I; see also 18 FLA. JUR. 2d Decedents’ Property §§ 458–462. Summary administration is discussed more extensively in Chapter 18 of this manual. In a disposition without administration (governed by F.S. Chapter 735, Part II), personal property may be transferred informally if its total value does not exceed the value of exempt property under F.S. 732.402 and the amount of preferred funeral expenses and reasonable and necessary medical and hospital expenses of the last 60 days of the last illness. F.S. 735.301(1). See Rule 5.420; see also 18 FLA. JUR. 2d Decedents’ Property § 463. Disposition

without administration is discussed more extensively in § 18.3 of this manual. An order of summary administration is invalid if the true value of the property on the date of death exceeds the statutory limit. In re Estate of Bernard, 183 So. 2d 715 (Fla. 1st DCA 1966). (By analogy, this rule probably applies to disposition without administration proceedings.) « Ch. 6 », « § 6.3 », « D » 1 Practice Under Florida Probate Code § 6.3.D (2022)

D. Possession Of Estate Property The personal representative has the duty and authority to take possession of the decedent’s property, particularly intangible personal property such as securities and receivables, as well as cash and keys for access to the decedent’s property, and, when appropriate, valuable tangible personal items and art objects. The personal representative should determine as early as possible whether a “separate writing” exists that disposes of tangible personal property. F.S. 732.515. The tangible personal property items described in a separate writing, as well as any that are specifically devised in the decedent’s will, should be specifically described on the inventory if they are found. If one or more of these items are not found, the personal representative should retain all records and work notes showing what sources were investigated and make particular inquiry about the existence or disposition of the items. F.S. 733.607(1) permits the personal representative to allow real property or tangible personal property to be left with or surrendered to the person presumptively entitled to it unless possession of the property will be necessary for purposes of administration. This discretion should be exercised with care and on advice of the lawyer. Particular care should be exercised when a challenge may be made to the will, the surviving spouse may subsequently take an elective share, or the items may be exempt property. Although the monetary value of tangible personal items may be low, they may be irreplaceable. The personal representative may exercise his or her authority over all of the decedent’s property except the protected homestead. Protected homestead is real property that is devised to the decedent’s heirs and not subject to probate, administrative expenses, or creditors’ claims. See F.S. 733.607(1),

733.608(1), 731.201(33). (For a limited exception to this rule, see F.S. 733.608(2).) Notwithstanding F.S. 733.607 and 733.608(1), the personal representative may take possession of homestead real property when it is devised to a person who is not a member of the protected class of heirs. In such an instance, the homestead property is treated as any other estate asset and is subject to probate administration and the claims of creditors. For a complete analysis of the considerations relevant to homestead real property, see Chapter 19 of this manual. « Ch. 6 », « § 6.3 », « E » 1 Practice Under Florida Probate Code § 6.3.E (2022)

E. Working Inventory Of Gross Estate The marshaling of assets necessarily requires the examination of each property interest, included in the decedent’s gross estate, even if some interests do not constitute “property of the estate.” See IRC § 2031; F.S. 731.201(14). The personal representative must identify assets in which the decedent had a property interest to determine the estate’s obligation to file tax returns for income taxes, gift taxes, federal estate taxes, and generation-skipping taxes, when applicable. The personal representative should be advised to make this examination during the process of marshaling the decedent’s estate assets. Examples of assets that should be listed as a “working inventory” but are not listed on the probate inventory include, but are not limited to, the following: Estates by the entireties (but see § 6.5.S). Joint tenancies with right of survivorship (but see § 6.5.S). Annuities and life insurance payable to a named beneficiary (but see § 6.5.Q). Revocable or irrevocable trust property of which the decedent was settlor (but see § 6.5.M). Trust property of which the decedent was trustee or beneficiary (but see § 6.5.M). Unpaid

wages,

traveling

expenses

not

exceeding

$300,

and

unemployment compensation payments due from the Agency for Workforce Innovation (but see § 6.5.P). Certain death benefits (under F.S. 733.808, such as life insurance) paid to a trustee or beneficiary (but see § 6.5.Q). IRA, SEP, and 401(k) plans and other retirement benefits (but see § 6.5.Q). Certain property transferred by the decedent as a gift within the three years immediately preceding the date of death (but see § 6.5.M). The includability of specific assets in the estate is discussed in § 6.5. For checklists for gathering information about estate assets, see § 1.2.E.2.a.iv of this manual. The inventory for a resident decedent requires that homestead real property be separately described as exempt homestead (i.e., protected homestead as defined in F.S. 731.201(33)) or nonexempt homestead (i.e., real property available for payment of claims of the decedent’s creditors, taxes, or expenses of administration). Because it is likely that an inventory will be required to be filed before any judicial determination of the homestead status is obtained, the personal representative will have to make a preliminary determination of the exempt or nonexempt status of homestead property before filing and serving the inventory. Determining the status of homestead property is discussed more extensively in Chapter 19 of this manual. Exempt homestead and real estate located outside of Florida are the only items of property shown on the inventory that are included in the gross estate for estate tax purposes, when applicable, but are not assets of the estate for administration purposes. See § 6.3.D; see also Form No. P-3.0900, available from Florida Lawyers Support Services, Inc.© (FLSSI), P.O. Box 195909, Winter Springs, FL 32719-5909 (407/515-1501, [email protected], or www.flssi.org/forms). The Florida estate tax has effectively been repealed for decedents dying after December 31, 2004. Accordingly, the filing requirements with the department have also been eliminated. For decedents dying after December 31, 2004, if, upon the death of the decedent, a state death tax credit is not allowable pursuant to the Internal Revenue Code of 1986, as amended, the personal representative of the estate is not required to file a return with the

department. F.S. 198.13(4)(a). In addition, although the Florida filing requirements have been eliminated, other states in which the decedent owned property on the date of death may require estate or inheritance tax returns whether or not a federal estate tax return is required. The working inventory and supporting documents should be furnished to the preparer of the federal and state estate and fiduciary income tax returns. « Ch. 6 », « § 6.3 », « F • 1 Practice Under Florida Probate Code § 6.3.F (2022)

F. Affidavit Of No Florida Estate Tax Due For estates that do not require the filing of a federal estate tax return, the personal representative may file an Affidavit of No Florida Estate Tax Due, furnished by the department and designated as Form DR-312. For those estates that require the filing of a federal estate tax return and no Florida estate tax is due, the personal representative may file an Affidavit of No Florida Estate Tax Due When Federal Return is Required, furnished by the department and designated as Form DR-313. The recording of Form DR-312 or Form DR-313 in the county where the decedent owned real property serves to remove the department’s estate tax lien and also serves to put third parties on notice of this fact. However, as previously discussed, presumably because the Florida estate tax has been repealed for decedents dying after 2004, no lien exists. The forms are available on the department’s website (available at www.floridarevenue.com/Pages/forms_index.aspx). Both affidavits must be executed by the personal representative, include statements regarding the decedent’s domicile and whether a federal estate tax return will be filed, and acknowledge the personal representative’s personal liability for any estate tax liability. F.S. 198.32(2). The court may consider the affidavit authorized under F.S. 198.32(2) as evidence of nonliability for tax. F.S. 198.26. If there is no personal representative appointed, the affidavits should be executed by “any person who is in the actual or constructive possession of any property included in the gross estate of the decedent or any other person who is required to file a return or pay the taxes due under any provision” of F.S. Chapter 198. F.S. 198.01(2). There is no requirement that the affidavits

be filed with the department, but they may be recorded and admitted in evidence. In the author’s opinion, amendment to Fla. Admin. Code Rule 12C3.0015 is warranted to eliminate the administrative burden associated with the process of removal of a Florida estate tax lien that does not effectively exist.

« Ch. 6 », « § 6.4 » 1 Practice Under Florida Probate Code § 6.4 (2022)

§ 6.4. APPRAISERS; APPRAISAL REPORT « Ch. 6 », « § 6.4 », • A » 1 Practice Under Florida Probate Code § 6.4.A (2022)

A. Appointment, Selection, And Qualifications « Ch. 6 », « § 6.4 », • A », • 1 » 1 Practice Under Florida Probate Code § 6.4.A.1 (2022)

1. Number Of Appraisers And Scope Of Appraisal The appointment of appraisers is not mandatory, and leave of court is not required to dispense with an appraisal. Rather, the personal representative may employ a qualified and disinterested appraiser or appraisers to assist in ascertaining the fair market value of any asset whose value may be subject to reasonable doubt. F.S. 733.612(19). The appraisal date is ordinarily the date of the decedent’s death but may be any other date that is appropriate, such as the alternate valuation date for federal estate tax purposes, if applicable, or the date of sale if the property is to be sold. The number of appraisers employed by the personal representative is not limited but must be reasonable and necessary. Id. « Ch. 6 », « § 6.4 », • A », « 2 » 1 Practice Under Florida Probate Code § 6.4.A.2 (2022)

2. Selection Of Appraisers The personal representative should take care to select competent, qualified appraisers. Usually, experts or those having special knowledge are needed. The type of property to be appraised must be considered. For instance, a realtor or land appraiser would not be appropriate as an appraiser of art objects. An accountant or other financial analyst may be the best appraiser of a going business. Competitors in that type of business may also be helpful. If a business is involved, it is recommended that someone familiar with the business work closely with the appraisers. There are experts in various types of securities who may have to be

consulted when there is no ready market for those securities. The decedent may have owned properties located in different counties in Florida. If so, an appraiser for each location may be both expeditious and economical. The appraisal of an estate affects the administration of the estate as well as the property rights of the beneficiaries. Unless the appraisal is impartial, it will not serve its intended purpose for the estate. An appraiser who for any reason may not be completely impartial and disinterested should not be employed. « Ch. 6 », « § 6.4 », • A », « 3 » 1 Practice Under Florida Probate Code § 6.4.A.3 (2022)

3. Appraiser As Broker For Estate A broker for the estate is an agent engaged to sell real or personal property designated as part of the estate. A professional appraiser generally may not be employed as both an appraiser and a broker for the estate. A broker would not be a disinterested party and an appearance of (if not actual) conflict of interest would exist. Appraisers must be disinterested. « Ch. 6 », « § 6.4 », • A », « 4 » 1 Practice Under Florida Probate Code § 6.4.A.4 (2022)

4. Alternatives To Formal Appraisal Market surveys and other forms of informal valuation information that may be obtained from brokers may sometimes be used to avoid the expense of an actual appraisal. This is a practical judgment that should be exercised carefully. If the sale price of an asset is based on an arm’s-length offer, it may be used in lieu of an appraisal. Generally, it is not necessary to engage an appraiser to value securities unless they are issued by a closely held corporation or the business of the corporation is unique. Security valuation services may be helpful in valuing thinly traded securities or old securities. « Ch. 6 », « § 6.4 », • A », « 5 » 1 Practice Under Florida Probate Code § 6.4.A.5 (2022)

5. Sale To Appraiser

Sale of the asset to the appraiser should be avoided in the absence of other independent valuation. The personal representative should be advised to obtain a court order or consents from beneficiaries as a condition of the sale. « Ch. 6 », « § 6.4 », • A », « 6 » 1 Practice Under Florida Probate Code § 6.4.A.6 (2022)

6. Nonresident Appraisers There is no requirement that appraisers be Florida residents. A nonresident appraiser may be the best choice for a unique kind of property if there is no qualified local expert or if assets are located outside of Florida. « Ch. 6 », « § 6.4 », • A », « 7 • 1 Practice Under Florida Probate Code § 6.4.A.7 (2022)

7. Corporations As Appraisers A corporation may be appointed as an appraiser. A national art gallery or national auction house might be a suitable appraiser of valuable paintings, jewelry, antiques, art objects, coin collections, and similar assets. Many of those corporations have an appraisal division for estate and insurance purposes. « Ch. 6 », « § 6.4 », « B » 1 Practice Under Florida Probate Code § 6.4.B (2022)

B. Instructing Appraisers The appraisers should be made familiar with the provisions of the Internal Revenue Code and Treasury Regulations. It is important that the appraiser understand thoroughly the definitions and application of “fair market value” as that term is used in the Code. Treas. Reg. § 20.2031-1(b). Any particular property that has no readily ascertainable fair market value should be discussed with the appraisers. If the appraisal of any particular property is affected by law or regulation, it should be discussed with the appraisers. Partnerships, options, contracts to purchase, closely held and minority security holdings, very large security holdings, cryptocurrency, web-based content, life insurance proceeds, and corporate assets are examples of items that present particular valuation problems. It is important that the appraiser be given accurate information regarding

the property to be appraised. This is particularly true for items of tangible personal property that have unique value, and real property. If the documents are available, the appraiser should be provided with copies of surveys, deeds under which the decedent held title, and any documents that affect the value of property, such as easements and other restrictions of record. Before the appraiser’s physical inspection, the personal representative or the lawyer should clearly identify the property and its location to the appraiser and arrange for access. Arrangements for employment of appraisers should be made as early as is practical. Assets such as a going business, real property, and other property that is unique or that does not have a readily ascertainable value may take longer to appraise. The personal representative should furnish information to the appraiser in writing and should specifically advise the appraiser regarding dates that are critical, such as pending sales and the due dates for filing tax returns. « Ch. 6 », « § 6.4 », « C » 1 Practice Under Florida Probate Code § 6.4.C (2022)

C. Compensation Of Appraisers Each appraiser is entitled to reasonable compensation, which may be paid by the personal representative from the principal assets of the estate. The fee need not be fixed by the court. See F.S. 733.612(19). Application for the appraiser’s compensation may be included in the appraisal report if that report is filed with the court. See the form in § 6.4.E. If a problem concerning compensation is anticipated, the personal representative or the lawyer should discuss the matter frankly with the appraiser and any other interested parties before employment of the appraiser. See In re Estate of Field, 121 So. 2d 46 (Fla. 1st DCA 1960). « Ch. 6 », « § 6.4 », « D » 1 Practice Under Florida Probate Code § 6.4.D (2022)

D. Filing Appraisal With Court Appraisals are no longer required to be filed with the court. Whether to file the appraisal depends on the purpose of the appraisal. Appraisals may be filed in proceedings to determine the appraiser’s fee, the spouse’s elective

share, or exempt property, or to equalize the shares of beneficiaries when the distribution of assets is not pro rata. « Ch. 6 », « § 6.4 », « E • 1 Practice Under Florida Probate Code § 6.4.E (2022)

E. Form For Appraisal Report IN THE CIRCUIT COURT FOR _________ COUNTY, FLORIDA PROBATE DIVISION File Number ___ Division ___ IN RE: ESTATE OF _________, Deceased.

REPORT OF APPRAISER _________, as appraiser of the estate of _________, deceased, reports that the appraiser appraised all the property of the estate that came to the appraiser’s knowledge, and that the property, together with its value as of the date of the decedent’s death, is as follows: (Set forth brief description and value of each item of real and personal property.) WHEREFORE the appraiser requests that the court allow reasonable compensation for the services rendered in preparing this appraisal and submits the appraiser’s affidavit as to their reasonable value. Signed on

(date), at _________, Florida. /s/____________ Appraiser

COMMENT: The inclusion of the request for reasonable compensation in the report of appraiser is needed only when the fee is to be determined by

the court. See § 6.4.C.

ADOPTION AS INVENTORY BY PERSONAL REPRESENTATIVE The undersigned accepts the foregoing appraisal and adopts it as the inventory of the assets of the estate of _________, deceased. I allege that it describes all the property of the estate. Under penalties of perjury, I declare that I have read the foregoing, and the facts alleged are true, to the best of my knowledge and belief. /s/____________ As Personal Representative of the Estate of _________ COMMENT: The report of appraiser can be adopted by the personal representative as the inventory of the assets of the estate. However, the above form for the adoption of the appraiser’s report as the inventory should be modified when appropriate to include exempt (protected) or nonexempt homestead real property and real property owned by the decedent located outside the State of Florida. See FLSSI Form No. P3.0900.

AFFIDAVIT AS TO APPRAISER’S FEE STATE OF FLORIDA COUNTY OF _________ Before me, the undersigned authority, personally appeared _________, the appraiser whose name is subscribed to the foregoing report; who says upon oath that the appraiser is entitled to compensation for making the appraisal and that the services rendered in preparing this appraisal are as follows: (describe appraisal services rendered), and that the reasonable value of these services is the sum of $______. Dated: ___________. /s/ Affiant

Sworn to or affirmed and subscribed before me by means of ☐ physical presence or ☐ online notarization, this ______ day of ______, 20___, by (name). /s/ Notary Public—State of Florida (Print, Type, or Stamp Commissioned Name of Notary Public) Personally Known _________ OR Produced Identification _________ Type of Identification Produced: _________ (Seal) COMMENT: This affidavit is needed only when the fee is to be determined by the court. Practitioners should note that effective January of 2020, the jurat or certificate of acknowledgment must state whether the signer physically or through audio-visual technology personally appeared before the notary. F.S. 117.05(4). The above notarial certification is deemed sufficient and does not preclude other forms as long as the certificate is completed with the required information. F.S. 117.05(13).

« Ch. 6 », « § 6.5 » 1 Practice Under Florida Probate Code § 6.5 (2022)

§ 6.5. EXAMPLES OF PARTICULAR ASSETS « Ch. 6 », « § 6.5 », • A » 1 Practice Under Florida Probate Code § 6.5.A (2022)

A. Partnerships A decedent’s interest in a partnership is property of the estate and must be included in the inventory filed by the personal representative. The Revised Uniform Partnership Act of 1995, Part II of F.S. Chapter 620, includes provisions for the winding up or the continuance of the business after the death of a partner. Fla. Prob. R. 5.350 and F.S. 733.612(22) also provide the authority and procedure for continuance of an unincorporated business. See § 9.4 of this manual. Although the subject is beyond the scope of this manual, the lawyer should be aware of postmortem tax planning through use of an IRC § 754 election. If the decedent was a limited partner, the personal representative may exercise the rights of a transferee under F.S. 620.1702, and for purposes of settling the estate, may exercise all of the rights of a limited partner under F.S. 620.1304. See F.S. 620.1704. When a partnership interest is involved, the personal representative should carefully review the partnership agreement, because it may contain provisions that affect value and regulate the transferability of partnership interests. « Ch. 6 », « § 6.5 », « B » 1 Practice Under Florida Probate Code § 6.5.B (2022)

B. Registered Limited Liability Partnerships Registered limited liability partnerships are authorized in Florida by F.S. 620.9001 et seq., and it should be determined whether the decedent owned an interest in this type of entity. If so, the personal representative should seek legal advice regarding the estate’s interest and the personal representative’s obligations and rights.

« Ch. 6 », « § 6.5 », « C » 1 Practice Under Florida Probate Code § 6.5.C (2022)

C. Limited Liability Companies The decedent may have been a member of a limited liability company. See F.S. Chapter 605. For purposes of valuation and inventory, this interest is similar to a limited partnership interest. « Ch. 6 », « § 6.5 », « D » 1 Practice Under Florida Probate Code § 6.5.D (2022)

D. Close Corporations And Sole Proprietorships The shares of stock of a closely held corporation owned entirely or in part by the decedent are property of the estate and frequently are difficult to appraise. Experts from several areas, such as the business itself and the accounting field, may be required. The loss by death of the key employee is important in assessing the fair market value of such a business. A decedent’s sole proprietorship is property of the estate. It should be included on the inventory and probably should be appraised. The matter of continuation of a business by the personal representative is discussed in § 9.4 of this manual. « Ch. 6 », « § 6.5 », « E » 1 Practice Under Florida Probate Code § 6.5.E (2022)

E. Decedent’s Claims Against Other Parties The personal representative must prosecute choses in action or causes of action in favor of a decedent that survive the decedent’s death. The debtor’s right of setoff or counterclaim is maintained, of course. 31 AM. JUR. 2d Executors and Administrators § 453. Thus, promissory notes, other promises to pay money, judgments, claims under a contract by the decedent for sale of land, claims against the government, indebtedness of distributees and personal representatives, claims for wrongful death (see F.S. 768.16 et seq.), and general contractual claims usually survive and pass to the personal representative. They are property of the estate and should be listed on the inventory. Practical considerations may dictate withholding of valuation until settlement or final adjudication and collection of disputed claims.

See Lauritsen v. Wallace, 67 So. 3d 285 (Fla. 5th DCA 2011), for the proposition that a decedent can release a debt owed to him or her through a testamentary devise only to the extent that the decedent’s estate is solvent to pay all debts and administrative costs of the estate. Under this reasoning, when the decedent forgives an obligation (such as his interest in a promissory note) in his will, but the estate is otherwise unable to pay valid debts and administrative expenses of the estate, the personal representative should include the value of the obligation in the estate inventory. « Ch. 6 », « § 6.5 », « F » 1 Practice Under Florida Probate Code § 6.5.F (2022)

F. Cash Cash is property of the estate. In re Brock’s Estate, 63 So. 2d 510 (Fla. 1953). The personal representative should make a diligent effort to secure all of the decedent’s cash as soon as possible. This would include all paper money and coins found in the home, the automobile, and the safe-deposit box. See § 6.3.B and § 1.2.E.2.b of this manual. All money collected should be listed on the inventory with reference to the source. Persons living alone often hide cash and other valuables in crevices, books, drawers, or containers. Cash also includes such cash equivalents as bank deposits, certificates of deposit, and cash management accounts. Special attention should be paid to accumulations of gold coins, as well as other gold and silver. « Ch. 6 », « § 6.5 », « G » 1 Practice Under Florida Probate Code § 6.5.G (2022)

G. Clothing Clothing of the decedent is property of the estate. A good approach to deal with clothing would be to contact several used clothing dealers and have them bid on the property. The highest bid would become the inventory value. Also, if the surviving spouse and residual beneficiaries are in agreement and the clothing has not been devised, it could be donated to a charity that might be able to give an indication of the fair market value. If the clothing has no value, F.S. 733.612(9) authorizes abandonment. « Ch. 6 », « § 6.5 », « H » 1 Practice Under Florida Probate Code § 6.5.H (2022)

H. Options And Contracts Options and contracts may be property of the estate. The terms of the option or contract must be examined to see if the right conferred by it survives. See F.S. 733.612(2) concerning performance of executory contracts. Sales and transfers of estate assets are treated in Chapter 10 of this manual. « Ch. 6 », « § 6.5 », « I » 1 Practice Under Florida Probate Code § 6.5.I (2022)

I. Furniture And Household Goods Furniture and household goods owned by the decedent on the date of death are property of the estate and are to be inventoried. The extent of detail depends on value and other practical considerations. Items of tangible personal property may be videotaped or photographed rather than relying on lengthy and sometimes incomplete notes. An audiotape of the identifying characteristics of certain items that may not photograph well may also be helpful. Because these assets may be difficult to find after a lapse of time, prompt action is needed. The personal representative should consider searching for valuables before giving up control of the property. A “working” inventory of furniture and household goods, if complete and legible, may serve as a schedule to the estate inventory. Dealers in secondhand furniture and household goods may be willing to assist in valuation or to bid at a private or public sale. « Ch. 6 », « § 6.5 », « J » 1 Practice Under Florida Probate Code § 6.5.J (2022)

J. Cemetery Lots Cemetery lots owned by the decedent are property of the estate. For estate tax purposes, when applicable, the value is limited to the salable portion of the lot not designated for the decedent or the decedent’s family. Reg. § 20.2033-1(b). Cemetery lots should be listed under the real property section of the inventory. Inquiry of the officials of the particular cemetery should aid the personal representative in establishing the value of the lots. The contract documents under which the lots were purchased should be examined as soon as possible so that all contractual requirements are met. See F.S. Chapter 497.

« Ch. 6 », « § 6.5 », « K » 1 Practice Under Florida Probate Code § 6.5.K (2022)

K. Contributions For Estate Taxes Contributions received from beneficiaries for their share of estate taxes, when applicable, are not property of the estate until the estate tax liability is finally determined and the court has entered an order apportioning estate taxes, if appropriate. See F.S. 733.817. The personal representative is accountable, however, for the contributions received although the personal representative may be holding them in an agency capacity pending payment of the tax. Whether the contribution is subtracted from an asset distributed or paid by the beneficiary does not matter. « Ch. 6 », « § 6.5 », « L » 1 Practice Under Florida Probate Code § 6.5.L (2022)

L. Advancements Advancements by the decedent to beneficiaries of portions of their inheritance are not considered property of the estate and therefore are not described in the inventory of the estate. 3 AM. JUR. 2d Advancements §§ 5– 19. « Ch. 6 », « § 6.5 », « M » 1 Practice Under Florida Probate Code § 6.5.M (2022)

M. Revocable Trusts A settlor’s control of and right to revoke an inter vivos trust does not cause the trust property to be includable in the probate estate after the settlor’s death, and it should not be inventoried. However, for estates of decedents dying on or after October 1, 2001, Florida law provides for augmenting the fund against which the surviving spouse’s elective share applies. See F.S. 732.201–732.2155. As a result, a spouse has a right to a share of the “elective estate” as opposed to the estate subject to administration as provided under the former law. The elective estate is a broader concept and includes the decedent’s probate estate and such nonprobate transfers as: (1) protected homestead of the decedent: (2) property passing by right of survivorship; (3) certain property in revocable trusts or other revocable transfers; (4) certain irrevocable transfers by the decedent, including transfers with a retained right to income or principal or retained

right to discretionary principal distributions; (5) the cash surrender value of insurance policies on the decedent’s life; (6) death benefits payable under qualified and nonqualified retirement plans; (7) certain transfers within one year of the decedent’s death; and (8) transfers in satisfaction of the elective share. F.S. 732.2035. Therefore, if an order is entered determining that the decedent’s surviving spouse is entitled to an elective share, the personal representative will have to determine the property entering into the elective estate. The personal representative must file and serve an inventory of the property entering into the elective estate once the court has determined the surviving spouse’s entitlement to the elective share. Fla. Prob. R. 5.340(g). The augmented elective share law is discussed more extensively in Chapter 7 of this manual. Under F.S. 736.05053(1), trusts the deceased settlor had the right to revoke on the date of death must pay over to the personal representative such amounts that the personal representative certifies in writing to the trustee as being required to pay the expenses of administration and obligations of the settlor’s estate. See F.S. 733.707(3). « Ch. 6 », « § 6.5 », « N » 1 Practice Under Florida Probate Code § 6.5.N (2022)

N. Rights To Benefits From Trusts The decedent may have the right to receive a final distribution from a trust if that right passes to the decedent’s personal representative on death. This receivable is property of the estate and should be included in the inventory. This could include, for example, the undistributed income in a qualified terminable interest property (QTIP) trust upon the death of the surviving spouse beneficiary. The governing trust instrument should be examined thoroughly to determine the estate’s interest in accrued and undistributed income. See 31 AM. JUR. 2d Executors and Administrators §§ 449–452. See F.S. 738.303(2) and the related provisions of the Florida Uniform Principal and Income Act, F.S. Chapter 738. « Ch. 6 », « § 6.5 », « O » 1 Practice Under Florida Probate Code § 6.5.O (2022)

O. Assets Subject To Condition The decedent’s interest in certain assets may be subject to a condition. If

the decedent’s interest is conditioned upon surviving another party who is still alive, these assets are not property of the decedent’s estate. If the ownership interest is subject to a condition that may occur in the future and that terminates the decedent’s interest, the value of that interest should be inventoried. « Ch. 6 », « § 6.5 », « P » 1 Practice Under Florida Probate Code § 6.5.P (2022)

P. Wages, Travel Expenses, And Unemployment Compensation A decedent’s unpaid wages or traveling expenses may be paid by the employer to the surviving spouse. If there is no surviving spouse, they may be paid to the child or children over the age of 18 years or, if there is no child, to the father or mother. F.S. 222.15. Reemployment assistance or unemployment compensation payments may also be made in this manner. F.S. 222.15(2), 222.16. Any amounts payable under F.S. 222.15 are to be paid directly to the persons entitled and, except for traveling expenses above $300, are not assets of the estate subject to administration. F.S. 222.16. Similarly, the amount on hand deducted from the salary of a state or county officer or employee for the purchase of United States securities will be paid upon the employee’s death to the spouse, children, or parents. F.S. 215.28(5). F.S. 222.15 seems to be permissive instead of mandatory. It provides that it “is lawful” for an employer or the state to make payment to the designated relatives. F.S. 222.16 does not exclude as assets of the estate all wages and unemployment compensation payments without qualification, but excludes those “so paid under the authority of [F.S.] 222.15.” It is clear, however, that these payments do not depend on the decedent having been the head of a family residing in Florida, as in the case of exemption from garnishment under F.S. 222.11, and that payments properly made are not assets of the estate. Those payments therefore should not be included in the inventory, although they form part of the gross estate for estate tax purposes, when applicable. « Ch. 6 », « § 6.5 », « Q » 1 Practice Under Florida Probate Code § 6.5.Q (2022)

Q. Special Rules For Life Insurance Proceeds Special rules for the distribution of life insurance proceeds are set forth in F.S. 222.13 and 732.703. Life insurance is an ordinary asset of the estate in some circumstances. Generally when the policy is payable to a named surviving beneficiary, it is not subject to the administration proceedings for any purpose and is not subject to claims unless the policy provides otherwise. However, F.S. 732.703(2) provides that when a Florida resident dies after a dissolution or annulment of marriage, a beneficiary designation created by the individual before the dissolution or annulment that designates the spouse as a beneficiary becomes void upon the dissolution or annulment, and the spouse is deemed to have predeceased the decedent. Therefore, it is possible that a policy that appears to be payable to a named surviving beneficiary may be an estate asset when the beneficiary named is the decedent’s former spouse and there is no surviving contingent beneficiary named in the governing instrument. In addition to life insurance policies, F.S. 732.703(2) applies to employee benefit plans, certain individual retirement accounts described in IRC §§ 408 and 408A, payable-on-death accounts, and securities and other accounts registered in transfer-on-death form. F.S. 732.703(3). For exceptions to the rule set forth in F.S. 732.703(2), see F.S. 732.703(4). The statute applies to all beneficiary designations made by or on behalf of decedents dying on or after July 1, 2012, regardless of when the designation was made. F.S. 732.703(9). The net cash surrender value of certain life insurance policies on the decedent’s life will be used in the computation to determine the elective share. F.S. 732.2035(7). The decedent’s interest in a life insurance policy may cause the proceeds of the policy to be included in the decedent’s gross estate for estate tax purposes, when applicable. See § 1.2.E.4.b of this manual. When life insurance proceeds are an unconditional asset of the estate, they should be listed in the inventory in the same manner that other intangible personal property is listed. « Ch. 6 », « § 6.5 », « R » 1 Practice Under Florida Probate Code § 6.5.R (2022)

R. Property Under Contract For Purchase Florida real property subject to a contract to purchase by another should be included within the property of the estate and should be listed on the inventory. If the personal representative goes ahead with the sale before filing the inventory, either under a power conferred by will or under F.S. 733.612(2), the real property should still be listed in the inventory, with an appropriate note explaining its sale and listing the proceeds of the sale. Personal property is treated in the same manner. A contract for the purchase of the property of another is also an asset. See also 31 AM. JUR. 2d Executors and Administrators § 437. « Ch. 6 », « § 6.5 », « S » 1 Practice Under Florida Probate Code § 6.5.S (2022)

S. Jointly Owned Property Typically, the interest of the decedent in jointly owned property is included in the estate inventory unless the joint ownership passes by right of survivorship. Survivorship language may expressly appear in the title of the asset and, with respect to bank deposits, including certificates of deposit, the language may appear in the contract agreement or signature card executed in connection with opening or maintaining the account. F.S. 655.78. Property that passes by survivorship right, including estates by the entireties, instantly passes to the surviving joint owner upon the death of the decedent, and the decedent’s estate usually has no interest in such an asset. Davis v. Foulkrod, 642 So. 2d 1129 (Fla. 4th DCA 1994). This is true without regard to the lack of donative intent, whether the donee is named as a devisee in the decedent’s testamentary documents, whether the donee deemed the funds to be the donee’s during the decedent’s lifetime, or whether the donee claimed the funds as his or her property. Id. See, however, § 6.5.M and Chapter 7 of this manual for a discussion concerning nonprobate transfers that enter into the elective share computation. Under F.S. 655.79(2), joint registration with survivorship language of deposits or accounts creates a presumption that “may be overcome only by proof of fraud or undue influence or clear and convincing proof of a contrary intent.” In re Estate of Herring, 670 So. 2d 145, 151 n.2, 3 (Fla. 1st DCA 1996). See Sitomer v. Orlan, 660 So. 2d 1111 (Fla. 4th DCA 1995). Under

F.S. 655.79, a survivorship account may be created by merely opening an account in two or more names, notwithstanding the absence of language indicating survivorship. A typical multiple party account is presumed to be a survivorship account even though the signature card and other documentation pertaining to the account contains no survivorship language. F.S. 689.115 provides that a mortgage encumbering real property or an assignment of a mortgage made by two persons who are husband and wife creates an estate by the entireties in such mortgage and the obligation secured thereby, unless a contrary intention appears in the mortgage or assignment. See also Beal Bank, SSB v. Almand & Associates, 780 So. 2d 45 (Fla. 2001), in which the Florida Supreme Court held that a presumption in favor of tenants by the entireties exists when a married couple jointly owns a bank account and the account documentation is silent with respect to type of ownership intended. After the Florida Supreme Court’s decision in Beal Bank, SSB, the legislature codified the court’s holding and amended F.S. 655.79 to provide that any deposit or account made in the name of two persons who are husband and wife will be considered a tenancy by the entirety unless otherwise specified in writing. Ch. 2008-75, § 8, Laws of Fla.. Disputes regarding ownership of untitled assets (e.g., cash, coins, jewelry, bearer bonds, or untitled securities) located in a safe-deposit box that is leased to two or more persons may arise on the death of either owner. In In re Estate of Bechtel, 348 So. 2d 927 (Fla. 2d DCA 1977), the surviving spouse claimed ownership of bearer bonds held in a safe-deposit box that was owned jointly with the decedent. The court held that joint ownership of the box with the decedent was not sufficient evidence to establish ownership of the contents. In this case, the bonds were required to be included in the inventory of the estate. A contrary result was reached in In re Estate of Fields, 581 So. 2d 1387 (Fla. 3d DCA 1991), in which bearer bonds purchased with joint funds and maintained in the couple’s joint safe-deposit box were held to have passed to the surviving spouse. See Beal Bank, SSB. Despite the apparent survivorship feature of a checking or savings account, the personal representative may have a duty to claim the funds as an estate asset—specifically, in cases involving fraud, undue influence, or contrary intent. See § 1.2.E.3 of this manual. The joint registration of a bank account may have been rescinded by the

original owner of the account before the owner’s death. See Seidl v. Estate of Michelsen, 487 So. 2d 336 (Fla. 4th DCA 1986). Provisions of the decedent’s will may rebut the presumption of a gift by joint registration. Williams v. Williams, 255 So. 2d 273 (Fla. 4th DCA 1971). The personal representative’s rights may be limited to collecting from the survivor an apportioned share of estate taxes, when applicable, unless the will relieves the survivorship property from the tax by providing another source of payment. F.S. 733.817. A different problem may exist if the property is encumbered and passes to a cotenant by survivorship. See the discussion regarding responsibility for mortgage payments with respect to an encumbered devise in § 1.2.E.5 of this manual. « Ch. 6 », « § 6.5 », « T » 1 Practice Under Florida Probate Code § 6.5.T (2022)

T. Totten Trusts A bank account that gives the depositor total control over the account during life, after which the amount remaining in the account passes to a designated beneficiary, is often called a “Totten trust.” The concept is based on the following language from In re Totten, 71 N.E. 748, 752 (N.Y. 1904): A deposit by one person of his own money in his own name as trustee for another, standing alone, does not establish an irrevocable trust during the lifetime of the depositor. It is a tentative trust merely, revocable at will, until the depositor dies or completes the gift in his lifetime by some unequivocal act or declaration, such as delivery of the passbook or notice to the beneficiary. In case the depositor dies before the beneficiary without revocation, or some decisive act or declaration of disaffirmance, the presumption arises that an absolute trust was created as to the balance on hand at the death of the depositor. The Totten trust is recognized under Florida law. See Seymour v. Seymour, 85 So. 2d 726 (Fla. 1956) (expressly adopting Totten trust doctrine). Although F.S. 655.81, which provided for Totten trusts, was repealed in 2001, the concept now appears to be embodied in F.S. 655.82 and 655.825, which provides for the authority of a bank, trust company, or other financial institution to make payment to the surviving beneficiary. Presumably, the funds in the Totten trust are not estate assets and should be

omitted from the inventory to be filed in the court, although they should be included in the gross estate for tax purposes when applicable. The presumption is rebuttable, however, by a showing of “some decisive act or declaration of disaffirmance” by the decedent. In re Totten, 71 N.E. at 752. As it relates to the revocation of a Totten trust, there are no formalities; any decisive act or declaration of disaffirmance during the lifetime of the owner is sufficient. See, e.g., Vargas v. Vargas, 659 So. 2d 1164 (Fla. 3d DCA 1995) (Totten trust in favor of depositor’s granddaughter was revoked by letter directing bank to transfer absolute ownership of all accounts to depositor’s son, coupled with depositor’s act of giving son all passbooks, even though bank failed to complete change of title for disputed account, depositor left bank knowing that title on subject account had not been changed, and account remained unchanged during three years preceding depositor’s death). A general reference in a will to “bank accounts” is not sufficient to indicate the testator’s intention to revoke a Totten trust, in the absence of other circumstances giving rise to a presumption of revocation. Serpa v. North Ridge Bank, 547 So. 2d 199, 200 (Fla. 4th DCA 1989). In Beane v. SunTrust Banks, Inc., 47 So. 3d 922 (Fla. 4th DCA 2010), the appellate court upheld the trial court’s dismissal of a complaint filed against the bank for allowing transfer of funds from a Totten trust account to another account that did not name the same beneficiary based on the terms of a durable power of attorney that authorized the attorney-in-fact to act for the decedent. Citing to the Florida Supreme Court’s decision in Seymour, the Beane court stated that “[a] Totten trust has been defined as ‘a tentative trust merely, revocable at will, until the depositor dies’ ” and in support thereof noted that a Totten trust is not created with the formalities required for a will or trust. Beane, 47 So. 3d at 924, quoting Seymour, 85 So. 2d at 727. The financial institution’s signature card should be examined to determine whether a Totten trust has been created. This is particularly true if there is more than one person named as trustee, such as a husband and wife in trust for a child. The second person named as trustee may not acquire any survivorship rights as owner of the account and the person’s interest may be only that of a fiduciary for the named beneficiary. This may occur if the second named trustee does not sign the signature card or account contract.

Abbale v. Lopez, 511 So. 2d 340 (Fla. 3d DCA 1987). Compare Barnard v. Gunter, 625 So. 2d 56 (Fla. 3d DCA 1993) (second named trustee signed account documents establishing Totten trust). The Barnard court distinguished Abbale and held that the second trustee was authorized to terminate the trust before her death. Florida law governs disposition of Totten trust accounts located in a Florida bank even if the decedent who created the trusts had a foreign domicile and the law of that domicile is contrary to Florida law as to disposition of the trusts. Sanchez v. Sanchez De Davila, 547 So. 2d 943 (Fla. 3d DCA 1989). This type of account should be compared to the survivorship joint account. See § 1.2.E.3 of this manual, which suggests that on an appropriate occasion, the personal representative may have a duty to claim as an estate asset a joint account that apparently passed to a joint tenant by survivorship. See also F.S. 732.2035(3), discussed above, under which the decedent’s ownership interests in Totten trust accounts are included in the elective estate for purposes of computation of the elective share. The augmented elective share law is discussed more extensively in Chapter 7 of this manual. For a detailed discussion of Totten trusts, see ADMINISTRATION OF TRUSTS IN FLORIDA § 2.3.D (Fla. Bar 11th ed. 2022). See also 18 FLA. PRAC., Law of Trusts § 14:3 (2018 ed.). « Ch. 6 », « § 6.5 », « U » 1 Practice Under Florida Probate Code § 6.5.U (2022)

U. Homestead Real Property Homestead real property must be included in the inventory. It is designated specifically as homestead, separate from other real property. Fla. Prob. R. 5.340(a). This is true whether the decedent died with or without a will or whether the homestead is in the possession of the personal representative. See § 6.3.D. Homestead property should be separately described as either exempt (protected) or nonexempt. See FLSSI Form No. P3.0900. « Ch. 6 », « § 6.5 », « V • 1 Practice Under Florida Probate Code § 6.5.V (2022)

V. Other Real And Personal Property All items of real and personal property owned by a resident decedent on the date of death, except protected (i.e., exempt) homestead real property (see F.S. 733.607(1)), are assets of the estate This includes the decedent’s interest in property owned with another person without the right of survivorship. In addition, when the protected homestead is not occupied by a person who appears to have an interest in the property, the personal representative is authorized, but not required to, take possession of the protected homestead “for the limited purpose of preserving, insuring, and protecting it for the person having an interest in the property, pending a determination of its homestead status.” F.S. 733.608(2). Examples of personal property not mentioned in preceding sections are stocks and bonds, automobile liability insurance policies (In re Estate of Bernard, 183 So. 2d 715 (Fla. 1st DCA 1966)), savings bonds, an income tax refund (but see F.S. 735.302), insurance on the lives of others, and any other tangible or intangible property, including choses in action. See Lewis v. Estate of Turcol, 709 So. 2d 186 (Fla. 5th DCA 1998), with respect to the estate’s right to include in the inventory a promissory note secured by a mortgage when the terms of the note and mortgage conflict.

« Ch. 6 », « § 6.6 » 1 Practice Under Florida Probate Code § 6.6 (2022)

§ 6.6. PREPARATION, FILING, AND SERVICE OF INVENTORY « Ch. 6 », « § 6.6 », • A » 1 Practice Under Florida Probate Code § 6.6.A (2022)

A. Preparation The inventory must be verified and executed by the personal representative, F.S. 733.604(1)(a); Fla. Prob. R. 5.340(h), 5.330(a), and signed by the lawyer, Fla. R. Gen. Prac. & Jud. Admin. 2.515(a). It should separately describe exempt (protected) and nonexempt homestead real property, other real property in Florida (including parcels subject to options, rights of first refusal, or contracts for deed), and items of personal property. The value reported on the inventory is the estimated fair market value of the assets on the date of death. The gross values are used and encumbrances are disregarded. See the sample inventory in § 6.7. FLSSI Form No. P-3.0900 is available for this purpose. « Ch. 6 », « § 6.6 », « B » 1 Practice Under Florida Probate Code § 6.6.B (2022)

B. Filing The inventory must be filed with the clerk of the probate court. F.S. 733.604(1)(a), 731.201(5), (16); Fla. Prob. R. 5.340(a). Filing must occur within 60 days after issuance of letters. Rule 5.340(a). All estate inventories, including elective share inventories, are confidential and exempt from public records. F.S. 733.604(1)(b). Previously, there were no statutory provisions that limited the public from viewing elective share inventories. Now, however, public disclosure of all estate inventories is limited. F.S. 733.604(1)(b)4 limits the persons entitled to examine the inventory. In addition, Fla. R. Gen. Prac. & Jud. Admin. 2.420, the rule that governs public access to judicial branch records, implements procedures for the clerks of court to identify estate inventories as

confidential. See Rule 2.420(d)(1)(B)(xi). In the past, the practice among clerks in various circuits differed with respect to how confidentiality of the inventory was preserved. In some counties the clerks did not file the inventory in the probate file but maintained a separate confidential file containing inventory documents with an appropriate notation made in the court file. Other counties placed the inventory in a sealed envelope inside the court file. The procedure for inspecting or obtaining copies of the inventory also varied among the circuits. Some clerks permitted inspection and furnished copies of the inventory to those persons authorized to inspect it by F.S. 733.604 and Rule 5.340; others did so only upon entry of a court order. Given that public disclosure of all estate inventories is now limited, the clerk of court is required to designate and maintain estate inventories as confidential. To assist the clerks in this process, any person filing the estate inventory must file a Notice of Confidential Information Within Court Filing to identify to the clerk the confidential information contained within the estate inventory. See Rule 2.420(d)(2). « Ch. 6 », « § 6.6 », « C » 1 Practice Under Florida Probate Code § 6.6.C (2022)

C. Inspection Unless otherwise ordered by the court, an estate inventory or amended or supplementary inventory can be disclosed by the custodian for inspection or copying only to the personal representative and his or her attorney; and other interested persons. F.S. 733.604(1)(b)4. See Fla. Prob. R. 5.340(d)–(f). Good cause must be established before an order will be entered authorizing persons other than those described in the statute to examine the inventory. F.S. 733.604(1) (b)4.d. Rules 5.340(e) and 5.340(f) provide specificity concerning what a personal representative must provide to a particular beneficiary who requests additional information beyond that which is disclosed in the inventory. Rule

5.340(e)(1) provides that upon written request by a residuary beneficiary or an heir in an intestate estate, the personal representative must provide a written explanation to the beneficiary or heir of how the inventory value for an asset was determined or, if an appraisal was obtained, a copy of the appraisal. To any other requesting beneficiary, upon written request, the personal representative must provide a written explanation of how the inventory value of each asset distributed or proposed to be distributed to that beneficiary was determined or, if an appraisal of that asset was obtained, a copy of the appraisal. Rule 5.340(e)(2). Rule 5.340(f) provides that in regard to a nonresiduary beneficiary, the personal representative must provide a written notice to that beneficiary of the right to receive an explanation of how the inventory value for each asset distributed or proposed to be distributed to such beneficiary was determined, or a copy of an appraisal, if any, of the asset or assets in question. « Ch. 6 », « § 6.6 », « D » 1 Practice Under Florida Probate Code § 6.6.D (2022)

D. Service Copies of the inventory must be served “on the surviving spouse, each heir at law in an intestate estate, each residuary beneficiary in a testate estate, and any other interested person who may request it in writing.” Fla. Prob. R. 5.340(d). See FLSSI Form No. P-3.0910, Request for Copy of Inventory. A surviving spouse’s right to claim exempt property was extended in In re Estate of Dubin, 536 So. 2d 1186 (Fla. 4th DCA 1989), when the personal representative failed to serve a copy of the inventory on the spouse. The personal representative must notify each beneficiary of the right to request information regarding determination of the inventory value of an asset. F.S. 733.604(3); Rule 5.340(a). An inventory that includes a certificate of service, as provided in Fla. R. Gen. Prac. & Jud. Admin. 2.516(f), evinces proof of service of the inventory. If service of the inventory is by service in the manner provided for service of formal notice, proof of service must be filed as provided in Rule 5.040(a)(6). See FLSSI Form No. P-3.0920, Proof of Service of Inventory. « Ch. 6 », « § 6.6 », « E » 1 Practice Under Florida Probate Code § 6.6.E (2022)

E. Extensions Of Time To File If the personal representative is unable to file the inventory within 60 days after issuance of letters, a petition to extend time to file the inventory should be filed with the court. Fla. Prob. R. 5.340(b). The petition must be served on interested persons described in Rule 5.340(d), but the court is authorized to enter the order extending the time for filing the inventory without hearing. A copy of the order must be served on interested persons. Rule 5.340(b). « Ch. 6 », « § 6.6 », « F » 1 Practice Under Florida Probate Code § 6.6.F (2022)

F. Preservation Of Appraisals, Supporting Documents, And Original Listings As noted at § 6.6.C, beneficiaries and heirs at law in an intestate estate are entitled to request information as to how the inventory value for a particular asset was determined, including whether the personal representative obtained an independent appraisal for that asset and from whom the appraisal was obtained. F.S. 733.604(3); Fla. Prob. R. 5.340(e). This information should be furnished promptly. The personal representative should be advised to retain adequate information and copies of documents that the personal representative examines when the assets are marshaled. The lawyer should advise the personal representative of this obligation to avoid possible loss or destruction of important documents or additional delay and expense in having to reexamine this information. « Ch. 6 », « § 6.6 », « G » 1 Practice Under Florida Probate Code § 6.6.G (2022)

G. Objections Neither F.S. 733.604 nor Fla. Prob. R. 5.340 includes a procedure for objecting to an inventory or amended inventory. Because no procedure is provided for objections, an objection may be filed at any time before entry of the order of discharge. The purpose of the inventory is to inform the court and certain interested persons of the property in the decedent’s estate. Accordingly, the purpose for an objection should be to correct the value or description of an asset, or to

eliminate an asset from or add an asset to the inventory to make it accurate. Objections should be filed promptly to inform the court and the persons who were served a copy of the inventory. Prolonged delay after an error in the inventory is discovered may adversely affect the administration of the estate or the court’s ruling in response to the objection. Service of objections should be made on those persons on whom a copy of the inventory was served, although this statement is not supported by statute, rule, or case law. Notwithstanding Rule 5.041, given that inventories are confidential and exempt from public records, service of objections should be limited because an objection may reveal the estate assets. « Ch. 6 », « § 6.6 », « H • 1 Practice Under Florida Probate Code § 6.6.H (2022)

H. Amending The Inventory Every effort should be made to file a complete inventory in a timely fashion; however, the inventory in many estates cannot be accurately completed within 60 days of issuance of letters. Valuation information may be delayed or values initially reported may change when additional information is obtained. In this case, an initial inventory should be filed, and the inventory should later be amended, pursuant to F.S. 733.604(2) and Fla. Prob. R. 5.340(c). The inventory may be restated completely, including any changes in either description of assets or valuation. This is frequently the better practice, because one integrated document is more understandable to the beneficiaries and the court. In such a case the inventory should be captioned “Amended Inventory.” On occasion, the change will be relatively simple or possibly consist of the addition of one or more assets. If the amendment is intended to reflect only the item or items that have changed in either description or value, it should be titled “Amendment to Inventory” or “Supplementary Inventory.” If the estate’s inventory is amended more than once, several “Amendments to Inventory” may be more confusing than helpful. Each amended inventory and amendment to inventory or supplementary inventory must be filed and served on each person on whom a copy of the

inventory was served. Rule 5.340(d).

« Ch. 6 », « § 6.7 • 1 Practice Under Florida Probate Code § 6.7 (2022)

§ 6.7. SAMPLE INVENTORY COMMENT: This sample is modeled after FLSSI Form No. P3.0900. A blank three-inch by three-inch square should be inserted in the upper right corner of the first page of the document. All parties listed in Fla. Prob. R. 5.340 must be served a copy of the inventory. As noted at § 6.6.D, an inventory that includes a certificate of service, as provided in Fla. R. Gen. Prac. & Jud. Admin. 2.516(f), demonstrates proof of service of the inventory. If service of the inventory is by service in the manner provided for service of formal notice, proof of service should be filed as provided in Rule 5.040(a) (6). See FLSSI Form No. P-3.0920. IN THE CIRCUIT COURT FOR _________ COUNTY, FLORIDA PROBATE DIVISION File Number 22-2024 Division CP 05 IN RE: ESTATE OF JOHN DOE, Deceased.

INVENTORY The undersigned personal representative of the estate of JOHN DOE, deceased, who died on January 26, 2022, submits this inventory of all of the property of the estate that has come into the hands, possession, control, or knowledge of this personal representative: REAL ESTATE IN FLORIDA—Exempt (Protected) Homestead: Description

Residential real property described as Lots 7 and 9 of Block 26 of WELLSWOOD ACRES, Unit 3, as per map or plat thereof recorded in Plat Book 47, Page 31 of the Public Records of Hillsborough County, Florida also described as 1712 Vista Lane Drive [Note: No value NE, Tampa, Florida 33617 required]

REAL ESTATE IN FLORIDA—Nonexempt Homestead None [Whether homestead property is exempt from the claims of creditors, is properly devised, and is a probate asset may have to be determined by appropriate proceedings.]

OTHER REAL ESTATE IN FLORIDA: Description Unimproved acreage on Keystone Road described as the Southeast 1/4 of the Northwest 1/4 Section 24, Township 18 South, Range 21 East, Hillsborough County, Florida (subject to unexercised option to purchase expiring May 21, 2022) Tract 6, KEYSTONE LAKE

Estimated Fair Market Value

$90,000

SUBDIVISION Unit 3, as per map or plat thereof recorded in Plat Book 49, Page 13 of the Public Records of Hillsborough County, Florida (subject to agreement for deed dated July 10, 2009, having an unpaid balance of $19,215.18 (unrecorded)) The North 1/2 of the SW 1/4 of Section 20, Township 18 South, Range 21 East, Polk County, Florida, including a nonexclusive easement for ingress and egress to State Road 17, more particularly described in deed recorded in Official Records Book 3921, Page 679 of the Public Records of Polk County, Florida

$19,215.18

$10,000

Total Real Estate in Florida —Except Exempt (Protected) Homestead $119,215.18 PERSONAL PROPERTY WHEREVER LOCATED: Description

241.37 shares IDS Income Fund Bid 11.21 300 shares Niagara Mohawk Power 6.75 cumulative preferred stock Unit value 88.375

Estimated Fair Market Value

$2,705.75

$26,512.50

510 shares ABC Machinery Corp., Common, Unit value 1.00 U.S. postage stamp collection consisting of four bound volumes (77 pages) Wrongful death claim as a result of the decedent’s accidental death .38 caliber Smith & Wesson pistol, serial no.: SW24A6631 Man’s Masonic lodge ring bearing decedent’s initials with one center diamond approximately 2.0 carats and two side diamonds 0.5 carats each— yellow gold

$510

$2,850

$1

$120

$1,700

Precious stones: One ruby unmounted

$850

One emerald unmounted

$900

Three diamonds unmounted, .30 carats each

$100

Other tangible personal property including furniture, furnishings, and personal effects of the decedent (see Schedule A) Cash and bank accounts (see Schedule B) Total Personal Property—

$2,272.50

$44,245.24

Wherever Located

$82,766.99

TOTAL OF ALL PERSONAL PROPERTY AND FLORIDA REAL ESTATE (except exempt (protected) homestead)

$201,982.17

All real estate located outside the state of Florida owned by the decedent of which the personal representative is aware, if any, is described on a schedule attached hereto. [If none, so indicate.] None

NOTICE: Each residuary beneficiary in a testate estate or heir in an intestate estate has the right to request a written explanation of how the inventory value of any asset was determined, including whether the personal representative obtained an independent appraisal for that asset and, if so, a copy of the appraisal. Any other beneficiary may request this information regarding all assets distributed to or proposed to be distributed to that beneficiary. Under penalties of perjury, I declare that I have read the foregoing, and the facts alleged are true, to the best of my knowledge and belief. Executed on March 14, 2022. /s/

William Roe

William Roe Personal Representative /s/ John Smith John Smith Attorney for Personal Representative 12593 E. Main Street Tampa, Florida 33612 (813) 228-6549 [email protected] Florida Bar No. 799869

ESTATE OF JOHN DOE, DECEASED

FILE NO. 222024 Division CP 05

SCHEDULE A TANGIBLE PERSONAL PROPERTY Description of Property

1

crystal chandelier

1

floor lamp

1

set of china, 69 pieces

1

dining room table and 4 chairs

Approximate Value $35 $5 $125 $75

1

gold trim chandelier

1

bedroom set, 5 pieces

$180

1

Zenith color TV

$250

2

pictures (seascapes)

2

brown chairs

$130

1

china cabinet

$250

1

bronze clock and 2 candlesticks

$500

1

silver tea service, 5 pieces

$450

1

set First Flight golf clubs including 4 woods, 9 irons, and 1 putter, with bag Total

$62.50

$60

$150 $2,272.50

SCHEDULE B CASH AND BANK ACCOUNTS, Holder at Death Dean Witter Ready Assets Fund Suncoast Teachers’ Credit Union Acct. No. 70321 (including member’s

Amount

$20,051.12

death benefit, $1,000) Flagler Federal Savings & Loan Association (Savings) Acct. No. 796022

$7,210

$10,106.25

First National Bank of Kansas City, Missouri (Savings) Acct. No. 883111

$687.07

Midtown Bank of Miami (Checking) Acct. No. 003255-1

$164.56

First National Bank of Miami (Savings) Acct. No. 2214008 Cash found in automobile

$3,034.72 $170.30

Joe Smith trust account

$1,213.35

George Walker trust account

$1,557.95

Cash found in apartment Total

$49.94 $44,245.26

Footnotes — Chapter 6: *

J.D., 1989; LL.M. in Taxation, 1990, University of Miami. Ms. La Femina is a member of The Florida Bar and is Florida Bar Board Certified in Wills, Trusts and Estates. She practices in Fort Lauderdale.

Licensed to Otis K Pitts, Otis K Pitts

« Ch. 7 » 1 Practice Under Florida Probate Code Ch. 7 (2022)

Chapter 7 ELECTIVE SHARE DANIEL A. HANLEY* WILLIAM T. HENNESSEY** CRISTINA PAPANIKOS*** Contents § 7.1. INTRODUCTION A. Scope Of Chapter B. Legislative History Of The Elective Share C. Relationship Of Dower And Curtesy To Elective Share D. Preliminary Considerations 1. Recognizing Existence Of Circumstances In Which Election Should Be Considered 2. Researching Problems Involving Elective Share § 7.2. CONSEQUENCES OF ELECTION A. Elective Share As Floor B. Surviving Spouse As Fiduciary C. Construction Of Will D. Interests Of Surviving Spouse In Addition To Election E. Tax Consequences 1. In General 2. Marital Deduction 3. Income Tax § 7.3. PRIORITY OF ELECTIVE SHARE A. Debts And Administration Expenses Entitled To Priority B. Contracts To Make A Will

§ 7.4. TRUSTS FOR SURVIVING SPOUSE A. Elective Share Trusts B. Qualifying Special Needs Trusts § 7.5. COMPUTATION OF THE ELECTIVE SHARE A. Property Included In Elective Estate 1. Background 2. The Probate Estate 3. Protected Homestead 4. Joint Bank Accounts, Pay-On-Death Accounts, Totten Trusts, And Similar Arrangements 5. Property Held In Joint Tenancy And Tenancy By Entireties (Other Than Accounts And Securities) 6. Revocable Trusts (And Other Revocable Transfers) 7. Irrevocable Transfers By Decedent a. Transfers With Retained Right To Income Or Principal b. Transfers With Retained Right To Discretionary Principal Distributions c. Irrevocable Transfers Not Subject To Elective Share 8. Life Insurance Policies 9. Pensions And Retirement Plans 10. Transfers Made Within One Year Of Decedent’s Death a. Gifts b. Termination Of Otherwise Includable Rights Or Interests 11. Irrevocable Transfers To Elective Share Trust B. Property Excluded From Elective Estate C. Amount Of Elective Share § 7.6. SATISFACTION OF THE ELECTIVE SHARE A. In General B. Property Passing To Surviving Spouse C. Valuation Of Property Passing To Surviving Spouse 1. In General 2. Life Interests In Property 3. Interests In Elective Share Trust

4. Interests In Qualifying Special Needs Trust 5. Interests In Other Trusts 6. Life Insurance Proceeds 7. Annuities And Similar Contracts D. Apportionment Of Unsatisfied Balance Among Direct Recipients Of Property 1. Order Of Priority 2. Liability of “Direct Recipients” 3. Liability Of Estate And Trust Beneficiaries 4. Contribution In Kind Or Sales Proceeds 5. Enforcing Contribution 6. Liability Of Third Parties For Contribution E. Interest § 7.7. PROCEDURAL MATTERS A. Who May File Election B. Petition For Approval Of Election By Agent Or Guardian C. Time Of Election D. Proceedings To Determine Entitlement To Elective Share E. Inventory Of Elective Estate F. Proceedings To Determine Amount Of Elective Share And Contribution G. Jurisdictional Problems H. Withdrawal Of Election I. Role Of Personal Representative J. Forms § 7.8. MATTERS IN BAR OF ELECTIVE SHARE A. In General B. Relinquishment Of Elective Share By Agreement (Waiver) 1. In General 2. Relinquishment Of Elective Share Before Marriage 3. Relinquishment Or Waiver Of Elective Share During Marriage 4. Relinquishment Of Elective Share After Death Of Spouse C. Right Barred By Action Of Surviving Spouse

1. Facts Not Constituting Bar 2. Facts Constituting Bar D. Operation Of Law 1. Facts Constituting Bar 2. Facts Not Constituting Bar § 7.9. CONSTITUTIONALITY OF ELECTIVE SHARE STATUTES § 7.10. ATTORNEYS’ FEES A. For Proceedings Commenced On Or After July 1, 2017 B. For Proceedings Commenced Before July 1, 2017 « Ch. 7 », • § 7.1 » 1 Practice Under Florida Probate Code § 7.1 (2022)

§ 7.1. INTRODUCTION « Ch. 7 », • § 7.1 », • A » 1 Practice Under Florida Probate Code § 7.1.A (2022)

A. Scope Of Chapter In 1975 the Florida Legislature, with one stroke of the pen, finally abolished dower and curtesy. F.S. 732.111. It then proceeded to create a hybrid form of relief for the surviving spouse called the “elective share.” The 1975 version of the elective share statutes was deceptively simple in language and mechanics. The statutes provided for a flat 30% share of the assets of the decedent’s estate subject to administration in Florida. The legislature specifically rejected the complex “augmented estate” concepts employed in the Uniform Probate Code that incorporate assets outside the probate estate, which were later embraced for a number of years in Florida and will be described below. Throughout the 1990s, the elective share statutes came under increasing scrutiny. Many argued that the statutes were unfair and did not adequately provide for a surviving spouse because they permitted a decedent to defeat the elective share by passing assets outside of probate through mechanisms such as revocable trusts and accounts in joint names with right of survivorship. Others argued that the elective share laws did not give due consideration to the length of the marriage.

In 1999, the Florida Legislature adopted a new, comprehensive set of elective share laws that almost entirely revamped the former legislation. See Ch. 99-343, § 1, Laws of Fla. As discussed below, the legislation adopted an augmented estate concept similar to that found in the Uniform Probate Code. The legislation applied to all decedents dying on or after October 1, 2001, and remained relatively unchanged until July 1, 2017, at which time the elective share laws were significantly amended in a number of respects. See Ch. 2017-121, Laws of Fla. This chapter contains an analysis of both the current and former statutory language and attempts to provide a practical approach for the lawyer confronted with a situation that appears to warrant filing the election. « Ch. 7 », • § 7.1 », « B » 1 Practice Under Florida Probate Code § 7.1.B (2022)

B. Legislative History Of The Elective Share To better appreciate the elective share laws and the significance of the 1999 and 2017 changes, it is important to understand the history of the old elective share laws and their perceived flaws. For the reasons noted in § 7.1.A, there were rumblings about the inherent unfairness of the elective share laws dating back to their initial appearance as part of the Florida Probate Code in 1976 and Florida’s rejection of the augmented estate concepts found in the Uniform Probate Code. Under the 1975 version of the statute, the surviving spouse of a resident decedent, on making a proper election, was entitled to an amount equal to 30% of the fair market value of all assets “subject to administration,” except real property not located in Florida, after deduction of all valid claims and all mortgages, liens, or security interests on such assets. F.S. 732.206–732.207 (1998). By definition, property passing by contract or by operation of law did not enter into the computation. For example, a joint savings account in the decedent’s name with his daughter with right of survivorship was not “subject to administration” and thus could not be included in the computation of the widow’s elective share in In re Estate of Solnik, 401 So. 2d 896 (Fla. 4th DCA 1981). The District Court of Appeal, Second District, held that property deeded inter vivos by the decedent was not subject to the elective share even when the decedent retained a life estate in the property. Kelley v. Hill, 481 So. 2d 1311 (Fla. 2d DCA 1986). In Traub v. Zlatkiss, 559 So. 2d

443 (Fla. 5th DCA 1990), another district court further reinforced the fact that inter vivos transfers could be used to avoid the elective share by stating that such a transfer was not to be considered in computing the elective share despite the fact that the transfer was motivated by the desire to avoid the elective share provisions. Citing Traub, Kelley, and Solnik, the District Court of Appeal, Third District, held that a surviving spouse had no elective share rights against assets in an inter vivos revocable trust. Friedberg v. SunBank/Miami, N.A., 648 So. 2d 204 (Fla. 3d DCA 1995); see also Faile v. Fleming, 763 So. 2d 459 (Fla. 4th DCA 2000). Thus, the use of a revocable inter vivos trust generally resulted in an avoidance of the elective share provisions. The Augmented Share Committee, an ad hoc committee consisting of members of the Tax Law, Family Law, Elder Law, and Real Property, Probate and Trust Law sections of The Florida Bar was formed with the hope of bringing together all the sections of The Florida Bar that would be affected by reforms to the elective share laws. The committee initially considered numerous possible changes, from enacting legislation that would simply result in the inclusion of revocable trust assets in the elective share, to totally repealing the statutes and enacting a postdeath deferred community property system. The committee ultimately chose not to adopt any of these options and, instead, came up with four goals of reform: (1) broadening the elective share to include nonprobate assets; (2) varying the elective share with the duration of the marriage; (3) providing mechanisms through which a decedent could plan for the elective share by making transfers in trust; and (4) preventing the surviving spouse from avoiding the decedent’s estate planning through disclaimers. For an excellent discussion of the policies underlying the revised elective share laws from the committee scrivener, see Powell, Florida Gets a New Elective Share Law (on file with the authors). All of the Augmented Share Committee’s initial reform goals, with the exception of varying the elective share based on the length of marriage, ultimately were accomplished with passage of legislation in 1999. The primary focus of the 1999 legislation was to give real teeth to the rights afforded to the surviving spouse by the elective share. Without question, the biggest change under the legislation was the inclusion of nonprobate assets in computation and satisfaction of the elective share. The revised “elective estate” includes assets held in revocable trusts, joint tenancy

property, Totten trusts, gifts made within one year of death, retained life estates and income interests, and retirement benefits. A detailed discussion of the assets that are now included in the elective estate can be found in § 7.5.A. The effect of the broadened asset base of the elective estate is counterbalanced by permitting a testator to plan for the elective share through elective share trusts that include provisions for a surviving spouse. See F.S. 732.2025(2). A testator may satisfy the elective share by transferring assets to a trust that provides for mandatory income to the spouse at least annually. If the trust provides for mandatory income, fifty percent of the fair market value of the assets in such a trust counts toward satisfaction of the elective share. If the spouse is also entitled to discretionary principal for health, support, and maintenance, that figure jumps to 80%. A discussion of elective share trusts is contained in § 7.3.A. The 1999 legislation also included safeguards to prevent the surviving spouse from avoiding a decedent’s predeath elective share planning. For example, a spouse cannot avoid an elective share trust by simply disclaiming the interest. F.S. 732.2075(1)(f) provides that property disclaimed by the spouse counts directly toward the satisfaction of the elective share. The “teeth” in the elective share laws can also be found in the fact that nonprobate assets are now subject to contribution toward satisfaction of the elective share. In other words, once the elective share is computed, third parties who receive assets from the decedent outside of probate may be forced to give assets back to the estate to satisfy the elective share. F.S. 732.2075(1) sets forth the general rules regarding satisfaction of the elective share. The decedent may make a provision in a will, or in a trust referred to in the will, for payment of the elective share. Id. Absent such a provision, the property that already passes to the surviving spouse is first used to satisfy the elective share and then the balance of the elective share is apportioned among the other beneficiaries of property included in the elective estate. A complete discussion of the concepts surrounding satisfaction of the elective share and contribution can be found in § 7.6. In 2015 and 2016, the Real Property, Probate and Trust Law (RPPTL) Section of The Florida Bar convened an ad hoc committee (the Elective Share Review Committee) to study Florida’s elective share laws. The objective of the Elective Share Review Committee was to focus on certain narrow and

specific provisions of the elective share statutes that, over the years, practical experience and application revealed to be worth study or a fresh look. Effective July 1, 2017, the Florida Legislature implemented numerous changes to the elective share law. These amendments relate to, among other things, the inclusion of protected homestead in valuing and satisfying the elective share, attorneys’ fees in contested elective share proceedings, and the deadline to seek an extension of time to make the election. See Ch. 2017-121, Laws of Fla. (2017). The 2017 legislation provides for the inclusion of the protected homestead in the elective estate, a significant departure from the pre-2017 law, which excluded the protected homestead from the elective estate. Under the 2017 legislation, the value of the decedent’s interest in protected homestead is included in the elective estate and counts toward satisfaction of the elective share unless the surviving spouse validly waived his or her homestead rights and did not receive any interest in the protected homestead upon the decedent’s death. The value of the protected homestead for both purposes, if the surviving spouse receives a fee simple interest, is the fair market value of the protected homestead on the date of the decedent’s death. If the spouse takes a life estate or validly elects to take an undivided one-half interest as a tenant in common, the value of the protected homestead is onehalf of the fair market value of the protected homestead on the date of the decedent’s death. Id. The 2017 legislation also contains significant changes regarding attorneys’ fees. The pre-2017 law contained a section that authorized courts to assess attorneys’ fees and costs against the surviving spouse or the surviving spouse’s estate when a determination was made that an election was made or pursued in bad faith. F.S. 732.2135(5) (2016). The 2017 legislation repealed this section, creating an entirely new statute, F.S. 732.2151, which now governs the award of attorneys’ fees and costs in elective share proceedings commenced on or after July 1, 2017. This new statute vests discretion in the court to award taxable costs as in chancery actions, including attorneys’ fees, in elective share proceedings in which there is an objection to or dispute over entitlement to or the amount of the elective share, the property interests included in the elective estate or their value, or the satisfaction of the elective share. Id. The court has the ability to award fees and costs from the estate or the elective estate. Id. In addition, or

alternatively, the court may enter a judgment against a party that can be satisfied from other property of the party. Id. In addition to any of the fees that may be awarded in a contested proceeding, the electing spouse may be awarded from the estate his or her reasonable costs, including attorneys’ fees, incurred in connection with the preparation and filing of a petition to determine the amount of the elective share if the personal representative does not file the petition as required by the Florida Probate Rules. Id. The 2017 legislation also contains an amendment to extend the time during which the surviving spouse can petition the court for an extension of time to file for the elective share. The election must be filed on or before the earlier of the date that is six months after the date of service of a copy of the notice of administration on the surviving spouse or the date that is two years after the date of the decedent’s death. F.S. 732.2135(1). Under the pre-2017 law, an extension of time for making an election could be requested only by petition within this timeframe. The 2017 legislation extends the deadline to request an extension to the later of this timeframe or 40 days after the date of termination of any proceeding that affects the amount the surviving spouse is entitled to receive under F.S. 732.2075(1), but no more than two years after the decedent’s death. Id. The 2017 legislation also provides that interest on a required contribution starts to accrue two years after the death of the decedent, even if an order of contribution has not yet been entered. The pre-2017 law provided that contribution bearded interest at the statutory rate beginning 90 days after the order of contribution was entered. With the exception of the amendment relating to attorneys’ fees, which applies to all proceedings commenced on or after July 1, 2017, the amendments in the 2017 legislation apply only to decedents dying on or after July 1, 2017. « Ch. 7 », • § 7.1 », « C » 1 Practice Under Florida Probate Code § 7.1.C (2022)

C. Relationship Of Dower And Curtesy To Elective Share The term “dower” has been defined as that portion of a decedent’s estate allotted to the widow for support of herself and her children. Adams v. Adams, 147 Fla. 267, 2 So. 2d 855 (1941). At common law, a widow was

entitled to a portion of the real property of her deceased husband. During his lifetime, she had an inchoate right of dower. By statute in Florida, the widow’s interest was broadened to include personal property. See F.S. 731.34 (1971). After undergoing several revisions and modifications, dower has been replaced by the elective share. See F.S. 732.111. Curtesy (sometimes spelled “courtesy”) is defined as: “At common law, a husband’s right, upon his wife’s death, to a life estate in the land that his wife owned during their marriage, assuming that a child was born alive to the couple.” BLACK’S LAW DICTIONARY (Thomson/West 11th ed. 2019). Although the common-law doctrine of curtesy was never recognized in Florida, the surviving husband was given the right to elect dower in 1973. F.S. 731.34 (1973). The elective share is the stepchild of dower, broadened to include curtesy, limited to terminate inchoate dower, and diminished by requiring that the probate estate be reduced by the amount of valid claims, mortgages, liens, and other security interests before the required computation is made, and then by reducing the share from one third to 30%. The history of dower, therefore, is to some extent the history of the elective share, and a court might well substitute the words “elective share” for “dower” when the judicial philosophy (broadened to include the widower) remains the same and mere mechanics are not involved. At one time, a widow entitled to dower, at her election, was entitled to take a child’s part in the estate of her deceased husband in lieu of dower. First Nat. Bank of St. Petersburg v. MacDonald, 100 Fla. 675, 130 So. 596 (1930). By virtue of statutory changes, the concept of a “child’s part” ceased to have significance as descriptive of a right created in the widow and instead became a limitation on the extent of her dower interest under certain circumstances. The dower statute (former F.S. 731.34) was amended in 1945 to eliminate this limitation. The Florida Supreme Court has stated that the right of dower is not derived through the husband, but from operation of law. Catlett v. Chesnut, 100 Fla. 1146, 131 So. 120 (1930). Similarly, dower has been viewed as the right of a wife granted to her by law that vests on the death of her husband and that may be modified or abolished by the legislature at will. In re Estate

of Donner, 364 So. 2d 742 (Fla. 3d DCA 1978). It also has been argued that it does not constitute an inheritance. Hill v. Morris, 85 So. 2d 847 (Fla. 1956). A claim of dower is a claim against the estate of the husband rather than a claim under it. In re Estate of Udell, 482 So. 2d 458 (Fla. 4th DCA 1986); Wax v. Wilson, 101 So. 2d 54 (Fla. 3d DCA 1958). The elective share appears to fall into those same categories. The surviving widow’s right of dower is “so ancient that neither Coke nor Blackstone can trace it to its origin.” 1 Scribner, THE LAW OF DOWER 2 n.1 (2d ed. 1883). The common-law right of dower extended only to the real property of the deceased husband. See Henderson v. Usher, 125 Fla. 709, 170 So. 846 (1936). The statutory right specified in former F.S. 731.34 extended also to personalty. Dower has always been a favorite of the courts. See Moore v. Price, 98 Fla. 276, 123 So. 768 (1929). In Moore, the court expressed this sentiment in rather strong language: “The courts have ever been vigilant and astute in preserving dower. Lord Bacon said that it was a common saying in his day that ‘the law favored three things: Life, liberty and dower.’ ” Id. at 772. « Ch. 7 », • § 7.1 », « D • 1 Practice Under Florida Probate Code § 7.1.D (2022)

D. Preliminary Considerations « Ch. 7 », • § 7.1 », « D •, • 1 » 1 Practice Under Florida Probate Code § 7.1.D.1 (2022)

1. Recognizing Existence Of Circumstances In Which Election Should Be Considered In some situations, it will be rather obvious that the lawyer must consider the elective share, such as when the surviving spouse wants to know about his or her rights under the estate plan of the deceased spouse. In other situations, the specter may lurk in the background, which creates a real danger that it may be overlooked. The first problem, then, is to recognize that the elective share should be taken into consideration under a given set of facts. Once this recognition arises, a line of attack or an approach may be selected, dependent in large part on the relationship of the client to the factual situation. Finally, the law must be checked and a course of conduct consonant with the legal alternatives prescribed. The potential tax consequences must

not be overlooked. See § 7.2.E. The existence of one or more of the following factors generally should be considered in determining whether an election should be filed: The obvious circumstance that the surviving spouse is dissatisfied with the provisions of the decedent’s estate plan ordinarily dictates that an election should be made if the elective share exceeds in value the amount the electing spouse would receive under the existing plan. The election should be considered if the decedent’s estate plan is drawn in such a way that the election results in a substantial increase in the marital deduction for estate tax purposes. If the decedent died intestate and did not have substantial nonprobate assets, the surviving spouse almost invariably will profit more by not making the election, because the intestate share is generally at least one half of the estate. F.S. 732.101–732.102. Under the former elective share laws, election by the surviving spouse effectively terminated all rights to inherit under the will of the deceased spouse or to participate in distribution of intestate property. After payment of the elective share, the remaining assets of the estate were distributed as though the electing spouse had predeceased the decedent. F.S. 732.211 (1998). There is no provision in the current statutes that treats the surviving spouse as having predeceased the decedent. The original version of the elective share laws provided that “[i]f an election is filed, the balance of the elective estate … shall be administered as though the surviving spouse had predeceased the decedent.” See F.S. 732.2105(2) (1999). However, F.S. 732.2105(2) was deleted in its entirety in 2001 “as unnecessary.” See F.S. 732.2105 (2001); Staff Analysis for HB 137, Council for Smarter Government (April 3, 2001). Accordingly, under the revised 2001 law, the effect of an election is to simply set a floor on the amount the spouse receives from the decedent’s assets. Clarification was provided by the legislature in 2016, when F.S. 732.201 was amended to add: “The election does not reduce what the spouse receives if the election were not made and the spouse is not treated as having predeceased the decedent.” A complete discussion of satisfaction of the elective share is found in § 7.6, and a more thorough discussion of the effect of the elective share on other rights is found in § 7.2.

A surviving spouse is entitled to take discovery and request information relating to the assets that make up the elective estate before making the election for (or before the court establishes entitlement to) the elective share. In re Estate of Sauey, 869 So. 2d 664 (Fla. 4th DCA 2004). The lawyer for the estate does not have a conflict of interest in advising the surviving spouse of the elective share when the spouse is serving as personal representative. Professional Ethics Committee Opinion 76-16 (April 4, 1977). See also Adcock & Valentine, The Estate Planner’s Dilemma: Reconciling Legal, Ethical & Moral Responsibilities, 60 Fla. Bar J. 51 (Jan. 1986). An individual entering into marriage with foresight enough to consult a lawyer needs to know that the elective share may be waived before the marriage ceremony without any requirement of disclosure of assets. F.S. 732.702(2). If the waiver is executed after the marriage is solemnized, F.S. 732.702(2) requires a fair disclosure. See § 7.8.B. The waiver must be executed by the waiving spouse in the presence of two subscribing witnesses. F.S. 732.702(1). The current elective share law specifically provides that any waiver of elective share rights executed before October 1, 1999, in compliance with F.S. 732.702, will continue to be effective. F.S. 732.2155(3). Obviously, a client intent on executing new estate planning documents should understand that, regardless of the provisions in the documents, the surviving spouse may elect to take against the estate unless the elective share is waived under F.S. 732.702. This has taken on added importance in light of the 1999 elective share legislation. Before enactment of this legislation, a client could use “will substitutes,” such as a revocable trust, to avoid the elective share. See § 7.1.A. However, these will substitutes are not effective under the current legislation. Therefore, the nature and extent of the elective share and its impact on the entire estate plan, including taxes, should be explored fully. « Ch. 7 », • § 7.1 », « D •, « 2 • 1 Practice Under Florida Probate Code § 7.1.D.2 (2022)

2. Researching Problems Involving Elective Share Formerly, it was said that in Florida the right to dower and the manner of taking it arose wholly from probate law. Hill v. Morris, 85 So. 2d 847 (Fla. 1956). It was entirely a creature of statute. Bennett v. Bennett, 157 Fla. 627,

26 So. 2d 650 (1946). Although this statement is truer now than when it was made, the case law concerning dower will still be relied on heavily in briefs, argument, and legal advice while the elective share continues to accumulate its own wardrobe of precedent. When reviewing precedent to determine whether a court would consider a particular reported case persuasive, the cardinal rule is to read each case in the context of the dower statute applicable to the facts of that particular case. The Florida statutes pertaining to dower have undergone numerous changes over the years, so a real danger exists that the advocate may advance a case in support of a specific position without taking into account the particular statute that guided the court in rendering its opinion. Of course, the applicable current statute will be the point of embarkation in resolving any problem. The Florida Probate Rules also should be considered. Fla. Prob. R. 5.360, “Elective Share,” which was extensively amended in connection with the revised 1999 legislation, works in conjunction with that legislation. It prescribes the procedure to be followed by the personal representative or the surviving spouse in petitioning for a determination of entitlement to and the amount of the elective share. See § 7.7.

« Ch. 7 », « § 7.2 » 1 Practice Under Florida Probate Code § 7.2 (2022)

§ 7.2. CONSEQUENCES OF ELECTION « Ch. 7 », « § 7.2 », • A » 1 Practice Under Florida Probate Code § 7.2.A (2022)

A. Elective Share As Floor Under the pre-1999 elective share laws, election by the surviving spouse effectively terminated all right to inherit under the will of the deceased spouse or to participate in distribution of intestate property. After payment of the elective share, the remaining assets were distributed as though the electing spouse had predeceased the decedent. F.S. 732.211 (1998). This is not the case under the current statutes. In 2001, the legislature amended F.S. 732.2105 to delete the language which provided that, after the election, “the balance of the elective estate … shall be administered as though the surviving spouse had predeceased the decedent.” See F.S. 732.2105 (2001). Then, in 2016, F.S. 732.201 was amended to expressly provide that the electing spouse is not treated as having predeceased the decedent. Accordingly, under the current elective share laws, the effect of an election is to simply set a floor on the amount the spouse receives from the decedent’s assets. « Ch. 7 », « § 7.2 », « B » 1 Practice Under Florida Probate Code § 7.2.B (2022)

B. Surviving Spouse As Fiduciary Formerly, the widow was not precluded from acting as fiduciary or from receiving compensation for acting in that capacity by reason of her election to take dower. Murphy v. Murphy, 125 Fla. 855, 170 So. 856 (1936). The rule continues to be viable with respect to the elective share, as codified in F.S. 733.302 and 733.504(9), respectively. « Ch. 7 », « § 7.2 », « C » 1 Practice Under Florida Probate Code § 7.2.C (2022)

C. Construction Of Will Under the pre-1999 laws, the election was treated as the constructive

death of the surviving spouse. F.S. 732.211 (1998). Thus, when the surviving spouse had a lifetime interest under the will, but took the elective share, the remainders were accelerated and contingent remainders were cut off, provided this was in accord with the testator’s intention as evidenced by the provisions of the will. See Murphy v. Murphy, 125 Fla. 855, 170 So. 856 (1936); Weinstein v. Mackey, 408 So. 2d 849 (Fla. 3d DCA 1982); In re Estate of Rentz, 152 So. 2d 480 (Fla. 3d DCA 1963). Since then, it has been determined that in directing distribution of the estate after satisfaction of the elective share, the court may not “rewrite” the decedent’s will according to its notion of what the testator would or should have done. See Owens v. Estate of Davis by & through Holzauser, 930 So. 2d 873 (Fla. 2d DCA 2006) (court must apply settled rules of construction). « Ch. 7 », « § 7.2 », « D » 1 Practice Under Florida Probate Code § 7.2.D (2022)

D. Interests Of Surviving Spouse In Addition To Election In addition to the elective share, a surviving spouse is entitled to certain benefits in the estate of the deceased spouse. It might be a more accurate statement of the law to indicate that certain benefits accrue to the surviving spouse, regardless of whether an election is filed. The election will not affect the surviving spouse’s right to homestead, exempt property, or the allowances provided under Part IV of F.S. Chapter 732. F.S. 732.2105. Under current law governing descent of the homestead, if the decedent is survived by a spouse and one or more minor children, the spouse takes a life estate with a vested remainder in the children. F.S. 732.401(1). However, under F.S. 732.401(2), “[i]n lieu of a life estate under [F.S. 732.401(1)], the surviving spouse may elect to take an undivided one-half interest in the homestead as a tenant in common, with the remaining undivided one-half interest vesting in the decedent’s descendants in being at the time of the decedent’s death, per stirpes.” Under F.S. 732.401(2)(a), this right of election may be exercised by the surviving spouse, or with court approval, “by an attorney in fact or guardian of the property of the surviving spouse.” However, “[t]he election must be made within 6 months after the decedent’s death and during the surviving spouse’s lifetime,” and, once made, is irrevocable. F.S. 732.401(2)(b), (2)(d). F.S. 732.401(3) provides for allocation of expenses relating to ownership of the homestead under the

foregoing provisions, and F.S. 732.401(4) provides that if a surviving spouse’s life estate created under F.S. 732.401(1) is disclaimed pursuant to F.S. Chapter 739, “the interests of the decedent’s descendants may not be divested.” Currently, homestead is not “subject to devise if the owner is survived by a spouse or a minor child or minor children,” but if the decedent leaves a spouse and no minor children, the decedent may devise the property outright to the surviving spouse. F.S. 732.4015(1). F.S. 732.4015(3) provides, “[i]f an interest in homestead has been devised to the surviving spouse as authorized by law and the constitution, and the surviving spouse’s interest is disclaimed, the disclaimed interest shall pass in accordance with chapter 739.” Under F.S. Chapter 739, disclaimed interest passes according to any provision in the instrument creating the interest providing explicitly for its disposition in the event it is disclaimed or, in the absence of such provision, as if the disclaimant died immediately before the interest was created or the time for distribution if the disclaimed interest is contingent on surviving to the time of distribution. See F.S. 739.201. However, when the decedent is survived by a spouse and one or more adult children, the property may not be devised by leaving less than the decedent’s entire interest to the surviving spouse. In re Estate of Finch, 401 So. 2d 1308 (Fla. 1981). The surviving spouse of a Florida domiciliary is also entitled to “exempt property” (i.e., property exempt from claims against the estate under F.S. 732.402(3)), which comprises “[h]ousehold furniture, furnishings, and appliances in the decedent’s usual place of abode up to a net value of $20,000 as of the date of death,” F.S. 732.402(2)(a); “[t]wo motor vehicles as defined in [F.S.] 316.003, which do not, individually as to either such motor vehicle, have a gross vehicle weight in excess of 15,000 pounds, held in the decedent’s name and regularly used by the decedent or members of the decedent’s immediate family as their personal motor vehicles,” F.S. 732.402(2)(b); prepaid college contracts and savings agreements, F.S. 732.402(2)(c); and all death benefits paid under F.S. 112.1915, F.S. 732.402(2)(d).

With one exception, any property “specifically or demonstratively devised by the decedent’s will” is excluded from exempt property. F.S. 732.402(5). The exception is that “persons to whom property has been specifically or demonstratively devised and who otherwise would be entitled to it as exempt property,” may ask the court to “determine the property to be exempt from claims” (except for claims based on perfected security interests). Id. Exempt property is exempt from all claims against the estate other than claims based on “perfected security interests” on specific items. F.S. 732.402(3). The petition for determination of exempt property must be filed “on or before the later of the date that is four months after the date of service of notice of administration or the date that is 40 days after the date of termination of any proceeding involving the construction, admission to probate, or validity of the will or involving any other matter affecting any part of the estate” that is exempt property. F.S. 732.402(6). In the absence of a surviving spouse, exempt property may be claimed by the surviving child or children of the decedent. F.S. 732.402(1). Exempt property is “excluded from the value of the estate before residuary, intestate, pretermitted, or elective shares are determined.” F.S. 732.402(7). In addition to homestead and exempt property, the surviving spouse and the decedent’s lineal heirs whom the decedent was obligated to support, or who were in fact being supported by the decedent, are entitled to a reasonable family allowance not to exceed $18,000, payable as a lump sum or in periodic installments for their maintenance during administration. F.S. 732.403. The allowance is paid to the surviving spouse, if living, and, if not, to the lineal heirs or to the persons having their care and custody. The death of any person entitled to a family allowance terminates that person’s right to the unpaid portion. The family allowance does not reduce the amount of the elective share, unless the decedent’s will provides otherwise. Id. If property is acquired as, or becomes and remains, community property under the laws of another state, or if property subject to the Florida Uniform Disposition of Community Property Rights at Death Act, F.S. 732.216– 732.228, is involved, one half of the community property belongs to the surviving spouse and is not subject to testamentary disposition by the decedent. F.S. 732.219. The decedent’s remaining half of the community

property is not included in the elective estate. Id. The type of property that is subject to the Act is set out in F.S. 732.217. In addition, rights accruing to a surviving spouse by contract (for example, the right to insurance proceeds) or by operation of law (such as real property held with the decedent as tenants by the entireties) cannot be affected or diminished by making the election to take against the estate of the deceased spouse. However, under the current elective share laws, that type of property may be included in the elective estate and may be used to satisfy the elective share. « Ch. 7 », « § 7.2 », « E • 1 Practice Under Florida Probate Code § 7.2.E (2022)

E. Tax Consequences « Ch. 7 », « § 7.2 », « E •, • 1 » 1 Practice Under Florida Probate Code § 7.2.E.1 (2022)

1. In General For estates of decedents dying before October 2001, if the election results in an increase in estate, inheritance, or other taxes, the additional tax is borne by the surviving spouse. F.S. 732.215 (1998). This responsibility for any additional tax occasioned by the election was in addition to the surviving spouse’s responsibility for the elective share’s proportional share of the estate tax to the extent the estate was not entitled to a marital deduction on the spouse’s elective share. See Boulis v. Blackburn, 16 So. 3d 186 (Fla. 4th DCA 2009). In other words, not only did the spouse have to pay the proportional share of any estate taxes under the apportionment statutes, but also the amount of any additional taxes that were incurred as a result of the election. The language in F.S. 732.215 was not carried forward into the current statutory scheme. The generation of additional tax from an election rarely arose under the marital deduction provision as it existed before the Economic Recovery Tax Act of 1981, Pub. L. No. 97-34, 95 Stat. 172. However, it arises more frequently now. Indeed, the election often may be exercised for the sole purpose of saving estate taxes. Nevertheless, estate taxes could be increased under certain circumstances

because of an election. For example, with the availability of the unlimited marital deduction and the qualified terminable interest property (QTIP) trust (see IRC § 2056), it is possible that decedents will place the bulk of their estates in such trusts, thereby eliminating any federal estate taxes. The election, however, would reduce the marital deduction from conceivably 100% of the estate to 30% of the probate estate with an attendant substantial acceleration of estate taxes. That was the case in Tarbox v. Palmer, 564 So. 2d 1106 (Fla. 4th DCA 1990), in which the surviving spouse chose to take her statutory elective share instead of beneficial interests in a QTIP trust of virtually all of the decedent’s assets. The result was the acceleration of the interest of the residuary beneficiaries and the imposition of estate taxes that otherwise would have been deferred until the surviving spouse’s death. In the absence of the election, everything in the decedent’s estate would have qualified for the marital deduction. The court followed the rationale enunciated in Priv. Ltr. Rul. 8227080, and held that the estate taxes then due should be ratably shared among the residuary beneficiaries in accordance with the intent of the Florida tax apportionment statute, which excluded any exempt or initially deductible property from the measure of tax. In reaching its decision, the Tarbox court emphasized that the surviving spouse’s decision to take her elective share did not increase taxes, but rather merely accelerated the date on which those taxes would become due. « Ch. 7 », « § 7.2 », « E •, « 2 » 1 Practice Under Florida Probate Code § 7.2.E.2 (2022)

2. Marital Deduction The elective share qualifies for the marital deduction under IRC § 2056, which will reduce the value of the taxable estate for purposes of the estate and gift tax. Rev. Rul. 72-8, 1972-1 C.B. 309. A real problem was frequently encountered when the widow’s right to claim dower was contested (for example, by reason of an antenuptial agreement) and the parties later desired to settle the case and let the widow take her dower interest or certain assets in lieu of dower. The problem was created by the rule that an interest in property passing by reason of a disclaimer by one other than the widow was not treated, for estate tax purposes, as having passed from the decedent. Thus, even though dower litigation was settled, it was necessary to obtain an order allotting dower so that the Internal Revenue Service (IRS) would accept the contention that the interest passed from the decedent to his spouse, rather

than passing to the widow from the other participants in the litigation. This problem was solved in part by the enactment of the Technical Amendments Act of 1966, Pub. L. No. 89-621, 80 Stat. 872, codified as IRC § 2056(d)(2), on October 4, 1966, which provided that, as to estates of decedents dying on or after that date, an interest in the decedent’s property disclaimed by a third person in favor of the surviving spouse would be considered to pass from the decedent to the surviving spouse so that its value qualified for the marital deduction. A disclaimer had to occur after the death of the decedent and before any acceptance, and before the due date for the filing of the estate tax return. Most important, however, the disclaimer had to be given without consideration. The Tax Reform Act of 1976, Pub. L. No. 94-455, 90 Stat. 1520, repealed IRC § 2056(d) as it applies to transfers made after December 31, 1976, that create an interest in the person disclaiming. That section has been replaced by the general disclaimer provisions now found in IRC §§ 2046 and 2518 that apply to all disclaimers, including those for marital deduction purposes. IRC § 2518 prescribes the uniform treatment of disclaimers in terms of a “qualified disclaimer,” which is defined as an irrevocable and unqualified written refusal to accept an interest in property. For federal estate tax purposes, a qualified disclaimer must be executed before acceptance, without any consideration, and must be delivered to the decedent’s personal representative within nine months after the date of death. The mere filing of an election to take the elective share is not an act consistent with ownership; therefore, a qualified disclaimer of all or part of the ultimately determined amount is available. Priv. Ltr. Rul. 8817061. According to the Conference Committee Report on Pub. L. No. 94-455, a disclaimer under IRC § 2518 is to be taken into account for purposes of the marital deduction. Furthermore, IRC § 2056(c)(3) provides in part that an interest in property must be considered as passing from the decedent to any person if, and only if, “such interest is the dower or curtesy interest (or statutory interest in lieu thereof) of such person as surviving spouse of the decedent.” A transfer of the elective share to an irrevocable trust or to persons other than the surviving spouse qualifies for the marital deduction under IRC § 2056 as long as the surviving spouse is under no obligation to transfer the property to a third party. Priv. Ltr. Rul. 8830040. The right of disclaimer is specifically provided for in F.S. Chapter 739.

However, there is no mention of the elective share, because no right vests in the surviving spouse until the election is timely filed. A waiver under F.S. 732.702 would in effect accomplish the same result. In computing the marital deduction in the context of settlements of elective share litigation, the value of any postdeath appreciation in the assets that may pass to the surviving spouse under the settlement agreement does not qualify for the marital deduction, even if applicable state law would value the elective share as of the date of distribution (thus including the appreciated value) and not as of the date of death. Federal law controls and requires that the marital deduction be based on the property values as of the decedent’s date of death. Estate of Agnello v. Commissioner, 103 T.C. 605 (1994). « Ch. 7 », « § 7.2 », « E •, « 3 • 1 Practice Under Florida Probate Code § 7.2.E.3 (2022)

3. Income Tax The primary income tax question regarding the elective share is whether it carries out distributable net income (DNI) to the surviving spouse when distribution is made. IRC §§ 661 and 662 treat certain distributions made by an estate as distributions of income to the extent the estate has taxable income for the current taxable year. In such cases, the estate receives a distribution deduction equal to the fair market value of the property on the date of distribution, and the respective beneficiary must include a pro rata portion of the estate’s DNI in his or her taxable income. Under IRC § 663, a specific devise that is distributed under the terms of a governing instrument does not carry out DNI. There was disagreement within the legal community and in reported decisions as to whether the elective share carried out DNI. See, e.g., Brigham v. United States, 160 F.3d 759 (1st Cir. 1998) (elective share did carry out DNI); Deutsch v. Commissioner, ¶ 97,470 T.C.M. (RIA), 74 T.C.M. (CCH) 935 (1997) (same). See Hart, Electing Against the Will—The DNI Problem for Spousal Shares, 88 J. Tax’n 164 (March 1998), arguing that the elective share would qualify for separate share treatment preventing the entire income tax burden from falling on the spouse. In 2000, the Treasury Regulations were amended to clarify this issue. Treas. Reg. § 1.663(c)-5, Ex. 7, provides that the elective share does not carry out DNI. Thus, at least as to the surviving spouse, the distribution of the elective share is an income-tax-

neutral event.

« Ch. 7 », « § 7.3 » 1 Practice Under Florida Probate Code § 7.3 (2022)

§ 7.3. PRIORITY OF ELECTIVE SHARE « Ch. 7 », « § 7.3 », • A » 1 Practice Under Florida Probate Code § 7.3.A (2022)

A. Debts And Administration Expenses Entitled To Priority The elective share is payable after all other claims, unlike former F.S. 731.34, which provided that the widow’s dower interest took priority over and passed free from all debts of the decedent and all costs and charges of administration. In fact, the elective share is not even listed in F.S. 733.707, which establishes the priority for payment of claims and expenses. This appears to lead to the conclusion that those claims and expenses listed in F.S. 733.707 come before and take priority over the elective share. « Ch. 7 », « § 7.3 », « B • 1 Practice Under Florida Probate Code § 7.3.B (2022)

B. Contracts To Make A Will Before 1995, there was a conflict among Florida courts as to whether the decedent’s liability on a contract to make a will or devise would reduce the elective share. In Johnson v. Girtman, 542 So. 2d 1033 (Fla. 3d DCA 1989), the District Court of Appeal, Third District, dealt with an “Agreement to Keep Will in Force,” which conferred benefits on third-party beneficiaries and which the court found to be valid and enforceable. The court held that the agreement constituted a valid claim against the decedent’s estate that had to be satisfied before determining the husband’s elective share. Several years later, in Putnam v. Via, 638 So. 2d 981 (Fla. 2d DCA 1994), the Second District dealt with a similar controversy, involving mutual wills. The court held that a surviving spouse’s elective share or pretermitted share (i.e., share of testate estate provided by law to spouse after making of will and to children born or adopted after making of will) had priority over rights arising under such contracts entered into by the deceased spouse, acknowledging the conflict with the Third District in Johnson. In Putnam, the

decedent had executed a mutual will with his first wife obligating him to leave his residuary estate to his first wife if she survived and, if not, then to his five children and stepson. The first wife died, the decedent remarried, and at his death the second wife claimed a share against the estate as a pretermitted (omitted) spouse. In holding that the second wife was entitled to her pretermitted share despite the obligations created under the mutual will, the Putnam court explained that contractual rights of beneficiaries are limited by Florida’s strong public policy in favor of protecting the surviving spouse’s right to receive an elective share or pretermitted share. The Johnson-Putnam conflict was resolved by the Florida Supreme Court in Via v. Putnam, 656 So. 2d 460 (Fla. 1995). The court held that the children, as third-party beneficiaries under mutual wills of their parents, should not be given creditor status under F.S. 733.707 when their interests contravene the interests of the surviving spouse under the pretermitted spouse statute, F.S. 732.301. In so holding, the court reasoned that there is a public policy of protecting the surviving spouse of the marriage contract in existence at the time of the decedent’s death. … [W]e have no authority to judicially modify the public policy protecting a surviving spouse’s interest in the deceased spouse’s estate by adopting this creditortheory approach as an exception to the pretermitted spouse statute. Via, 656 So. 2d at 466. The Via decision was subsequently cited with approval in In re Estate of Tensfeldt, 839 So. 2d 720 (Fla. 2d DCA 2003), in which the court reaffirmed that a third-party beneficiary under a contract to make a will does not take precedence over the elective share. The effect of the Via decision can be extremely harsh and unjust in a situation in which independent consideration is given for the contract. For example, a person might enter into an enforceable contract to make a will whereby the promisee agrees to provide services to the promisor for the life of the promisor in exchange for the promisor’s property upon the death of the promisor. Then, after years of performing the services, the promisor remarries. The contract promisee may be left with nothing after the surviving spouse gets his or her share. Although the Via decision expressly disapproved of Johnson, it is important to note that the plaintiffs in Johnson were third-party beneficiaries

of a contract to make a devise that required the promisor to make a devise of his interest in certain real property to his children. The contract was entered into as consideration for a lifetime transfer of the property to the promisor. Thus, unlike Via, which simply involved mutual promises to make a will, Johnson involved a situation in which independent consideration was given for the contract to make a will. It could be argued that Johnson is still good law and that Via applies only to a contract to make a will when there is no independent consideration given for the transfer. This would be similar to the dichotomy that currently exists under Florida law with respect to whether a contract to make a will may be revoked unilaterally by a promisor. Compare Boyle v. Schmitt, 602 So. 2d 665 (Fla. 3d DCA 1992) (promisor under contract to make will may effectively repudiate contract and free himself or herself of obligations under contract by unequivocally communicating repudiation during his or her lifetime to other promisor and third-party beneficiary), with Kelsey v. Pewthers, 685 So. 2d 953 (Fla. 4th DCA 1997) (court refused to allow promisor to repudiate contract to make will without further liability when independent consideration was given for contract other than mere mutual promise to make will). In light of the strong public policy pronouncements in Via, it remains to be seen whether the district courts would be willing to read an exception into the Via case. Some difficulty may be encountered with the term “claims paid or payable” found in F.S. 732.2055(6)(a). For example, if the personal representative pays a claim, may the surviving spouse nevertheless contest its validity? F.S. 733.705(2) provides that a personal representative or other interested person may file a written objection to any claim. Consequently, the elective share conceivably might consist of the entire estate after payment of a large claim found to be “invalid” for purposes of computing the elective share.

« Ch. 7 », « § 7.4 » 1 Practice Under Florida Probate Code § 7.4 (2022)

§ 7.4. TRUSTS FOR SURVIVING SPOUSE « Ch. 7 », « § 7.4 », • A » 1 Practice Under Florida Probate Code § 7.4.A (2022)

A. Elective Share Trusts One of the goals of the Augmented Share Committee that drafted the 1999 legislation (see § 7.1.B) was to allow a decedent the flexibility to plan for the elective share. One of the ways this goal was accomplished was by introducing the concept of the “elective share trust.” An elective share trust is defined as any trust under which (a) The surviving spouse is entitled for life to the use of the property or to all of the income payable at least as often as annually; (b) The surviving spouse has the right under the terms of the trust or state law to require the trustee either to make the property productive or to convert it within a reasonable time; and (c) During the spouse’s life, no person other than the spouse has the power to distribute income or principal to anyone other than the spouse. F.S. 732.2025(2). The term “income” as used in the definition of an elective share trust has the same meaning as that provided in IRC § 643(b) and the regulations adopted under that section. F.S. 732.2025(2). Most lawyers will recognize the requirements of an elective share trust as being similar to those for an inter vivos or lifetime marital trust (also known as a Qualified Terminable Interest Property or QTIP) trust in the Internal Revenue Code. It is important to note, however, that there is no requirement that the elective share trust qualify for the QTIP election or that a QTIP election be made on the trust. In Janien v. Janien, 939 So. 2d 264, 266 (Fla. 4th DCA 2006), the District Court of Appeal, Fourth District, addressed the issue of whether a trust that gave a spouse the right to “exclusively live in and occupy” a residence for life met the definition of an “elective share trust.” In Janien, the

decedent devised her interest in her home in Massachusetts, which was held in a nominee trust, as follows: “I devise and bequeath my beneficial interest in the North Chatham Realty Trust, together with all furniture, fixtures, antiques and other items of personal property in said residence, to my Trustee, with the right in my husband to exclusively live in and occupy such residence for the period of his life and provided he is financially able to do so, he shall be responsible for all maintenance charges and taxes assessed against the residence during his lifetime. If he does not have the financial ability to pay such expenses and taxes, … my Trustee is authorized and is directed to mortgage the premises for the purpose of paying such maintenance charges and taxes.” Id. The district court held that this language did not create an elective share trust, because the surviving spouse was not “entitled … to the ‘use’ of the property within the meaning of the statute, nor to ‘income’ derived from the property.” Id. at 267, citing F.S. 732.2025(2)(a). Furthermore, and of equal importance, the court noted that the spouse did not have a right to compel the trustee to make the property productive. As reflected in the Janien decision, it is important to make sure that the proposed trust meets each prong of the definition of an elective share trust under F.S. 732.2025. The benefit of creating and funding an elective share trust is that it provides a decedent with some certainty with respect to satisfaction of the elective share. (All of the assets of an elective share trust are still included in the elective estate for purposes of computing the amount of the elective share.) If the surviving spouse has a mandatory income interest in an elective share trust and nothing more, 50% of the value of the property of the trust is counted toward satisfaction of the elective share. F.S. 732.2095(2)(d)3. In other words, if the trust property has a date of death value of $100,000, $50,000 is counted toward satisfaction of the elective share. In a case in which the bulk of the decedent’s elective estate consists of assets held in an elective share trust (or that pour into an elective share trust under the decedent’s will), this should more than satisfy the entire elective share.

If the elective share trust also includes a qualifying invasion power, 80% of the value of the trust property is counted toward satisfaction of the elective share. F.S. 732.2095(2)(d)2. A “qualifying invasion power” is defined as a discretionary power “held by the surviving spouse or the trustee” to invade the principal of the trust “for the health, support, and maintenance of the spouse.” F.S. 732.2095(1)(c). If the elective share trust includes a qualifying invasion power and a qualifying power of appointment (a general power of appointment that only the surviving spouse may exercise), 100% of the value of the trust is charged against the spouse’s elective share. F.S. 732.2095(1) (b), (2)(d)1. The statutes contain safeguards to prevent the surviving spouse from avoiding the decedent’s predeath elective share planning. For example, a spouse cannot avoid taking the elective share through an elective share trust by simply disclaiming the interest. F.S. 732.2075(1)(f) provides that property disclaimed by the spouse counts directly toward the satisfaction of the elective share. In Dinkins v. Dinkins, 120 So. 3d 601 (Fla. 5th DCA 2013), the Fifth District agreed with the lower court, holding that a provision in the decedent’s trust that bequeathed $5 million to his wife if she disclaimed her interest in a QTIP trust and waived her right to her elective share of his estate was not an invalid penalty clause. The court stated: [A] beneficiary cannot be forced to choose between the right to contest an instrument and the right to take under it, and this public policy is codified in [F.S.] 736.1108(1) and its probate analogue, [F.S.] 732.517. On the other hand, under a clause providing an alternative to a statutory minimum benefit, to receive the alternative devise, the beneficiary must forfeit the right to receive the statutory benefit. The purpose of the statutory minimum benefits is generally to ensure that surviving family members are provided for and do not become dependent on the public treasury, regardless of the decedent’s interest. … This purpose is not thwarted by providing an optional alternative devise, because the beneficiary is free to reject it for any reason, including that it is less valuable than the statutory benefit. The purpose of the statutory benefit is satisfied, because the beneficiary has the ability to choose an option at least as valuable as the statutory minimum. Therefore, unlike a no contest

clause, an alternative devise clause does not undermine the purpose of the legal right forfeited, and thus does not penalize the beneficiary for purposes of [F.S.] 736.1108(1). Id. at 603. « Ch. 7 », « § 7.4 », « B • 1 Practice Under Florida Probate Code § 7.4.B (2022)

B. Qualifying Special Needs Trusts Under the pre-1999 elective share laws, a decedent could prevent a surviving spouse’s rights to an elective share from affecting Medicaid benefits by transferring assets to a revocable trust. If the assets were part of a revocable trust, they would not affect the surviving spouse’s right to Medicaid benefits, because the surviving spouse would not have the right to elect against them. Under the current elective share laws, the assets of a revocable trust are subject to the elective share. Therefore, the mere transfer of assets to a revocable trust will no longer place assets beyond the reach of the surviving spouse for purposes of Medicaid planning. The Florida Legislature addressed this concern by introducing the concept of a “qualifying special needs trust” (alternatively referred to as a “supplemental needs trust”). A “qualifying special needs trust” is defined as a trust established for a disabled surviving spouse with court approval before or after a decedent’s death, if, commencing on the decedent’s death: (a) The income and principal are distributable to or for the benefit of the spouse for life in the discretion of one or more trustees less than half of whom are ineligible family trustees. … [I]neligible family trustees include the decedent’s grandparents and any descendants of the decedent’s grandparents who are not also descendants of the surviving spouse; and (b) During the spouse’s life, no person other than the spouse has the power to distribute income or principal to anyone other than the spouse. F.S. 732.2025(8).

The requirement for court approval does not apply if the aggregate trust property in all qualifying special needs trusts for the surviving spouse is less than $100,000. Id. Assets “held in a qualifying special needs trust on the date of the decedent’s death” will not be included in the elective estate. F.S. 732.2045(1) (g). In addition, the value of the assets held in a qualifying special needs trust are counted 100% toward the satisfaction of the elective share. F.S. 732.2075(1)(e), 732.2095(2)(e). For an excellent discussion of the Augmented Share Committee’s rationale underlying the concept of the qualifying special needs trust, see Powell, Florida Gets a New Elective Share Law (on file with the authors). The practitioner should note that the statute permits a qualifying special needs trust to be established before or after the decedent’s death. F.S. 732.2025(8). However, if the trust is established after the decedent’s death, the two-fold planning benefit of the statute is not available. Property transferred to a qualifying special needs trust after the decedent’s death will not be excluded from the elective estate, but will count 100% toward satisfaction of the elective share. See F.S. 732.2045(1)(g), 732.2095(2)(e). The current laws are silent on the procedure for obtaining court approval of the qualifying special needs trust and on the grounds upon which a court may approve or reject the formation of the trust.

« Ch. 7 », « § 7.5 » 1 Practice Under Florida Probate Code § 7.5 (2022)

§ 7.5. COMPUTATION OF THE ELECTIVE SHARE « Ch. 7 », « § 7.5 », • A » 1 Practice Under Florida Probate Code § 7.5.A (2022)

A. Property Included In Elective Estate « Ch. 7 », « § 7.5 », • A », • 1 » 1 Practice Under Florida Probate Code § 7.5.A.1 (2022)

1. Background F.S. 732.2035 contains the most significant revisions to the pre-1999 elective share laws. This statute establishes the concept of an “elective estate” and substantially broadens the amount and types of property subject to the elective share. It defines nine categories of property that are included in determining the value of the elective share. These categories are discussed in detail in §§ 7.5.A.2–7.5.A.11. Under the pre-1999 elective share laws, property, wherever located, that was subject to probate administration, with the exception of property located outside of Florida, was taken into account in computing the amount of the elective share. F.S. 732.206 (1998). Another way of stating the general rule (again noting the exception) is that any property that passed under the will or by the laws of intestate succession was taken into account. Id. Implicit in the general rule were exceptions for property passing by operation of law (other than intestacy), by contract, or by trust outside of the probate estate. Accordingly, a joint savings account with right of survivorship in the name of the decedent and one or more of the decedent’s children would not enter into the computation of the elective share under the pre-1999 legislation. In re Estate of Solnik, 401 So. 2d 896 (Fla. 4th DCA 1981). Similarly, property that was validly conveyed by a decedent who reserved a life estate in the property was not subject to administration and avoided the elective share under the pre-1999 legislation. Kelley v. Hill, 481 So. 2d 1311 (Fla. 2d DCA 1986). Completed inter vivos transfers by a spouse that

reduced that spouse’s estate, even if made with intent to reduce or eliminate the surviving spouse’s elective share, did not constitute a “fraud” on the surviving spouse and could not be set aside to increase the amount of the elective share. Traub v. Zlatkiss, 559 So. 2d 443 (Fla. 5th DCA 1990). Likewise, a surviving spouse had no elective share rights against assets in an inter vivos revocable trust. Faile v. Fleming, 763 So. 2d 459 (Fla. 4th DCA 2000); Friedberg v. SunBank/Miami, N.A., 648 So. 2d 204 (Fla. 3d DCA 1995); see also Estate of Heid v. Heid, 863 So. 2d 1259 (Fla. 5th DCA 2004) (confirming that surviving spouse of decedent dying before October 2001 has no right to elect against assets held in revocable trust). This changed significantly for decedents dying on or after October 1, 2001. « Ch. 7 », « § 7.5 », • A », « 2 » 1 Practice Under Florida Probate Code § 7.5.A.2 (2022)

2. The Probate Estate The elective estate includes the decedent’s “probate estate,” F.S. 732.2035(1), which is defined as “all property wherever located that is subject to estate administration in any state of the United States or in the District of Columbia,” F.S. 732.2025(7). The definition of probate estate is broader than pre-1999 law in that the elective share now reaches real property subject to administration in states other than Florida. The probate estate is valued according to the “fair market value of the property on the date of the decedent’s death,” less mortgages, liens, security interests, and any other claims payable from the elective estate. F.S. 732.2055(6). The elective share statutes do not subtract out administration expenses in valuing the elective estate. See F.S. 732.2055(6); Blackburn v. Boulis, 184 So. 3d 565 (Fla. 4th DCA 2016) (proportionate share of attorneys’ fees incurred litigating claims against estate could not be deducted from value of elective estate, because such expenses were not among expenses or costs delineated by statute, which were: claims paid or payable from estate, and mortgages, liens, and security interest on assets). « Ch. 7 », « § 7.5 », • A », « 3 » 1 Practice Under Florida Probate Code § 7.5.A.3 (2022)

3. Protected Homestead For decedents dying on or after July 1, 2017, the elective estate includes

the decedent’s interest in protected homestead, a significant departure from the prior law that excluded the protected homestead from the elective estate for decedents dying before July 2017. See Ch. 2017-121, Laws of Fla. F.S. 732.2035(2) provides that, for decedents dying on or after July 1, 2017, the decedent’s interest in protected homestead is included in the elective estate unless the surviving spouse validly waived his or her homestead rights and did not receive any interest in the protected homestead upon the decedent’s death. See F.S. 732.2045(1)(i). The value of the protected homestead, for this purpose, if the surviving spouse receives a fee simple interest, is the fair market value of the protected homestead on the date of the decedent’s death. F.S. 732.2055(1)(a)1. If the spouse takes a life estate or validly elects to take an undivided one-half interest as a tenant in common, the value of the protected homestead is one-half of the fair market value of the protected homestead on the date of the decedent’s death. F.S. 732.2055(1)(a)2. Fair market value is calculated by deducting from the total value of the property all mortgages, liens, and security interest to which the protected homestead is subject and for which the decedent is liable, but only to the extent that such amount is not otherwise deducted as a claim paid or payable from the elective estate. F.S. 732.2055(1)(b). « Ch. 7 », « § 7.5 », • A », « 4 » 1 Practice Under Florida Probate Code § 7.5.A.4 (2022)

4. Joint Bank Accounts, Pay-On-Death Accounts, Totten Trusts, And Similar Arrangements The elective estate includes the decedent’s ownership interest in accounts or securities registered in co-ownership with right of survivorship, “Pay On Death,” “Transfer On Death,” and Totten trust form. F.S. 732.2035(3). F.S. 732.2035(3) provides that the value of the decedent’s ownership interest in the portion of accounts or securities held in tenancy by the entireties is “one-half of the value of the account or security.” In all other cases, the value of the decedent’s ownership interest means that portion of the account that the decedent had the power to access immediately before death, without having to account to another person. Id. The issue of valuation of the joint accounts for elective share purposes could turn out to be quite tricky and could reopen the Pandora’s box of joint

account litigation of the 1980s and 1990s. As many lawyers will recall, the area of rights with respect to joint accounts had been a hotbed for litigation in Florida for a number of years. Most of this litigation centered around “convenience accounts” and the application of Florida banking statutes that provided that certain joint accounts were presumed to pass by right of survivorship to the surviving joint tenant. For an excellent discussion of this litigation, as well as the rights and powers of parties to multiple-party accounts, see LITIGATION UNDER FLORIDA PROBATE CODE Chapter 5 (Fla. Bar 13th ed. 2022). In 1992, the Florida Legislature enacted F.S. 655.79, which provides that all accounts in joint names must be presumed to pass to the survivors upon the death of one of the joint tenants. This legislation was intended to and did in fact resolve most of the disputes with respect to the disposition of the proceeds of joint accounts upon the death of a joint tenant. Unfortunately, it will be of little assistance in valuing a joint account for elective share purposes. For elective share purposes, joint accounts other than tenancy by the entireties accounts are valued based on the decedent’s rights and powers to withdraw funds during his or her lifetime. The presumptions under F.S. 655.79 arise only upon the death of a joint tenant and have no application during the lives of the parties. Other joint account statutes are primarily designed to regulate and protect financial institutions and are not conclusive of the ownership rights. See, e.g., F.S. 655.78(1) (providing that, absent agreement to the contrary, institution may pay money held in joint account to any of joint tenants). It has been noted that such statutes do not determine ownership of the funds, but rather establish the person to whom an institution may make payment without liability. Jones v. Barnett Bank of Volusia County, 670 So. 2d 1195 (Fla. 5th DCA 1996). Thus, a lawyer faced with valuing a joint account for elective share purposes must resort to existing case law regarding the rights of joint tenants to withdraw funds during the lives of the cotenants. In undertaking this analysis, the lawyer should begin with the general proposition set forth by Fletcher Belcher in Chapter 5, “Jointly Held Assets,” LITIGATION UNDER FLORIDA PROBATE CODE, supra, at § 5.4.A.3: It is fundamental that, before the death of the depositor of a multiple-

party account and the operation of any right of survivorship, a party cannot have an ownership interest in the account unless that party contributed in some manner to the account or was the donee of a completed present gift of an interest in the account from the depositor. From a conflict of law standpoint, the law of the state or country where the account is held should control in determining the extent of the decedent’s rights and powers with respect to the account during lifetime. « Ch. 7 », « § 7.5 », • A », « 5 » 1 Practice Under Florida Probate Code § 7.5.A.5 (2022)

5. Property Held In Joint Tenancy And Tenancy By Entireties (Other Than Accounts And Securities) The elective estate includes “[t]he decedent’s fractional interest in any property,” including both real and personal property, held in joint tenancy with right of survivorship and property held in tenancy by the entireties, with certain exceptions noted in the statute. F.S. 732.2035(4). The amount included in the elective estate is the value of the property divided by the number of tenants. Id. « Ch. 7 », « § 7.5 », • A », « 6 » 1 Practice Under Florida Probate Code § 7.5.A.6 (2022)

6. Revocable Trusts (And Other Revocable Transfers) The elective estate includes property held in a revocable trust at the time of the decedent’s death. F.S. 732.2035(5) provides that the elective estate includes any property transferred by the decedent “to the extent that at the time of the decedent’s death the transfer was revocable by the decedent alone or in conjunction with any other person.” This directly abrogates prior Florida case law holding that revocable trusts are not subject to the elective share. See Friedberg v. SunBank/Miami, N.A., 648 So. 2d 204 (Fla. 3d DCA 1995) (surviving spouse has no elective share rights against inter vivos revocable trust). The practitioner should note that transfers to revocable “elective share trusts” would be included in the elective estate under F.S. 732.2035(5). For a discussion of elective share trusts, see § 7.4.A. The practitioner should note, however, that assets held in a revocable or irrevocable trust are not subject to the elective share if

(a) The property was an asset of the trust at all times between October 1, 1999, and the date of the decedent’s death; (b) The decedent was not married to the decedent’s surviving spouse when the property was transferred to the trust; and (c) The property was a nonmarital asset as defined in [F.S.] 61.075 immediately prior to the decedent’s death. F.S. 732.2155(6). Whether the property is a nonmarital or marital asset under F.S. 732.2155(6) is governed by the definitions in F.S. 61.075(6). See McDonald v. Johnson, 83 So. 3d 889 (Fla. 2d DCA 2012). Under F.S. 61.075(6)(b), any “enhancement in value and appreciation of nonmarital assets resulting … from the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds or other forms of marital assets, or both,” is a marital asset and, thus, would not be excluded from the elective share. A spouse is entitled to take discovery on the enhancement or appreciation in value of nonmarital assets. Id. « Ch. 7 », « § 7.5 », • A », « 7 » 1 Practice Under Florida Probate Code § 7.5.A.7 (2022)

7. Irrevocable Transfers By Decedent « Ch. 7 », « § 7.5 », • A », « 7 », • a » 1 Practice Under Florida Probate Code § 7.5.A.7.a (2022)

a. Transfers With Retained Right To Income Or Principal Irrevocable transfers by the decedent are included in the elective estate if, at the time of death, the decedent retained “the right to, or in fact enjoyed the possession or use of, the income or principal of the property.” F.S. 732.2035(6)(a)1. An example of property included in the elective estate under the statute would be an irrevocable trust established by a decedent with a retained right to income. For planning purposes, the right to “possession or use” would also include a transfer to a qualified personal residence trust as long as the decedent retained the right to occupy the premises. The practitioner should note that F.S. 732.2035(6)(a)1 applies only to transfers in which the decedent retained an interest. It does not reach an income or principal interest in a trust created by another person. A decedent’s right to receive payment from a commercial or private

annuity or similar arrangement is also included under this provision. F.S. 732.2035(6)(a). The amount included is “the value of the portion of the property to which the decedent’s right or enjoyment related, to the extent [it passed] to or for the benefit of [a] person other than the decedent’s probate estate.” F.S. 732.2035(6)(b)1. As explained in § 7.5.A.6, assets held in an irrevocable trust are not subject to the elective share if certain conditions are met. F.S. 732.2155(6). « Ch. 7 », « § 7.5 », • A », « 7 », « b » 1 Practice Under Florida Probate Code § 7.5.A.7.b (2022)

b. Transfers With Retained Right To Discretionary Principal Distributions A second class of irrevocable transfers included in the elective estate are irrevocable transfers in which the decedent retained the right to discretionary distributions of principal. To be included, the right to make discretionary distributions must reside with someone other than the decedent’s spouse. F.S. 732.2035(6)(a). The practitioner should note that a retained right to discretionary income (as opposed to principal) will not cause an irrevocable transfer to be included as part of the elective estate. The amount included is the value of the portion of the property that “passed to or for the benefit of any person other than the decedent’s probate estate.” F.S. 732.2035(5)(b)2. « Ch. 7 », « § 7.5 », • A », « 7 », « c • 1 Practice Under Florida Probate Code § 7.5.A.7.c (2022)

c. Irrevocable Transfers Not Subject To Elective Share There are several safe harbors or categories of retained interests that do not subject an irrevocable transfer to the elective share. A transfer will not be subject to the elective share if the decedent merely retained the right to distributions with the consent of all persons having a beneficial interest in the property; by a person with a general power of appointment; to satisfy the decedent’s obligation of support; or

contingent on factors beyond the control of the decedent, and that had not occurred at the time of the decedent’s death. F.S. 732.2035(6)(c). A transfer within these safe harbors may still be included in the elective estate under another statute. For example, some gifts made within one year of death are included in the elective estate. See § 7.5.A.10.a. « Ch. 7 », « § 7.5 », • A », « 8 » 1 Practice Under Florida Probate Code § 7.5.A.8 (2022)

8. Life Insurance Policies In adopting an augmented estate concept, the Florida Legislature chose a middle ground when it came to life insurance. The legislature could have followed the concepts in the Internal Revenue Code and included in the elective estate the net proceeds payable from life insurance policies in which the decedent had an ownership interest. IRC § 2042. Instead, the legislature chose to include life insurance in the elective estate only to the extent that the decedent possessed a “beneficial interest in the net cash surrender value [of the policy] immediately before death” [emphasis added]. F.S. 732.2035(7); see F.S. 732.2045(1)(d), 732.2055(2). The Augmented Share Committee’s justification for this choice was that to subject all of the proceeds to the elective share would be a windfall to the spouse because the decedent’s investment in the policy only depletes the decedent’s estate to the extent of the policy premiums. See Powell, Florida Gets a New Elective Share Law (on file with the authors). A life insurance policy maintained under a court order is not included in the elective estate. F.S. 732.2045(1)(e). See § 7.6.C.6. « Ch. 7 », « § 7.5 », • A », « 9 » 1 Practice Under Florida Probate Code § 7.5.A.9 (2022)

9. Pensions And Retirement Plans Retirement benefits and funds held in Individual Retirement Accounts (IRAs) are part of the elective share. F.S. 732.2035(8) provides that amounts payable because of the decedent’s death to any person from public and private pensions, retirement plans, deferred compensation plans, and similar contracts are included in the elective estate. Benefits payable under the

federal Railroad Retirement Act, 45 U.S.C. § 231, and the federal Social Security system are not included in the elective estate. F.S. 732.2035(8). The amount that is included in the elective estate is “the transfer tax value … on the date of the decedent’s death.” F.S. 732.2055(4). Any life insurance proceeds (over the net cash surrender value) received under a defined contribution plan as a result of the decedent’s death are excluded from the elective estate. F.S. 732.2035(8). « Ch. 7 », « § 7.5 », • A », « 10 » 1 Practice Under Florida Probate Code § 7.5.A.10 (2022)

10. Transfers Made Within One Year Of Decedent’s Death « Ch. 7 », « § 7.5 », • A », « 10 », • a » 1 Practice Under Florida Probate Code § 7.5.A.10.a (2022)

a. Gifts The elective estate includes gifts made within one year of the decedent’s death. F.S. 732.2035(9)(b). Transfers of property for medical or educational expenses that are excluded from the federal gift tax under IRC § 2503(e) are excluded from the elective estate. F.S. 732.2035(9)(b)1. Additionally, for decedents dying before July 2007, the first $10,000 of property transferred to an individual during the one-year period before the decedent’s death is excluded to the extent that the transfer is excluded from the federal gift tax under IRC §§ 2503(b) or (c). F.S. 732.2035(8)(b)2. For decedents dying on or after July 1, 2007, the exclusion is no longer a flat $10,000, but rather is keyed to the annual exclusion amount under IRC §§ 2503(b) or (c). F.S. 732.2035(8)(b)2. The practitioner should note that the exception for annual exclusion gifts covers only the first annual exclusion gifts made during the one-year period preceding death. For example, if a person makes an annual exclusion gift to a child in December and an annual exclusion gift to the same child in January of the next year, and dies three months later, the second gift is brought back into the elective estate for valuation purposes. This is true even though both gifts would have been excluded from federal gift tax. The amount included in the elective estate is the value of the property on the date the gift is made, less mortgages, liens, or security interests on the property. F.S. 732.2055(5).

« Ch. 7 », « § 7.5 », • A », « 10 », « b • 1 Practice Under Florida Probate Code § 7.5.A.10.b (2022)

b. Termination Of Otherwise Includable Rights Or Interests The elective estate also includes the value of property “transferred as a result of the termination of a right or interest in, or power over, property” that would otherwise be included if the termination had not occurred. F.S. 732.2035(9)(a). For example, a decedent before death makes a transfer to an irrevocable trust and retains the right to invade principal. As discussed in § 7.5.A.7.a, a retained right to invade principal will cause the assets of the trust to be included in the elective estate. If the decedent releases the right to invade the principal within one year of his or her death, the value of the assets of the trust will still be included in the elective estate under F.S. 732.2035(9)(a). A termination occurs with respect to a property right or interest “when the decedent transfers or relinquishes the right or interest.” F.S. 732.2035(9) (c)1. A termination with respect to a power over property occurs “when the power terminates by exercise, release, lapse, default, or otherwise.” Id. A termination “does not occur when the right or interest terminates by the terms of the governing instrument unless the termination is determined by reference to the death of the decedent and the court finds” that the instrument was drafted for the principal purpose of avoiding the elective share. F.S. 732.2035(8)(d)1. The amount included in the elective estate is the value of the property on the date of the termination after deducting any liens, mortgages, and security interests. F.S. 732.2055(5). « Ch. 7 », « § 7.5 », • A », « 11 • 1 Practice Under Florida Probate Code § 7.5.A.11 (2022)

11. Irrevocable Transfers To Elective Share Trust Irrevocable transfers, made by the decedent during life to an elective share trust to satisfy the elective share, are included in the elective estate. F.S. 732.2025(10), 732.2035(9). An elective share trust is any trust that meets the requirements listed in F.S. 732.2025(2). See § 7.4.A. The practitioner should note that most irrevocable transfers are valued under the statutes at the time of transfer for purposes of inclusion in the elective estate. See F.S.

732.2055(5). Transfers to an elective share trust are an exception to this rule. « Ch. 7 », « § 7.5 », « B » 1 Practice Under Florida Probate Code § 7.5.B (2022)

B. Property Excluded From Elective Estate Because the 1999 legislation is comprehensive and includes almost all of the assets that would be included in the decedent’s gross estate for estate tax purposes, it may be helpful to think in terms of what is not included in the elective estate. The statutes specifically exclude nine categories of property from the elective estate: 1. Irrevocable transfers of property made by the decedent before October 1999, and irrevocable transfers made on or after October 1, 1999, but before the date when the decedent married the surviving spouse. F.S. 732.2045(1)(a). The current law contains a specific exception for transfers made to elective share trusts before its effective date. F.S. 732.2155(4). Transfers to an elective share trust before the effective date of the current law are treated as having been made after the effective date and in satisfaction of the elective share. 2. Transfers of property for which the decedent received adequate consideration. F.S. 732.2045(1)(b). 3. Transfers of property made by the decedent with the spouse’s written consent. A spouse’s consent to split-gift treatment under the federal gift tax laws does not constitute written consent. F.S. 732.2045(1)(c). 4. Proceeds of an insurance policy on the decedent’s life, however payable, in excess of its net cash surrender value. F.S. 732.2045(1)(d). 5. Life insurance on the decedent’s life maintained under a court order. F.S. 732.2045(1)(e). 6. The decedent’s half of any community property. F.S. 732.2045(1)(f). 7. Property that the decedent held in a qualifying special needs trust for the surviving spouse on the date of the decedent’s death. F.S. 732.2045(1) (g). A qualifying special needs trust is a trust established for a disabled surviving spouse and is discussed in more detail in § 7.4.B. 8. Property included in the decedent’s gross estate for federal estate tax

purposes, solely because the decedent possessed a general power of appointment. F.S. 732.2045(1)(h). 9. For decedents dying before July 2017, property that constitutes the protected homestead of a decedent, whether held by the decedent or by a trust at the decedent’s death. F.S. 732.2045(1)(i). 10. For decedents dying on or after July 1, 2017, property that constitutes the protected homestead of the decedent if the surviving spouse validly waived his or her homestead rights and did not receive any interest in the protected homestead upon the decedent’s death. Id. In addition to the statutory exclusions, property or funds deposited with the decedent in a fiduciary capacity under circumstances that raise an implied trust would not be taken into account in computing the elective share, just as they were not subject to the widow’s dower interest. See In re Estate of Brown, 134 So. 2d 290 (Fla. 2d DCA 1961). « Ch. 7 », « § 7.5 », « C • 1 Practice Under Florida Probate Code § 7.5.C (2022)

C. Amount Of Elective Share The elective share is 30% of the value of the assets of the elective estate. F.S. 732.2065.

« Ch. 7 », « § 7.6 » 1 Practice Under Florida Probate Code § 7.6 (2022)

§ 7.6. SATISFACTION OF THE ELECTIVE SHARE « Ch. 7 », « § 7.6 », • A » 1 Practice Under Florida Probate Code § 7.6.A (2022)

A. In General Nonprobate assets are subject to contribution toward satisfaction of the elective share. In other words, once the elective share is computed, third parties who receive assets outside of probate may be forced to contribute those assets toward satisfaction of the elective share. F.S. 732.2075(1) sets forth the general rules regarding satisfaction of the elective share. The decedent may provide in a will, or in a trust referred to in the will, for payment of the elective share. Absent such a provision, the statute establishes the order in which property is to be used to satisfy the elective share. Id. The current law generally looks first to property that already passes to the surviving spouse and then apportions the balance of the elective share among the other beneficiaries of property included in the elective estate. « Ch. 7 », « § 7.6 », « B » 1 Practice Under Florida Probate Code § 7.6.B (2022)

B. Property Passing To Surviving Spouse Absent a provision to the contrary in the decedent’s will or revocable trust, the following assets, which already pass for the benefit of the surviving spouse, are first used to satisfy the elective share: “Property interests included in the elective estate that pass or have passed to or for the benefit of the surviving spouse, including interests that are contingent upon making the election, but only to the extent that such contingent interests do not diminish other property interests that would be applied to satisfy the elective share in the absence of the contingent interests.” F.S. 732.2075(1)(a). Any amounts payable to the surviving spouse under public or private

pensions, retirement, or deferred compensation plans, or any similar arrangement, other than federal Social Security benefits or federal Railroad Retirement Act, 45 U.S.C. §§ 231 et seq., benefits. F.S. 732.2075(1)(b), 732.2035(8). The decedent’s half of any community property that passes to the surviving spouse. F.S. 732.2075(1)(c), 732.2045(1)(f). The proceeds of any life insurance policy on the decedent’s life payable to the surviving spouse, “if, at the time of decedent’s death, the policy was owned by any person other than the surviving spouse” [emphasis added]. F.S. 732.2075(1)(d). (Practitioners should note that the policy can be owned by any person other than the surviving spouse and need not be owned by the decedent.) Property the decedent “held for the benefit of the surviving spouse in a qualifying special needs trust.” F.S. 732.2075(1)(e). Property interests that would have been used to satisfy the elective share had the spouse not disclaimed them. F.S. 732.2075(1)(f). If application of those assets proves insufficient to satisfy the elective share, the balance due is apportioned among the recipients of remaining elective estate assets. F.S. 732.2075(2). See §§ 7.6.D.1–7.6.E. « Ch. 7 », « § 7.6 », « C » 1 Practice Under Florida Probate Code § 7.6.C (2022)

C. Valuation Of Property Passing To Surviving Spouse « Ch. 7 », « § 7.6 », « C », • 1 » 1 Practice Under Florida Probate Code § 7.6.C.1 (2022)

1. In General The elective share statutes contain valuation rules that are intended to simplify the valuation of property passing to the surviving spouse in satisfaction of the elective share. See F.S. 732.2095. « Ch. 7 », « § 7.6 », « C », « 2 » 1 Practice Under Florida Probate Code § 7.6.C.2 (2022)

2. Life Interests In Property

If the surviving spouse receives a life interest in property, not in trust, the value of the spouse’s interest is one half of the value of the property. F.S. 732.2095(2)(a). « Ch. 7 », « § 7.6 », « C », « 3 » 1 Practice Under Florida Probate Code § 7.6.C.3 (2022)

3. Interests In Elective Share Trust As set forth in § 7.4.A, a decedent may plan for the elective share by placing assets in an elective share trust. An “elective share trust” is defined in F.S. 732.2025(2). One of the benefits of creating and funding an elective share trust is that it provides a decedent with some certainty with respect to satisfaction of the elective share. If the surviving spouse has a mandatory income interest as provided for in F.S. 732.2025(2) and nothing more, 50% of the value of the property of the trust is counted toward satisfaction of the elective share. F.S. 732.2095(2)(b)3. If the elective share trust also includes a qualifying invasion power, 80% of the value of the property is counted toward satisfaction of the elective share. F.S. 732.2095(2)(b)2. As noted in § 7.4.A, a “qualifying invasion power” is defined as a power held by the surviving spouse or the trustee to invade the principal of the trust for the health, support, and maintenance of the spouse. F.S. 732.2095(1)(c). If the elective share trust includes a qualifying invasion power and a qualifying power of appointment, 100% of the value of the trust is charged against the spouse’s elective share. F.S. 732.2095(2)(b)1. A “qualifying power of appointment” is a general power of appointment that only the surviving spouse may exercise. F.S. 732.2095(1)(b). « Ch. 7 », « § 7.6 », « C », « 4 » 1 Practice Under Florida Probate Code § 7.6.C.4 (2022)

4. Interests In Qualifying Special Needs Trust A “qualifying special needs trust” is defined in F.S. 732.2025(8). The value of the assets held in such a trust is counted 100% toward the satisfaction of the elective share. F.S. 732.2075(1)(e), 732.2095(2)(c). A more complete discussion of qualifying special needs trusts can be found in § 7.4.B.

« Ch. 7 », « § 7.6 », « C », « 5 » 1 Practice Under Florida Probate Code § 7.6.C.5 (2022)

5. Interests In Other Trusts A trust other than an elective share trust or a qualifying special needs trust can also be created to satisfy the elective share. The value of a surviving spouse’s interest in such a trust for purposes of satisfying the elective share is the “transfer tax value” of the interest (as that term is defined in F.S. 732.2025(11)) or 50% of the value of the principal of the trust, whichever is less. F.S. 732.2095(2)(d). In other words, the amount charged toward satisfaction of the elective share cannot exceed 50% of the value of the assets of the trust for transfer tax purposes. In Janien v. Janien, 939 So. 2d 264, 266 (Fla. 4th DCA 2006), the court was faced with a dispute concerning the valuation of a trust for purposes of satisfaction of elective share that gave a spouse the right to “live in and occupy” a Massachusetts residence. The parties in Janien agreed that valuation turned on whether the trust was an elective share trust under F.S. 732.2025(2). The court noted that if the trust was not an elective share trust, the valuation of the trust for purposes of satisfaction of the elective share would be based on the spouse’s actuarial life expectancy under F.S. 732.2095(2). A more detailed discussion of Janien is included in § 7.4.A. « Ch. 7 », « § 7.6 », « C », « 6 » 1 Practice Under Florida Probate Code § 7.6.C.6 (2022)

6. Life Insurance Proceeds For purposes of satisfaction of the elective share, the value of life insurance proceeds paid outright to a surviving spouse, or to an elective share trust, a qualifying special needs trust, or other trust in which a surviving spouse has an interest, is the net proceeds of the policy. F.S. 732.2095(2)(e). Thus, if the net proceeds payable from a policy are $100,000, and the proceeds are paid outright to the spouse, the entire $100,000 counts toward satisfaction of the elective share. If the proceeds are paid to an elective share trust in which the spouse does not have a qualifying power of appointment or qualifying invasion power, $50,000 counts toward satisfaction of the elective share. See also § 7.5.A.8. « Ch. 7 », « § 7.6 », « C », « 7 •

1 Practice Under Florida Probate Code § 7.6.C.7 (2022)

7. Annuities And Similar Contracts The value of a surviving spouse’s interest from an annuity or similar contractual arrangement for purposes of satisfying the elective share is the transfer tax value. F.S. 732.2095(2)(f). « Ch. 7 », « § 7.6 », « D » 1 Practice Under Florida Probate Code § 7.6.D (2022)

D. Apportionment Of Unsatisfied Balance Among Direct Recipients Of Property « Ch. 7 », « § 7.6 », « D », • 1 » 1 Practice Under Florida Probate Code § 7.6.D.1 (2022)

1. Order Of Priority If the assets passing outright or in trust for the benefit of the surviving spouse are insufficient to satisfy the elective share, the remaining balance is apportioned among the direct recipients of property in each of the following classes, with each class responsible only to the extent that the assets in the previous class did not satisfy the remaining elective share balance: 1. Class 1: The decedent’s probate estate and any revocable trusts created by the decedent. 2. Class 2: Property, other than protected charitable interests, held in joint bank accounts, “Pay On Death” accounts, and “Transfer On Death” accounts; property held in joint tenancy and tenancy by the entireties; property that passes by designating a beneficiary under an insurance policy or retirement plan; and property previously transferred by the decedent during life when the decedent retained the ability to designate the recipient of the property upon death. 3. Class 3: All other property interests, other than protected charitable interests, included in the elective estate. A “protected charitable interest” is any interest for which a charitable deduction with respect to the transfer of the property was allowed to the decedent or the decedent’s spouse under federal gift or income tax laws. F.S. 732.2075(2).

If the assets in the above classes are insufficient to satisfy the remaining elective share amount, the remaining unsatisfied balance is satisfied from the property held in a trust in which a spouse has an interest but which does not qualify as an elective share trust or a special needs trust. F.S. 732.2075(3)(a). The spouse’s interest in any remaining assets in the nonqualifying trusts must be adjusted to reflect the loss in value. F.S. 732.2075(3)(b). If there is more than one nonqualifying trust, the unsatisfied balance must be apportioned pro rata to all such trusts in proportion to the value of the surviving spouse’s beneficial interests in the trusts, unless the decedent’s will provides otherwise. F.S. 732.2075(3)(c). If the elective share is still not satisfied, any remaining unsatisfied balance must be satisfied from the direct recipients of protected charitable lead interests as long as the contribution does not disqualify the charitable trust from a deduction under federal gift tax law. F.S. 732.2075(4). A “charitable lead interest” is a protected charitable interest as to which “one or more deductible interests in charity precede some other nondeductible interest or interests in the property.” Id. Contribution “of the decedent’s probate estate and revocable trusts may be made in cash or in kind.” F.S. 732.2075(5). For purposes of apportioning the liability for contribution among the beneficiaries, all beneficiaries of the probate estate and revocable trusts are to be treated as if they were taking under a common governing instrument, and the general rules of abatement for estates under F.S. 733.805 and for trusts under F.S. 736.05053(2)–(3) apply. F.S. 732.2075(6)–(7). Thus, beneficiaries of specific or general bequests will be liable for contribution only if the residuary bequests under a will and trust are insufficient to completely satisfy the elective share. « Ch. 7 », « § 7.6 », « D », « 2 » 1 Practice Under Florida Probate Code § 7.6.D.2 (2022)

2. Liability of “Direct Recipients” All “direct recipients” of property included in the elective estate are liable to contribute to the payment of the elective share. F.S. 732.2085(1). A “direct recipient” is defined to include “the decedent’s probate estate and any other person who receives property included in the elective estate by transfer from the decedent … , by right of survivorship, or by beneficiary designation under a governing instrument.” F.S. 732.2025(1). A direct recipient also

includes a beneficiary of an insurance policy on the decedent’s life if the net cash surrender value of the policy is included in the elective estate. “In the case of property held in trust, [a] ‘direct recipient’ includes the trustee but excludes the beneficiaries of the trust.” Id. Each direct recipient of elective share property is liable for contribution in an amount equal to his or her share of all property that is subject to contribution in the same class. F.S. 732.2085(1)(a). In other words, the total contribution for the entire class must first be determined by combining the elective share values of all property within the same class. The total contribution required from the class is then apportioned among the direct recipients based on their proportionate share of assets within the class. For example, the total value of all property for elective share purposes in Class 2 (e.g., joint account holders, life insurance beneficiaries, and retirement account beneficiaries) is $400,000 and the total contribution due from Class 2 is $100,000. Beneficiary A, who was a member of Class 2 by virtue of being named beneficiary under a Totten trust account, received a total and complete distribution from the account in the amount of $100,000. The contribution due from Beneficiary A would be $25,000, computed as follows: $100,000

×

(Amount due from Class 2)

$100,000 $400,000 (Beneficiary A’s share of Class 2)

=

$25,000 (Contribution from Beneficiary A)

« Ch. 7 », « § 7.6 », « D », « 3 » 1 Practice Under Florida Probate Code § 7.6.D.3 (2022)

3. Liability Of Estate And Trust Beneficiaries A beneficiary of the probate estate or trust included in the elective estate is liable for contribution only if the beneficiary receives a distribution after the decedent’s death. F.S. 732.2085(1)(b). The amount of contribution due from the beneficiary is the amount distributed to the beneficiary multiplied by the “contribution percentage” of the estate or trust. Contribution percentage means the unsatisfied amount of liability apportioned to the estate or trust divided by the value of the estate or trust for elective share purposes. Id.

For example, Beneficiary A receives a partial distribution of $25,000 after the decedent’s death as a residuary beneficiary under the decedent’s will. The probate estate is liable for total contribution toward the elective share in the amount of $100,000, none of the probate estate’s elective share liability has been satisfied, and the value of the probate estate for elective share purposes is $200,000. The amount due from Beneficiary A would be $12,500, computed as follows: $25,000

×

(partial distribution)

$100,000 $200,000 (contribution percentage)

=

$12,500 (contribution due from Beneficiary A) « Ch. 7 », « § 7.6 », « D », « 4 »

1 Practice Under Florida Probate Code § 7.6.D.4 (2022)

4. Contribution In Kind Or Sales Proceeds Instead of paying the amount for which they are liable in cash, beneficiaries who have received a distribution of property included in the elective estate and direct recipients may “[c]ontribute a proportional part of all property received” in kind. F.S. 732.2085(2)(a). The “proportional part of all property received” is determined separately for each class of priority under F.S. 732.2075(2). F.S. 732.2085 includes protections for beneficiaries whose interests have decreased in value since they were valued for elective share purposes. A beneficiary or direct recipient who received a distribution before the court’s order of contribution and whose interest has decreased in value may satisfy his or her contribution liability by (1) contributing all of the property received toward satisfaction of the elective share; or (2) if the property has been sold or exchanged before the date upon which the spouse’s election was filed, paying an amount equal to the value of the property on the date it was sold or exchanged, less reasonable costs of sale. F.S. 732.2085(2). If a person pays the value of the property on the date of a sale or exchange or contributes all of the property received, as provided in F.S. 732.2085(2), no further contribution is required with respect to the property and any unsatisfied contribution is reapportioned among the other members of the class. F.S. 732.2085(3). However, for decedents dying on or after July 1, 2017, if a person’s required contribution is not fully paid by two years after the date of

the death of the decedent, such person must also pay interest at the statutory rate on any portion of the required contribution that remains unpaid. F.S. 732.2085(3)(a). « Ch. 7 », « § 7.6 », « D », « 5 » 1 Practice Under Florida Probate Code § 7.6.D.5 (2022)

5. Enforcing Contribution Under F.S. 732.2145(2), the personal representative has a duty to “collect contribution from the recipients of the elective estate as provided in the court’s order of contribution.” The personal representative can fulfill this duty by either (1) withholding distributions from estate beneficiaries who are liable for contribution, or (2) collecting contribution from recipients of property that is not in the personal representative’s control. If unable to obtain contribution from a third party voluntarily, the personal representative may bring an action to collect contribution. Id. All contributions bear interest at the statutory postjudgment interest rate (see F.S. 55.03) “beginning 90 days after the order of contribution.” F.S. 732.2145(1). For decedents dying on or after July 1, 2017, interest will be charged on any amount of the elective share not satisfied within two years of the date of death of the decedent, even if an order of contribution has not yet been entered. F.S. 732.2145(1). A personal representative may be relieved of the duty of enforcing contribution by an order of the court finding that enforcement is impracticable in light of the improbability of obtaining or collecting on a judgment, or otherwise. F.S. 732.2145(3). The personal representative will “not be liable for failure to attempt collection if the attempt would have been economically impracticable.” Id. A surviving spouse has an independent right to enforce the order of contribution by filing collection proceedings against third parties. F.S. 732.2145(4). The elective share statutes provide that the judgment in any action brought by the surviving spouse or personal representative to enforce an order of contribution against a third party must include the surviving spouse or personal representative’s attorneys’ fees and costs. F.S. 732.2145(2)(b), (4). For a discussion of the jurisdictional problems associated with obtaining and enforcing an order of contribution, see § 7.7.G.

« Ch. 7 », « § 7.6 », « D », « 6 • 1 Practice Under Florida Probate Code § 7.6.D.6 (2022)

6. Liability Of Third Parties For Contribution F.S. 732.2085(1) provides that “[o]nly direct recipients of property included in the elective estate” and estate and trust beneficiaries “are liable [for contribution] toward satisfaction of the elective share.” Thus, a third party who receives property included in the elective estate by sale or transfer from a direct recipient is not liable for contribution. The statutes also provide that a financial institution or other third party “is not liable for paying, distributing, or transferring the property [included in the elective estate] to a beneficiary designated in a governing instrument, or for taking any other action in good faith reliance on the validity of a governing instrument.” F.S. 732.2115. As a practical matter, in many instances, it may make good sense to advise institutional clients not to distribute property included in the elective estate until the order of contribution is entered, to prevent litigation over whether the distribution was made in good faith. Lawyers representing surviving spouses in elective share litigation should strongly consider informing financial institutions (such as those holding the assets of an individual retirement account or life insurance proceeds) that litigation is pending that could affect the beneficiary of the account and requesting that they not make distributions until the litigation is concluded. In many instances, this will be enough to freeze the account until an order of contribution is entered. « Ch. 7 », « § 7.6 », « E • 1 Practice Under Florida Probate Code § 7.6.E (2022)

E. Interest In computing the elective share, the surviving spouse is not entitled to interest earned on the elective share of estate assets during the course of administration, but is entitled to interest on the elective share from the date set forth in the order directing the personal representative to make payment. An order to pay creates a debt against the estate in favor of the spouse that, like any other debt, entitles the spouse to the principal of the debt plus interest at the lawful rate from the due date. Price v. Florida National Bank of Miami, 419 So. 2d 389 (Fla. 3d DCA 1982). Accordingly, if a personal

representative fails to make payment “within a time certain,” interest at the legal rate is payable from the due date. Id. at 391. See also In re Estate of Palmer, 600 So. 2d 537 (Fla. 4th DCA 1992). However, interest should not accrue on that portion of the elective share amount that the spouse would not be entitled to receive due to taxes. Blackburn v. Boulis, 184 So. 3d 565 (Fla. 4th DCA 2016). As noted at § 7.6.D.5, contributions bear interest at the statutory rate beginning 90 days after the order of contribution. F.S. 732.2145(1). For decedents dying on or after July 1, 2017, interest will be charged on any amount of the elective share not satisfied within two years of the date of death of the decedent, even if an order of contribution has not yet been entered. See § 7.7.C.

« Ch. 7 », « § 7.7 » 1 Practice Under Florida Probate Code § 7.7 (2022)

§ 7.7. PROCEDURAL MATTERS « Ch. 7 », « § 7.7 », • A » 1 Practice Under Florida Probate Code § 7.7.A (2022)

A. Who May File Election Any surviving spouse may file the election, whether the spouse is a husband or a wife. F.S. 732.2125(1). With the probate court’s approval, an agent under a power of attorney (referred to in the statute as an attorney-infact) or guardian of the property of a surviving spouse may file the election. F.S. 732.2125(2). If the election is made by a guardian or agent, the court must determine that “the election is in the best interests of the surviving spouse during the spouse’s probable lifetime.” Id. The statute leaves open the question of what level of discretion the court has in approving an election filed by a guardian or agent. The Augmented Share Committee intended the reference to the phrase “during the spouse’s probable lifetime” to prevent a court from giving consideration to the spouse’s perceived testamentary desires for the property and to give courts discretion to refuse an election that might serve to disqualify the spouse from public assistance. See Powell, Florida Gets a New Elective Share Law, at 18 n.90 (on file with the authors). The procedure for a petition for approval of an election by an agent or guardian is set forth in Fla. Prob. R. 5.360(a)(2) and discussed in more detail in § 7.7.B. The surviving spouse’s agent cannot exercise the election on behalf of the surviving spouse, because an agent does not have the type of unlimited authority that would allow the agent’s acts to be deemed the acts of the surviving spouse. Harmon v. Williams, 615 So. 2d 681 (Fla. 1993). The practitioner should note that the court has discretion to accept or reject the election filed by a guardian. See In re Estate of Pearson, 192 So. 2d 89, 92 (Fla. 2d DCA 1966), in which the court reiterated (albeit with nowobsolete gender-specific language) the rule that the following factors are to be considered by the court in determining whether to recognize the guardian’s election:

(1) The husband’s right to dispose of his estate is limited by the right given the widow to renounce the provisions of the will in her behalf and take under the statute, but the sole reason in law for giving the widow the right to renounce is to [e]nsure ample provision for her personal needs and comforts. (2) Her personal needs and comforts may not be confined to pure monetary considerations. (3) The matter of enriching the widow’s estate and passing something to her kinspeople has no place in the chancellor’s consideration. (4) The kinspeople of the wife have no claim direct or indirect on the estate of the husband. (5) The fact that a permanently insane widow knows nothing of the value of money, cannot use it with discretion and has no need for money nor property save to furnish ample comforts and needs, may be considered. (6) It may also be borne in mind that, when the husband has made ample provision for his insane wife, he has an inherent right to dispose of his property as he pleases, provided the disposition be not contrary to public policy. This case will likely still be persuasive authority. The statute requires the court to make this determination “before approving the election.” F.S. 732.2125(2). Formerly, any person interested in the estate of a deceased widow was permitted to file the election if the widow had died within the statutory period before making her election. However, the 1965 Legislature eliminated that provision, and the Probate Code simply codifies that result. The death of the surviving spouse before filing the election extinguishes any right to make the election. See In re Estate of Anderson, 394 So. 2d 1146 (Fla. 4th DCA 1981), in which the court held that the personal representative of the deceased surviving spouse could not make the election, because the express purpose of the elective share was for the surviving spouse’s care and not for augmenting her estate for the benefit of her heirs. See also In re Estate of Pearson. The death of the surviving spouse after the spouse has properly filed the election and given notice to the court and all interested parties does not extinguish the spouse’s elective share right. Smail v. Hutchins, 491 So. 2d 301 (Fla. 3d DCA 1986). Under such circumstances, the surviving spouse’s personal representative would have standing to petition for determination of the elective share. This ruling seems to contradict the reasoning of the court in In re Estate of Anderson, because payment of the elective share after the

surviving spouse’s death would merely serve to augment the surviving spouse’s estate. The Smail court, however, found that reasoning to be “unavailing.” Id. at 303. The court observed that if the surviving spouse died after receiving the elective share, “the heirs will most certainly be the primary beneficiaries of the election. This result, however, has no bearing on the surviving spouse’s right to an elective share.” Id. A common-law wife was entitled to dower in the estate of her deceased husband. In re Estate of Alcala, 188 So. 2d 903 (Fla. 2d DCA 1966). Presumably, then, the surviving spouse of a common-law marriage would be entitled to the elective share. See In re Estate of Bragg, 334 So. 2d 271 (Fla. 3d DCA 1976); Day v. Day, 331 So. 2d 335 (Fla. 1st DCA 1976). When one or both parties to a purported common-law marriage already are married, the union is meretricious from its inception and not a valid common-law marriage, even though all other elements of such a marriage are present. In re Estate of McClenahen, 476 So. 2d 1289 (Fla. 2d DCA 1985). In McClenahen, the court allowed the decedent’s estranged wife, from whom he had been separated for many years, to claim the elective share against his estate even though he subsequently attempted to establish a common-law marriage with another woman. It is appropriate to note that no common-law marriage entered into in Florida after January 1, 1968, is valid. F.S. 741.211. « Ch. 7 », « § 7.7 », « B » 1 Practice Under Florida Probate Code § 7.7.B (2022)

B. Petition For Approval Of Election By Agent Or Guardian “Before filing the election, the agent or guardian of the property … must petition the court having jurisdiction of the probate proceeding for approval to make the election. The petition … must allege the authority to act on behalf of the surviving spouse and facts supporting the election.” Fla. Prob. R. 5.360(a)(2)(A). Upon receipt of the petition, the personal representative is required to promptly serve it by formal notice on all interested persons. Rule 5.360(a)(2) (B). For estates of persons dying before July 1, 2012, after the entry of the order authorizing the filing of the election, the agent or guardian of the property may file the election within the later of the time required by law (see § 7.7.C) or 30 days from service of the order. For estates of persons dying on or after July 1, 2012, the petition “must be filed within 6 months after the

decedent’s death and during the surviving spouse’s lifetime. If the petition is timely filed, the time for making the election shall be extended for at least 30 days after the rendition of the order allowing the election.” F.S. 732.401(2) (c). See Ch. 2012-109, § 3, Laws of Fla. A copy of the election must be served on the personal representative in the manner provided for service of formal notice. Rule 5.360(a)(2)(D). « Ch. 7 », « § 7.7 », « C » 1 Practice Under Florida Probate Code § 7.7.C (2022)

C. Time Of Election “[T]he election must be filed on or before the earlier of the date that is 6 months after the date of service of a copy of the notice of administration on the surviving spouse, or an attorney in fact or guardian of the property of the surviving spouse, or … 2 years after” the decedent’s death. F.S. 732.2135(1) (emphasis added). If the surviving spouse is the personal representative, the notice of administration is deemed served on the surviving spouse on the earliest of “the date on which the [surviving spouse] acknowledges in writing receipt of the notice”; “the date on which the notice … is first served on any other person entitled to service of the notice of administration”; or “the date that is 30 days after the date letters of administration are issued.” Fla. Prob. R. 5.2405(a)(1)–(a)(3). “Within the period [allowed for filing the election], the surviving spouse or an attorney in fact or guardian of the property of the surviving spouse may petition the court for an extension of time for making an election.” F.S. 732.2135(2). The court may grant the extension for good cause shown after notice and a hearing. Id. A petition for an extension of time or for approval to make the election tolls the time for filing the election until the court resolves the petition. F.S. 732.2135(4). For decedents dying on or after July 1, 2017, a petition for extension may be filed within 40 days after the date of termination of any proceeding which affects the amount the spouse is entitled to receive under F.S. 732.2075(1), provided it is no more than two years after

the decedent’s death. F.S. 732.2135(2). See Ch. 2017-121, Laws of Fla. In In re Estate of Loewy, 638 So. 2d 144 (Fla. 4th DCA 1994), the court addressed the issue of whether a spouse could “revive” her right to file an election by commencing a proceeding after the time for filing an election expired. In Loewy, the surviving spouse filed a legally insufficient will construction proceeding 10 months after the four-month period to claim her elective share had expired. The court noted that there would be “no significance” to the limitation period if the surviving spouse could defeat the time limit simply by filing a “specious” petition at any time during probate, id. at 145, but indicated that the result may have been different if the spouse had shown good cause. In In re Estate of Tensfeldt, 839 So. 2d 720 (Fla. 2d DCA 2003), the court held that an independent action to enforce a contract to make a will, filed by the decedent’s children after the time for filing the elective share had expired, was a “proceeding” within the meaning of the prior version of F.S. 732.2135(2) that would extend the time for filing an election. The children filed a claim against the estate within the time for an election. However, the independent action was ultimately commenced several days after the time for filing the election expired. The Tensfeldt court addressed two interesting issues. First, the court found that the litigation concerning the contract to make a will was a proceeding within the meaning of the elective share statute. The court specifically noted that the creditor’s claim in this instance was for two thirds of the estate and that the children claimed they had priority over the elective share. It is unclear from the case whether all creditor disputes would be considered “proceedings.” Second, the court distinguished the holding in Loewy that a proceeding filed after the time for filing an elective share did not “revive” the right to file an election. In finding that the time for filing the election was extended, the court noted that the children, not the surviving spouse, commenced the proceeding in this case. “Moreover, that controversy commenced when the children filed a statement of claim, within the fourmonth period during which an election could be made.” Tensfeldt, 839 So. 2d at 726. « Ch. 7 », « § 7.7 », « D » 1 Practice Under Florida Probate Code § 7.7.D (2022)

D. Proceedings To Determine Entitlement To Elective Share The surviving spouse or the agent or guardian for a surviving spouse is required to serve the election to take elective share on the personal representative, in the manner provided for service of formal notice. Fla. Prob. R. 5.360(a)(1), (a)(2)(D). “Upon receipt of an election, the personal representative must serve a notice of election within 20 days following service of the election, together with a copy of the election, on all interested persons in the manner provided for formal notice.” Rule 5.360(b)(3). The notice of election must indicate the names and addresses of the attorneys for the surviving spouse and the personal representative and state that: (A) persons receiving a notice of election may be required to contribute toward the satisfaction of the elective share; (B) objections to the election must be served within 20 days after service of the copy of the notice of election; and (C) if no objection to the election is timely served, an order determining … entitlement to the elective share may be granted without further notice. Id. An objection to the election may be filed by any interested person. The objection “must state with particularity the grounds on which the objection is based.” Rule 5.360(b)(4). The objection must be served on the personal representative and surviving spouse “[w]ithin 20 days after service of the notice of election” on the objecting party. Id. If an objection is served, the personal representative is required to serve a copy of the objection on all interested persons who were not previously served with a copy of the election. Id. If no objection is timely served, the court proceeds with entering “an order determining the spouse’s entitlement to the elective share.” If an objection is timely served, “the court must determine the spouse’s entitlement to the elective share after notice and hearing.” Rule 5.360(c). The grounds for objecting to entitlement would generally include objections to the timeliness of the election;

predeath waiver of the elective share by the spouse by a prenuptial or postnuptial agreement; objections to the validity of the marriage or to the filing party’s status as a surviving spouse; estoppel; and other matters that may bar the elective share. The court, in its discretion, may stay determination of the elective share. Watson v. Collins, 487 So. 2d 419 (Fla. 2d DCA 1986). An order determining entitlement to elective share is a nonfinal, nonappealable order. See In re Estate of Magee, 902 So. 2d 909 (Fla. 2d DCA 2005); Dempsey v. Dempsey, 899 So. 2d 1272 (Fla. 2d DCA 2005). « Ch. 7 », « § 7.7 », « E » 1 Practice Under Florida Probate Code § 7.7.E (2022)

E. Inventory Of Elective Estate The personal representative must file a verified inventory of the elective estate when an order is entered determining the surviving spouse’s entitlement to the elective share. Fla. Prob. R. 5.340(g). The inventory must include all property entering into the elective estate and must identify the direct recipient, if any, of that property. Id. The inventory must be served by formal notice “within 60 days after entry of the order determining entitlement to the elective share on all interested persons” who are direct recipients of property that may be required for contribution to the elective share along with the petition to determine the amount of the elective share. Rule 5.360(d)(2), citing Rule 5.340. The inventory is not required to be served on the Florida Department of Revenue. Rule 5.340(d). Upon written request, the personal representative must provide interested persons “with a written explanation of how the inventory value for the asset was determined” and must permit interested persons “to examine appraisals on which the inventory values are based.” Rule 5.340(g). « Ch. 7 », « § 7.7 », « F » 1 Practice Under Florida Probate Code § 7.7.F (2022)

F. Proceedings To Determine Amount Of Elective Share And

Contribution Proceedings to determine the amount of the elective share and contribution constitute adversary proceedings, which require formal notice. Fla. Prob. R. 5.025(a), (d). Once the court has determined the spouse’s entitlement to the elective share, the personal representative must file and serve a petition to determine the amount of the elective share, along with a copy of the inventory of the elective estate, on all interested persons in the manner provided for service of formal notice, within 60 days after the entry of the order determining entitlement to the elective share. Interested persons include direct recipients who—could be required to contribute toward satisfaction of the elective share. Rules 5.360(d)(1)–(d)(2). The petition must (A) give the name and address of each direct recipient known to the personal representative; (B) describe the proposed distribution of assets to satisfy the elective share, and the time and manner of distribution; and (C) identify those direct recipients, if any, from whom a specified contribution will be required and state the amount of contribution sought from each. Rule 5.360(d)(1). If the petition is not filed by the personal representative within 90 days from rendition of the order of entitlement, the electing spouse, the agent or guardian of the property of the electing spouse, or, if the electing spouse has died, that spouse’s personal representative, “may file the petition specifying as particularly as is known the value of the elective share.” Rule 5.360(d)(3). Interested parties have 20 days after service of the petition to object to the amount of or proposed distribution of assets to satisfy the elective share. Rule 5.360(d)(4). As noted at § 7.7.D, [t]he objection must state with particularity the grounds on which [it] is based. The objecting party must serve copies of the objection on the surviving spouse and the personal representative. If an objection is served, the personal representative must promptly serve a copy of the objection on all interested persons who have not previously been served.

Id. If an objection is filed, the court determines the amount and contribution after notice and hearing. Rule 5.360(d)(5)(B). If no objection is filed, the court must enter an order on the petition. Rule 5.360(d)(5)(A). The order must (1) set forth the amount of the elective share, (2) identify the assets to be given to the spouse to satisfy it, and (3) specify any necessary contribution for which each recipient of estate assets is liable. Rule 5.360(d)(6). An order determining amount and ordering contribution in satisfaction of elective share is a final, appealable order. Fla. R. App. P. 9.170. An order determining that a particular asset is includable in the elective estate is a nonfinal, nonappealable order. See Trenchard v. Estate of Gray, 950 So. 2d 1277 (Fla. 2d DCA 2007). « Ch. 7 », « § 7.7 », « G » 1 Practice Under Florida Probate Code § 7.7.G (2022)

G. Jurisdictional Problems It is clear that, under the Florida Constitution and the Florida Statutes, jurisdiction to determine issues involving the elective share lies with the circuit court having jurisdiction of the probate proceedings of the estate of the deceased spouse. See §§ 3.1, 3.4.B, and 3.6.J of this manual. F.S. 732.2085 requires direct recipients of property included in the elective estate and the beneficiaries of the decedent’s probate estate or of any trust that is a direct recipient of property included in the elective estate to contribute toward the satisfaction of the elective share. See Fla. Prob. R. 5.360(d)(6). This contribution requirement will generally not create jurisdictional problems with regard to undistributed assets of the probate estate. The probate court has in rem jurisdiction over the probate estate and can enter such orders as are necessary and appropriate with respect to the probate property. See F.S. 731.105; Pitts v. Pitts, 120 Fla. 363, 162 So. 708 (1935). However, the situation becomes much more difficult with respect to direct recipients of property included in the elective estate that is not part of the probate estate. The probate court generally cannot enter an order relating to assets outside of the probate estate, such as assets held in a revocable trust, a joint account, life insurance proceeds, and the like, unless in personam

jurisdiction is obtained over the persons in possession of the assets. See Paradise of Port Richey v. Estate of Boulis, 810 So. 2d 1044 (Fla. 4th DCA 2002); In re Estate of Vernon, 608 So. 2d 510 (Fla. 4th DCA 1992); In re Estate of Black, 528 So. 2d 1316 (Fla. 2d DCA 1988). Service of process by formal notice is generally only sufficient to acquire jurisdiction over interested persons in the estate to the extent of their interest in the estate or, effective October 1, 2010, in the decedent’s protected homestead. See F.S. 731.301(2). Rule 5.360 does not address the jurisdictional problems implicit in the current contribution requirements. If the direct recipient has no interest in the estate, a separate proceeding will likely have to be commenced against the recipient to enforce the contribution obligations under the elective share statutes. The situation becomes even more difficult with recipients who live out of the state or even out of the country. The most common method of obtaining personal jurisdiction over a nonresident is through Florida’s long-arm statute, F.S. 48.193. The long-arm statute provides that “[a] person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself or herself … to the jurisdiction of the courts of this state.” F.S. 48.193(1)(a). The primary case addressing Florida’s long-arm statute is Venetian Salami Co. v. Parthenais, 554 So. 2d 499 (Fla. 1989). The case involved an analysis of the circumstances under which a Florida court may obtain jurisdiction over a nonresident defendant under its long-arm statute. In Venetian Salami Co., the trial judge dismissed the case on the ground that the plaintiff had failed to establish that the defendant had sufficient minimum contacts with Florida. The district court reversed the trial court’s order of dismissal and held that personal jurisdiction may be obtained by meeting the statutory requirements of Florida’s long-arm statute without having to demonstrate that the defendant had sufficient minimum contacts with the state of Florida in order to satisfy due process. Essentially, the district court held that the requisite minimum contacts with Florida are built into the state’s long-arm statute. However, the Florida Supreme Court disagreed with the district court and reversed. Justice Grimes went through the federal due process analysis, citing principles from the following well-known cases:

International Shoe Co. v. State of Washington, Office of Unemployment Compensation & Placement, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945), 161 A.L.R. 1057. “[I]n order to subject a defendant to an in personam judgment when he is not present within the territory of the forum, due process requires that the defendant have certain minimum contacts with the forum such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” Venetian Salami Co., 554 So. 2d at 500. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S. Ct. 559, 62 L. Ed. 2d 490 (1980). “[T]he test is whether the defendant’s conduct in connection with the forum state is ‘such that he should reasonably anticipate being haled [sic] into court there.’ ” Venetian Salami Co., 554 So. 2d at 500, quoting Woodson, 444 U.S. at 287. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 478–479, 485–486, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985) “The [United States Supreme] Court long ago rejected the notion that personal jurisdiction might turn on ‘mechanical’ tests. … Instead, we have emphasized the need for a ‘highly realistic’ approach. … We … therefore reject any talismanic jurisdictional formulas; ‘the facts of each case must [always] be weighed’ in determining whether personal jurisdiction would comport with ‘fair play and substantial justice’ ” [internal citations omitted]. Based on its analysis of the federal due process issues, the Florida Supreme Court approved the analysis set forth by the Florida District Courts of Appeal, Fourth and Second Districts, establishing a two-part test to determine whether long-arm jurisdiction is appropriate in any given case: (1) the court must determine that the complaint alleges sufficient jurisdictional facts to bring the action within the ambit of the statute; and (2) the court must determine whether sufficient minimum contacts are demonstrated to satisfy due process requirements. In summary, the Venetian Salami Co. court concluded that a court in Florida may acquire personal jurisdiction over a nonresident only if the nonresident has minimum contacts with Florida such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. To understand the practical jurisdictional problems caused by the current

elective share statute’s right of contribution, it may be helpful to consider an example: A decedent, within a year before his death, had transferred assets to a dozen or so family members and friends living in several states outside of Florida. Each of these transfers was approximately $50,000 and no consideration was received by the decedent for any of the transfers. The transfers did not violate the laws of any of the states in which the recipients live and there are not sufficient probate or revocable trust assets to satisfy the elective share. Under the statute, the court would determine the elective share and contribution by order. Thereafter, the personal representative would be required to collect contribution from the recipients of the elective estate. F.S. 732.2145. Based on Venetian Salami Co., the personal representative would be required to establish sufficient minimum contacts with the state of Florida against these out-of-state recipients in order to commence a proceeding in Florida against them. In many instances, this may not be possible. The personal representative may be forced to institute lawsuits in each of the states where a direct recipient resided. The next problem facing the personal representative is to determine an appropriate cause of action to seek the recovery of the assets transferred by the decedent to the direct recipient. It could be argued that the contribution requirements of F.S. Chapter 732 would not be binding on a resident of another state. If the transfer by the decedent was irrevocable or became irrevocable upon his death, it may be difficult to establish grounds for the return of the property. Finally, the personal representative will be faced with the issue of who pays for all of these out-of-state court proceedings. Because the elective estate is calculated before the expenses of administration, the collection expenses could be borne, in part, by the residuary beneficiaries of the estate. F.S. 732.2055(5). In fact, this could become a bit of a circular problem in some cases. For example, if the assets of the estate were not sufficient to fund the elective share, the additional costs of administration would further deplete the assets available to fund the elective share, thereby requiring further contribution from beneficiaries and direct recipients. The statutes provide that the judgment in any action brought by the personal representative to enforce an order of contribution against a third party must include the personal

representative’s attorneys’ fees and costs. F.S. 732.2145(2)(b). The personal representative may decide that it is simply impracticable to enforce contribution. F.S. 732.2145(3) provides that a personal representative who has a duty to enforce contribution “may be relieved of that duty by an order of the court finding that it is impracticable to enforce contribution in view of the improbability of obtaining a judgment or the improbability of collection under any judgment that might be obtained, or otherwise.” The personal representative cannot be held liable for failure to attempt collection if the attempt would have been economically impracticable. Id. F.S. 732.2145(4) gives the surviving spouse an independent right to collect the elective share as provided in the order of contribution. If the surviving spouse does bring an action to enforce the order, the surviving spouse is entitled to recover his or her costs and reasonable attorneys’ fees. Id. « Ch. 7 », « § 7.7 », « H » 1 Practice Under Florida Probate Code § 7.7.H (2022)

H. Withdrawal Of Election The Florida Statutes and Florida Probate Rules are clear that an election may be withdrawn once it is made. F.S. 732.2135(3) provides that before the court enters its order of contribution, “[t]he surviving spouse or an attorney in fact, guardian of the property, or personal representative of the surviving spouse may withdraw an election at any time within 8 months after the decedent’s death.” See Fla. Prob. R. 5.360(b)(2). Under the prior version of F.S. 732.2135(5), if the court determined that an election was made or pursued in bad faith, the court could assess attorneys’ fees and costs against the surviving spouse or the surviving spouse’s estate. F.S. 732.2135(5) (2016). However, this provision was repealed, effective July 1, 2017. See Ch. 2017-121, Laws of Fla. The practitioner should note that the election merely sets a floor on the amount the spouse will receive under the decedent’s estate plan and no longer has the effect of terminating the rights of the spouse to inherit under the will (see §§ 7.1.D.1, 7.6.A, and 7.7.C for a further discussion of this issue). « Ch. 7 », « § 7.7 », « I » 1 Practice Under Florida Probate Code § 7.7.I (2022)

I. Role Of Personal Representative

In practice, the personal representative files a petition setting out what the personal representative believes to be an appropriate determination of the amount of the elective share and stating the proposed time and manner of distribution in satisfaction of the elective share, as well as pointing out any problems that may exist. The Committee Notes to the prior version of Fla. Prob. R. 5.360 (2000) emphasized that the personal representative’s role is neutral and the general rule is that, as a fiduciary owing duties to all interested persons, the personal representative should not take a position for or against the award of the elective share. See Barnett v. Barnett, 340 So. 2d 548 (Fla. 1st DCA 1977). However, the Committee Notes also state that the personal representative is not prohibited from taking a position regarding matters of administration such as the timing of payment or the assets that will be used to satisfy the elective share, as long as the position is not intended to favor one beneficiary over another or over the surviving spouse. Furthermore, the personal representative has a fiduciary duty to fully disclose such known relevant facts as the existence of a marital agreement waiving the right to the elective share, and may have a duty to oppose the surviving spouse’s entitlement to the elective share in such circumstances. See Tillman v. Smith, 526 So. 2d 730 (Fla. 5th DCA 1988). Furthermore, under the revised elective share laws, the personal representative has an affirmative duty to enforce contribution. « Ch. 7 », « § 7.7 », « J • 1 Practice Under Florida Probate Code § 7.7.J (2022)

J. Forms Form Nos. P-4.0540–P-4.0575, available from Florida Lawyers Support Services, Inc.© (FLSSI), P.O. Box 195909, Winter Springs, FL 32719-5909 (407/515-1501) (online at www.flssi.org/forms) can be used as the forms for purposes of filing the election and proceedings on the election.

« Ch. 7 », « § 7.8 » 1 Practice Under Florida Probate Code § 7.8 (2022)

§ 7.8. MATTERS IN BAR OF ELECTIVE SHARE « Ch. 7 », « § 7.8 », • A » 1 Practice Under Florida Probate Code § 7.8.A (2022)

A. In General Generally, the elective share may be relinquished or barred by voluntary written consent or relinquishment, by actions taken by the surviving spouse, or by operation of law. It follows that the presence of those circumstances may constitute grounds for contesting the elective share. The circumstances under which each of these alternatives becomes operative are described in the following sections. Effective October 1, 2010, F.S. 732.805 abolished certain spousal rights, including elective share, concerning “[a] surviving spouse who is found to have procured a marriage to the decedent by fraud, duress, or undue influence” which rights inure only due to the marriage or person’s status as the decedent’s surviving spouse, unless the decedent and surviving spouse had cohabited as husband and wife with full knowledge of the facts “constituting the fraud, duress, or undue influence” or subsequently ratified the marriage. This statute provides procedures for challenging the surviving spouse’s rights. Id. « Ch. 7 », « § 7.8 », « B » 1 Practice Under Florida Probate Code § 7.8.B (2022)

B. Relinquishment Of Elective Share By Agreement (Waiver) « Ch. 7 », « § 7.8 », « B », • 1 » 1 Practice Under Florida Probate Code § 7.8.B.1 (2022)

1. In General F.S. 731.302 provides that any right conferred by the Florida Probate Code may be waived by an interested party. The elective share is more particularly treated in F.S. 732.702(1), which provides that waiver may be effected “by a written contract, agreement, or waiver, signed by the waiving

party in the presence of two subscribing witnesses.” Fair disclosure of each spouse’s estate is required to lend validity to any such waiver executed during (but not before) marriage. F.S. 732.702(2). Although certain distinctions were made under the dower concept as to the method and manner of relinquishment, both statutes seem straightforward and simple enough to permit waiver at any time for any reason, regardless of the relationship of the parties at the time of the waiver. However, it will be necessary to continue to consider whether the waiver is to be part of an antenuptial agreement as opposed to a waiver during marriage or one contained in a separation and property settlement agreement. The broad waiver provisions apply not only to the right of election but also to homestead, exempt property, and family allowance. Use of the term “all rights” in a document or language or any term similar to those words encompasses all of the foregoing as well as all testate or intestate benefits. F.S. 732.702(1). Courts may vary in their treatment of whether language in the prenuptial agreement is unambiguous and sufficient to waive the spouse’s rights. In Taylor v. Taylor, 1 So. 3d 348, 349 (Fla. 1st DCA 2009), the provision in a prenuptial agreement that all property belonging to each spouse would “forever remain [his or her] personal estate” and that “said property shall remain forever free of claim by the other” has been held to be unambiguous and an effective waiver. See also Weisfeld-Ladd v. Estate of Ladd, 920 So. 2d 1148 (Fla. 3d DCA 2006) (construing ambiguous prenuptial agreement and finding that direction in prenuptial agreement that all separate property of husband is to pass to his children was sufficient to waive wife’s elective share). Neither disclosure nor consideration is necessary to the validity of such a waiver unless executed during marriage, in which case there must be a fair disclosure. F.S. 732.702(2). The constitutionality of that statute was upheld in Estate of Roberts, 388 So. 2d 216 (Fla. 1980). As noted at § 7.1.D.1, waivers of the elective share executed before the effective date of the current law and in compliance with F.S. 732.702 will continue to waive rights under the current law. F.S. 732.2155(3). In Wilson v. Wilson, as Trustee of Paul C. Wilson Living Trust, 279 So. 3d 160 (Fla. 4th DCA 2019), the court held that the terms of a revocable trust directing the trustee to set aside “as much property as is necessary to satisfy

the Wife’s elective share” was insufficient to modify the prior waiver of the elective share by a surviving spouse in a valid prenuptial agreement. The trust instrument stated: “There shall be set aside from the property of this trust as much property as is necessary to satisfy the Wife’s elective share pursuant to [F.S. Chapter 732, Part II], provided the requirements thereunder are satisfied and a timely election is filed.” Wilson, 279 So. 3d at 161. After the decedent’s death, the wife made a timely election. The court held that the trust did not modify the prenuptial agreement because it was not signed by both parties as required by the prenuptial agreement. Furthermore, the court noted that if the decedent intended to make a testamentary gift, “he could have done so by will or codicil without relying on an elective share and specifically the requirements of the elective share statute.” Id. at 162. « Ch. 7 », « § 7.8 », « B », « 2 » 1 Practice Under Florida Probate Code § 7.8.B.2 (2022)

2. Relinquishment Of Elective Share Before Marriage The elective share may be barred by the existence of a valid antenuptial agreement. Jurisdiction to test the validity of an antenuptial agreement, as well as the application of a valid agreement, is in the circuit court. Full treatment of the area of antenuptial agreements, of course, is more appropriate to a manual on domestic relations and is provided in DRAFTING MARRIAGE CONTRACTS IN FLORIDA Chapter 2 (Fla. Bar 13th ed. 2021). See also West, The Do’s and Don’ts of Antenuptial Agreements, 61 Fla. Bar J. 47 (Feb. 1987), which discusses the different treatment accorded antenuptial agreements in the areas of probate and dissolution of marriage. Before the enactment of the Florida Probate Code (the Code), an antenuptial agreement was deemed valid when a prospective spouse had full information as to the nature and extent of the other prospective spouse’s property and had some understanding of his or her own rights. If these facts were shown and the contract was not unreasonable on its face, the burden of proof was on the widow or widower to show either that the agreement actually was unfair and inequitable or that he or she was engaged to be married at the time the contract was entered into and no disclosure was made of the prospective spouse’s property interests. This resulted from the rule that the fact of engagement raised a conclusive presumption of a confidential relationship, which gave rise to a duty to disclose and perhaps created a

rebuttable presumption of unfairness. On the other hand, if the antenuptial agreement was unfair and inequitable on its face, the burden was on the personal representative to prove that it made a fair and reasonable provision for the spouse. Many matters had to be taken into account, such as the age, health, situation, experience, and needs of the spouse. As an alternative, the personal representative had to show that there actually was a full and frank disclosure by the prospective spouse to the other prospective spouse (or that the prospective spouse actually had a general or approximate knowledge of the nature and extent of the property) and that the prospective spouse understood the rights being relinquished. Posner v. Posner, 257 So. 2d 530 (Fla. 1972); Del Vecchio v. Del Vecchio, 143 So. 2d 17 (Fla. 1962). Under the Code, all of these tests have been rendered obsolete in cases involving an antenuptial waiver of the elective share (F.S. 732.702) and probably as to all other marital rights (F.S. 731.302, 732.702). See Estate of Roberts, 388 So. 2d 216 (Fla. 1980). See also In re Estate of Reed, 354 So. 2d 864 (Fla. 1978), in which the Florida Supreme Court applied the Del Vecchio standards because of the decedent’s date of death, but acknowledged that the Del Vecchio standards have been supplanted by F.S. 732.702; and Cuillo v. Cuillo, 621 So. 2d 460 (Fla. 4th DCA 1993), which recognized that Del Vecchio has been overruled in probate proceedings. In Coleman v. Estate of Coleman, 439 So. 2d 1016 (Fla. 1st DCA 1983), a wife claimed the elective share on the ground that her husband did not disclose his actual net worth and misled her as to his net worth before she signed a prenuptial agreement. However, the court denied her claim because the statute allowed the waiver of unknown rights before marriage. The holding in Coleman was approved by the Florida Supreme Court in Stregack v. Moldofsky, 474 So. 2d 206, 207 (Fla. 1985), in which the court stated that “[n]ondisclosure, whether fraudulent or not, is precisely what the legislature intended to eliminate from consideration on the validity of antenuptial agreements.” This reasoning also justified the court’s finding of a valid waiver in Foster v. Estate of Gomes, 27 So. 3d 145 (Fla. 5th DCA 2010), in which the disclosure made by the husband was inaccurate. In that case, however, the husband’s disclosure omitted an asset valued at approximately $10,000, which the court described as “minor.” Id. at 146.

Unknown rights were similarly held to be subject to waiver in Estate of De Garcia v. Garcia, 399 So. 2d 486 (Fla. 3d DCA 1981), in which the court held that the waiver provisions (F.S. 732.702) in effect on the decedent’s date of death would apply, rendering valid an antenuptial agreement executed in 1956. The result was that the surviving spouse was deemed to have waived rights that were created by the legislature after the agreement had been executed (including the right to an elective share). See also Estate of Sage v. Sage, 515 So. 2d 1324 (Fla. 2d DCA 1987) (validity of antenuptial agreement in probate proceeding is determined by law in effect at time of decedent’s death). In the area of antenuptial agreements, it is important to remember that the lack of requirement of disclosure before marriage applies only in the context of a probate proceeding. However, even in that context an antenuptial agreement executed before marriage without disclosure may be challenged. In Ellis First National Bank of West Pasco v. Downing, 443 So. 2d 337, 338 (Fla. 2d DCA 1983), the court stated that a prenuptial agreement may still be challenged if it is proved that “one of the signatures was coerced or improperly obtained, or if one of the parties was incompetent” at the time of the execution of the agreement. However, “in the absence of fraud, deceit, duress, coercion, misrepresentation, or overreaching,” an antenuptial agreement cannot be challenged on the sole ground that it makes unfair or unreasonable provision for a financially dependent spouse in an inferior economic position. Baker v. Baker, 622 So. 2d 541, 543 (Fla. 5th DCA 1993). In 2007, the Florida Legislature passed the Uniform Premarital Agreement Act, F.S. 61.079. Subsection (10) of the Act specifically provides that the Act “does not alter the construction, interpretation, or required formalities of, or the rights or obligations under, agreements between spouses under [F.S.] 732.701 or [F.S.] 732.702.” Because there are no requirements for disclosure before marriage, disputes often arise as to whether a prenuptial agreement signed by parties in another state are valid to waive rights in a Florida estate. F.S. 732.702 provides that “[a]ny contract, agreement, or waiver executed by a nonresident of Florida, either before or after this law takes effect, is valid in this state if valid when executed under the laws of the state or country where it was

executed, whether or not he or she is a Florida resident at the time of death.” In Williams-Paris v. Joseph, 329 So. 3d 775 (Fla. 4th DCA 2021), the court held that a wedding day prenuptial agreement that waived homestead and was signed while the parties were located in another state was governed by the disclosure requirements under Florida law. Although the court recognized that the contracts are generally governed by the laws of the state of execution under the doctrine of lex loci contractus, it noted that neither party resided in state where the agreement was executed and public policy in Florida associated with homestead protections would override any other competing interests. « Ch. 7 », « § 7.8 », « B », « 3 » 1 Practice Under Florida Probate Code § 7.8.B.3 (2022)

3. Relinquishment Or Waiver Of Elective Share During Marriage Fair disclosure is a prerequisite to a valid waiver of the elective share when the waiver is executed after marriage. F.S. 732.702(2). F.S. 732.702 does not establish any formalities with regard to the form or manner of execution of a waiver of the elective share, except that F.S. 732.702(1) provides that the waiving party must sign the waiver in the presence of two subscribing witnesses. See § 7.8.B.1. When spouses properly execute an agreement waiving the elective share, and then reconcile or remarry, it now appears clear that the reconciliation or remarriage revokes the elective share waiver provision of the agreement in the absence of an explicit statement in the agreement that the parties intend otherwise. Earlier conflicts in this area have been resolved by the Florida Supreme Court’s decision in Cox v. Cox, 659 So. 2d 1051, 1054 (Fla. 1995), holding that “reconciliation or remarriage abrogates the executory provisions of a prior marital settlement agreement unless there is an explicit statement in the agreement that the parties intend otherwise.” The executed provisions of a prior marital settlement agreement are not affected by reconciliation or remarriage absent a reconveyance or a new written agreement to the contrary. « Ch. 7 », « § 7.8 », « B », « 4 • 1 Practice Under Florida Probate Code § 7.8.B.4 (2022)

4. Relinquishment Of Elective Share After Death Of Spouse If the surviving spouse, for valuable consideration, enters into an

agreement with the heirs and personal representative of the estate not to take the elective share, the spouse may not rescind that agreement, even though the statutory period for filing the election has not expired. This rule might be mitigated in the event of fraud or overreaching. Youngelson v. Estate of Youngelson, 114 So. 2d 642 (Fla. 3d DCA 1959). Under the concept of dower, one court held that the fact that the widow signed a writing at the bottom of her husband’s will accepting its terms in lieu of dower did not constitute a valid waiver or release of her dower interest. Florida National Bank of Jacksonville v. Tavel, 126 Fla. 415, 171 So. 231 (1936). The rule may very well be different under the revised statute. A literal reading of F.S. 731.302 seems to indicate that a waiver executed in that manner subsequent to the decedent’s death should be effective. It has also been held that the fact the widow filed an election to take under the will did not prevent her from filing her election to take dower during the statutory period, provided her action had not affected the rights of others adversely. Exchange National Bank of Winter Haven v. Smith, 148 Fla. 473, 4 So. 2d 675 (1941). See § 7.1.C. This rule should continue to apply to the elective share. Similarly, under the dower statute, the widow could rescind her election not to take dower filed in faulty probate proceedings. Murphy v. Murphy, 125 Fla. 855, 170 So. 856 (1936). Under the Code, however, there is no provision for the surviving spouse to make an election not to take the elective share. Nonetheless, such an election probably would be effective as a waiver. The court in Dinkins v. Dinkins, 120 So. 3d 601 (Fla. 5th DCA 2013), held that a provision in the decedent’s trust that bequeathed $5M to his wife if she disclaimed her interest in a QTIP trust and waived her right to her elective share of his estate was not an invalid penalty clause. In particular, the court held that a clause providing an alternative to a statutory minimum benefit outright to the surviving spouse to entice the spouse not to make an election is not against public policy, because the spouse beneficiary has the ability to choose an option at least as valuable as the statutory minimum. See § 7.4.A. « Ch. 7 », « § 7.8 », « C » 1 Practice Under Florida Probate Code § 7.8.C (2022)

C. Right Barred By Action Of Surviving Spouse « Ch. 7 », « § 7.8 », « C », • 1 » 1 Practice Under Florida Probate Code § 7.8.C.1 (2022)

1. Facts Not Constituting Bar Merely accepting a partial distribution under the will should not constitute waiver of the elective share. This was so under the dower statutes and probably continues to be the law. Thus, the fact that the surviving spouse participates in division of estate assets, whether before or during administration of the estate, does not necessarily bar an elective share. See In re Brock’s Estate, 63 So. 2d 510 (Fla. 1953); Griley v. Griley, 43 So. 2d 350 (Fla. 1949). In In re Estate of Coffey, 171 So. 2d 568 (Fla. 3d DCA 1965), the widow accepted partial distribution of estate assets (two automobiles) and the court ruled that she did not forfeit her right to dower by doing so. Of course, the previously distributed property is included in the deceased’s estate for purposes of determining the amount of dower. See In re Estate of Anders, 197 So. 2d 837 (Fla. 1st DCA 1967). « Ch. 7 », « § 7.8 », « C », « 2 • 1 Practice Under Florida Probate Code § 7.8.C.2 (2022)

2. Facts Constituting Bar The surviving spouse normally may not take under the will and also elect against it, in the absence of a clear intention of the testator expressed in the will to provide for this circumstance. See Griley v. Griley, 43 So. 2d 350 (Fla. 1949). Under certain circumstances, the widow was estopped to claim dower. In Johnson v. Hayes, 52 So. 2d 109 (Fla. 1951), the widow waited until the estate had been closed to file her extraordinary petition for dower, so that it was too late for her husband’s grantees to file a claim against the estate for breach of a warranty against encumbrances. The court also found that because the widow had elected to take a child’s part as to property owned by her husband at his death, she was estopped from claiming dower, whether in property he owned at his death or in property he had conveyed during the marriage without her joinder. In Bemis v. Loftin, 127 Fla. 515, 173 So. 683 (1937), the widow had perpetrated a fraud to obtain an annulment, and the court stated that she would not be heard to protest the validity of the decree

procured by her fraud in order to obtain dower. Similar equitable principles continue to be viable in the area of the elective share. In In re Estate of Montanez, 687 So. 2d 943 (Fla. 3d DCA 1997), the court held that, as a matter of law, the widow was estopped from assuming the role of the decedent’s surviving spouse and taking an elective share, after she had repudiated him as her husband. In fact, the widow had separated from the decedent some 30 years before his death. In addition, she had represented on an application for a marriage license to her second husband that she had divorced the decedent. The court held that because the widow believed she was divorced from the decedent and spent many years acting as though she were no longer his wife, she was estopped from taking a spouse’s share of his estate. It appears, however, that a party must detrimentally rely on the actions of the surviving spouse before the party will be estopped from claiming the elective share. In In re Estate of McClenahen, 476 So. 2d 1289 (Fla. 2d DCA 1985), the decedent’s alleged common-law wife tried to prevent the decedent’s estranged wife from claiming the elective share. The court held that the common-law wife did not detrimentally rely on the actions of the estranged wife before her filing for the elective share, and therefore could not be heard to complain that there should be an estoppel. The Florida Supreme Court has held that even if the widow was the murderer of her husband, her right to elect dower in his estate was unaffected. Hill v. Morris, 85 So. 2d 847 (Fla. 1956). However, this is not the law with respect to the elective share. The legislature codified the state’s public policy by enacting Florida’s slayer statute, F.S. 732.802, which deprives a surviving person of all benefits that would otherwise accrue under the Code or under the will of a decedent whom the beneficiary has “unlawfully and intentionally” killed or whose death the beneficiary has “unlawfully and intentionally” participated in procuring. F.S. 732.802(1). Criminal trial or conviction is not required to invoke the statute, and the probate court can proceed independently to determine (by the greater weight of the evidence) “whether the killing was unlawful and intentional.” F.S. 732.802(5). Even a person who has been exonerated from criminal liability may still be disqualified from inheritance under the terms of F.S. 732.802. Congleton v. Sansom, 664 So. 2d 276 (Fla. 1st DCA 1995). Nevertheless, the legislation

does not prevent the killer’s heirs from inheriting. In re Estate of Benson, 548 So. 2d 775 (Fla. 2d DCA 1989). Because the elective share is a benefit under the Code, a person who intentionally and unlawfully kills (or participates in procuring the unlawful death of) the decedent cannot receive benefits obtained through the elective share. F.S. 732.802 also prevents a killer from receiving other types of benefits. Under F.S. 732.802(2), the right of survivorship of a joint tenancy with right of survivorship or a tenancy by the entireties is terminated by one cotenant’s conviction of the unlawful and intentional killing of the other cotenant. See Capoccia v. Capoccia, 505 So. 2d 624 (Fla. 3d DCA 1987). F.S. 732.802(3) and (4) similarly terminate the rights of acquisition to “a bond, life insurance policy, or other contractual arrangement,” and rights to “[a]ny other acquisition of property or interest by the killer, including a life estate in homestead property.” F.S. 736.1104 deprives a trust beneficiary of any trust interest when the beneficiary has “unlawfully and intentionally” killed the settlor of the trust or another person on whose death such beneficiary’s interest depended. Although it seems too obvious to require comment, questions have arisen as to the right of a divorced spouse to take dower. The rules that have been developed should apply to the elective share. The general rule was that a divorced wife had no right of dower in any property owned by her deceased former husband or conveyed by him during his lifetime. Busch v. Busch, 68 So. 2d 350 (Fla. 1953). See also Pawley v. Pawley, 46 So. 2d 464 (Fla. 1950), 28 A.L.R. 2d 1358. This rule prevails even though constructive rather than personal service of process was obtained on the wife. Simons v. Miami Beach First National Bank, 381 U.S. 81, 85 S. Ct. 1315, 14 L. Ed. 2d 232 (1965). The rule is to the contrary if fraud is involved. Martz v. Riskamm, 144 So. 2d 83 (Fla. 1st DCA 1962). « Ch. 7 », « § 7.8 », « D • 1 Practice Under Florida Probate Code § 7.8.D (2022)

D. Operation Of Law « Ch. 7 », « § 7.8 », « D •, • 1 » 1 Practice Under Florida Probate Code § 7.8.D.1 (2022)

1. Facts Constituting Bar

The death of the surviving spouse before filing the election extinguishes any right to make the election. See In re Estate of Anderson, 394 So. 2d 1146 (Fla. 4th DCA 1981), in which the court held that the personal representative of the deceased surviving spouse could not make the election, because the express purpose of the elective share was for the surviving spouse’s care and not for augmenting her estate for the benefit of her heirs. « Ch. 7 », « § 7.8 », « D •, « 2 • 1 Practice Under Florida Probate Code § 7.8.D.2 (2022)

2. Facts Not Constituting Bar Marital separation does not bar dower or the right to an elective share. In Wax v. Wilson, 101 So. 2d 54 (Fla. 3d DCA 1958), the fact that the parties were separated at the time of the death of the husband had no bearing whatsoever on the widow’s right of dower. This is also true with respect to the elective share. In re Estate of McClenahen, 476 So. 2d 1289 (Fla. 2d DCA 1985). In Robison v. Krause, 136 So. 2d 373 (Fla. 2d DCA 1962), a widow believed herself to be divorced from her first husband when in fact she was not and she married again. The court held that she was entitled to dower in the estate of her first husband, but noted that there may be similar cases in which estoppel would preclude the right to dower. See, e.g., In re Estate of Montanez, 687 So. 2d 943 (Fla. 3d DCA 1997) (widow who had been separated from her husband for almost 30 years and who represented on application for marriage license to another man that she had divorced first husband was estopped as matter of law from claiming widow’s share of first husband’s estate). See In re Estate of McClenahen. In Henderson v. Usher, 125 Fla. 709, 170 So. 846 (1936), the Florida Supreme Court concluded that the fact that the widow remarried before filing her election to take dower had no bearing on her right to dower. See § 7.1.C. These rules should continue to apply in the area of the elective share.

« Ch. 7 », « § 7.9 » 1 Practice Under Florida Probate Code § 7.9 (2022)

§ 7.9. CONSTITUTIONALITY OF ELECTIVE SHARE STATUTES In Shriners Hospital for Crippled Children v. Zrillic, 563 So. 2d 64, 68 (Fla. 1990), the Florida Supreme Court held that the testamentary disposition of property was “a specifically expressed [Florida] constitutional property right.” The court thus afforded testamentary rights the same constitutional protections normally provided to other real property rights. The issue in Zrillic was whether Florida’s mortmain statute violated Article I, § 2, of the Florida Constitution by impermissibly infringing on the decedent’s testamentary rights. (The mortmain statute generally provided that a lineal descendant or spouse could set aside or avoid a testamentary devise that a decedent made to a charitable organization shortly before death.) The Florida Supreme Court held that the mortmain statute violated the constitutional right provided by Article I, § 2, to “ ‘acquire, possess and protect property.’ ” Zrillic, 563 So. 2d at 66, quoting Art. I, § 2, Fla. Const. The court acknowledged that these rights are not absolute. Rather, they “ ‘are held subject to the fair exercise of the power inherent in the State to promote the general welfare of the people through regulations that are reasonably necessary to secure the health, safety, good order, [and] general welfare.’ ” Id. at 68, quoting Golden v. McCarty, 337 So. 2d 388, 390 (Fla. 1976). It could be argued that the elective share statutes, particularly the current elective share laws, which are no longer subject to avoidance techniques, violate the constitutional right to devise property as defined by the Zrillic court. This was precisely the issue in In re Estate of Magee, 988 So. 2d 1 (Fla. 2d DCA 2007). In Magee, the decedent’s daughter argued that the principles established in Zrillic apply to invalidate Florida’s elective share statutes. The daughter argued that Zrillic recognized a fundamental right to devise of one’s property that can only be curtailed through a narrowly tailored law when the law is “reasonably necessary to secure the health, safety, good order, [and] general welfare.” Id. at 3. The daughter further argued “that the elective share statutes are not sufficiently narrowly tailored

to further [the] policy” of providing financial security to surviving spouses because they apply regardless of the needs of the surviving spouse. Id. at 4. Although the Magee court recognized that the elective share statutes arguably impinge on the constitutional right to devise property, the court refused to apply the stringent “least restrictive means” test articulated by the daughter. Instead, the court noted that the test for evaluating statutes and regulations that infringe on property rights or testamentary rights is a “reasonable relationship” or “rational basis” standard. Id. at 5. The Magee court held that the provisions of the elective share statutes serve a legitimate legislative purpose of providing financial protection to a surviving spouse. Furthermore, the court held that the elective share statutes are rationally related to that purpose in that they seek to provide any surviving spouse who has not waived such protections a minority share in the assets of the decedent. Thus, the court upheld the constitutionality of the elective share statutes.

« Ch. 7 », « § 7.10 • 1 Practice Under Florida Probate Code § 7.10 (2022)

§ 7.10. ATTORNEYS’ FEES « Ch. 7 », « § 7.10 •, • A » 1 Practice Under Florida Probate Code § 7.10.A (2022)

A. For Proceedings Commenced On Or After July 1, 2017 The 2017 Florida Legislature effected significant changes regarding attorneys’ fees. See Ch. 2017-121, Laws of Fla. The pre-2017 law contained a section that authorized courts to assess attorneys’ fees and costs against the surviving spouse or the surviving spouse’s estate when a determination was made that an election was made or pursued in bad faith. F.S. 732.2135(5) (2016). The 2017 legislation repealed this section, and created an entirely new statute, F.S. 732.2151, which governs attorneys’ fees and costs in elective share proceedings commenced on or after July 1, 2017. F.S. 732.2151 vests discretion in the court to award taxable costs as in chancery actions, including attorneys’ fees, in elective share proceedings in which there is an objection to or dispute over entitlement to or the amount of the elective share, the property interests included in the elective estate or their value, or the satisfaction of the elective share. F.S. 732.2151. The court may award fees and costs from the estate or the elective estate. Id. In addition or alternatively, the court may enter a judgment against a party that can be satisfied from other property of the party. Id. In addition to any of the fees that may be awarded in a contested proceeding, an electing spouse may be awarded from the estate his or her reasonable costs, including attorneys’ fees, incurred in connection with the preparation and filing of a petition to determine the amount of the elective share if the personal representative does not file the petition as required by the Florida Probate Rules. Id. The elective share laws also provide for an award of attorneys’ fees and costs to a spouse enforcing an order of contribution. F.S. 732.2145(4). « Ch. 7 », « § 7.10 •, « B • 1 Practice Under Florida Probate Code § 7.10.B (2022)

B. For Proceedings Commenced Before July 1, 2017

In proceedings commenced before July 2017, a surviving spouse will not be entitled to recover attorneys’ fees and costs associated with determining and recovering an elective share. See Tillman v. Smith, 526 So. 2d 730 (Fla. 5th DCA 1988), which is discussed in depth in LITIGATION UNDER FLORIDA PROBATE CODE Chapter 11 (Fla. Bar 13th ed. 2022). The elective share statutes, however, provide for an award of attorneys’ fees and costs to a spouse enforcing an order of contribution. F.S. 732.2145(4); see also § 7.6.D.5. In Tillman, the spouse sought to recover her attorneys’ fees after the personal representative unsuccessfully challenged her elective share on the ground that the spouse had waived her elective share as part of an antenuptial agreement. The court held that the spouse was not entitled to recover her attorneys’ fees because “they clearly thwarted the intention of the testator as expressed in his will.” Id. at 736. The Tillman decision is consistent with an older case involving dower, In re Estate of Binkow, 120 So. 2d 15 (Fla. 3d DCA 1960), 80 A.L.R. 2d 1100, in which the court denied the wife’s petition for attorneys’ fees because the allowance of dower depleted the estate, and the services rendered to the wife benefited her rather than the estate. Fees were awarded to the spouse, however, in Menz v. Estate of Menz, 381 So. 2d 375 (Fla. 1st DCA 1980). The court held that a widow was entitled to an attorney’s fee award because her employment of a lawyer was necessitated by the personal representative’s failure to satisfy his duties of filing a petition to determine elective share and for paying the elective share under Fla. Prob. R. 5.360. Footnotes — Chapter 7: *

J.D., 1973, University of Miami. Mr. Hanley is a member of The Florida Bar and the American and Palm Beach County bar associations. He is Florida Bar Board Certified in Wills, Trusts and Estates. Mr. Hanley is a shareholder in Gunster, Yoakley & Stewart, P.A., in West Palm Beach. **

J.D., with highest honors, 1996, University of Florida. Mr. Hennessey is a member of The Florida Bar. He is a former Chair of the Real Property, Probate and Trust Law Section of Florida Bar and both the Probate and Trust Litigation Committee and the Legislation Committee for the Section. Mr. Hennessey is a Fellow of the American College of Trust and Estate Counsel and a shareholder in Gunster, Yoakley & Stewart, P.A., in West Palm Beach. ***

J.D., cum laude, 2003, University of Florida. Ms. Papanikos is a member of The Florida Bar. She is a Vice Chair of the Elective Share Review Committee and the Probate Law & Procedure Committee of the Real Property, Probate and Trust Law Section of The Florida Bar, and is a former

Co-Chair of the Florida Probate Rules Committee of The Florida Bar. Ms. Papanikos practices at Holland & Knight, LLP, in Miami.

Licensed to Otis K Pitts, Otis K Pitts

« Ch. 8 » 1 Practice Under Florida Probate Code Ch. 8 (2022)

Chapter 8 CREDITORS’ CLAIMS AND FAMILY ALLOWANCE FRANK T. PILOTTE* Contents § 8.1. INTRODUCTION § 8.2. CREDITORS’ CLAIMS FROM VIEWPOINT OF PERSONAL REPRESENTATIVE A. Procedure For Ascertaining Claims Against Estate 1. Diligent Search 2. Notice To Creditors a. History Of Notice Provisions b. Current Law c. Publication Of Notice d. Proof Of Publication e. Direct Service Of Notice—Ascertainable Creditors 3. Summary Administration 4. Statement Regarding Creditors B. Filing Of Claims 1. Three-Month/Thirty-Day Period—F.S. 733.702 2. Alternate Two-Year Period—F.S. 733.710 3. Statute Of Limitations, Statute Of Nonclaim, And Extensions Of Time a. F.S. 733.702 b. F.S. 733.710 4. Types Of Claims Covered C. Objections To Claims

1. In General 2. Service Of Objection And Creditor’s Action On Claim 3. Extending Time To Object And Failing To Object To Claim D. Limitation On Late Claims E. Payment Of Claims 1. Necessity For Personal Representative To Examine Nature Of Claims a. In General b. Liability Of Surviving Spouse For Claims Against Decedent 2. Procedure For Payment Of Claims a. In General b. Payment When No Formal Claim Is Made c. Assets From Which Claims Are Payable d. Priorities In Payment Of Claims F. Compromise And Settlement Of Claims 1. In General 2. Applicable Forms a. Petition To Compromise Claim b. Order Authorizing Compromise Of Claim § 8.3. CREDITORS’ CLAIMS FROM VIEWPOINT OF CREDITORS A. Procedure For Presenting Claims 1. Filing Statement Of Claim 2. Alternative Procedures To Filing Claim 3. Effect Of Failure To Comply With Statute Of Limitations B. Scope Of Statute Of Limitations And Statute Of Nonclaim 1. In General 2. Particular Claims a. Claims Within Statute i. Wrongful Death Action ii. Claims For Alimony, Support, And Community Property iii. Judgment Claims iv. Contingent Or Unmatured Claims v. Claims By State

vi. Actions Pending At Time Of Death vii. Counterclaims viii. Claims Of Nonresidents ix. Claims Of Personal Representative x. Agreement To Make A Will xi. Class Actions b. Claims Not Barred By Statute i. Claims Specifically Excluded I. Mortgages And Liens II. Claims Secured By Insurance III. Beneficial Interests Of Beneficiaries ii. Other Claims Excluded I. Claims Of The United States II. Trust Claims And Claims Based On Equitable Title III. Surviving Partners IV. Defensive Recoupment c. Claims Based On Federal Right C. Procedure After Claim Has Been Filed 1. When Objection Is Filed a. In General b. Extension Of Time To Commence Action 2. When No Objection Is Filed a. In General b. Form For Petition For Payment Of Claim D. Claims By Incapacitated Persons E. Claims Against Unadministered Estates § 8.4. DEDUCTIBILITY OF CLAIMS AGAINST ESTATE ON FEDERAL ESTATE TAX RETURN § 8.5. FAMILY ALLOWANCE A. In General B. Effect On Elective Share, Homestead, And Exempt Personal Property C. Effect Of Allowance On Creditors’ Rights D. Nondeductibility Of Family Allowance On Federal Estate Tax Return

« Ch. 8 », • § 8.1 » 1 Practice Under Florida Probate Code § 8.1 (2022)

§ 8.1. INTRODUCTION This chapter is divided into three parts. The first discusses creditors’ claims from the point of view of the personal representative, and the second discusses them from the point of view of creditors. This treatment may produce some overlap, but it is intended to help lawyers who generally will be dealing with a problem from a single point of view. Tax issues and family allowance are dealt with in the third part. Further coverage of creditors’ claims is provided in LITIGATION UNDER FLORIDA PROBATE CODE Chapter 6 (Fla. Bar 13th ed. 2022). Family allowance is also discussed in Chapters 2 and 4 of that manual. The basic law governing creditors’ claims, as discussed in this chapter, is contained in F.S. Chapter 733 and the case law arising under that chapter. The basic law governing the family allowance is contained in F.S. 732.403 and the case law arising under that statute.

« Ch. 8 », « § 8.2 » 1 Practice Under Florida Probate Code § 8.2 (2022)

§

8.2. CREDITORS’ CLAIMS FROM VIEWPOINT OF PERSONAL REPRESENTATIVE « Ch. 8 », « § 8.2 », • A »

1 Practice Under Florida Probate Code § 8.2.A (2022)

A. Procedure For Ascertaining Claims Against Estate « Ch. 8 », « § 8.2 », • A », • 1 » 1 Practice Under Florida Probate Code § 8.2.A.1 (2022)

1. Diligent Search To administer an estate in an orderly manner, the personal representative must ascertain what debts and claims are to be paid by the estate, because no assets should be distributed until the personal representative is certain that these debts and claims can be paid. F.S. 733.2121(3)(a) provides that “[t]he personal representative shall promptly make a diligent search to determine the names and addresses of creditors of the decedent who are reasonably ascertainable, even if the claims are unmatured, contingent, or unliquidated.” (A similar obligation is imposed in ancillary administration, F.S. 734.102(5), and in summary administration, F.S. 735.206(2), although, in a summary administration, the diligent search must be done by the petitioner.) The Committee Notes to Fla. Prob. R. 5.241 provide, in part, as follows: The steps to be taken by a personal representative in conducting a diligent search for creditors depends, in large measure, on how familiar the personal representative is with the decedent’s affairs. Therefore, the committee believes it is inappropriate to list particular steps to be taken in each estate, since the circumstances will vary from case to case. The search should at least include a careful review of the decedent’s financial records, specifically those relating to bank accounts, for the year preceding

death. See Strulowitz v. Cadle Co., II, Inc., 839 So. 2d 876 (Fla. 4th DCA 2003). See also F.S. 733.2121(3)(a), which provides that “[i]mpracticable and extended searches are not required.” For a further discussion of the type of search needed to ascertain creditors, see Smith & Winick, Known or Ascertainable Estate Creditors: The Pope Decision, 62 Fla. Bar J. 66 (Oct. 1988). « Ch. 8 », « § 8.2 », • A », « 2 » 1 Practice Under Florida Probate Code § 8.2.A.2 (2022)

2. Notice To Creditors « Ch. 8 », « § 8.2 », • A », « 2 », • a » 1 Practice Under Florida Probate Code § 8.2.A.2.a (2022)

a. History Of Notice Provisions In the past, creditors were notified of a pending probate estate via the notice of administration. In 2001, the Probate Code was significantly revised to separate the notice of administration from the notice to creditors. F.S. 733.2121 was added to deal specifically with the notice to creditors. The language of this statute is substantially similar to that of its predecessor, F.S. 733.212 (1999), which has since been amended to deal solely with the notice of administration. The procedural aspects of the former statute have been removed. Fla. Prob. R. 5.240 governs the notice of administration; Rule 5.241 governs the notice to creditors. The procedure in the latter rule, which was adopted in 2002, is essentially the same procedure as under the former rule with respect to the service and search requirements for creditors. Practitioners should examine the Florida Probate Rules closely. Formerly, the notice of administration could be “served” on creditors by publication. However, in 1989, in response to the United States Supreme Court’s decision in Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 108 S. Ct. 1340, 99 L. Ed. 2d 565 (1988), F.S. 733.212 was amended to require actual service of a copy of the notice of administration on certain creditors. The Court in Pope held that the notice provision of an Oklahoma nonclaim statute (which was substantially similar to Florida’s pre1989 statute, requiring notice to creditors only by publication) was unconstitutional as to known or reasonably ascertainable creditors. As to these creditors, Pope held that actual notice was required to bar a claim.

Under Pope, notice by publication alone will not bar a known or reasonably ascertainable creditor from bringing a claim after expiration of the nonclaim period. Pope has been the law across the United States since it was decided on April 19, 1988, and has been retroactively applied. See Thames v. Jackson, 598 So. 2d 121 (Fla. 1st DCA 1992), receded from on other grounds 771 So. 2d 1143. Except as otherwise noted below, the change in F.S. 733.212 took effect on July 5, 1989, and applies to all estates as of that date. The District Court of Appeal, First District, has interpreted Pope as being inapplicable when the claimants had actual knowledge of the opening of an estate at the time of its beginning but did not file a timely claim. In re Estate of Danese, 641 So. 2d 423 (Fla. 1st DCA 1994). See also In re Estate of Gleason, 631 So. 2d 321 (Fla. 4th DCA 1994) (Pope was inapplicable when claimant knew about Florida probate proceedings but failed to do anything until 14 months after estate was closed). « Ch. 8 », « § 8.2 », • A », « 2 », « b » 1 Practice Under Florida Probate Code § 8.2.A.2.b (2022)

b. Current Law After letters are issued to the personal representative, it is the personal representative’s responsibility to publish a notice to creditors advising all persons having claims or demands against the estate to file their claims with the court issuing the letters “on or before the later of the date that is 3 months after the time of the first publication of the notice to creditors or, as to any creditor required to be served with a copy of the notice to creditors, 30 days after the date of service [of the copy] on the creditor” if not already barred by F.S. 733.710.F.S. 733.702; see F.S. 733.2121(1). The consequent initiation of the nonclaim period ensures an early determination of the claims to be filed against the estate. « Ch. 8 », « § 8.2 », • A », « 2 », « c » 1 Practice Under Florida Probate Code § 8.2.A.2.c (2022)

c. Publication Of Notice Unless creditors’ claims are barred by the two-year statute of nonclaim, F.S. 733.710 (see § 8.2.B.2), the personal representative is required to cause the notice to creditors to be published “promptly” after the issuance of letters. F.S. 733.2121(1). See § 8.3.A.1. The procedure to be followed in publishing

the required notice is discussed in § 5.3.K of this manual. A form for the notice, FLSSI Form No. P-3.0740, is available from Florida Lawyers Support Services, Inc.© (FLSSI), Post Office Box 195909, Winter Springs, FL 32719-5909 (407/515-1501 or www.flssi.org/forms). The form may also be available from the clerk or from the newspaper that will carry the publication. The lawyer for the personal representative should see that the notice is timely delivered to the newspaper for publication. After the first publication, it is prudent to check the published form for any typographical errors so that any necessary corrections can be made. In Rainier v. Calhoun, 534 So. 2d 735 (Fla. 3d DCA 1988), the District Court of Appeal, Third District, considered whether delayed publication of the notice of administration (the former method of notifying creditors) would postpone the duty to pay claims and appropriate interest on claims. In Rainier, the notice of administration was published nine months after the date of filing the petition for administration. A creditor had filed a claim approximately two months after the petition for administration was filed. The trial court granted the creditor’s motion to enforce the claim and awarded interest from the date of filing the claim. On appeal, the district court held that the trial court should determine the reasonable date on which first publication should have occurred and then assess interest accordingly under F.S. 733.705(6) (1987) (now F.S. 733.705(9)). Presumably, under this case and the statute effective at the time, interest would begin to run five months from the date on which first publication of the notice to creditors reasonably should have occurred. See id. Although the relation-back doctrine of F.S. 733.601 has been used by Florida courts to validate a notice to creditors published by the personal representative before appointment, see, e.g., Richard v. Richard, 193 So. 3d 964 (Fla. 3d DCA 2016), the lawyer should nonetheless try to ensure that publication is not commenced before valid letters have been issued to the personal representative. Otherwise, the notice may be deemed a nullity and may have to be republished. Also, lawyers should note that the second publication of a valid notice does not further extend the time for filing claims. Mack v. Perri, 24 So. 3d 697 (Fla. 1st DCA 2009). If the estate is one that can be handled under F.S. 735.301 (disposition without administration), there is no provision or requirement for publication.

For the requirements regarding summary administration, see § 8.2.A.3. « Ch. 8 », « § 8.2 », • A », « 2 », « d » 1 Practice Under Florida Probate Code § 8.2.A.2.d (2022)

d. Proof Of Publication Proof of publication of the notice to creditors must be filed with the court within 45 days of the first publication. Fla. Prob. R. 5.241(c). The proof is furnished in affidavit form by the newspaper that published the notice. The proof usually is mailed to the lawyer for the personal representative along with a bill for the publication, which is a cost of administration. A form of affidavit also appears in F.S. 50.051. « Ch. 8 », « § 8.2 », • A », « 2 », « e • 1 Practice Under Florida Probate Code § 8.2.A.2.e (2022)

e. Direct Service Of Notice—Ascertainable Creditors If a creditor is reasonably ascertainable, F.S. 733.2121(3)(a) requires the personal representative to promptly serve a copy of the notice to creditors on that creditor. However, service is not required on any creditor who has filed a claim, whose claim has been paid in full, or whose claim is listed in a personal representative’s proof of claim. F.S. 733.2121(3)(a). Service on creditors can be by regular mail “or in the manner provided for service of formal notice.” Fla. Prob. R. 5.241(a). If the decedent was age 55 or older at the time of death, the personal representative is also required to serve a copy of the notice to creditors, together with a copy of the decedent’s death certificate, on the Agency for Health Care Administration within three months of the first date of publication unless the agency has already filed a claim. F.S. 733.2121(3)(d); Rule 5.241(a). See Form No. P-3.0740 (Notice to Creditors (formal administration)). If the creditor is represented by a lawyer, service on the lawyer of the notice to creditors binds the creditor because Rule 5.041 mandates giving notice to the lawyer. See Grainger v. Wald, 29 So. 3d 1155 (Fla. 1st DCA 2010). It makes no difference whether the creditor’s lawyer is the “personal injury” lawyer or the “probate” lawyer. Id. The failure to serve a reasonably ascertainable creditor prevents the claim of that creditor from being barred until the expiration of the two-year claims

period. Jones v. Golden, 176 So. 3d 242 (Fla. 2015); F.S. 733.710. When there is a summary administration, if a known or reasonably ascertainable creditor does not receive notice or is one for whom payment was not provided, the creditor may enforce the claim against those receiving the decedent’s estate, and, if the creditor prevails, the creditor may receive reasonable attorneys’ fees. F.S. 735.206(4)(d). The District Court of Appeal, Fourth District, has held that a claimant with a contingent or conjectural claim is not entitled to actual notice of the claims period because such a claimant is not an ascertainable creditor to whom actual notice is due. U.S. Trust Company of Florida Savings Bank v. Haig, 694 So. 2d 769 (Fla. 4th DCA 1997). The case involved a late claim on the decedent’s five-year guaranty that a portion of the claimants’ home would be free of leaks and cracks caused by structural defects. The personal representative of the estate was aware of the claimants’ purchase money note and mortgage in favor of the decedent and was also aware of the guaranty, but apparently was not aware of any claim on the guaranty until eight days after expiration of the period for filing claims. The appellate court reversed the trial court’s order extending the time for filing the claim, holding that the trial court was without discretion to grant the motion for extension of the claims period. The Fourth District subsequently distinguished its holding in Haig in Miller v. Estate of Baer, 837 So. 2d 448 (Fla. 4th DCA 2003), in which the court held that the creditor was reasonably ascertainable when the amount of the guaranty was clearly defined. The decedent not only was an obligor on partnership debt because of her status as a general partner, but also was a guarantor. The loan document further provided that death caused a default, thereby making the decedent personally liable on the guaranty. The Third District has considered the issue of what constitutes a known or reasonably ascertainable creditor in connection with the decedent’s business dealings. The district court affirmed a trial court’s finding that a claimant was not a known or reasonably ascertainable creditor in a case in which the claimant had not communicated to the decedent or to anyone on the decedent’s behalf that the claimant “had a dispute or would claim a right to damages or other legal remedy” in a matter arising out of a business transaction with the decedent. Jones v. Sun Bank/Miami, N.A., 609 So. 2d 98, 101 (Fla. 3d DCA 1992).

The claimant in Jones bought a gas station site from the decedent. The claimant later made two telephone calls and wrote one letter to the decedent, inquiring about whether there were any underground tanks on the premises. The claimant did not mention her belief that there was environmental contamination. A reply to the letter said that all tanks were aboveground. Approximately three and one-half months after the reply, the decedent died. Notice of administration was published, but no actual notice was given to the claimant. The claimant filed an untimely claim after learning of the decedent’s death. The co-administrators of the estate moved to strike the claim. At the hearing, there was testimony from a co-administrator that a substantial percentage of the decedent’s gas station sites in Florida had environmental contamination. The trial court held that there was no duty to give actual notice to all purchasers of the decedent’s Florida gas station sites when the purchasers had never communicated to the decedent any dispute or claim. Although the claimant’s identity as a purchaser may have been reasonably ascertainable, her claim was not. Therefore, the claimant was merely a “conjectural claimant” and not a “reasonably ascertainable creditor.” Id. at 102. In so holding, the trial court determined that the United States Supreme Court’s decision in Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 108 S. Ct. 1340, 99 L. Ed. 2d 565 (1988), does not require the personal representative to determine the identities of persons or entities with whom the decedent had business dealings or other transactions and serve a copy of the notice of administration (now, a notice to creditors) merely because there might be some uncommunicated dissatisfaction. On appeal, the district court quoted extensively from the trial court’s order and affirmed, stating that there was no abuse of discretion in finding that the claimant was not a known or reasonably ascertainable creditor. Similarly, the Third Circuit in Soriano v. Estate of Manes, 177 So. 3d 677 (Fla. 3d DCA 2015), determined that the personal representative’s review of all of the decedent’s personal and business records constituted an adequate search for reasonably ascertainable creditors, and that the claimant was a conjectural as opposed to ascertainable creditor. In Soriano, the claimant was the alleged victim of a workplace battery for which there was a pending criminal action at the time of the decedent’s death. Even though the personal representative, who was the decedent’s former spouse, was aware of the criminal action and may have even paid the retainer for the decedent’s criminal defense counsel, she was never made aware that a possible civil

action would also be filed by the claimant, and she never served a notice to creditors upon the claimant. The claimant filed a late claim and was denied an extension of time for the filing. In denying the late claim, the court held that no notice to creditors was due the claimant because notice of a possible civil claim was neither contained in the decedent’s records nor received by the personal representative. In so holding, the court distinguished In re Estate of Ortolano, 766 So. 2d 330 (Fla. 4th DCA 2000), in which the personal representative had actual notice of a contingent creditor’s pending lawsuit against the decedent, yet failed to file a suggestion of death or to serve a notice to the creditor. See also Cantero v. Estate of Caswell, 305 So. 3d 37 (Fla. 3d DCA 2019) (contacting personal representative to give condolences and pick up items but presenting no evidence of claim against estate insufficient to make claimant reasonably ascertainable creditor). In Foster v. Cianci, 773 So. 2d 1181 (Fla. 2d DCA 2000), the Second District considered the issue of who constitutes a known or reasonably ascertainable creditor in conjunction with a tort claim against a decedent. The district court affirmed the circuit court’s finding that an injured party’s claim was not a contingent claim, and thus, the claimant was entitled to actual notice, despite the fact that the claimant had knowledge of the decedent’s death and that the estate had some knowledge of the claim because the personal representative had been substituted as a party and was served, during the claims period, with a summons. In reaching its decision, the court cited approvingly In re Estate of Ortolano, which in turn cited Haig. The determination of whether a creditor is reasonably ascertainable is an evidentiary matter. Evidence must be presented to support the notion that a creditor allegedly known to a decedent was in fact reasonably ascertainable by the personal representative. In Faerber v. D.G., 928 So. 2d 517 (Fla. 2d DCA 2006), the victim of alleged sexual abuse tried to obtain an extension of time to file a claim against the estate of the alleged perpetrator who had earlier taken his own life shortly after being charged with the sexual abuse of the claimant. The victim argued that because the victim was known to the decedent, the decedent’s personal representative could then have ascertained the victim’s identity and provided actual notice. However, because no evidence was offered, an evidentiary hearing was required. « Ch. 8 », « § 8.2 », • A », « 3 » 1 Practice Under Florida Probate Code § 8.2.A.3 (2022)

3. Summary Administration A similar procedure is applicable to summary administration. Changes were instituted to comply with the due process issues raised by the United States Supreme Court in Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 108 S. Ct. 1340, 99 L. Ed. 2d 565 (1988), and more recent changes, effective January 1, 2008, were made to include essentially the same information required to be stated in a petition for administration, see In re Amendments to Florida Probate Rules, 959 So. 2d 1170 (Fla. 2007). F.S. 735.206(2) provides that the petitioner must make a diligent search and reasonable inquiry for any known or reasonably ascertainable creditors. Fla. Prob. R. 5.530 provides that the known and reasonably ascertainable creditors not joining in the petition for summary administration or consenting to it must receive formal notice of the petition, and provision must be made for the payment of creditors to the extent of available assets. The rule further provides that, before entry of an order of summary administration, the petitioner must state either that all claims are barred or that a diligent search and reasonable inquiry for creditors have been made and one of the following: (i) A statement that the estate is not indebted. (ii) The name and address of each creditor, the nature of the debt, the amount of the debt and whether the amount is estimated or exact, and when the debt is due. If provision for payment of the debt has been made other than for full payment in the proposed order of distribution, the following information must be shown: (a) The name of the person who will pay the debt. (b) The creditor’s written consent for substitution or assumption of the debt by another person. (c) The amount to be paid if the debt has been compromised. (d) The terms for payment and any limitations on the liability of the person paying the debt. Rule 5.530(a)(9). The lawyer should note that if the debts exceed the assets, there is no

requirement that the beneficiaries assume the decedent’s debts. F.S. 735.206(4)(e). When an order of summary administration has been entered under F.S. 735.206, publication of a notice to creditors in accordance with the relevant provisions of F.S. 733.2121 is not required but is permitted. F.S. 735.2063. If published, and if proof of publication is filed with the court, creditors “who are not known or are not reasonably ascertainable” will be barred unless a claim is filed within three months of the first publication of the notice. F.S. 735.2063(2). However, if the two-year limitations period under F.S. 733.710 would expire before the passage of three months after the first publication of the notice, publication may not be necessary. « Ch. 8 », « § 8.2 », • A », « 4 • 1 Practice Under Florida Probate Code § 8.2.A.4 (2022)

4. Statement Regarding Creditors The personal representative must file a verified “Statement Regarding Creditors” within four months after the first publication of the notice to creditors. The statement provides evidence that the personal representative has made a diligent search for creditors, and it must list the name and address of each creditor known to the personal representative who has or may have a claim against the estate and who has not filed a timely claim or had its claim included in a personal representative’s proof of claim. The statement must also indicate whether the creditor was served with a notice to creditors “or otherwise received actual notice of the information contained in the notice.” Fla. Prob. R. 5.241(d). Forms for the statement regarding creditors are FLSSI Form Nos. P-3.0831 (individual) and P-3.0832 (corporate). « Ch. 8 », « § 8.2 », « B » 1 Practice Under Florida Probate Code § 8.2.B (2022)

B. Filing Of Claims « Ch. 8 », « § 8.2 », « B », • 1 » 1 Practice Under Florida Probate Code § 8.2.B.1 (2022)

1. Three-Month/Thirty-Day Period—F.S. 733.702 As noted at § 8.2.A.2.b, the Florida Probate Code requires that claims be filed with the court no later than the later of three months after the time of the

first publication of the notice to creditors or, as to any creditor required to be served with a copy of the notice to creditors, thirty days after the date of service of the notice to creditors on the creditor. This expedites the settlement of a decedent’s estate without unreasonably restricting the rights of creditors. See Herman v. Bennett, 278 So. 3d 178 (Fla. 1st DCA 2019). If a claim is not filed before the expiration of the three-month/thirty-day period, it is forever barred. No objection need be filed. However, the creditor may seek an extension of time for filing the claim on grounds of “fraud, estoppel, or insufficient notice of the claims period.” F.S. 733.702(3). « Ch. 8 », « § 8.2 », « B », « 2 » 1 Practice Under Florida Probate Code § 8.2.B.2 (2022)

2. Alternate Two-Year Period—F.S. 733.710 F.S. 733.710 provides an alternate limitations period. Notwithstanding any other provision of the Florida Probate Code, two years after a person’s death, neither the estate, the personal representative (if any), nor the beneficiaries are liable for any claim or cause of action against the decedent, regardless of whether letters of administration have been issued. However, the statute provides exceptions for a creditor who has filed a claim under F.S. 733.702 within two years after the person’s death and whose claim has not been paid or otherwise disposed of under F.S. 733.705, and for the lien of a duly recorded mortgage or security interest, the lien of any person in possession of personal property, and the right to foreclose and enforce the mortgage or lien. F.S. 733.710 bars a claim after two years from the date of death, even if the creditor was known or reasonably ascertainable and did not receive notice of the claims period, In re Estate of Bartkowiak, 645 So. 2d 1082 (Fla. 3d DCA 1994), and even if the personal representative fraudulently induced the creditor to delay filing the claim, In re Estate of Fleming, 786 So. 2d 660 (Fla. 4th DCA 2001). “[L]ulling promises” that lead to inaction do not affect the time period. Dobal v. Perez, 809 So. 2d 78, 80 (Fla. 3d DCA 2002). As stated in Grijalva v. Gulf Bank, 2011 U.S. Dist. LEXIS 9866, *9, 2011 WL 282754, *3 (S.D. Fla. 2011), citing May v. Illinois National Insurance Co., 771 So. 2d 1143 (Fla. 2000), “the only exceptions to the application of [F.S.] 733.710 are contained in the statute itself.”

« Ch. 8 », « § 8.2 », « B », « 3 » 1 Practice Under Florida Probate Code § 8.2.B.3 (2022)

3. Statute Of Limitations, Statute Of Nonclaim, And Extensions Of Time « Ch. 8 », « § 8.2 », « B », « 3 », • a » 1 Practice Under Florida Probate Code § 8.2.B.3.a (2022)

a. F.S. 733.702 The notice to creditors is designed to notify all creditors to present their claims within the period of time prescribed in F.S. 733.702 and 733.710. See Fla. Prob. R. 5.241(b). A personal representative may be estopped from asserting that a claim is untimely under F.S. 733.702 when the personal representative’s conduct caused the failure of a claimant to file a claim within the prescribed period of time. Barnett Bank of Palm Beach County v. Estate of Read, 493 So. 2d 447 (Fla. 1986); Dobal v. Perez, 809 So. 2d 78 (Fla. 3d DCA 2002). In Barnett Bank, the Florida Supreme Court held that F.S. 733.702 is a statute of limitations rather than a statute of nonclaim. The decision was based on the 1983 version of F.S. 733.702(1)(a), which remained unchanged until 1988. The court in Barnett Bank acknowledged that a number of decisions had used the “nonclaim” terminology, but observed that those cases in fact treated the statute as a statute of limitations by requiring the estate to affirmatively plead the statute of limitations or by allowing the creditor to justify noncompliance with it. The Florida Supreme Court confirmed in Spohr v. Berryman, 589 So. 2d 225 (Fla. 1991), that F.S. 733.702 is a statute of limitations, based on the 1985 version of the statute. After Barnett Bank but before Spohr, the District Court of Appeal, First District, had held that the 1987 version of F.S. 733.702(1)(a) was a jurisdictional statute of nonclaim, and not a statute of limitations. In re Estate of Parson, 570 So. 2d 1125 (Fla. 1st DCA 1990). In Parson, the district court held that Barnett Bank was inapplicable because of changes made to the Florida Probate Code after 1983. The district court relied on 1984 and 1986 changes in F.S. 733.705(2) and (3), pertaining to time limits for filing an objection to a claim and for bringing an independent action on a claim after an objection has been filed. As acknowledged by the

court in a footnote in Parson, the 1988 Legislature made a significant change in F.S. 733.702 by adding subsection (3), providing that a creditor may obtain an extension of time for filing a claim on grounds of fraud or estoppel. Ch. 88-340, § 6, Laws of Fla. F.S. 733.702(3) was further amended in 1989 to include insufficient notice of the claims period as a ground for extending the time in which a claim may be filed. Ch. 89-340, § 5, Laws of Fla. The Fourth District in Comerica Bank & Trust, F.S.B. v. SDI Operating Partners, L.P., 673 So. 2d 163 (Fla. 4th DCA 1996), determined that Spohr was not contrary to Parson because, even though Spohr says that F.S. 733.702 is a statute of limitations (although it is known as a statute of nonclaim), the Florida Supreme Court did not have occasion to consider that issue before it made the statement. The same court, one year later, held that the statute operated as an automatic bar to untimely claims because it was a “statute of nonclaim” as opposed to a mere “statute of limitation.” U.S. Trust Company of Florida Savings Bank v. Haig, 694 So. 2d 769, 772 (Fla. 4th DCA 1997). See also Thames v. Jackson, 598 So. 2d 121 (Fla. 1st DCA 1992) (discussing holding in Parson without mentioning Spohr). F.S. 733.702(3), as enacted in 1988 and amended in 1989, changed the manner of dealing with an untimely claim if the decedent died after July 1, 1988. See HCA New Port Richey Hospital v. Estate of Boschelli, 588 So. 2d 1012 (Fla. 2d DCA 1991). Under F.S. 733.702(3), a late claim is barred unless the court extends the time for filing it. An extension of time for filing the claim may be granted only on grounds of fraud, estoppel, or insufficient notice of the claims period. The creditor may not bring an independent action or a declaratory action on a late claim unless the creditor has obtained an extension of time for filing the claim. F.S. 733.702(3), 733.705(6). See § 8.3.A.1 for a further discussion of extensions. F.S. 733.702(3) also provides a mechanism for forcing a potential late claimant to file a petition for extension or be forever barred. The personal representative or another interested person may serve on a potential claimant a notice to file a petition for extension or be forever barred. If such a notice is served, the creditor will be limited to a period of 30 days from the date of service of the notice in which to file a petition for extension. The procedure is useful when a potential claimant is discovered later than three months after first publication of the notice (perhaps too late to serve a copy of the notice

under F.S. 733.2121(3)(a)), and it is desirable to determine whether the person or entity will attempt to file a claim before two years after the decedent’s death. See F.S. 733.2121(1), 733.702(1), (6), 733.710. A form for such a notice is FLSSI Form No. P-3.1033. The status of F.S. 733.702 as a statute of limitations is now settled, as confirmed by the Florida Supreme Court in May v. Illinois National Insurance Co., 771 So. 2d 1143 (Fla. 2000). « Ch. 8 », « § 8.2 », « B », « 3 », « b • 1 Practice Under Florida Probate Code § 8.2.B.3.b (2022)

b. F.S. 733.710 With regard to F.S. 733.710, as noted at § 8.2.B.2, there are exceptions to the two-year limitations period for a creditor who has filed a claim under F.S. 733.702 within two years after the person’s death and whose claim has not been paid or otherwise disposed of under F.S. 733.705, and for the lien of a duly recorded mortgage or security interest, the lien of any person in possession of personal property, and the right to foreclose and enforce the mortgage or lien. Historically, a judicial split existed regarding whether other grounds may exist for an extension of the two-year time limit under F.S. 733.710. In Baptist Hospital of Miami, Inc. v. Carter, 658 So. 2d 560 (Fla. 3d DCA 1995), the District Court of Appeal, Third District, held that F.S. 733.710, as amended in 1989, was a statute of limitations rather than a statute of repose. As a result, the court determined that fraud or misrepresentation could estop the estate from claiming the limitations defense. However, the Fourth District disagreed with Carter, declaring F.S. 733.710 to be a statute of repose, and thus serving as an absolute bar to a late claim. Comerica Bank & Trust, F.S.B. v. SDI Operating Partners, L.P., 673 So. 2d 163 (Fla. 4th DCA 1996). Although the court in Comerica certified conflict with Carter, Comerica was not appealed. The Comerica decision was cited favorably by the same court in U.S. Trust Company of Florida Savings Bank v. Haig, 694 So. 2d 769 (Fla. 4th DCA 1997). In Payne v. Stalley, 672 So. 2d 822 (Fla. 2d DCA 1995), the Second District indicated that fraud or estoppel could be grounds for extending the two-year period under the 1989 version of F.S. 733.710. The court in Payne seems to have assumed, without discussing why, that the grounds for an extension of time under F.S. 733.702(3) would also be

grounds for an extension of time under F.S. 733.710. In the author’s opinion, this is a peculiar decision, particularly because F.S. 733.702(5) provides that nothing in F.S. 733.702 extends the limitations period in F.S. 733.710. Subsequently, the same court ruled flatly in Lutheran Brotherhood Legal Reserve Fraternal Benefit Society v. Estate of Petz, 744 So. 2d 596 (Fla. 2d DCA 1999), that F.S. 733.710 is a statute of repose, and certified conflict with Carter. In 2000, the Florida Supreme Court in May v. Illinois National Insurance Co., 771 So. 2d 1143 (Fla. 2000), unequivocally classified F.S. 733.710 as a jurisdictional statute of nonclaim that is not subject to waiver or extension in the probate proceedings. As noted at § 8.2.B.3.a, the May court determined that F.S. 733.702 is a statute of limitations, which, in a probate proceeding, cannot be waived by failure to assert the statute as an objection. « Ch. 8 », « § 8.2 », « B », « 4 • 1 Practice Under Florida Probate Code § 8.2.B.4 (2022)

4. Types Of Claims Covered The claims and demands contemplated by the Florida Probate Code as being limited by the two-year or three-month/thirty-day period for filing are debts or claims incurred by the decedent, arising before death; claims for funeral or burial expenses; claims for personal property in the possession of the personal representative; claims for damages, including but not limited to an action founded on fraud or another wrongful act or omission of the decedent; claims based on a cause of action for which an action was pending at the death of the decedent; and claims on judgments against the decedent. F.S. 733.702(1)–(2), 733.706. Debts incurred by the personal representative presumably are payable when incurred and are not barred by a failure to file within the limitation period. There

remains

another

anomaly:

liens

from

the

Division

of

Unemployment Compensation of the Department of Labor and Employment Security under F.S. 443.141. For a discussion of this topic, see § 8.3.B.2.a.v. See §§ 1.2.B.1–1.2.B.6 and 15.6 of this manual regarding funeral expenses as claims. For further general discussion relating to the presentation of claims, see LITIGATION UNDER FLORIDA PROBATE CODE Chapter 6 (Fla. Bar 13th ed. 2022). « Ch. 8 », « § 8.2 », « C » 1 Practice Under Florida Probate Code § 8.2.C (2022)

C. Objections To Claims « Ch. 8 », « § 8.2 », « C », • 1 » 1 Practice Under Florida Probate Code § 8.2.C.1 (2022)

1. In General The personal representative should investigate all claims filed against the estate and object to those that are determined to be unjust or invalid. The procedure for objecting to claims against the estate is set forth in Fla. Prob. R. 5.496. The statutory authority is found in F.S. 733.705(2). The personal representative, or other person interested in the estate, may object to a claim within four months from the first publication of the notice to creditors, or within 30 days from the timely filing of the claim, whichever occurs later. Id. An objection to a claim constitutes an objection to an amendment of a claim unless the objection is withdrawn. Id. The objection must be in writing and must be filed with the court, id., and must state that “the claimant is limited to a period of 30 days from the date of service of an objection within which to bring an action” on the claim, Rule 5.496(c). Failure to include a statement of the limitations period for filing a lawsuit on the claim does not affect the validity of the objection, but it may be deemed good cause for extending the time for filing a lawsuit after the objection is filed. A motion to strike has been held not to be an objection, as it failed to include the requisite language concerning the time limits for filing the independent action; the creditor was granted an extension of time to file the independent action. Fernandez-Fox v. Estate of Lindsay, 972 So. 2d 281 (Fla. 5th DCA 2008). The objection need not be signed by the personal representative, but instead can be signed and filed by the personal representative’s attorney of record. Epperson v. Rupp, 157 So. 2d 537 (Fla. 3d DCA 1963). See In re Estate of Brugh, 306 So. 2d

599 (Fla. 2d DCA 1975). There are no partial objections to a claim. An objection to a part of a claim is treated as an objection to the whole claim for purposes of requiring a creditor to bring an independent action. In re Estate of Cadgene, 938 So. 2d 581 (Fla. 2d DCA 2006). The person filing the objection must serve a copy of it by registered or certified mail, or by personal service, on the claimant or the claimant’s attorney of record. Rule 5.496(b). If the objection is filed by a person other than the personal representative, the objector must also serve a copy on the personal representative. Id. Failure to serve a copy of the objection constitutes an abandonment of the objection. F.S. 733.705(2). If the objection is timely filed but not served on the claimant, as required by the statute and rule, the court can order the claim to be paid. In re Estate of Robins, 463 So. 2d 273 (Fla. 2d DCA 1984); In re Estate of Maxcy, 178 So. 2d 43 (Fla. 2d DCA 1965). Compare with In re Estate of Brugh (service of objections on claimants’ lawyer, who made appearance in probate court by direct filing of claims and who acknowledged timely receipt of objections in proper form, was sufficient, notwithstanding that notice of objections was sent by regular mail to lawyer at address listed on one of claims, when address was in fact that of one of claimants). If an objection to a claim is filed by someone other than the personal representative (e.g., a beneficiary), the personal representative may apply to the court for an order relieving the personal representative of the obligation to defend the estate in an independent action, or for the appointment of the person making the objection as an administrator ad litem to defend the action. F.S. 733.705(3). Fees for the lawyer for the administrator ad litem may be awarded in accordance with F.S. 733.106(3). If the lawyer’s fees and costs are assessed against the estate, the court may charge or apportion the award as provided in F.S. 733.106(4). F.S. 733.705(3). An objection to a personal representative’s proof of claim should “state the particular item or items to which the interested person objects.” F.S. 733.705(4); Rule 5.499(b). See § 8.2.E.2.b for discussion of personal representatives’ proofs of claim. For a form of objection to a personal representative’s proof of claim, see FLSSI Form No. P-3.1021. If two or more people file a joint claim, the objection must be served on each of the claimants. If the personal representative serves the objection on

only one of two joint claimants, the objection is abandoned as to the one who was not served. Kata v. Hayden, 544 So. 2d 315 (Fla. 2d DCA 1989). Although there are no specific grounds required for objections to claims, the objection should (1) recite the interest of the objector in the estate; (2) sufficiently describe the claim to which the objection is being filed; and (3) contain a statement that an objection is being made. See Rule 5.496. An objection must contain (1) a statement that the claimant is limited to a period of 30 days from the date of service of the objection within which to bring an action on the claim, and (2) a certificate of service. Rule 5.496(b)–(c). The personal representative should not file objections to claims unless it is felt that the objections have merit. Otherwise, the estate would be subjected to needless expense, and an unjustifiable burden would be placed on meritorious creditors. If the personal representative believes that a claim has merit, but that the amount is incorrect, the personal representative should discuss it with the claimant or the claimant’s lawyer, so the claimant may amend the claim and relieve the personal representative of the need for filing an objection. If this is not possible, the personal representative may be able to settle the claim at some other stage in the proceeding after an objection is filed. See § 8.2.F.1. For a form for an objection to a claim see FLSSI Form No. P-3.1020. « Ch. 8 », « § 8.2 », « C », « 2 » 1 Practice Under Florida Probate Code § 8.2.C.2 (2022)

2. Service Of Objection And Creditor’s Action On Claim As noted above, objections to claims must be filed on or before the expiration of four months from the first publication of notice to creditors, or within 30 days from the timely filing or amendment of a claim, whichever occurs later. They may be filed by the personal representative or other interested persons. F.S. 731.201(16), 733.705(2). When an objection is filed, a copy must be served as provided in the Florida Probate Rules. F.S. 733.705(2). The rules require service on the claimant and that a certificate of service be contained in the objection. Fla. Prob. R. 5.496(b). The personal representative is also served a copy of the objection if the personal representative is not the objector. Id. As noted at § 8.2.C.1, failure to serve a copy of the objection constitutes its abandonment

unless the time for service is extended by the court upon good cause shown. F.S. 733.705(2); Rule 5.496(b); In re Estate of Robins, 463 So. 2d 273 (Fla. 2d DCA 1984). The claimant is limited to 30 days from service of the objection to bring an action on the claim. F.S. 733.705(5). This time period may be extended by the personal representative if done so in writing, before the expiration of the time period. Id. Actions and proceedings against the personal representative are prohibited after the 30-day period unless the time is extended. Id. Computation of the 30-day period should be in accordance with Rule 5.042. The personal representative must file written notice of the action in the estate proceeding. Rule 5.065(a). The court in which the administration proceedings are pending may determine all disputed claims or matters not requiring trial by jury. F.S. 733.705(10). The probate court, for good cause, may extend the time for filing an objection (see § 8.2.C.3), the time for serving it, and the time for filing an action after the objection is filed. Golden v. Atlantic National Bank of Jacksonville, 481 So. 2d 16 (Fla. 1st DCA 1986), disapproved on other grounds 537 So. 2d 1370; F.S. 733.705(2), (11). See § 8.3.C.1.b. If the claimant does not file a timely action on the claim, including any extension of time granted, the claim is automatically barred without any court order. F.S. 733.705(5). The petition for an order of discharge should contain (1) a recital of the filing of the claim; (2) the date when it was filed; (3) a statement that an objection was filed by the personal representative or another interested person and served within the time and in the manner required by law; and (4) a statement that no service of process was made on the personal representative. See § 14.2.B of this manual. A copy of the petition for discharge should be served on the claimant. « Ch. 8 », « § 8.2 », « C », « 3 • 1 Practice Under Florida Probate Code § 8.2.C.3 (2022)

3. Extending Time To Object And Failing To Object To Claim F.S. 733.705(2) provides that the time for filing an objection to a claim or the time for serving a copy of an objection may be extended by the court upon a showing of good cause. A petition for extension of time can be filed after the time for filing objections has expired. In re Jeffries’ Estate, 136 Fla.

410, 181 So. 833 (1938). See Sutton v. Stear, 264 So. 2d 838 (Fla. 1972). Mere negligence of the personal representative or the personal representative’s lawyer does not constitute “good cause.” Ellard v. Godwin, 77 So. 2d 617 (Fla. 1955). The clerk’s failure to mail to the personal representative a copy of the claim and to properly file and index the claim may constitute good cause for an extension of time to file an objection. Cohen v. Majestic Distilling Co., 765 So. 2d 276 (Fla. 4th DCA 2000). The discretion to be exercised by the court in granting an extension of time must be reasonable in character and not arbitrary or capricious. Smoak v. Graham, 167 So. 2d 559 (Fla. 1964). See Delgado v. Estate of Garriga, 870 So. 2d 912 (Fla. 3d DCA 2004), in which an extension of time to object to a claim was held to be within the court’s discretion. The creditor had previously received extensions of time to file the claim and the personal representative’s failure to object was due to a calendaring error of the personal representative’s counsel. The extension may be entered only in the estate administration proceedings. F.S. 733.705(11). Further discussion of extensions of time is provided in LITIGATION UNDER FLORIDA PROBATE CODE Chapter 6 (Fla. Bar 13th ed. 2022). If the personal representative fails to file a timely objection to a claim or fails to secure an extension of the time for filing an objection, the court is without jurisdiction to reject the claim or to determine disputed questions of fact that relate to the validity of the claim, including whether the claim is barred by the statute of limitations. It must be paid whether meritorious or not. Barnett Bank of Palm Beach County v. Estate of Read, 493 So. 2d 447 (Fla. 1986), citing Goggin v. Shanley, 81 So. 2d 728 (Fla. 1955). « Ch. 8 », « § 8.2 », « D » 1 Practice Under Florida Probate Code § 8.2.D (2022)

D. Limitation On Late Claims If a claim is filed after the three-month/thirty-day period, neither an objection to a late claim nor a petition to strike is necessary. See HCA New Port Richey Hospital v. Estate of Boschelli, 588 So. 2d 1012 (Fla. 2d DCA 1991); F.S. 733.702(3), 733.705(5)–(6). However, the personal representative should serve a notice to file a petition for an extension, as provided under

F.S. 733.702(3), to limit the time in which the creditor may petition for an extension of time to file the claim (unless two years from the date of the decedent’s death have already passed). See F.S. 733.710. This is especially so with regard to those creditors who were not served with the notice to creditors but who may claim that they should have been because they were reasonably ascertainable. See Jones v. Golden, 176 So. 3d 242 (Fla. 2015). As noted at § 8.2.B.3.a, serving such a notice on the creditor will limit the creditor to 30 days from the date of service in which to file a petition for extension or be forever barred. F.S. 733.702(3). For a suggested form of notice see FLSSI Form No. P-3.1033. « Ch. 8 », « § 8.2 », « E » 1 Practice Under Florida Probate Code § 8.2.E (2022)

E. Payment Of Claims « Ch. 8 », « § 8.2 », « E », • 1 » 1 Practice Under Florida Probate Code § 8.2.E.1 (2022)

1. Necessity For Personal Representative To Examine Nature Of Claims « Ch. 8 », « § 8.2 », « E », • 1 », • a » 1 Practice Under Florida Probate Code § 8.2.E.1.a (2022)

a. In General Because the personal representative is charged with the duty of paying only those claims that are valid charges against the estate of the decedent, the personal representative should examine each claim to determine whether the claimant is entitled to be paid out of the estate’s assets. In re Estate of Simpson, 113 So. 2d 766 (Fla. 2d DCA 1959). Claims may be barred for procedural reasons such as failure to comply with the statute of nonclaim. In some instances the estate may not be liable as a matter of substantive law. « Ch. 8 », « § 8.2 », « E », • 1 », « b • 1 Practice Under Florida Probate Code § 8.2.E.1.b (2022)

b. Liability Of Surviving Spouse For Claims Against Decedent Under the common-law doctrine of necessaries, a husband was responsible for his deceased wife’s expenses for necessities, the expenses of her last illness, and her funeral expenses. The husband was excused from that

responsibility only if the wife had specifically agreed for her estate to pay those expenses. There was no corresponding obligation of a wife to pay those expenses for her deceased husband. The Florida Supreme Court has abrogated the common-law doctrine of necessaries. Connor v. Southwest Florida Regional Medical Center, Inc., 668 So. 2d 175 (Fla. 1996). Therefore, neither spouse is liable for the other spouse’s expenses for necessities in Florida. The court noted that courts and legislatures in other states have addressed the problem in different ways and that the Florida Legislature had not addressed the issue. When the doctrine of necessaries was challenged on equal protection grounds, the Florida Supreme Court concluded that it was better to abrogate the doctrine (and leave it to the legislature to determine the policy of the state in this area) than to apply the doctrine to both spouses. (Although the Florida Supreme Court invited the legislature to address the issue in Shands Teaching Hospital & Clinics, Inc. v. Smith, 497 So. 2d 644 (Fla. 1986), and despite conflicting appellate decisions over the ensuing years, there still has been no legislative action taken to address the subject.) For articles examining this issue, see Willson, Abrogating the Doctrine of Necessaries in Florida: The Future of Spousal Liability for Necessary Expenses After Connor v. Southwest Florida Regional Medical Center, Inc., 24 Fla. St. U. L. Rev. 1031 (1997); Woodruff & Lester, Claims for Medical Expenses Under the Doctrine of Necessaries, 67 Fla. Bar J. 30 (Dec. 1993); Borja, Functions of Womanhood: The Doctrine of Necessaries in Florida, 47 U. Miami L. Rev. 397 (Nov. 1992). See also Simons, Is the Doctrine of Necessaries Necessary in Florida: Should the Legislature Accept the Challenge of Connor v. Southwest Florida Regional Medical Center? 50 Fla. L. Rev. 933 (Dec. 1998), providing possible legislative alternatives to inaction. With respect to funeral expenses, it has long been held that a surviving husband should be treated the same as a surviving wife. See Coral Gables First Nat. Bank v. Colee, 155 Fla. 498, 20 So. 2d 675 (1945). The Coral Gables case holds that funeral expenses are payable by the deceased wife’s estate, and the inference of that holding is that her estate has primary responsibility for those expenses. Rev. Rul. 76-369, 1976-2 C.B. 281, provides that no deduction against the

gross estate is allowed for a decedent’s funeral expenses and for expenses of his or her last illness if her surviving spouse has primary responsibility for them. In light of the case cited above, it seems clear that the estate has primary responsibility for funeral expenses and expenses of the last illness, and that the expenses would be deductible from the gross estate if paid by the estate. In general, therefore, it is recommended that the personal representative pay all of these claims, if valid, as soon as practical. The expenses that may be deducted by the surviving spouse are the decedent’s medical expenses that are paid out of the estate during the year after death. They are “treated as paid by the taxpayer at the time incurred.” IRC § 213(c). However, the expenses are deductible from income only to the extent they exceed 7.5% of adjusted gross income. IRC § 213(a). The deduction would be taken on the decedent’s individual income tax return, Form 1040, which may be a joint return with the surviving spouse. « Ch. 8 », « § 8.2 », « E », « 2 • 1 Practice Under Florida Probate Code § 8.2.E.2 (2022)

2. Procedure For Payment Of Claims « Ch. 8 », « § 8.2 », « E », « 2 •, • a » 1 Practice Under Florida Probate Code § 8.2.E.2.a (2022)

a. In General The personal representative cannot be compelled to pay the debts of the decedent until after five months from the first publication of notice to creditors. F.S. 733.705(1). “Interest shall be paid by the personal representative on written obligations of the decedent providing for the payment of interest. On all other claims, interest shall be allowed and paid beginning 5 months from the first publication of the notice to creditors.” F.S. 733.705(9). After five months and in the absence of an agreement specifying the interest payable, interest is determined under F.S. 55.03(1). The personal representative may be surcharged and face personal liability for premature payment of a claim. See § 1.3.C.1.b.i of this manual. If an action is brought against the personal representative within five months from the date of first publication of the notice to creditors on a claim

to which the personal representative has filed no objection, the plaintiff cannot receive any costs or attorneys’ fees and a judgment does not change the class of the claim for payment. F.S. 733.705(1); Estate of Cadden v. Schickedanz, 855 So. 2d 651 (Fla. 4th DCA 2003). However, when a claim has not been objected to, after five months from the first publication the personal representative can be compelled to pay the claim on petition of the claimant to the extent that the assets permit. See § 8.3.C.2; see also § 8.2.C.2. « Ch. 8 », « § 8.2 », « E », « 2 •, « b » 1 Practice Under Florida Probate Code § 8.2.E.2.b (2022)

b. Payment When No Formal Claim Is Made Ordinarily, a personal representative should not pay a claim that has not been filed as required by F.S. 733.703. Under F.S. 733.702(1), however, the personal representative may settle in full any claim without the actual filing of the claim when the settlement is approved by the interested persons. (See F.S. 731.201(23) for a definition of interested persons.) Another alternative under F.S. 733.703(2) allows the personal representative to file within three months after first publication of the notice to creditors a “proof of claim” for all claims that the personal representative either has paid or intends to pay. For the personal representative’s protection, this option should be limited to small bills such as utilities charges, nursing fees, and the like. Fla. Prob. R. 5.498 provides for the contents of the proof of claim. The proof of claim must be served on all interested persons at the time of filing or promptly afterwards. Rule 5.498(b). Forms for a proof of claim are FLSSI Form Nos. P-3.1001 and P-3.1002. A personal representative who pays a claim that does not comply with the statute makes the payment at the personal representative’s own risk, and the payment can be disallowed on objection by an interested person. See § 4.3.C.5.b of this manual concerning grounds for removal of the personal representative and §§ 4.3.D.2.a–4.3.D.2.c as to the personal representative’s personal liability. F.S. 733.705(4) specifies the manner of determining “[i]ssues of liability as between the estate and the personal representative individually for items listed in a personal representative’s proof of claim.” Objections to matters set forth in the proof of claim must follow the procedure of Rule 5.499. An

objection must be made timely and must identify the item or items to which the objection relates. Id. If a creditor has not filed a claim, and the personal representative nevertheless pays the creditor and then lists the payment on a personal representative’s proof of claim, issues of liability as between the personal representative individually and the estate will be determined in the probate proceeding—in a proceeding for accounting, surcharge, or other appropriate proceeding—regardless of whether an objection to the claim was filed. The creditor need not file an independent action. If the personal representative lists a creditor’s claim as “to be paid” in the personal representative’s proof of claim and an interested person objects to payment of that item, F.S. 733.705 will apply as if the creditor had filed its own claim. In other words, the creditor will have 30 days from the date of service of the objection in which to bring an independent action or declaratory action, and all other provisions of F.S. 733.705 will apply to the claim as if the creditor had filed its own claim. The objection needs to be served on the personal representative. If it is an objection to an item to be paid, it must also be served on the claimant within 10 days of the filing of the objection. The objection must include a certificate of service if it is to an item listed as to be paid. Rule 5.499. If, however, the personal representative lists a bill as to be paid and then pays the bill, issues of liability as between the estate and the personal representative individually will be determined in the same manner as if the bill had been listed as paid in the personal representative’s proof of claim if the objection is received after payment. The rationale for the distinction in treatment of objections to the three types of items is that a creditor whose claim is listed in a personal representative’s proof of claim filed within three months after the first publication of the notice to creditors is deemed to have filed a statement of the claim listed, and except as otherwise provided in Part VII of F.S. Chapter 733, the claim is treated for all other purposes as if the creditor had filed it. F.S. 733.703(2). But if a personal representative has paid a bill without the timely filing of a claim by the creditor, the personal representative has made the payment at the personal representative’s own risk. The personal representative remains at risk for the payment until the estate has been closed,

unless an objection by an interested person is sooner raised and disposed of in an appropriate proceeding. If the personal representative merely announces an intention to pay a bill, objections may be filed and disposed of as if the creditor had filed its own claim. As a practical matter, if the personal representative is the sole beneficiary and there are ample funds, bills may be paid because the personal representative actually is paying out his or her own money (as beneficiary) anyway. If the estate is taxable, however, and unless a proof of claim is filed by the personal representative, this may be a dangerous practice because the Internal Revenue Service might question the deductions on the estate tax return. Rev. Rul. 75-177, 1975-1 C.B. 307. See also § 8.4. Also, there is a possibility that the claims may exceed the assets. « Ch. 8 », « § 8.2 », « E », « 2 •, « c » 1 Practice Under Florida Probate Code § 8.2.E.2.c (2022)

c. Assets From Which Claims Are Payable Claims are payable from assets that are subject to the probate proceedings, including assets of trusts described in F.S. 733.707(3). F.S. 733.607(2), 736.05053, 736.05055. Claims payable from assets that are subject to the probate proceedings include “obligations.” See F.S. 733.607(2), 733.707(3), 736.05053(1), (2). Although this term has not been defined, it should include enforceable claims. However, its scope appears broader. See AMP Services Ltd. v. Walanpatrias Foundation, 73 So. 3d 346 (Fla. 4th DCA 2011) (noting substantive nature of increase of trust’s obligation). A claim for damages arising from the actions of the decedent cannot be brought against the trustee of the decedent’s revocable trust before the validity of the claim is determined by the probate court having jurisdiction of the decedent’s estate. The trustee is responsible for “obligations,” F.S. 733.707(3), only to the extent the decedent’s estate lacks sufficient assets to pay such obligations, F.S. 733.607(2). Tobin v. Damian, 723 So. 2d 396 (Fla. 4th DCA 1999). F.S. 737.3061(1), enacted in 2001, provided that, after the death of a grantor, no creditor of the grantor could bring, maintain, or continue any direct action against a trust described in F.S. 733.707(3) that was dependent on the individual liability of the grantor. That statute subsequently was repealed and replaced with a similar statute in the Florida Trust Code, F.S. 736.1014, effective July 1, 2007. The action must be

maintained in the estate proceeding. Becklund v. Fleming, 869 So. 2d 1 (Fla. 2d DCA 2003). See also Shuck v. Bank of America, N.A., 862 So. 2d 20 (Fla. 2d DCA 2003) (action against trust was dismissed but that against estate continued). Practitioners should note with care the effective date of provisions and the exceptions. This statute has also been cited to support a court’s ruling that a guardianship court cannot direct the payment of a decedent’s expenses from a trust following the decedent’s death. In re Guardianship of Gneiser, 873 So. 2d 573 (Fla. 2d DCA 2004). Article X, § 4, of the Florida Constitution and F.S. 732.402 deal with property that is exempt from the claims of creditors. In brief, the surviving spouse of a decedent domiciled in this state at the time of his or her death is entitled to all household furniture, furnishings, and appliances in the decedent’s usual place of abode up to a net value of $20,000; two motor vehicles, as defined in F.S. 316.003(21), which do not, individually, exceed a gross vehicle weight of 15,000 pounds, and which are held in the decedent’s name and regularly used by the decedent or members of the decedent’s family as their personal motor vehicles; all qualified tuition programs authorized by IRC § 529, including the Florida Prepaid College Trust Fund advance payment contracts and participation agreements under F.S. 1009.98 and 1009.981, respectively; and all benefits paid under F.S. 112.1915. If there is no surviving spouse, one or more of the children of the decedent are entitled jointly to the same property. Occasionally, property may be transferred by a decedent in such a manner that a creditor may reach it to satisfy a claim against the estate. See F.S. Chapter 726 (Uniform Fraudulent Transfer Act). For example, a conveyance to joint tenancy with right of survivorship or a tenancy by the entireties in order to remove property from a debtor’s estate may be voidable. See Valdivia v. Valdivia, 593 So. 2d 1190 (Fla. 3d DCA 1992). If a decedent’s will designates the funds or property to be used for the payment of claims against the estate, that provision must be honored and adhered to by the personal representative. F.S. 733.805(1). If no provision is contained in the will or if the property or fund designated is insufficient, F.S. 733.805 specifies the source of property to be used to satisfy debts. « Ch. 8 », « § 8.2 », « E », « 2 •, « d • 1 Practice Under Florida Probate Code § 8.2.E.2.d (2022)

d. Priorities In Payment Of Claims F.S. 733.707 provides the order of priorities for payment of claims. Specifically, the statute provides that the personal representative must pay the expenses of administration and obligations of the decedent’s estate in the following order: (a) Class 1.—Costs, expenses of administration, and compensation of personal representatives and their attorneys[’] fees and attorneys[’] fees awarded under [F.S.] 733.106(3). (b) Class 2.—Reasonable funeral, interment, and grave marker expenses, whether paid by a guardian, the personal representative, or any other person, not to exceed the aggregate of $6,000. (c) Class 3.—Debts and taxes with preference under federal law, claims pursuant to [F.S.] 409.9101 and 414.28, and claims in favor of the state for unpaid court costs, fees, or fines. (d) Class 4.—Reasonable and necessary medical and hospital expenses of the last 60 days of the last illness of the decedent, including compensation of persons attending the decedent. (e) Class 5.—Family allowance. (f) Class 6.—Arrearage from court-ordered child support. (g) Class 7.—Debts acquired after death by the continuation of the decedent’s business, in accordance with [F.S.] 733.612(22), but only to the extent of the assets of that business. (h) Class 8.—All other claims, including those founded on judgments or decrees rendered against the decedent during the decedent’s lifetime, and any excess over the sums allowed in [Class 2 or Class 4]. F.S. 733.707(1). Although a will can designate the assets to be used for the payment of claims against the estate, see § 8.2.E.2.c, the testator cannot alter or affect the statutory order of priority. See 2 Mutolo (original authors Thomas & Smith), FLORIDA ESTATES PRACTICE GUIDE Chapter 15a (Matthew Bender & Co. 2014). A problem that is not discussed in FLORIDA ESTATES PRACTICE GUIDE that

should be noted arises when the personal representative sues on behalf of the decedent and loses. It has been held that “costs taxed against an estate in the unsuccessful prosecution of a wrongful death action are within Class 1 of [F.S. 733.707].” In re Estate of Grillo, 393 So. 2d 578, 580 (Fla. 4th DCA 1981). See Thompson v. Hodson, 825 So. 2d 941 (Fla. 1st DCA 2002). Any fees that relate to postdeath activities are not barred by F.S. 733.710. F.S. 414.28(1) provides that “public assistance” claims constitute a Class 3 claim. The Florida Supreme Court examined the circumstances under which attorneys’ fees assessed against a personal representative may be a Class 1 claim. In Teague v. Estate of Hoskins, 709 So. 2d 1373 (Fla. 1998), litigation ensued between the personal representative and the guardian for the decedent’s widow. The personal representative lost in litigation involving the elective share and homestead. The personal representative also lost in a second action brought against the guardian. As a result of these losses, the trial court assessed fees against the estate in both cases. They were determined to be Class 1 claims. If the personal representative’s actions were later found to have been imprudent, the proper remedy would be surcharge, not a reduction in priority. Had the litigation been founded on issues involving the decedent’s obligations, the award of fees would have been in the original action and have a Class 8 priority. « Ch. 8 », « § 8.2 », « F • 1 Practice Under Florida Probate Code § 8.2.F (2022)

F. Compromise And Settlement Of Claims « Ch. 8 », « § 8.2 », « F •, • 1 » 1 Practice Under Florida Probate Code § 8.2.F.1 (2022)

1. In General F.S. 733.708 sets forth the law governing compromising claims against an estate. It is highly desirable to take advantage of that statute because an order authorizing the compromise operates to relieve the personal representative of liability or responsibility for the compromise. Furthermore, the personal representative and the personal representative’s lawyer can perform a real service for the estate if they are able to compromise claims that ought to be compromised. Engaging in litigation that can reasonably be

avoided usually results in additional expense to the estate. It can also delay the distribution of estate assets to creditors and devisees. The practitioner should note that a claim need not be in litigation to be compromised. See Geezil v. Savage, 127 So. 3d 867, 868 (Fla. 2d DCA 2013) (statute gives court power to compromise claim “whether in suit or not”). Claims cannot be compromised, however, until the time for filing objections has expired. F.S. 733.708. Recently, it has been noted that the personal representative has the power to compromise claims and that the seeking of court approval is not required, but, rather, is a step to avoid personal liability. In re Estate of Arroyo, 211 So. 3d 240 (Fla. 3d DCA 2017). The petition for an order authorizing a compromise must be signed by the petitioner, Fla. Prob. R. 5.330(e), and should set forth the facts and circumstances of the claim, question, or dispute; the proposed compromise; and that the compromise is in the best interest of the interested persons. Notice should be given to anyone who has filed an objection to the claim that is to be compromised and to all other interested persons. See Rule 5.041. Forms for a petition and order to compromise a claim are set forth in § 8.2.F.2. A form for a satisfaction and release of claim is FLSSI Form No. P3.1050. « Ch. 8 », « § 8.2 », « F •, « 2 • 1 Practice Under Florida Probate Code § 8.2.F.2 (2022)

2. Applicable Forms « Ch. 8 », « § 8.2 », « F •, « 2 •, • a » 1 Practice Under Florida Probate Code § 8.2.F.2.a (2022)

a. Petition To Compromise Claim IN THE CIRCUIT COURT FOR _________ COUNTY, FLORIDA PROBATE DIVISION File Number ___ IN RE: ESTATE OF _________, Deceased.

PERSONAL REPRESENTATIVE’S PETITION FOR ORDER AUTHORIZING COMPROMISE OF CLAIM Petitioner, _________, as personal representative of the above estate, alleges: 1. Publication of notice to creditors commenced on time for filing objections to claims has expired.

(date), and the

2. Among the claims against the estate is a claim filed by _________ in the amount of $______ for (state nature of claim). The personal representative timely objected to that claim in writing and timely served a copy of the objection on the claimant. 3. The claimant has offered to settle the claim for $______. The personal representative believes that the offer is fair and reasonable and that it would be in the best interests of the estate and the beneficiaries to accept the offer of compromise. 4. If the compromise is authorized by this court, there will be sufficient assets left in the estate to pay all other claims of creditors and the devisees. 5. The only other persons having an interest in this proceeding and their respective addresses are: ____________. WHEREFORE Petitioner respectfully asks for an order of this court authorizing compromise of the claim of _________ for $______. Under penalties of perjury, I declare that I have read the foregoing, and the facts alleged are true, to the best of my knowledge and belief. Executed on

(date). /s/____________ Personal Representative of the Estate of _________

(Certificate of Service)

/s/____________ (name of attorney) Attorney for Personal Representative (address and phone number) (e-mail address(es)) Florida Bar No. ___ COMMENT: Informal notice must be given to those who have filed objections to the claim and to those whose interests in the estate may be affected by the outcome of the petition. F.S. 731.201(22), 731.301, 733.708; Fla. Prob. R. 5.040(c), 5.041. For another form for a petition to compromise a claim, see § 4.3.A.3.f of this manual. « Ch. 8 », « § 8.2 », « F •, « 2 •, « b • 1 Practice Under Florida Probate Code § 8.2.F.2.b (2022)

b. Order Authorizing Compromise Of Claim (Title of Estate)

(Title of Court)

ORDER AUTHORIZING COMPROMISE OF CLAIM The petition of _________, as personal representative of this estate, for an order authorizing a compromise of the claim of _________, has been considered by this court and THE COURT FINDS: 1. The time for filing objections to claims against the estate of (decedent) has expired. 2. Proper notice of the proposed compromise has been given to those persons who filed objections to the claim of _________ and to all other interested persons. 3. The proposed compromise will be in the best interests of the interested persons and the estate.

IT IS ADJUDGED: 1. _________, as personal representative, is authorized compromise and settle the claim of _________ for $______.

to

2. Upon the compromise and settlement of the claim in accordance with the terms of this order, the personal representative is relieved of all liability and responsibility in connection with the claim. ORDERED at _________, Florida, on (date). /s/____________ Circuit Judge Copies furnished to:

« Ch. 8 », « § 8.3 » 1 Practice Under Florida Probate Code § 8.3 (2022)

§

8.3. CREDITORS’ CLAIMS VIEWPOINT OF CREDITORS

FROM

« Ch. 8 », « § 8.3 », • A » 1 Practice Under Florida Probate Code § 8.3.A (2022)

A. Procedure For Presenting Claims « Ch. 8 », « § 8.3 », • A », • 1 » 1 Practice Under Florida Probate Code § 8.3.A.1 (2022)

1. Filing Statement Of Claim F.S. 733.702(1) requires a person having a claim or demand against the estate of a decedent to file the claim in the probate proceeding for the decedent within the later of three months “after the time of the first publication of the notice to creditors or, as to any creditor required to be served with a copy of the notice to creditors, 30 days after the date of service” of the copy of the notice on the creditor. Under F.S. 733.2121(3)(a), the personal representative must “promptly make a diligent search to determine the names and addresses of creditors of the decedent who are reasonably ascertainable” and must serve on those creditors a copy of the notice to creditors. There is no definition of “promptly.” Formerly, the requirement was for service within three months after first publication of the notice. Therefore, under F.S. 733.702(1), assuming “promptly” is the same as within three months or a shorter time period, the latest time for filing a claim would be three months after first publication of the notice to creditors, plus an additional 30 days, but only as to a creditor who was served with a copy of the notice exactly three months after the date of first publication. However, the District Court of Appeal, First District, has held that actual knowledge of the opening of an estate may take the place of actual notice for due process purposes. In re Estate of Danese, 641 So. 2d 423 (Fla. 1st DCA 1994). See § 8.2.A.2.a. A creditor who was not reasonably ascertainable by the personal representative (and therefore not one on whom the notice is required to be

served) is limited to three months after the date of first publication in which to file a claim. A creditor who is reasonably ascertainable but not served with the notice to creditors may not be barred until the expiration of the two-year time period prescribed in F.S. 733.710. Jones v. Golden, 176 So. 3d 242 (Fla. 2015). If a notice to creditors is not published, or if two years from the date of the decedent’s death passes before the three-month/thirty-day period expires, two years from the date of the decedent’s death is the deadline for filing all claims, regardless of whether the estate has been administered. F.S. 733.702(1), (5), 733.710. If a creditor was not served with a copy of the notice to creditors and did not file a claim within three months after first publication of the notice, but believes that its name and address were reasonably ascertainable by the personal representative, the creditor should file a petition for extension of time to file the claim, alleging insufficient notice of the claims period. The petition should allege facts showing that the creditor was known to or reasonably ascertainable by the personal representative. As discussed in §§ 8.2.B.3.a and 8.2.D, F.S. 733.702(3) permits the personal representative or any other interested person to serve a notice to file a petition for an extension on a creditor who has not timely filed a claim. If such a notice is served, the creditor is limited to 30 days from the date of service of the notice within which to file a petition for an extension of time to file a claim. If the creditor does not file a petition for extension within that time, any claim the creditor may have is barred. Any requests for extensions of time to file a claim must be filed before the claim is filed and within the claims period. See Lubee v. Adams, 77 So. 3d 882 (Fla. 2d DCA 2012); Morgenthau v. Estate of Andzel, 26 So. 3d 628 (Fla. 1st DCA 2009); Mack v. Perry, 24 So. 3d 697 (Fla. 1st DCA 2009). Under F.S. 733.702(3), any claim not timely filed “is barred even though no objection to the claim is filed unless the court extends the time in which the claim may be filed.” See also HCA New Port Richey Hospital v. Estate of Boschelli, 588 So. 2d 1012 (Fla. 2d DCA 1991). However, in Jones, the Florida Supreme Court held that there is no automatic bar under F.S. 733.702(1) with respect to a reasonably ascertainable creditor who has not been served with a copy of the notice to creditors. Such creditors’ claims

would be barred only under F.S. 733.710, because the time to file claims does not otherwise expire. An extension of time to file a claim may be granted only on grounds of fraud, estoppel, or insufficient notice of the claims period. The practitioner should note that “waiver” is not a permissible ground for extension, although equitable estoppel may be. Castro v. East Pass Enterprises, Inc., 881 So. 2d 699 (Fla. 1st DCA 2004). No independent action or declaratory action may be brought on a claim not timely filed unless the court grants an extension. As originally enacted, F.S. 733.702(3) also provided that the extension could be granted only in the estate administration proceeding and only after notice. That portion of the statute was deleted in 1989 because it was deemed to be procedural rather than substantive, and therefore a proper subject for the Florida Probate Rules rather than the Florida Statutes. See also F.S. 733.705(6), reiterating the prohibition on bringing an independent action or declaratory action on a claim that was not timely filed unless the claimant was granted an extension of time to file the claim. F.S. 733.702 is often referred to as the “nonclaim” statute. However, the Florida Supreme Court has ruled that the statute is a statute of limitations. Barnett Bank of Palm Beach County v. Estate of Read, 493 So. 2d 447 (Fla. 1986); see also May v. Illinois National Insurance Co., 771 So. 2d 1143 (Fla. 2000). For a historical discussion of F.S. 733.702(1), see § 8.2.B.3.a. Under F.S. 733.703(1), the claim must be filed in writing, and no additional charge may be imposed by the claimant. With respect to the form and manner of presenting a claim, see Fla. Prob. R. 5.490(a), requiring that the statement of claim be verified and filed with the clerk, and requiring that it state (1) the basis for the claim; (2) the amount claimed; (3) the name and address of the creditor; (4) the security for the claim, if any; and (5) whether the claim is currently due or involves an uncertainty and, if not due, then the due date and, if contingent or unliquidated, the nature of the uncertainty.

Although there is no requirement to attach written documentation to the statement of claim, it is advisable to attach to the claim a copy of any written document on which the claim is founded. See First Union National Bank of Florida v. Aftab, 689 So. 2d 1137 (Fla. 4th DCA 1997) (attachment of copy of promissory note might have avoided litigation over default interest). Rule 5.490 requires the creditor to furnish the claim and a copy of it to the clerk. The rule also requires the clerk to mail a copy of the claim to the lawyer for the personal representative or to a designated personal representative or attorney of record. The clerk is required to note the fact and date of mailing the copy on the original. Rule 5.490(e) provides that if the personal representative files a claim individually, or in some other capacity that creates a conflict of interest between the personal representative and an interested person, “then at the time the claim is filed, the personal representative shall serve all interested persons with a copy of the claim and notice of the right to object to the claim.” The notice must advise the interested persons that they may object to the claim as provided in Rule 5.496. Service of the claim and notice may be by informal notice or in the manner provided for service of formal notice. Claims are required to be filed in the probate proceeding after publication of the notice to creditors but before the expiration of the time for filing claims. F.S. 733.2121(1), 733.702(1). The Florida Supreme Court in the May case highlighted a potential problem with respect to the allowance of claims filed in the probate proceeding before publication of the notice. This anomaly was fixed by a statutory amendment in 2002 to F.S. 733.702(1), which substituted “probate proceedings on or before the later of the date that is 3 months after” for “probate proceedings within the later of 3 months after.” See Ch. 2002-82, § 6, Laws of Fla. Under Morgenthau v. Estate of Andzel, 26 So. 3d 628 (Fla. 1st DCA 2009), the filing of a statement of claim after the expiration of the creditors’ period did not constitute a request for an extension of time to file; the claimant was required to request an extension of time to file. However, Morgenthau was overruled by Golden, in which the court held that, if a known or reasonably ascertainable creditor is never served with a copy of the notice to creditors, the statute of limitations in F.S. 733.702(1) never begins to run and a creditor’s claim is timely if filed within two years after the decedent’s death. The reasoning in Golden was that no extension would have been required because the claim would be timely. The

claim must be filed before the expiration of the creditor’s period. If a creditor makes a bona fide attempt to file a claim but the claim is defective in form, “the court may permit the amendment of the claim at any time.” F.S. 733.704. Rule 5.490(d) implements the procedure found in F.S. 733.704 and provides that the court may permit a claim to be amended at any time if the “claim as filed is sufficient to notify interested persons of its substance but is otherwise defective as to form.” See In re Estate of Koshuba, 993 So. 2d 983 (Fla. 2d DCA 2007). In this case, a creditor filed a Petition for Administration and an Amended Petition for a Guardian Ad Litem, which were deemed to be substantially sufficient to place interested persons on notice of his claim. Thus the creditor was not barred by the nonclaim statute. However, a claim that has already been disposed of no longer exists and cannot be amended. See Payne v. Stalley, 672 So. 2d 822 (Fla. 2d DCA 1995) (claim that had been stricken could not be amended). For further discussion, see LITIGATION UNDER FLORIDA PROBATE CODE § 6.2 (Fla. Bar 13th ed. 2022). A form for a statement of claim is provided in FLSSI Form No. P-3.1010. See § 8.2.E.2.c for discussion of the statutes that provide for payment of claims from certain revocable inter vivos trusts. « Ch. 8 », « § 8.3 », • A », « 2 » 1 Practice Under Florida Probate Code § 8.3.A.2 (2022)

2. Alternative Procedures To Filing Claim F.S. 733.702(1) provides that the personal representative may settle any claim in full according to the priorities provided under F.S. 733.707 (see § 8.2.E.2.d) without the necessity of the claim being filed by the creditor when the settlement has been approved by the interested persons. If the claim has not been settled within the statutory time for filing claims and no claim has been filed in accordance with the statute, the creditor generally will be barred even though the personal representative has recognized the claim or demand by paying a part of it or interest on it or otherwise. Unless the personal representative files a “proof of claim” within three months after first publication of the notice to creditors (see § 8.2.E.2.b), it is imperative to file a claim under the statute even though an action was pending against the decedent at the time of his or her death. F.S. 733.702(2). See § 8.3.A.1 with

respect to possible extension of the time for filing a claim. « Ch. 8 », « § 8.3 », • A », « 3 • 1 Practice Under Florida Probate Code § 8.3.A.3 (2022)

3. Effect Of Failure To Comply With Statute Of Limitations As a general rule, adherence to the requirements of F.S. 733.702 to prevent a claim from being barred is required. Davis v. Evans, 132 So. 2d 476 (Fla. 1st DCA 1961). In certain situations, however, the personal representative has been held to be estopped from asserting a bar under the statute. The personal representative may also be unable to assert a bar under the statute in cases involving fraud or insufficient notice of the claims period. A provision in the will directing the personal representative to pay all just debts does not relieve a claimant of the necessity of filing a claim within the required period. Marshall Lodge No. 39, A. F. & A. M. v. Woodson, 139 Fla. 579, 190 So. 749 (1939). « Ch. 8 », « § 8.3 », « B » 1 Practice Under Florida Probate Code § 8.3.B (2022)

B. Scope Of Statute Of Limitations And Statute Of Nonclaim « Ch. 8 », « § 8.3 », « B », • 1 » 1 Practice Under Florida Probate Code § 8.3.B.1 (2022)

1. In General As noted at § 8.2.B.4, the claims and demands that must be filed within the time specified in F.S. 733.702 are those that arose before the death of the decedent, including claims of the state and any of its subdivisions, even if the claims are unmatured, contingent, or unliquidated; claims for funeral or burial expenses; claims for personal property in the possession of the personal representative; claims for damages, including but not limited to an action founded on fraud or other wrongful act or omission of the decedent;

claims based on a cause of action for which an action was pending at the death of the decedent; and claims on judgments against the decedent. F.S. 733.702(1)–(2), 733.706. A claim for funeral expenses is barred if not filed timely, regardless of any language in the will that funeral expenses should be paid. Bush v. Webb, 939 So. 2d 215 (Fla. 1st DCA 2006). For further discussion concerning funeral expenses, see § 15.6 of this manual. When a person dies before the statute of limitations has run on a cause of action against that person, the statute of limitations is tolled. If a claim is filed in the probate estate during the nonclaim period, although after the statute of limitations on the cause of action ordinarily would have barred the claim, the claim is not time-barred. Briggs v. Estate of Geelhoed by & through Johnson, 543 So. 2d 332 (Fla. 4th DCA 1989) (construing F.S. 733.104(2)). For a law review commentary on exceptions to the nonclaim statute, see Smith, Nonclaim Procedure Under the Florida Probate Code: Exceptions to an Apparent Statutory Bar, 40 U. Fla. L. Rev. 335 (1988). « Ch. 8 », « § 8.3 », « B », « 2 • 1 Practice Under Florida Probate Code § 8.3.B.2 (2022)

2. Particular Claims « Ch. 8 », « § 8.3 », « B », « 2 •, • a » 1 Practice Under Florida Probate Code § 8.3.B.2.a (2022)

a. Claims Within Statute « Ch. 8 », « § 8.3 », « B », « 2 •, • a », • i » 1 Practice Under Florida Probate Code § 8.3.B.2.a.i (2022)

i. Wrongful Death Action Even when the statute of limitations has not run, a wrongful death action under the Florida Wrongful Death Act, F.S. 768.16–768.26, is barred if the claimant fails to file a claim for wrongful death or an appropriate civil action within the statutory period, Gates Learjet Corp. v. Moyer, 459 So. 2d 1082 (Fla. 4th DCA 1984); Hayes v. Thomas, 161 So. 2d 545 (Fla. 2d DCA 1964);

Toney v. Adair, 120 So. 2d 622 (Fla. 3d DCA 1960), unless the claim is “secured” by casualty, surety, automobile, public liability, or other similar insurance. See F.S. 733.702(4)(b). See also F.S. 733.702(4)(c), which permits the filing of a crossclaim or counterclaim against the estate in an action instituted by the estate notwithstanding the failure to file a claim within the required period. Recovery is limited, however, to what the estate recovers. Failure to file a claim within the statutory period when casualty insurance exists does not bar the civil action, but it does bar the right to enforce any personal liability of the decedent against the estate except to the extent of the insurance. Kent Insurance Co. v. Estate of Atwood, 481 So. 2d 1294 (Fla. 1st DCA 1986). But see Tsuji v. Fleet, 326 So. 3d 143, 147 (Fla. 1st DCA 2021) (under F.S. 733.702(5) and (10), claims against casualty insurers must be filed within two years after the decedent’s death, regardless of whether claim is within policy limit). The statement of claim must be filed within the nonclaim period. See § 8.3.B.1. Failure to file within that period will bar recovery against the estate, but some jurisdictions have allowed certain exceptions for claims against the decedent’s casualty insurance, provided the litigation is not otherwise barred. See Pezzi v. Brown, 697 So. 2d 883 (Fla. 4th DCA 1997). The Pezzi case represents the melding of the provisions of F.S. 733.702(4)(b) with those of F.S. 733.710, based on the reading of the latter as a bar to the liability of specified persons, namely the decedent’s estate, the personal representative, and the beneficiaries. Pezzi was followed in In re Estate of Arroyo, 211 So. 3d 240 (Fla. 3d DCA 2017). See § 8.3.B.2.b.II. However, in Tsuji, the District Court of Appeal, First District, declined to follow the Pezzi reasoning and relying on F.S. 733.702(5) and (10) to conclude that “[a]lthough [F.S.] 733.710(1) does not list casualty insurers among the parties who are not liable for untimely claims against an estate, an insurer cannot be liable for such claims until a creditor seeks and perfects a claim against the decedent tortfeasor through the entry of a judgment establishing the decedent’s liability.” Thus, there must be an underlying claim that is timely filed in the decedent’s estate even if the claim being made is within the policy limits. The effect of the final discharge of the personal representative before the civil action is filed must be considered. Lawyers representing plaintiffs or personal representatives when

wrongful death claims are involved should read Nesbitt, Probate and the Wrongful Death Act, 51 Fla. Bar J. 428 (July/Aug. 1977). See also LITIGATION UNDER FLORIDA PROBATE CODE Chapter 12 (Fla. Bar 13th ed. 2022). For interesting cases on the elements of damages in wrongful death actions, see White v. Clayton, 323 So. 2d 573 (Fla. 1976), and Capiello v. Goodnight, 357 So. 2d 225 (Fla. 2d DCA 1978). Any attempt to circumvent the authority of the circuit court and settle claims out of the estate proceedings in not advisable, because the personal representative has the exclusive right to pursue wrongful death claims, recover damages, and distribute amounts on behalf of the estate. Copeland v. Buswell, 20 So. 3d 867 (Fla. 2d DCA 2009). See F.S. 768.20, 733.707. Concerning actions pending when the decedent died, see § 8.3.B.2.a.vi. « Ch. 8 », « § 8.3 », « B », « 2 •, • a », « ii » 1 Practice Under Florida Probate Code § 8.3.B.2.a.ii (2022)

ii. Claims For Alimony, Support, And Community Property The estate of the deceased spouse is liable to the surviving ex-spouse for support when the claim is based on a contract or agreement that clearly evidences the decedent’s intention to bind his or her estate to continue payments after his or her death. See In re Estate of Freeland, 182 So. 2d 425 (Fla. 1966). See also Valdivia v. Valdivia, 593 So. 2d 1190 (Fla. 3d DCA 1992) (dissolution judgment providing for claim against estate). Of course, a claim must be timely filed. See Pan American Bank of Orlando, N.A. v. O’Malley, 353 So. 2d 856 (Fla. 4th DCA 1978), approved 384 So. 2d 1258. Based on common law, the estate of a parent is not liable for the support of a minor child. See § 7.2.B.6 in ADOPTION, PATERNITY AND OTHER FLORIDA FAMILY PRACTICE (Fla. Bar 14th ed. 2022). The duty of a parent to support a minor child nevertheless will survive the parent when there is a contract or agreement evidencing an intent to this effect. Reinhardt v. Reinhardt, 131 So. 2d 509 (Fla. 3d DCA 1961). In Cohen v. Cohen, 246 So. 2d 581 (Fla. 3d DCA 1971), the husband’s estate, by contract, was liable and the court ruled it was not entitled to credit for benefits paid to the minor children by the Social Security Administration. If no contractual duty of support from the estate exists, the children (lineal heirs) may still be entitled to the family allowance. See F.S. 732.403,

discussed in § 8.5. In a case of first impression, the court had to determine the nature of a surviving spouse’s claim for community property. In Johnson v. Townsend, 259 So. 3d 851 (Fla. 4th DCA 2018), the appellate court found it reasonable that a claim for community property is, in fact, a “claim” under F.S. 731.201(4), because it is a liability of the decedent. As such, the court held that it is subject to the statutory time limits for making a claim. In the instant case, the claim was not filed timely so it was barred unless it fell within an exception to the deadlines under F.S. 733.702 and 733.710. The court examined two exceptions, the common law “trust exception” and the lien exception, and determined that neither applied. See § 8.3.B.2.b. « Ch. 8 », « § 8.3 », « B », « 2 •, • a », « iii » 1 Practice Under Florida Probate Code § 8.3.B.2.a.iii (2022)

iii. Judgment Claims F.S. 733.706 requires claims on judgments against the decedent to be filed in the same manner as other claims, and prohibits execution or other process from issuing on or being levied against property of the estate except on approval by the probate court. There is an exception for “enforcement of mortgages, security interests, or liens encumbering specific property.” Generally, a judgment creditor has no specific standing and must proceed as any other creditor. This means filing a claim and, if the claim is objected to, filing an independent action and procuring, in effect, a second judgment. An abandonment of this independent action is an abandonment of the claim. Hogan v. Howard, 716 So. 2d 286 (Fla. 2d DCA 1998). In Cumberland & Liberty Mills v. Keggin, 139 Fla. 133, 190 So. 492 (1939), the Florida Supreme Court held that claims of general liens under judgments obtained against a decedent during his lifetime had to be filed under the requirements of the statute of nonclaim and were not embraced by the exception in favor of certain liens under former F.S. 733.19. See also Gilpen v. Bower, 152 Fla. 733, 12 So. 2d 884 (1943); Goldstein v. Braswell, 987 So. 2d 123 (Fla. 3d DCA 2008); Valero v. Tri-City Title Co., 445 So. 2d 1116 (Fla. 2d DCA 1984). The practitioner should note that judgment claims fall into the lowest priority class. F.S. 733.707(1)(h). « Ch. 8 », « § 8.3 », « B », « 2 •, • a », « iv » 1 Practice Under Florida Probate Code § 8.3.B.2.a.iv (2022)

iv. Contingent Or Unmatured Claims F.S. 733.705 codifies and clarifies the handling of contingent and unmatured claims. It has long been held that contingent and unmatured claims are required to be filed to be enforceable. Furlong v. Leybourne, 171 So. 2d 1 (Fla. 1965); Simpson v. First National Bank & Trust Company of Lake Worth, 318 So. 2d 209 (Fla. 4th DCA 1975). A claim is either (1) due and payable, (2) unmatured but sure to come due, or (3) contingent, in which case it may never become a debt. When an objection to a claim is filed, the claimant with a mature claim has 30 days from the date of service to bring an independent action to enforce it. The holder of an unmatured or contingent claim has the same 30-day period from service to file a declaratory action to establish the validity of the claim and, as to an unmatured claim, the amount. F.S. 733.705(5). Because a declaratory action does not require a trial by jury, (F.S. 733.705(10) provides that the “court may determine all issues concerning claims or matters not requiring trial by jury,” and 731.201(7) defines the “court” as the circuit court), there seems to be no reason why the declaratory action could not be filed in the probate proceedings. It is suggested, however, that the lawyer consult the chief deputy clerk for probate in the county in question to determine how the local probate judge views this question. If the judge so wishes, the action may be filed in the civil division. There are several remedies available in dealing with contingent or unmatured claims: Extend the time for filing an objection to an unmatured or contingent claim until it can be determined if the event will occur or until the claim matures. See F.S. 733.705(2). After an objection has been filed, extend the time for filing an independent action until the claim is mature or the contingency has occurred. See F.S. 733.705(5). If the amount of the claim is known but the time for payment has not arrived when the estate is otherwise ready for distribution, the personal representative may prepay the full amount of principal, plus accrued interest, without discount and without penalty, regardless of prohibitions

against prepayment or penalty in the instrument on which the claim is founded. F.S. 733.705(7). No discharge of the personal representative may be entered until the claim is disposed of or until an agreement is reached between the personal representative and the claimant and filed in the proceeding. F.S. 733.705(7)–(8). If no agreement is reached on an unmatured claim, then under F.S. 733.705(7), the court may dispose of the claim and enter an order of discharge for the personal representative by providing for payment of the claim by any one of the following methods: Requiring the personal representative to reserve certain assets of the estate from distribution until the claim becomes due. Requiring that the claim be secured by a mortgage, pledge, bond, trust, guaranty, or other security. Such other provisions as are equitable and not calculated to delay unreasonably the closing of the estate. Under F.S. 733.705(8), if a cause of action on a contingent claim has not accrued by the time the estate is ready for distribution, no order of discharge may be entered absent an agreement between the personal representative and claimant or, in the absence of an agreement, until (a) The court determines that the claim is adequately secured or that it has no value, (b) Three months from the date on which a cause of action accrues upon the claim, provided that no action on the claim is then pending, (c) Five years from the date of first publication of notice to creditors, or (d) The court provides for payment of the claim upon the happening of the contingency by one of the methods described in [(a), (b), or (c) of F.S. 733.705 (7)]. The remedies set forth under F.S. 733.705 do not constitute the exclusive method of handling contingent or unmatured claims, but rather offers a

“laundry list” of available alternatives that were certainly available under the probate court’s inherent jurisdiction to do equity. See In re Estate of Rowland, 504 So. 2d 543 (Fla. 4th DCA 1987). The list of remedies seeks only to set forth “guideposts” for the bench and bar. For an example of a contingent claim that is subject to the nonclaim statute, see Carlton v. Carlton, 575 So. 2d 239 (Fla. 2d DCA 1991). In Carlton, the court held that a claim for interference with an expectancy in the claimants’ still-living parents’ estates had to be timely filed and pursued against the estate of the alleged tortfeasor, even though he predeceased the settlors of the expected inheritance. See also Spohr v. Berryman, 589 So. 2d 225 (Fla. 1991) (claim for breach of agreement to make will); In re Estate of Vickery, 564 So. 2d 555, 557 (Fla. 4th DCA 1990) (claim for breach of contract under “joint or mutual will”). It is worth noting, however, that if an estate lacks assets (i.e., it is insolvent), the court should not strike a claim just because of the inability to pay it. A personal representative may be discharged even if there are unpaid claims. Chase Manhattan Bank, USA, N.A. v. Estate of Silveira, 815 So. 2d 770 (Fla. 4th DCA 2002); see F.S. 733.903. The unpaid creditor remains an interested person in the discharge proceedings. Arzuman v. Estate of Bin, 879 So. 2d 675 (Fla. 4th DCA 2004); Montgomery v. Cribb, 484 So. 2d 73 (Fla. 2d DCA 1986). « Ch. 8 », « § 8.3 », « B », « 2 •, • a », « v » 1 Practice Under Florida Probate Code § 8.3.B.2.a.v (2022)

v. Claims By State As a general rule, claims held by the state in its sovereign capacity will be barred if the claims are not filed within the statutory period. F.S. 733.702(1); In re Estate of Moore, 145 So. 2d 293 (Fla. 1st DCA 1962). The bar of the statute also extends to claims by state agencies, F.S. 733.702(1); In re Estate of Smith, 132 So. 2d 426 (Fla. 2d DCA 1961), but this does not include state death taxes, F.S. 731.201(4). However, under F.S. 733.2121(3)(e), if the Department of Revenue has not previously been served with the notice to creditors, the service of an inventory on the department is equivalent to service of the notice to creditors. The Division of Unemployment Compensation of the Department of

Labor and Employment Security has a lien on the filing of a notice of lien for unpaid assessments, which prohibits the distribution of any estate assets until the claim of the division is disposed of. F.S. 443.141(3)(a), (5). This most often arises when the decedent had a household employee to whom quarterly wages in excess of $1,000 were paid. The statute predates the current version of the Florida Probate Code, and has remained essentially unchanged since 1972. The claim has a Class 8 priority. F.S. 443.141(5). The statute is an anomaly because it speaks in terms of a lien, not a claim, and fails to integrate the common procedure for dealing with claims. Under F.S. 409.9101, the Agency for Health Care Administration is authorized to recover Medicaid payments made on behalf of deceased Medicaid recipients. The agency does so by filing a claim in the estate of the decedent. F.S. 409.9101(2). The recovery is limited to payments made after the decedent reaches age 55. Payments before age 55 do not create a debt. F.S. 409.9101(3). F.S. 409.9101(4) allows the agency to “amend the claim as a matter of right up to 1 year after the last date medical services were rendered to the decedent,” which could occur beyond the normal period in which claims must be filed. « Ch. 8 », « § 8.3 », « B », « 2 •, • a », « vi » 1 Practice Under Florida Probate Code § 8.3.B.2.a.vi (2022)

vi. Actions Pending At Time Of Death F.S. 733.702(2) specifically states that a claim must be filed by a creditor even though an action is pending at the time of the decedent’s death. Possible exceptions are discussed in § 8.2.B.4. An exception also exists when the claim is covered by casualty insurance. See F.S. 733.702(4)(b). The practitioner should note that F.S. 733.702(5) makes clear “that nothing in [F.S.] 733.702 extends the limitations period set out in [F.S.] 733.710” beyond two years. Tsuji v. Fleet, 326 So. 3d 143, 146 (Fla. 1st DCA 2021). For pending class actions see § 8.3.B.2.a.xi. If the personal representative is substituted for the decedent as a party in the lawsuit before the statutory period expires, late filing of a statement of claim in the probate proceedings may be allowed if there is no showing of prejudice to the personal representative, beneficiaries, other creditors, or anyone else. See Scutieri v. Estate of Revitz, 510 So. 2d 1003 (Fla. 3d DCA 1987). See also Foster v. Cianci, 773 So. 2d 1181 (Fla. 2d DCA 2000). For a

discussion of Scutieri, see Schmitz, Scutieri’s “Good Cause” Standard Rewrites the Law for Allowance of Probate Creditors’ Late Filed Claims, 62 Fla. Bar J. 69 (June 1988). But see F.S. 733.702(3), which would affect the manner of filing the late claim. See § 8.2.B.3.a concerning F.S. 733.702(3). « Ch. 8 », « § 8.3 », « B », « 2 •, • a », « vii » 1 Practice Under Florida Probate Code § 8.3.B.2.a.vii (2022)

vii. Counterclaims A creditor having a claim against an estate should not wait to assert it as a counterclaim in an action brought against the creditor by the estate, but should file the claim against the estate within the statutory period. If the claim is not timely filed in the probate proceedings, recovery on the counterclaim is limited to the amount of the estate’s recovery in the action. F.S. 733.702(4) (c). The failure to file a claim is excused by F.S. 733.702(4)(b) to the extent that the claim is covered by casualty insurance. F.S. 733.702(5) does make clear, however, “that nothing in [F.S.] 733.702 extends the limitations period set out in [F.S.] 733.710” beyond two years. Tsuji v. Fleet, 326 So. 3d 143, 146 (Fla. 1st DCA 2021). « Ch. 8 », « § 8.3 », « B », « 2 •, • a », « viii » 1 Practice Under Florida Probate Code § 8.3.B.2.a.viii (2022)

viii. Claims Of Nonresidents The claim statutes apply to claims of nonresidents as well as residents. Brooks v. Federal Land Bank of Columbia, 106 Fla. 412, 143 So. 749 (1932). « Ch. 8 », « § 8.3 », « B », « 2 •, • a », « ix » 1 Practice Under Florida Probate Code § 8.3.B.2.a.ix (2022)

ix. Claims Of Personal Representative When the personal representative is or may be interested adversely to the estate or is enforcing the personal representative’s own debt or claim against the estate, the court may appoint an administrator ad litem without bond or notice for that particular proceeding. Fla. Prob. R. 5.120(a). The only statute that pertains to a claim by the personal representative is F.S. 733.308, which addresses only reimbursement for claims against the decedent. In that case, it

is not necessary to have an administrator ad litem appointed. See § 4.3.C.7 of this manual. Although the rule is permissive rather than mandatory, and the statute does not address the issue of a personal claim by the personal representative against the estate, Florida courts often require the appointment of an administrator ad litem when the personal representative files a claim against the estate. In Messina v. Scionti, 406 So. 2d 529 (Fla. 2d DCA 1981), one of two personal representatives filed a personal claim against the estate. The court ruled that an administrator ad litem had to be appointed despite the fact that the other personal representative had not joined in the filing of the claim. Accord Stilwell v. Estate of Crosby, 519 So. 2d 68 (Fla. 5th DCA 1988). Both Stilwell and Messina followed the principles set forth by the Florida Supreme Court in Shambow v. Shambow, 149 Fla. 278, 5 So. 2d 454 (1942). Shambow applied the 1933 statute in requiring appointment of an administrator ad litem with respect to a claim by the administrator personally because there had been no objection by another interested person. Under F.S. 733.702(1), it appears that when the personal representative has a personal claim against the estate, the claim could be paid without appointment of an administrator ad litem if the payment was approved by the interested persons adversely affected. Without such consent, the personal representative should seek appointment of an administrator ad litem to represent the estate with respect to the personal representative’s claim. Even though Messina and Stilwell seem to be based on faulty reasoning, it is probably still the best procedure to seek appointment of an administrator ad litem to eliminate any conflict of interest. Rule 5.490(e) addresses personal representative’s individual claims against the estate, and requires that interested persons be given notice of the claim and of their right to object to it. See § 8.3.A.1. « Ch. 8 », « § 8.3 », « B », « 2 •, • a », « x » 1 Practice Under Florida Probate Code § 8.3.B.2.a.x (2022)

x. Agreement To Make A Will A claim arising out of an agreement to make a will or to make a devise is barred if not filed as required by the Florida Probate Code. Spohr v. Berryman, 589 So. 2d 225 (Fla. 1991); Hofer v. Caldwell, 53 So. 2d 872 (Fla.

1951). The District Court of Appeal, Third District, has held that the claims required to be filed within the nonclaim period include a contractual claim based on an “Agreement To Keep Will In Force” that was treated as a contract to make a will. Johnson v. Girtman, 542 So. 2d 1033 (Fla. 3d DCA 1989). However, the Florida Supreme Court subsequently disapproved Johnson to the extent it conflicts with Via v. Putnam, 656 So. 2d 460 (Fla. 1995). In Via, the court held that the interests of a surviving spouse under the pretermitted spouse statute or the elective share statute take priority over the creditors’ claims of the decedent’s children as third-party beneficiaries under the mutual wills of their parents. Therefore, it appears that a third-party beneficiary under a contract to make a will should file a timely claim but, in calculating the statutory share of a surviving spouse, the amount of the claim will not be deducted from the total value of the probate estate. Presumably, the maximum that could be obtained by a claimant under a contract to make a will would be the assets remaining after payment of not only the expenses of administration and taxes, but also all amounts due the spouse by virtue of statutory entitlements. See also In re Estate of Tensfeldt, 839 So. 2d 720 (Fla. 2d DCA 2003). A violation of the provisions of an antenuptial agreement may give rise to a valid creditor’s claim. Shuck v. Bank of America, N.A., 862 So. 2d 20 (Fla. 2d DCA 2003). The Shuck court distinguished Sharps v. Sharps, 219 So. 2d 735 (Fla. 3d DCA 1969), on the basis that, in that case, the widow was not proceeding as a creditor, because the decedent had performed his obligations under the antenuptial agreement. The Fourth District has held that a claim for breach of a contract established under a joint or mutual will must be filed within the nonclaim period. In re Estate of Vickery, 564 So. 2d 555 (Fla. 4th DCA 1990). The practitioner should note that an agreement to make a will or a devise must be in writing and be signed in the presence of two witnesses. See Silianoff v. Silianoff, 399 So. 2d 462 (Fla. 2d DCA 1981). The same requirement applies to an agreement not to revoke a will or a devise, and not to make a will or a devise. F.S. 732.701(1). The Second District in First Gulf Beach Bank & Trust Co. v. Grubaugh,

330 So. 2d 205 (Fla. 2d DCA 1976), construed former F.S. 731.051 (now F.S. 732.701). In that case, the decedent gave a letter to the plaintiff in the decedent’s handwriting and signed by her, stating that she would take care of the plaintiff in her will if he took care of her. She later executed a will leaving the plaintiff 80% of her estate if he took care of her. Thereafter, she executed another will leaving the plaintiff 7% of her residuary estate. The plaintiff sought to enforce the first will, contending that it was evidence of the contract to make a will and that the decedent had partly performed the promise. The court stated that the statutory requirements for an agreement to make a will must be strictly followed. It also said that it would defeat the purpose and intent of the statute for a court to hold that part performance by the promisee of an otherwise unenforceable agreement to make a will makes it enforceable against the personal representative of the promisor. The court further stated that it receded from anything to the contrary that appears in Hagan v. Laragione, 170 So. 2d 69 (Fla. 2d DCA 1964). « Ch. 8 », « § 8.3 », « B », « 2 •, • a », « xi • 1 Practice Under Florida Probate Code § 8.3.B.2.a.xi (2022)

xi. Class Actions Neither the Florida Statutes nor the Florida Probate Rules explicitly deal with the issue of filing claims by participants in class action litigation. See generally F.S. 733.703; Fla. Prob. R. 5.490. This issue has, however, been specifically addressed by Florida courts twice, including in Baillargeon v. Sewell, 33 So. 3d 130 (Fla. 2d DCA 2010). In Sewell, the court determined that Florida law requires each individual claimant to file a separate claim. A single claim filed on behalf of the class members as a group does not meet the requirements of the rules and statutes, because the class claim would not identify each separate claimant and otherwise provide the required information. See also In re Estate of Gay, 294 So. 2d 668 (Fla. 4th DCA 1974). But see Veno, Class Action Securities Lawsuits Should Survive the Death of a Named Defendant: Why Baillargeon v. Sewell Was Wrongly Decided, 25 Quinnipiac Prob. L. J. 408 (2012) (addressing why Federal Rule of Civil Procedure 23 and federal securities law should preempt Florida’s statute and rule). « Ch. 8 », « § 8.3 », « B », « 2 •, « b » 1 Practice Under Florida Probate Code § 8.3.B.2.b (2022)

b. Claims Not Barred By Statute « Ch. 8 », « § 8.3 », « B », « 2 •, « b », • i » 1 Practice Under Florida Probate Code § 8.3.B.2.b.i (2022)

i. Claims Specifically Excluded « Ch. 8 », « § 8.3 », « B », « 2 •, « b », • i », • I » 1 Practice Under Florida Probate Code § 8.3.B.2.b.i.I (2022)

I. Mortgages And Liens F.S. 733.702(4)(a) provides that nothing in that statute affects or prevents a “proceeding to enforce any mortgage, security interest, or other lien on property of the decedent.” If the creditor does not file a claim under the statute, however, the creditor must look solely to the property covered by the mortgage or lien and cannot satisfy a deficiency from other assets of the estate. A spouse’s claim for an interest in community property does not fall within this exception. Johnson v. Townsend, 259 So. 3d 851 (Fla. 4th DCA 2018). See § 8.3.B.2.a.ii. Florida courts follow the general rule that a mortgagee does not waive the right to enforce the mortgage lien by filing a claim against the estate. In re Estate of Simpson, 113 So. 2d 766 (Fla. 2d DCA 1959). If the property mortgaged is homestead, the failure of the mortgagee to file a claim against the decedent’s estate does not alter the mortgagee’s right to enforce the mortgage against the homestead property, and the probate court is powerless to order payment of the mortgage out of the decedent’s estate. In re Comstock’s Estate, 143 Fla. 500, 197 So. 121 (1940). The discussion in § 1.2.E.5 of this manual deals with the argument that the estate of a tenant by the entireties, when the cotenant survives, is not liable to the mortgagee on a purchase money note and mortgage executed by both spouses, and that the personal representative can object to a claim on the note or mortgage. The estate has no liability to the survivor for contribution because of the nature of a tenancy by the entireties. The treatment received by mortgagees under the claim statutes would appear equally applicable, at least in principle, to the various types of security interests recognized by the Uniform Commercial Code (e.g., security interests acquired in items of tangible personal property, like motor vehicles, or items of intangible personal property, like stock certificates). Any conclusions in

this area, however, must await further study by the courts. « Ch. 8 », « § 8.3 », « B », « 2 •, « b », • i », « II » 1 Practice Under Florida Probate Code § 8.3.B.2.b.i.II (2022)

II. Claims Secured By Insurance F.S. 733.702(4)(b) provides that nothing in that statute affects or prevents, “[t]o the limits of casualty insurance protection only, any proceeding to establish liability that is protected by the casualty insurance.” It appears, therefore, that failure to file a claim bars the right to enforce any personal liability of the decedent against the estate except to the extent of the insurance. Kent Insurance Co. v. Estate of Atwood, 481 So. 2d 1294 (Fla. 1st DCA 1986). The insurance carrier may remain liable beyond the statutory period. See Pezzi v. Brown, 697 So. 2d 883 (Fla. 4th DCA 1997). However, F.S. 733.702(5) expressly provides “that nothing in [F.S.] 733.702 extends the limitations period set out in [F.S.] 733.710” beyond two years. Tsuji v. H. Bart Fleet, 326 So. 3d 143, 146 (Fla. 1st DCA 2021). Kent and Pezzi were cited to by the District Court of Appeal, Third District, in In re Estate of Arroyo, 211 So. 3d 240 (Fla. 3d DCA 2017). The majority, relying on footnote 12 of May v. Illinois National Insurance Co., 771 So. 2d 1143 (Fla. 2010), and Pezzi, limited the application of the nonclaim statute to probate proceedings, and allowed a bad faith claim to be pursued against an insurer who had previously declined to defend the insured’s estate against the claim (which then resulted in the estate and the claimant entering into a settlement agreement protecting the estate, but not the insurance company, from the claim). In Tsuji, the First District disagreed with the Fourth District’s analysis in Pezzi and relied on F.S. 733.702(5) and (10) to hold that the action filed more than two years after the decedent’s date of death against a casualty insurer was barred even though the claim was only to the policy limits. « Ch. 8 », « § 8.3 », « B », « 2 •, « b », • i », « III • 1 Practice Under Florida Probate Code § 8.3.B.2.b.i.III (2022)

III. Beneficial Interests Of Beneficiaries The definition of claims and the nonclaim statute do not apply to the beneficial interests of beneficiaries. See F.S. 731.201(4), 733.702(1).

Claims that must be filed under the nonclaim statute do not include a claim of heirship by an illegitimate child of the decedent, as this is “not the type of ‘claim’ contemplated by [F.S.] 733.702.” In re Estate of Robertson, 520 So. 2d 99, 102 (Fla. 4th DCA 1988). Nor does a claim of an adopted person constitute a “claim” under F.S. 733.702. Wallace v. Watkins, 253 So. 3d 1204 (Fla. 5th DCA 2018). « Ch. 8 », « § 8.3 », « B », « 2 •, « b », « ii • 1 Practice Under Florida Probate Code § 8.3.B.2.b.ii (2022)

ii. Other Claims Excluded « Ch. 8 », « § 8.3 », « B », « 2 •, « b », « ii •, • I » 1 Practice Under Florida Probate Code § 8.3.B.2.b.ii.I (2022)

I. Claims Of The United States Claims of the United States are not barred by the statute of nonclaim. See Ruza v. Estate of Ruza, 132 So. 2d 308 (Fla. 3d DCA 1961). « Ch. 8 », « § 8.3 », « B », « 2 •, « b », « ii •, « II » 1 Practice Under Florida Probate Code § 8.3.B.2.b.ii.II (2022)

II. Trust Claims And Claims Based On Equitable Title Claims involving beneficiaries of trusts and claims based on equitable title are areas in which the law appears to be in a state of flux. One court has held that F.S. 733.710(1) has no application for civil actions to terminate a trust. Crescenze v. Bothe, 4 So. 3d 31 (Fla. 2d DCA 2009). The Florida Supreme Court has held that claims of a trust beneficiary to recover property held by the decedent as trustee are not subject to the statute of nonclaim, because the property is not an asset of the estate. Sewell v. Sewell Properties, Inc., 159 Fla. 570, 30 So. 2d 361 (1947). If the beneficiary cannot trace the property so as to identify it, however, the beneficiary is just a general creditor and is subject to the requirements of the statute. Hodges v. Logan, 82 So. 2d 885 (Fla. 1955). See also Landers v. Sherwin, 261 So. 2d 542 (Fla. 4th DCA 1972). In Fisher v. Creamer, 332 So. 2d 50 (Fla. 3d DCA 1976), the court held that the statute of nonclaim was not applicable in an action to impress a resulting or constructive trust in property when it was alleged that the

claimant held equitable title to specific identifiable property and the decedent held the legal title to the property. Enforcement of the trust is governed by the doctrine of laches rather than by the nonclaim statute. F.S. 733.710 is applicable, however, to a claim under an option to purchase stock, because the claimant does not have legal or equitable title to the stock, and therefore the stock is part of the estate. Also, depending on the terms of the option, the stock in question may not be specifically identifiable property. Grossman v. Selewacz, 417 So. 2d 728 (Fla. 4th DCA 1982). The District Court of Appeal, Second District, has held that the “trust” and “ ‘equitable title to specifically identifiable property’ ” exceptions to the nonclaim statute apply only when the decedent clearly held the property on behalf of an actual owner by either express trust or some other clearly defined means, and that, if the decedent asserted beneficial ownership of the property before death, a claim must be filed in accordance with F.S. 733.702. Velzy v. Estate of Miller, 502 So. 2d 1297, 1300 (Fla. 2d DCA 1987). The court reaffirmed a narrowing of the exception by virtue of statutory changes. In Scott v. Reyes, 913 So. 2d 13, 14 (Fla. 2d DCA 2005), the decedent’s widow claimed ownership of property previously held jointly with the decedent, but failed to timely file her claim. She tried to rely on the “trust exception.” The court confirmed that the exception did not apply under these circumstances. Similarly, in Johnson v. Townsend, 259 So. 3d 851 (Fla. 4th DCA 2018), the court held that the trust exception did not apply to a claim for community property. The reasoning in Townsend as to the application of the exception was followed in Lefkowitz v. Schwartz, 299 So. 3d 549 (Fla. 5th DCA 2020), in which the court observed “that property owned by another should not be made part of the estate and is not subject to administration.” At issue was whether the trial court properly applied a constructive trust remedy. The appellate court ruled that it was not the appropriate remedy because the decedent was a debtor, not the holder of the property of another. The United States District Court for the Southern District of Florida held in Grijalva v. Gulf Bank, 2011 U.S. Dist. LEXIS 9866, 2011 WL 282754 (S.D. Fla. 2011), that the trust exception did not apply to a constructive trust claim, relying on F.S. 733.710 and May v. Illinois National Insurance Co., 771 So. 2d 1143 (Fla. 2010). The court left open the possibility of the argument that the decedent acted as trustee of a trust of which the decedent was a beneficiary.

However, in other appellate districts, the trust exception may still be viable for alleged resulting or constructive trusts. See Steigman v. Danese, 502 So. 2d 463 (Fla. 1st DCA 1987), disapproved on other grounds 589 So. 2d 225; In re Estate of Peterson, 433 So. 2d 1358 (Fla. 4th DCA 1983). Equitable title sufficient to avoid the bar of the statute may be vested in the purchaser under a land contract through operation of the doctrine of equitable conversion, which basically provides that once there is a binding contract for the sale of real estate, the vendor holds title solely for security of the vendor’s lien for payments as the buyer is then the effective owner. Arko Enterprises, Inc. v. Wood, 185 So. 2d 734 (Fla. 1st DCA 1966); Buck v. McNab, 139 So. 2d 734 (Fla. 2d DCA 1962). The doctrine of equitable conversion does not apply when the seller physically resided on property that was the seller’s homestead at the time of his or her death. But if the decedent had entered into a contract for sale of the home before death and abandoned possession of the property and no longer claimed it as his or her residence, the doctrine likely would apply. In re Estate of Skuro, 487 So. 2d 1065 (Fla. 1986). « Ch. 8 », « § 8.3 », « B », « 2 •, « b », « ii •, « III » 1 Practice Under Florida Probate Code § 8.3.B.2.b.ii.III (2022)

III. Surviving Partners When a member of a partnership dies, the surviving partner is entitled to the possession and management of the partnership assets, unless there is a partnership agreement providing otherwise. See §§ 9.4.C.3.a and 13.2.G.6.b of this manual. There is no necessity, therefore, for a surviving partner to file a claim in the estate for any demand connected with the partnership affairs. A surviving partner who has a claim outside the scope of the partnership business, however, must file in the same manner as any other creditor. In Meltzer v. Estate of Norrie, 705 So. 2d 967 (Fla. 5th DCA 1998), a joint venture partner survived the decedent, who had held title to an office building that was operated under the joint venture agreement. The surviving partner filed a notice of claim in the estate, asserting that the decedent held half of the property in constructive trust for the surviving partner. The court ruled that the partner’s remedy lay not with the probate court but with the general jurisdiction division of the circuit court, because the property in question was not part of the decedent’s estate, and claims apply only to property of the

decedent’s estate. Compare Prescott v. Stanley, 710 So. 2d 674 (Fla. 5th DCA 1998), in which a claimant’s action for a constructive trust to receive funds improperly deposited into an estate account was dismissed for failure to timely file a claim. A separate action against the personal representative for breach of fiduciary duty was allowed to proceed because the personal representative, not the estate, was the defendant. « Ch. 8 », « § 8.3 », « B », « 2 •, « b », « ii •, « IV • 1 Practice Under Florida Probate Code § 8.3.B.2.b.ii.IV (2022)

IV. Defensive Recoupment It has been recognized that if the defense of recoupment, which allows for the reduction or elimination of a debt on grounds of a breach of contract or duty (similar to set off), is available, F.S. 733.710 does not act as a bar. A debtor has been able to plead as an offset to a mortgage debt the costs of environmental remediation. Davis v. Starling, 799 So. 2d 373 (Fla. 4th DCA 2001). « Ch. 8 », « § 8.3 », « B », « 2 •, « c • 1 Practice Under Florida Probate Code § 8.3.B.2.c (2022)

c. Claims Based On Federal Right If the basis of the claim sued on is a federal substantive right, federal law may or may not preempt the limitations period provided by the Florida Probate Code. In Witco Corp. v. Beekhuis, 38 F.3d 682 (3d Cir. 1994), the court decided an issue of first impression at the federal appellate level: whether the statute of limitations under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §§ 9601 et seq., preempts state nonclaim probate statutes. The court held that CERCLA did not preempt state nonclaim statutes. Witco was subsequently cited with approval and followed by the District Court of Appeal, Fourth District, in U.S. Borax, Inc. v. Forster, 764 So. 2d 24 (Fla. 4th DCA 1999), in which the court also held that CERCLA did not preempt Florida’s nonclaim statute. These cases provide a good analysis of when federal law may preempt state law. « Ch. 8 », « § 8.3 », « C » 1 Practice Under Florida Probate Code § 8.3.C (2022)

C. Procedure After Claim Has Been Filed

« Ch. 8 », « § 8.3 », « C », • 1 » 1 Practice Under Florida Probate Code § 8.3.C.1 (2022)

1. When Objection Is Filed « Ch. 8 », « § 8.3 », « C », • 1 », • a » 1 Practice Under Florida Probate Code § 8.3.C.1.a (2022)

a. In General The personal representative or another interested person may object to a claim at any time within the later of four months from first publication of the notice to creditors or 30 days from the timely filing of a claim or amendment of a claim. F.S. 733.705(2). See § 8.2.C.1. An objection must contain the specific information set out in F.S. 733.705(5) and Fla. Prob. R. 5.496 concerning the 30-day time limit to bring an independent action. See Fernandez-Fox v. Estate of Lindsay, 972 So. 2d 281 (Fla. 5th DCA 2008). If an objection is filed, the claimant has 30 days from the date of serving the objection on the claimant to bring an action on the claim. An objection to a portion of a claim is the same as an objection to the entire claim. In re Estate of Cadgene, 938 So. 2d 581 (Fla. 2d DCA 2006). If any part of the claim is objected to, the claimant should proceed with an independent action to determine the claim. If the action is not commenced within 30 days, the claim is forever barred without any court order. F.S. 733.705(5). Fla. Prob. R. 5.042 directs that Fla. R. Gen. Prac. & Jud. Admin. 2.514 is to be followed in computing the 30-day time limit provided by F.S. 733.705(5). (Rule 2.514 is discussed in § 2.3 of this manual.) The requirement of bringing an action has been held to be satisfied if there is a pending federal action against the decedent in which the decedent’s estate is substituted as a party defendant. Shessel v. Estate of Calhoun, 573 So. 2d 962 (Fla. 3d DCA 1991). An independent action may also be an arbitration proceeding. Lewsadder v. Estate of Lewsadder, 757 So. 2d 1221 (Fla. 4th DCA 2000). For an action pending at the time of the decedent’s death to qualify as an independent action, there must be a timely motion to substitute the personal representative as a party, or alternatively the personal representative must voluntarily substitute itself for the decedent. See id.; In re Estate of Brown, 421 So. 2d 752 (Fla. 4th DCA 1982); Cloer v. Shawver, 177 So. 2d 691 (Fla. 1st DCA 1965). When the circuit court has multiple

divisions, the independent action should be brought in the civil division. If brought in the division for probate instead, it should be transferred rather than dismissed. See West v. West, 126 So. 3d 437 (Fla. 4th DCA 2013). As stated in § 8.2.C.2, the personal representative is required to file a notice of the action with the probate court. Rule 5.065(a). Once the independent action has been initiated, it must be concluded in favor of the creditor for the claim to remain. Abandonment of the action for failure to prosecute constitutes abandonment of the claim. J & S Installation Specialist, Inc. v. Mabry, 857 So. 2d 346 (Fla. 2d DCA 2003); Hogan v. Howard, 716 So. 2d 286 (Fla. 2d DCA 1998). F.S. 733.705(3) provides that if an objection is filed by a person other than the personal representative, the personal representative may request that the court relieve the personal representative of the responsibility of defending the estate, provided an independent action is filed subsequently to enforce the claim or, alternatively, the court may appoint the objector as an administrator ad litem for the estate to defend the action. Fees for the lawyer for the administrator ad litem may be awarded as provided in F.S. 733.106(3). If costs or attorneys’ fees are awarded from or against the estate, the court may charge or apportion them as provided in F.S. 733.106(4). The entry of a judgment establishing a claim does not give the claim priority for payment over claims of the same class under F.S. 733.707. F.S. 733.705(5). « Ch. 8 », « § 8.3 », « C », • 1 », « b • 1 Practice Under Florida Probate Code § 8.3.C.1.b (2022)

b. Extension Of Time To Commence Action F.S. 733.705(5) provides that the court, for good cause shown, may extend the time for filing an action. The personal representative may also agree in writing to an extension of time if done within the time period. Id. The Florida Supreme Court held that a two-month limit under former F.S. 733.18 for filing actions was not a statute of nonclaim but rather a rule of judicial procedure. In re Jeffries’ Estate, 136 Fla. 410, 181 So. 833 (1938). The court concluded that an extension may be granted to permit the filing of an action even when the motion for extension of time is not made until after

the expiration of the limitation period. See also In re Estate of Goldman, 79 So. 2d 846 (Fla. 1955). F.S. 733.705(5) (formerly subsection (3)) has been interpreted in the same way. Golden v. Atlantic National Bank of Jacksonville, 481 So. 2d 16 (Fla. 1st DCA 1986), disapproved on other grounds 537 So. 2d 1370; In re Estate of Oxford, 372 So. 2d 1129 (Fla. 2d DCA 1979). See Dohnal v. Syndicated Offices Systems, 529 So. 2d 267 (Fla. 1988). The motion for extension should be verified and accompanied by supporting affidavits. In re Estate of Elliott, 798 So. 2d 13 (Fla. 1st DCA 2001). When granted, the motion may contain reasonable court-imposed conditions. Brodfuehrer v. Estate of Brodfuehrer, 833 So. 2d 784 (Fla. 3d DCA 2002). “Good cause,” as required by the statute, means a substantial reason that affords a legal excuse or a cause that moves the court to its conclusion and is not arbitrary or contrary to all the evidence. It must consist of more than mere ignorance of the law, hardship on the petitioner, and reliance on advice. Dohnal; Elliott; Devine v. Kirkovich, 754 So. 2d 789 (Fla. 3d DCA 2000); Williams v. Estate of Williams, 493 So. 2d 44 (Fla. 5th DCA 1986). The granting or refusal of an extension of time to begin an action on a claim against the decedent’s estate is a matter within the broad discretion of the judge, but the exercise of that discretion is reviewable. In re Estate of Herskowitz, 342 So. 2d 530 (Fla. 3d DCA 1977). See Dohnal; Delgado v. Estate of Garriga, 870 So. 2d 912 (Fla. 3d DCA 2004); Dimick v. Estate of Barry, 787 So. 2d 198 (Fla. 4th DCA 2001). In Exchange National Bank of Winter Haven v. Field, 338 So. 2d 889 (Fla. 2d DCA 1976), the court held that the creditors’ contention that they delayed filing their actions until the inventory showed whether sufficient estate assets were available to satisfy their claims did not constitute “good cause” for an extension, particularly because the creditors did not file a lawsuit until more than three months after the inventory was filed. When the personal representative lulls the claimant into a false sense of security, good cause exists for granting an extension. In re Estate of Matchett, 394 So. 2d 437 (Fla. 5th DCA 1981). See also Herskowitz. When a clerical error or lawyer’s mistake is given as the reason for the delay, Florida courts generally have found good cause to extend the time for filing when the delay was not substantial and when the late filing would not

result in prejudice or surprise to the estate. Dohnal; Horn v. Air Sal, Inc., 519 So. 2d 1106 (Fla. 3d DCA 1988); Williams. When the creditor shows a lack of prejudice to the estate, the burden shifts to the estate for rebuttal. If there appears to be a lack of prejudice, courts generally should grant the extension. Fernandez-Fox v. Estate of Lindsay, 972 So. 2d 281 (Fla. 5th DCA 2008). It is not clear whether F.S. 733.104(1) or 744.394 preempts the requirement of good cause in cases in which the claimant dies or becomes incapacitated so as to allow an action to be brought after expiration of the 30day limitation period. The court in Brennan v. Ryter, 339 So. 2d 661 (Fla. 1st DCA 1976), disapproved on other grounds 453 So. 2d 402, held that the oneyear period under the dismissal-for-lack-of-prosecution rule, Fla. R. Civ. P. 1.420(e), is not tolled because of the death of a defendant. « Ch. 8 », « § 8.3 », « C », « 2 • 1 Practice Under Florida Probate Code § 8.3.C.2 (2022)

2. When No Objection Is Filed « Ch. 8 », « § 8.3 », « C », « 2 •, • a » 1 Practice Under Florida Probate Code § 8.3.C.2.a (2022)

a. In General If no objection is filed within the statutory period under F.S. 733.705(2), the claim is deemed allowed and the personal representative can be compelled to pay the claim, on petition to the court. See § 8.2.C.3. See also § 8.2.E.2.a as to the time for making payment. « Ch. 8 », « § 8.3 », « C », « 2 •, « b • 1 Practice Under Florida Probate Code § 8.3.C.2.b (2022)

b. Form For Petition For Payment Of Claim (Title of Estate)

(Title of Court)

PETITION FOR PAYMENT OF CLAIM Petitioner, _________, alleges: 1. The personal representative of the estate of _________ commenced publication of notice to creditors on (date).

2. On (date), Petitioner filed a claim in the amount of $______. 3. Five months have passed from the first publication of notice to creditors and no written objection to the claim of Petitioner has been filed in the court by the personal representative or any other person interested in the estate, and no objection has been served on Petitioner. 4. The estate owns property and has available assets out of which the claim of Petitioner can be paid. WHEREFORE Petitioner respectfully requests that an order be entered requiring the personal representative to pay the claim of Petitioner in the sum of $___, together with interest after five months from the first publication of notice to creditors. Under penalties of perjury, I declare that I have read the foregoing, and the facts alleged are true, to the best of my knowledge and belief. Executed on (date). /s/ Petitioner (Certificate of Service) /s/ Attorney for Petitioner (address and phone number) (e-mail address(es)) Florida Bar No. ___ « Ch. 8 », « § 8.3 », « D » 1 Practice Under Florida Probate Code § 8.3.D (2022)

D. Claims By Incapacitated Persons Generally, the court-appointed guardian of the property is the party to file a claim on behalf of a minor or other incapacitated person. See Fla. R. Civ. P. 1.210(b); F.S. 744.441(1)(k). However, letters of guardianship for an incapacitated person (other than a minor) must specify whether the guardianship pertains to the person, the property, or both, and whether the

guardianship is plenary or limited. See F.S. 744.3021(1). If the guardianship is limited, the letters must state the powers and duties of the guardian. F.S. 744.345. The right to sue and defend lawsuits is a right that may be removed from a person and delegated to the guardian. F.S. 744.3215(3)(b). If the guardianship is limited, it is necessary to determine whether the right to sue and defend lawsuits has been removed from the incapacitated person in order to determine whether the limited guardian or the incapacitated person is the party to file a claim. See also F.S. 744.441(1)(k), 744.444(2). When no guardianship pertaining to property has been established for a minor, the minor’s claim may be filed by his or her next friend or by a guardian ad litem. See Rule 1.210(b). A natural guardian of a minor, however, may file and settle a claim without bond if it does not exceed $15,000. A legal guardian of the property is to be appointed when the amount exceeds $15,000. F.S. 744.387(2). For the procedure to be followed in settling a minor’s claim, see F.S. 744.387, Fla. Prob. R. 5.636. See also FLORIDA GUARDIANSHIP PRACTICE Chapter 22 (Fla. Bar 11th ed. 2021). Regarding the appointment of a guardian ad litem, see F.S. 744.3025. « Ch. 8 », « § 8.3 », « E • 1 Practice Under Florida Probate Code § 8.3.E (2022)

E. Claims Against Unadministered Estates F.S. 733.710 applies to both unadministered and administered estates. Notwithstanding any other provision of the Florida Probate Code, two years after a person’s death, neither the estate, any personal representative, nor the beneficiaries are liable for any claim or cause of action against the decedent, regardless of whether letters of administration have been issued, with the exceptions noted in F.S. 733.710 for previously filed claims and certain mortgage or security interests or liens. The prudent creditor who wants to be paid should open the estate by having a curator appointed, if that course of action is deemed to be economically prudent. See F.S. 733.501; Fla. Prob. R. 5.122. For further discussion of the rationale for the appointment of a curator, see § 16.3.A of this manual. F.S. 734.1025 contains provisions to enable the domiciliary representative of a nonresident’s estate to determine whether any claims exist against the nonresident’s property in Florida. The process follows the relevant provisions of F.S. Chapter 733, including publication of a notice to

creditors, after which claims must be filed against the estate in Florida as in a domiciliary administration. If a claim is filed, a personal representative must be appointed. F.S. 734.1025(2). See Chapter 17 of this manual. The court in Fisher v. Creamer, 332 So. 2d 50 (Fla. 3d DCA 1976), held that the then three-year statute of limitations with respect to filing claims against an unadministered estate did not apply in an action to enforce a trust, because the enforcement under a trust is governed by the doctrine of laches rather than by the statute of limitations. But see § 8.3.B.2.b.ii.II for discussion of developments in the law concerning the trust theory.

« Ch. 8 », « § 8.4 » 1 Practice Under Florida Probate Code § 8.4 (2022)

§ 8.4. DEDUCTIBILITY OF CLAIMS AGAINST ESTATE ON FEDERAL ESTATE TAX RETURN For federal estate tax purposes, deductible claims are those that represent personal obligations of the decedent existing at the time of death. Only claims legally enforceable against the estate are deductible on the federal estate tax return of the decedent. Reg. § 20.2053-4. Any claims that are not legally enforceable against the estate by reason of failure of the creditor to comply with the nonclaim statute, or otherwise, are not deductible on the federal estate tax return. Estate of Hagmann v. Commissioner, 60 T.C. 465 (1973), aff’d 492 F.2d 796; Rev. Rul. 75-177, 1975-1 C.B. 307. To ensure the deductibility on the federal estate tax return of claims subject to the nonclaim statute, a claim must be timely filed and must be legally enforceable against the estate. Interest on claims that accrued to the date of the decedent’s death is likewise deductible. Reg. § 20.2053-4. Interest on installment obligations that accrues after the decedent’s death is not deductible. Rev. Rul. 77-461, 1977-2 C.B. 324. Claims that are specifically excluded from the nonclaim statute are deductible on the decedent’s federal estate tax return as liens if they are legally enforceable against the estate and otherwise qualify as allowable deductions under IRC § 2053. Examples of that kind of claim are unpaid mortgages or any indebtedness on property when the value of the decedent’s interest, undiminished by the mortgage or indebtedness, is included in the value of the decedent’s gross estate, Reg. § 20.2053-7, and federal income taxes accrued but unpaid as of the date of death of the decedent, Reg. § 20.2053-6(f).

« Ch. 8 », « § 8.5 • 1 Practice Under Florida Probate Code § 8.5 (2022)

§ 8.5. FAMILY ALLOWANCE « Ch. 8 », « § 8.5 •, • A » 1 Practice Under Florida Probate Code § 8.5.A (2022)

A. In General The purpose of the family allowance is to provide a reasonable allowance of money from the estate for the family’s maintenance during administration. The provisions for family allowance are found in F.S. 732.403, which caps the allowance at $18,000. The family allowance applies only to estates of Florida residents, and only if the decedent had a surviving spouse or lineal heirs whom the decedent either was supporting or was obligated to support. For purposes of the family allowance, “lineal heirs” includes both lineal ascendants and lineal descendants. A verified petition for family allowance must be filed with the court. The procedure to be followed is in Fla. Prob. R. 5.407. A form for the petition is FLSSI Form No. P-4.0300. After notice and hearing (unless waived by all interested persons), the court may enter an order identifying the person or persons entitled to the allowance, and determining “the amount to which each is entitled, the method of payment, and to whom payment should be made.” Rule 5.407(c). See FLSSI Form No. P-4.0310 for a form for an order. If there is a surviving spouse, the family allowance is payable to the spouse for use by the spouse and dependent lineal heirs. However, if any lineal heir does not live with the surviving spouse, the allowance may be paid partly to the heir or the heir’s guardian and partly to the spouse, according to their needs. F.S. 732.403. If there is no surviving spouse, the family allowance is paid to the lineal heirs or to the persons responsible for their care and custody. The death of a person entitled to all or part of the allowance terminates that person’s right to the unpaid part of the allowance. Id. Attorneys’ fees may be awarded to the successful petitioner for family allowance. Hoyt v. Hoyt, 814 So. 2d 1254 (Fla. 2d DCA 2002). The court retains the authority to modify the amount of the allowance once it has been awarded. Entitlement is one issue, the reasonableness of the amount is another. Once an award has been made, the court may re-examine the amount of the award. Valdes v. Estate of

Valdes, 913 So. 2d 1229 (Fla. 3d DCA 2005). For further discussion of family allowance, see LITIGATION UNDER FLORIDA PROBATE CODE §§ 2.3.E, 4.5 (Fla. Bar 13th ed. 2022). « Ch. 8 », « § 8.5 •, « B » 1 Practice Under Florida Probate Code § 8.5.B (2022)

B. Effect On Elective Share, Homestead, And Exempt Personal Property F.S. 732.403 provides that “[t]he family allowance is not chargeable against any benefit or share otherwise passing to the surviving spouse or to the dependent lineal heirs, unless the will otherwise provides.” The statute also provides that the family allowance is in addition to protected homestead and other “statutory entitlements.” « Ch. 8 », « § 8.5 •, « C » 1 Practice Under Florida Probate Code § 8.5.C (2022)

C. Effect Of Allowance On Creditors’ Rights Generally, the family allowance will affect the rights of certain creditors, because this allowance is entitled to a Class 5 priority under F.S. 733.707. See § 8.2.E.2.d. Although, in theory, only Classes 6, 7, and 8 should be affected, the payment of the allowance generally is made before payment of the creditors with superior rights. If money is paid out for an allowance under authority of a court order and there is not enough money left to pay creditors with claims of higher priorities, the creditors’ remedies are few, if any. The personal representative may have personal liability for the items with higher priorities, up to the amount of the family allowance paid. Notice of the petition and hearing should be given to all unpaid beneficiaries and creditors (i.e., all interested persons entitled to notice because they are expected to be affected by the proceeding’s outcome). See F.S. 731.201(23). « Ch. 8 », « § 8.5 •, « D • 1 Practice Under Florida Probate Code § 8.5.D (2022)

D. Nondeductibility Of Family Allowance On Federal Estate Tax Return No deduction is allowable on the federal estate tax return for amounts paid for the support of dependents. See IRC § 2053. Nor does the family allowance qualify for the marital deduction. Therefore, the family allowance

is not deductible on the federal estate tax return of the decedent. All or part of the family allowance may be taxable income for the recipient. Footnotes — Chapter 8: *

J.D., 1977; LL.M. in Estate Planning, 1982, University of Miami. Mr. Pilotte is a member of The Florida Bar and the American and Palm Beach County bar associations. He is Florida Bar Board Certified in Wills, Trusts and Estates. Mr. Pilotte is a partner in Murphy Reid LLP, in Palm Beach Gardens.

Licensed to Otis K Pitts, Otis K Pitts

« Ch. 9 » 1 Practice Under Florida Probate Code Ch. 9 (2022)

Chapter 9 MANAGEMENT OF DECEDENT’S PROPERTY KATHLEEN A. KADYSZEWSKI* Contents § 9.1. INTRODUCTION A. In General B. Jurisdiction Of Courts § 9.2. MAINTAINING, PRESERVING, AND DISPOSING OF ESTATE ASSETS A. In General B. Safe-Deposit Box C. Elective Share D. Special Treatment Required For Certain Types Of Property 1. Perishables And Valueless Property 2. Corporate Interests 3. Wasting Or Nonproductive Assets E. Maintenance Of Property 1. In General 2. Forms a. Petition To Expend Funds To Preserve Property b. Order Authorizing Expenditure Of Funds F. Conversion Of Assets Into Cash For Payment Of Claims, Taxes, Or Administrative Expenses 1. Determination Of Need 2. Real Property 3. Corporate Interests 4. Tangible Personal Property

G. Commingling Funds § 9.3. INVESTMENT OF ESTATE FUNDS A. In General B. Prudent Investor Rule C. Obtaining Investment Counseling D. Liability Of Personal Representative E. What Funds To Invest F. Authorized Investments 1. In General 2. Real Property 3. Stocks And Bonds 4. Mutual Funds G. Credit Buying Or Necessary Borrowing H. Effect Of Florida Uniform Principal And Income Act I. Obtaining Court Authorization To Invest Funds J. Designating Depository For Cash Assets 1. In General 2. Forms a. Petition For Order Designating Depository For Cash Assets b. Order Designating Depository For Cash Assets § 9.4. CARRYING ON OF DECEDENT’S BUSINESS BY PERSONAL REPRESENTATIVE A. In General B. Duties, Authority, And Liability Of Personal Representative 1. In General 2. Limitation On Authority To Make Contracts Charging The Estate 3. Duty To Keep Records a. In General b. Forms i. Petition For Approval Of Monthly Report ii. Order Approving Monthly Report 4. Requirement To Give Appropriate Bond 5. Right To Mortgage Property Or Borrow Money

C. Duties Peculiar To Certain Business Entities 1. S Corporations 2. Sole Proprietorships a. In General b. Forms i. Petition To Continue Sole Proprietorship ii. Order Granting Authority To Continue Sole Proprietorship 3. Partnerships a. General Partnership Interest b. Limited Partnership Interest 4. Limited Liability Companies § 9.5. DIGITAL ASSETS § 9.6. ENVIRONMENTAL LAW CONCERNS A. In General B. Investigation, Reporting, And Remedy C. Liability « Ch. 9 », • § 9.1 » 1 Practice Under Florida Probate Code § 9.1 (2022)

§ 9.1. INTRODUCTION « Ch. 9 », • § 9.1 », • A » 1 Practice Under Florida Probate Code § 9.1.A (2022)

A. In General The management of the decedent’s property begins as of the date of death, even though a personal representative may not be appointed promptly. See § 4.3.A.1 of this manual. The powers of the personal representative relate back in time so that acts by the person appointed, occurring before appointment and beneficial to the estate, have the same effect as those occurring after appointment. F.S. 733.601. When the appointment of a personal representative is delayed, in some cases an interested person should petition for the appointment of a curator. See Chapter 16 of this manual and F.S. 733.501. This chapter discusses the

management of the estate property from the perspective of the personal representative, but it also applies to curators. The personal representative has the same fiduciary duty as a trustee of an express trust. The personal representative may be liable for damages resulting from either a failure to act or wrongful action taken. F.S. 733.609. See Chapter 4 of this manual for a general discussion of the personal representative’s duties. The personal representative has the duty to assume control of the assets of the estate for their preservation; to manage the assets; and, when the time arrives to close the estate, to distribute the assets to the heirs or beneficiaries. Fla. Prob. R. 5.160 permits the court, on petition of an interested person or on its own motion, to require a personal representative “to produce satisfactory evidence that the assets of the estate are in the possession or under the control of the personal representative,” and to order production of the assets for inspection by the interested person or the court. The task of preservation may require the personal representative to invest the estate’s assets, operate the decedent’s business, dispose of assets by sale, or take other affirmative steps. This must be done in conjunction with the personal representative’s primary obligation, which is to settle and distribute the estate in accordance with the terms of the will and the Florida Probate Code as expeditiously and efficiently as is consistent with the best interests of interested persons. The term “interested persons” includes creditors as well as beneficiaries. F.S. 731.201(23), 733.602(1). « Ch. 9 », • § 9.1 », « B • 1 Practice Under Florida Probate Code § 9.1.B (2022)

B. Jurisdiction Of Courts The subject of jurisdiction and venue in probate matters is discussed fully in Chapter 3 of this manual. A reading of that chapter in conjunction with this chapter is recommended.

« Ch. 9 », « § 9.2 » 1 Practice Under Florida Probate Code § 9.2 (2022)

§ 9.2. MAINTAINING, PRESERVING, AND DISPOSING OF ESTATE ASSETS « Ch. 9 », « § 9.2 », • A » 1 Practice Under Florida Probate Code § 9.2.A (2022)

A. In General The personal representative has the duty to maintain, protect, and preserve the estate assets so that creditors may be paid, and to then distribute the remaining assets to the heirs or beneficiaries. F.S. 733.607(1). To accomplish this duty, the personal representative must take possession of all of the personal property of the deceased, wherever the property is located. Id.; Mills v. Hamilton, 121 Fla. 435, 163 So. 857 (1935). F.S. 733.612(1) authorizes the personal representative to retain assets owned by the decedent pending distribution or liquidation, and F.S. 733.612(3) authorizes the personal representative to receive assets from fiduciaries or other sources. The personal property that the personal representative is required to take into possession includes all causes of action of the decedent that survive his or her death. The personal representative is to “proceed expeditiously with the settlement and distribution of a decedent’s estate and … shall do so without adjudication, order, or direction of the court.” F.S. 733.603. If the personal representative fails to collect the assets of and debts due the estate, the personal representative may be liable for that failure, notwithstanding the fact that there was reliance on the advice of counsel. Laramore v. Laramore, 64 So. 2d 662 (Fla. 1953). The handling of the decedent’s personal property after it is in the personal representative’s possession is discussed in subsequent sections of this chapter. F.S. 733.607 elaborates on the personal representative’s duties and obligations to take possession of the entire estate and its income. The personal representative has a general grant of power to take possession of all assets of the decedent’s estate subject to administration in the estate, including maintaining an action to recover possession of property or

determine title to it. Id. In any action against the beneficiary for possession of estate property, a “request by a personal representative for delivery of any property possessed by a beneficiary is conclusive evidence that the possession of the property by the personal representative is necessary for the purposes of administration.” F.S. 733.607(1). The personal representative may leave possession of real property and tangible personal property with the beneficiary presumptively entitled to it when the property is not needed for the purposes of administration. Id. The same statute also permits a testator in the will to provide that the possession or control of particular property remain with the devisee or some other person. F.S. 733.607 grants the personal representative authority to gain access to assets that are held in certain revocable trusts created by the decedent. F.S. 733.607(2) provides that if the probate assets are insufficient to pay the expenses of administration and all obligations of the decedent’s estate, the personal representative is entitled to seek payment from the trustee of the decedent’s revocable trust. The trustee is obligated to pay to the personal representative the amount certified by the personal representative to be necessary to satisfy the expenses of administration and the enforceable debts of the estate. Id., F.S. 733.707(3), 736.05053(1). See § 1.2.E.1 of this manual for a general discussion of what the estate comprises. Possession of all real property, except the protected homestead, must be secured, subject to any valid leases. F.S. 733.608(1) provides that the real property of the decedent is subject to the control of the personal representative and may be used to pay the claims against the estate, costs of administration, family allowance, elective share, and estate taxes, to enforce contribution, to equalize advancements, and for distribution. If protected homestead is not in possession of the person who appears to be entitled to that property, the personal representative is authorized, but not required, to take possession of that property for the limited purpose of preserving, insuring, and protecting it for the person having an interest in the property, pending a determination of its homestead status. If the personal

representative takes possession of that property, any rents and revenues may be collected … for the account of the heir or devisee. F.S. 733.608(2). Extreme caution must be exercised in making the decision to take possession of the presumptive protected homestead. By taking possession, the personal representative may be subjecting the probate estate to additional liability and expense, on account of an asset that does not even belong to or benefit the probate estate and the interested persons in the probate estate. On the other hand, it may be necessary to take possession of the presumptive protected homestead to secure and protect the contents, which are probate assets. « Ch. 9 », « § 9.2 », « B » 1 Practice Under Florida Probate Code § 9.2.B (2022)

B. Safe-Deposit Box The initial opening of the decedent’s safe-deposit box by the personal representative must be conducted in the presence of any two of the following: the personal representative, the personal representative’s attorney of record, and an employee of the bank or other institution where the box is located. F.S. 733.6065(1). Each person present must sign a verified inventory of the contents, which, together with a copy of the entry record for the period six months before the date of death until the date of the inventory, must be filed with the court within 10 days after entry into the box. Id.; Fla. Prob. R. 5.342(a)–(b). The inventory of the contents is to be kept by the court in a sealed file. F.S. 733.6065(1). The personal representative may remove the contents of the box. Id.; F.S. 655.936(1). However, even though these statutes permit the removal of the contents, some courts routinely place a restriction on the letters of administration, precluding entry into the safe-deposit box without further court order. If the letters do contain a restriction, the personal representative will not be permitted to remove the contents from the box without first obtaining the required order. Even if a joint tenant of the safe-deposit box has removed all of the contents or closed the box after the decedent’s death, the personal representative should obtain and file with the court a copy of the entry record. « Ch. 9 », « § 9.2 », « C »

1 Practice Under Florida Probate Code § 9.2.C (2022)

C. Elective Share The current elective share law, effective for estates of decedents who died after September 30, 2001, takes into consideration all assets in which the decedent had an interest at the time of death, not merely the assets subject to probate. See F.S. 732.201–732.2155. The elective share is the subject of Chapter 7 of this manual. « Ch. 9 », « § 9.2 », « D » 1 Practice Under Florida Probate Code § 9.2.D (2022)

D. Special Treatment Required For Certain Types Of Property « Ch. 9 », « § 9.2 », « D », • 1 » 1 Practice Under Florida Probate Code § 9.2.D.1 (2022)

1. Perishables And Valueless Property If a part of the personal property is perishable by nature, the personal representative should take immediate steps to protect it. Immediate sale is permitted without a court order. F.S. 733.612(5). If perishables are part of a specific devise, the question of the personal representative’s authority to proceed may arise. If so, the personal representative may be well advised to petition the court for an order of sale or, if an immediate sale is necessary, to obtain an order confirming the sale. The statute primarily allows the personal representative to exercise discretion. In most instances the personal representative will be protected under F.S. 733.602(2). Informal notice of the petition for authorization or confirmation is required by Fla. Prob. R. 5.040. The proceeds from the sale of any specifically devised property are distributable to the specific devisee unless the proceeds are needed to satisfy claims, expenses, taxes, family allowance, exempt property, or the elective share. Alternatively, the personal representative may distribute the perishable property to the specific devisee if not needed for administration. F.S. 733.612(26). If any property of the estate is valueless, it should be abandoned. F.S. 733.612(9). « Ch. 9 », « § 9.2 », « D », « 2 » 1 Practice Under Florida Probate Code § 9.2.D.2 (2022)

2. Corporate Interests Securities are often among the property that comes into the possession of the personal representative. The securities may be capital stock of corporations or mutual investments, trusts, registered or unregistered bonds, notes, debentures, or revenue certificates issued by any corporation. The personal representative should immediately inquire into the nature and value of the securities. (See IRC § 2031 and Treas. Reg. § 20.2031-2 with respect to valuation of stocks and bonds.) The personal representative then must decide whether to sell or hold the securities. A personal representative who does not have particular expertise in investing should consider retaining investment advisors. The retention of investment advisors is specifically authorized by statute, without the need to obtain court authority. See F.S. 733.612(19). If it is deemed desirable to retain the securities, they may be held by the personal representative in the personal representative’s name, in a nominee’s name, or in other form without disclosure of any interest of the estate. F.S. 733.612(12). If the securities are not held in the name of the personal representative in a fiduciary capacity, the personal representative must be prepared to assume personal liability for acts or omissions of the nominee with respect to those securities. Id. If the assets of the estate include a controlling interest in a closely held corporation, the personal representative should consider taking action as a stockholder to terminate or sell the business if the heirs or devisees will not be continuing the business. It might be appropriate to treat the ownership or control of a closely held corporation in the same manner as one would treat an unincorporated business. See F.S. 733.612(22); Fla. Prob. R. 5.350. See also § 9.4. The sale of corporate interests is discussed further in § 9.2.F.3. Investment of estate funds in stocks and bonds is discussed in § 9.3.F.3. « Ch. 9 », « § 9.2 », « D », « 3 • 1 Practice Under Florida Probate Code § 9.2.D.3 (2022)

3. Wasting Or Nonproductive Assets The personal representative must examine and analyze each asset to determine its current value and whether each item will hold its value. Any

wasting or nonproductive assets should be segregated and, unless they can be used, they should be earmarked for disposal. If such assets are specifically devised under the will, the personal representative should consider an early distribution of them to the specific devisee. Alternatively, the devisee is entitled to notice of any petition for authorization or confirmation of sale. Fla. Prob. R. 5.040. Wasting assets are those that continue to be depleted or lose value with the passage of time or continued use. Generally, wasting assets should be disposed of as soon as possible at the highest available price to prevent further devaluation. In some instances, the asset may be wasting by nature but its income-producing potential approximates its sales value, as in the case of a patent or royalty agreement. Under these circumstances, there is little reason to sell the asset unless the sale will produce more cash than the income that will result over the balance of the life of the asset. Examples of wasting assets are automobiles, boats, and equipment or material not useful to the estate because the estate will not continue the business of the decedent. Equipment not being constantly used may deteriorate at such a rapid rate that its ultimate sales price is greatly reduced. Nonproductive property requires a different analysis. Anticipated appreciation in value may offset the lack of income. An obvious example is undeveloped real property, which may be appreciating in value although its retention creates financial burdens for the estate in the form of taxes, insurance, and other maintenance expenses. The decision to retain or dispose of the realty calls for an analysis of the facts, including the financial ability of the beneficiaries to maintain the property after final distribution. In some instances, the personal representative may distribute property in kind to the surviving spouse either as the spouse’s elective share or to satisfy a marital deduction devise. This type of distribution is an especially viable option if the property is a wasting or nonproductive asset. The effect of the in-kind transfer on the surviving spouse must be analyzed carefully. « Ch. 9 », « § 9.2 », « E » 1 Practice Under Florida Probate Code § 9.2.E (2022)

E. Maintenance Of Property « Ch. 9 », « § 9.2 », « E », • 1 »

1 Practice Under Florida Probate Code § 9.2.E.1 (2022)

1. In General The personal representative must maintain the estate property, and may “[m]ake ordinary or extraordinary repairs or alterations in buildings or other structures.” F.S. 733.612(6). However, the personal representative should take no action to improve property at the expense of the general estate. TAX NOTE: IRC § 2053 denies an estate tax deduction for expense incurred for additions or improvements to estate property. Reg. § 20.2053-3(d)(1). Expenses necessarily incurred in preserving property of the estate are deductible, however, including the cost of storage or maintenance. Id. Under IRC § 642(g), amounts that could be deducted as administration expenses in computing the taxable estate of a decedent for estate tax purposes are not allowed as deductions on the estate’s income tax return in computing the taxable income of the estate for income tax purposes unless an election is filed stating that such items have not been allowed as estate tax deductions under IRC § 2053 or § 2054, together with a waiver of the right to have such items so allowed. See IRC § 642(g) and the corresponding regulations. The principal and income law, F.S. Chapter 738, was extensively amended by the legislature in 2002 and the amendments took effect on January 1, 2003. F.S. Chapter 738 applies to both trusts and decedents’ estates. F.S. 738.804. However, provisions in a will concerning principal and income override the statutory scheme. Id. Expenses paid from the estate are to be allocated between income and principal, in accordance with F.S. 738.701 and 738.702. The allocation of income taxes is governed by F.S. 738.705 and may be adjusted in accordance with F.S. 738.706. For further commentary concerning principal and income accounting, see Chapter 12 and §§ 4.3.A.4, 9.3.H, and 14.3.C.6.f of this manual. See also ADMINISTRATION OF TRUSTS IN FLORIDA Chapter 2 (Fla. Bar 11th ed. 2022). It is incumbent on the personal representative to effect the early distribution of real property that has been specifically devised to reduce the cost of administration and thus preserve the rights of the residual beneficiaries. Great care, therefore, must be used in authorizing expenditures for maintenance of real property, because this asset is under the

administration of the estate only to the extent that it may be necessary to meet the obligations of the estate. Except for emergency measures, no expenditures or obligations for maintenance of specifically devised real property should be incurred without a court order. TAX NOTE: Real property that is specifically devised within the meaning of IRC § 663 will pass to the beneficiary without income tax liability and without an estate distribution deduction. IRC §§ 102, 663(a) (1). The basis of the property in the hands of the beneficiary will be the fair market value of the property at the date of the decedent’s death or the alternate valuation date. IRC §§ 1014(a), (b)(1). No gain or loss will be realized by the estate due to postdeath appreciation or depreciation unless the estate satisfies the specific devise by substituting property other than that so devised. Reg. § 1.661(a)-2(f). The IRC § 102 exclusion from gross income does not extend to a devise of income from the property. IRC § 102(b)(2). Thus, items of income, such as rent received by the estate during the period of administration, distributed to the beneficiary or received by the beneficiary after distribution, may create taxable income to the beneficiary. See also § 13.2.E.2.e of this manual. The personal representative should make sure that all estate property is adequately covered by insurance. See F.S. 733.612(13). If the insurance coverage should prove to be inadequate, the personal representative might be held personally liable. The personal representative, although not an insurer of the assets of the estate, is bound to use good judgment in the exercise of fiduciary duties. A presumption exists under all circumstances that the personal representative has properly discharged these duties. For further discussion of insurance on the estate’s assets, see § 1.2.E.4.a of this manual. TAX NOTE: It appears likely that property insurance on estate assets obtained by the personal representative qualifies as an expense of preserving and maintaining the estate’s assets and therefore is a deductible administration expense under IRC § 2053. Alternatively, the personal representative may choose to deduct the expense for income tax purposes. See the Tax Note following the first paragraph of this section. Property insurance owned by the decedent at the time of death, to the extent of any unearned premium at death, should be included in the decedent’s gross estate as an interest in property within the meaning of

IRC § 2033. It may be necessary for the personal representative to make mortgage payments on the realty of the decedent. This subject is discussed in some detail in § 1.2.E.5 of this manual. Other expenditures may become necessary, such as payment of monthly condominium or maintenance fees and ad valorem taxes on the realty. TAX NOTE: IRC § 164(a)(1) allows a deduction for state, local, and foreign real property taxes in the taxable year in which paid or accrued. Property taxes paid before the death of a cash basis decedent will be deductible on the decedent’s return for that year, and conversely, property taxes not paid before death will not be deductible on the decedent’s final return. IRC § 691(b) deals with the allowance of deductions and credits for income in respect of a decedent. It provides that a deduction specified in IRC § 164 that is not properly allowable to the decedent for the taxable period in which the date of death falls, or for a prior period, is allowed to the estate when paid. If the estate is not liable for the payment of property taxes, the deduction will be allowed to the person who by devise or inheritance from the decedent or by reason of the death of the decedent acquires the property subject to the obligation to pay property taxes. Reg. § 1.691(b)-l(a). With respect to property taxes not paid at the date of death, the § 164 deduction may be taken by the estate as a § 691(b) deduction for purposes of income taxation and also as a deduction under IRC § 2053(a)(3) for purposes of estate taxation. The prohibition against double deductions is not violated in this case, because IRC § 642(g) is not applicable to deductions for taxes and certain other items accrued at the date of death. Therefore, property taxes accrued but not paid as of the date of a cashbasis taxpayer’s death may be deducted by the estate under both IRC § 2053(a)(3) for estate tax purposes and IRC § 691(b) for the estate’s income tax purposes. Under Florida law, ad valorem taxes are a lien on real property as of January 1 each year, even though the tax bill is not sent out until November of that year. Therefore, in almost every case, unless the decedent dies in November or December and has paid the real estate taxes for the present year prior to death, the estate will have

accrued taxes, deductible on the estate tax return, and an income tax deduction when the real estate taxes are paid by the estate (or the joint tenant). It should also be noted that if the personal representative is not required to pay the taxes but does so anyway, the estate will not be entitled to a § 691(b) deduction nor will it be entitled to a § 661 distribution deduction, unless payment was made on behalf of a beneficiary entitled to income from the estate and unless the payment was made in lieu of a direct payment to the beneficiary. Rev. Rul. 58-69, 1958-1 C.B. 254. The personal representative must use extreme care in the preservation of personal property, as the maintenance cost may far exceed the value of the property. The personal representative may often find it advantageous to invoke the authority of F.S. 733.612(5) to dispose of the personal property if extensive maintenance is required. Should the personal property be the subject of a specific devise, the personal representative may use the authority granted under F.S. 733.607 to surrender the personal property to the specific devisee if the property is not needed for administration, or make an early distribution of the property if the estate has other assets sufficient to meet its obligations. In the alternative, if there is a question as to the adequacy of the assets of the estate, the personal representative may petition to sell the property. TAX NOTE: In conformity with the general rule that an estate will realize a gain or loss on the sale of the estate assets, the estate will realize a gain or loss on the sale of property that has been specifically devised within the meaning of IRC § 663. The gain or loss will be measured by the difference between the basis of the property to the estate (generally the § 1014 fair market value at the date of death or alternate valuation date) and the amount received on disposition of the property. If the alternate valuation date is elected and the asset is sold or otherwise disposed of within six months of the date of death, the basis of the asset will be the sales price and, therefore, no gain or loss will be recognized on the sale or other disposition. The personal representative should not incur large expenses to preserve personal property that is depreciating rapidly. See § 9.2.D.3. When the property has substantial value, however, its preservation is justified. If the

personal representative is unsure about the wisdom of the expense, it is recommended that a court order be obtained. A form for a petition to expend funds to preserve property is set forth in § 9.2.E.2.a form order is at § 9.2.E.2.b. For a related discussion, see §§ 4.3.A.8.c–4.3.A.8.d of this manual. TAX NOTE: See the Tax Note following the first paragraph of this section. « Ch. 9 », « § 9.2 », « E », « 2 • 1 Practice Under Florida Probate Code § 9.2.E.2 (2022)

2. Forms « Ch. 9 », « § 9.2 », « E », « 2 •, • a » 1 Practice Under Florida Probate Code § 9.2.E.2.a (2022)

a. Petition To Expend Funds To Preserve Property IN THE CIRCUIT COURT FOR _________ COUNTY, FLORIDA PROBATE DIVISION File No. ___ IN RE: ESTATE OF _________, Deceased.

PERSONAL REPRESENTATIVE’S PETITION TO EXPEND FUNDS TO PRESERVE ESTATE PROPERTY Petitioner, _________, as personal representative of this estate, alleges: 1. At the time of death the decedent owned certain [real] [personal] property that is now an asset of the estate, which property is described as: (Insert property description.)

2. To preserve this property, Petitioner believes it will be necessary to expend certain sums for the purposes of (describe needed repair or maintenance). 3. Petitioner attaches to this petition as Exhibit “A” estimates and appraisals setting forth in detail the work to be done and sums to be expended. 4. Petitioner recommends the employment of (name) to render the necessary services and provide the materials as set forth in the estimate. WHEREFORE, Petitioner requests that this court enter an order authorizing the expenditure of the above-mentioned sums for the preservation and maintenance of the asset of this estate described in paragraph 1 of this petition. Under penalties of perjury, I declare that I have read the foregoing, and the facts alleged are true, to the best of my knowledge and belief. /s/ Petitioner (Certificate of Service) /s/ (name of attorney) Attorney for Petitioner (address and phone number) (e-mail address(es)) Florida Bar No. ___ COMMENT: Notice (usually informal) is required under Fla. Prob. R. 5.040. « Ch. 9 », « § 9.2 », « E », « 2 •, « b • 1 Practice Under Florida Probate Code § 9.2.E.2.b (2022)

b. Order Authorizing Expenditure Of Funds (Title of Estate)

(Title of Court)

ORDER AUTHORIZING EXPENDITURE OF FUNDS BY PERSONAL REPRESENTATIVE This action was heard on the petition of _________ , as personal representative of this estate, to expend certain funds for the preservation and maintenance of an asset of the estate. The court, having reviewed the petition and the evidence presented at the hearing held on the petition, finds that the material allegations of the petition are true. IT IS ADJUDGED that the personal representative is authorized to execute a contract with (name) for the preservation or maintenance of:

(Describe property.) in accordance with the estimate that has been submitted to the court. ORDERED at ____________, Florida on /s/____________

(date).

Circuit Judge Copies furnished to: « Ch. 9 », « § 9.2 », « F » 1 Practice Under Florida Probate Code § 9.2.F (2022)

F. Conversion Of Assets Into Cash For Payment Of Claims, Taxes, Or Administrative Expenses « Ch. 9 », « § 9.2 », « F », • 1 » 1 Practice Under Florida Probate Code § 9.2.F.1 (2022)

1. Determination Of Need After expiration of the period for the presentation of and objections to claims against the decedent’s estate, the personal representative is required to pay valid claims to the extent the funds or the assets subject to the decedent’s debts are available. In the absence of specific provisions in the will designating property to pay debts, taxes, or administrative expenses, or if the funds so designated are insufficient, F.S. 733.805(1) provides an order of priorities as to the use of the assets for the payment of debts and

administrative expenses. This order is as follows: (a) Property passing by intestacy. (b) Property devised to the residuary devisee or devisees. (c) Property not specifically or demonstratively devised. (d) Property specifically or demonstratively devised. The apportionment of assets to be used for the payment of estate taxes is the subject of F.S. 733.817. The priority for the payment of expenses of administration and obligations of the estate is governed by F.S. 733.707. As noted at § 9.2.A, in addition to the probate assets, any assets owned by a trust created by the decedent, and over which the decedent had at the time of death a right of revocation, are liable for the payment of expenses of administration and obligations of the estate. F.S. 733.707(3). If the probate assets are insufficient to pay the expenses of administration and the obligations of the estate, the personal representative should certify in writing to the trustee of such a revocable trust the amounts required to satisfy the insufficiency. The trustee is under a duty to pay to the personal representative the amount certified as necessary to meet the expenses of administration and other obligations of the estate. F.S. 736.05053. F.S. 738.201(2) provides for the payment of administrative expenses, including fees of attorneys, accountants, and fiduciaries, court costs, and other expenses of administration, from income or principal, in the personal representative’s discretion. Expenses in connection with the maintenance of property specifically devised (ad valorem taxes, ordinary repairs, and the like) should be charged against the income from the property specifically devised. F.S. 738.201(1). The practitioner should note that, if the will provides for payment of expenses from income and the marital devise is the residue, the residuary estate available for the marital deduction would be increased. In the absence of such a provision in the will, the value of the marital deduction for federal estate tax purposes is a net value, or the value of the residue, reduced by the amount of charges against it, even though those charges may be met from another source. See Ballantine v. Tomlinson, 293 F.2d 311 (5th Cir. 1961).

TAX NOTE: In Commissioner v. Estate of Hubert, 520 U.S. 93, 117 S. Ct. 1124, 137 L. Ed. 2d 235 (1997), the United States Supreme Court held that the executors of an estate did not reduce the marital (and charitable) deductions otherwise available to the estate by charging expenses of administration against income, even though the income was payable to the surviving spouse and to charities. The court found that only a “material limitation” on the right to receive income would reduce the marital (or charitable) deduction. Id. at 94. What constitutes a material limitation is a question of fact to be determined in each case. In general, the larger the expenses charged to income as compared with the anticipated income, the greater the likelihood that there will be a material limitation on the marital (or charitable) deduction. In response to Hubert, the Internal Revenue Service issued regulations addressing this issue. The regulations distinguish “estate management expenses” (which do not reduce the marital or charitable deduction) from “estate transmission expenses” (which will reduce the marital or charitable deduction). Reg. § 20.2056(b)-4. The personal representative must pay the expenses of administration and obligations of the estate in accordance with the priority in F.S. 733.707. The need for cash to meet the obligations of the estate should be analyzed as the obligations occur and are brought to the attention of the personal representative. Thus, the personal representative should budget ample time to secure the funds necessary to pay the obligations and expenses of administration and avoid any forced sale of assets to the detriment of the estate. See § 9.3.A. « Ch. 9 », « § 9.2 », « F », « 2 » 1 Practice Under Florida Probate Code § 9.2.F.2 (2022)

2. Real Property It may be necessary to sell real property to raise cash for the payment of claims, taxes, or administrative expenses. The court may look to the will as a whole to find a power to sell real property, for it is the intent of the testator that governs in determining the disposition of real property. Protected homestead real property is not subject to the payment of claims and is not considered a part of the probate estate if it descends (either by law or permissible devise) to the decedent’s surviving spouse or to one or more

descendants or heirs. Thus, it is not subject to sale by the personal representative. Art. X, § 4, Fla. Const. In this regard, it may be necessary for the personal representative to bring proceedings to determine homestead real property under Fla. Prob. R. 5.405. If there is no general power of sale in the will, real property may be sold only in accordance with the authority granted to personal representatives under F.S. 733.612(2) and 733.613. The authority to mortgage or sell real property when no express power of sale appears in the will is controlled by F.S. 733.613, which provides that title cannot pass until the court authorizes or confirms the sale. If the decedent died intestate or the will does not contain a general power of sale, the personal representative should ensure that any listing agreement, and any contract accepted by the personal representative, specifically states that court approval of the sale will be required. The contents required in a petition seeking authorization for the sale of real property are specified in Rule 5.370. Leasing property is authorized by F.S. 733.612(7) without court order. See also F.S. 733.613(2) (“When a decedent’s will confers specific power to sell or mortgage real property or a general power to sell any asset of the estate, the personal representative may sell, mortgage, or lease, without authorization or confirmation of court” [emphasis added]). Depending on the circumstances involved in a proposed lease, the personal representative may be well advised to obtain specific court approval before entering into a lease of real property in the absence of specific authority in the will. The petition should set forth a description of the property to be leased and its improvements, and a copy of the proposed lease should be attached to the petition. The terms and duration of the lease must not be inconsistent with the provisions of the will. Notice must be given to all persons interested in the estate. See Rule 5.040. See F.S. 731.201(23) for a definition of “interested persons,” which includes creditors. Even if express authority to sell real estate without a court order is found in the will, the probate courts in some circuits place a restriction on the letters of administration. In those courts where the letters are restricted, it will be necessary to obtain a court order before any real estate can be sold, regardless of the language in the will. The duties of the personal representative concerning real property of the

decedent are discussed further in §§ 4.3.A.3.i.i–4.3.A.3.i.v of this manual. See also Chapter 10 of this manual. « Ch. 9 », « § 9.2 », « F », « 3 » 1 Practice Under Florida Probate Code § 9.2.F.3 (2022)

3. Corporate Interests The personal representative is authorized by F.S. 733.612 to take all action necessary to properly administer the estate except as otherwise provided by the will or by order of court. Under this general power, the personal representative may sell at current market price any stocks or bonds to obtain cash needed for the payment of claims, taxes, or administrative expenses. When a security is traded on an over-the-counter market, it may be deemed appropriate to obtain an order authorizing the sale due to the difficulty in establishing the price. This action should be taken only if there is concern on the part of the personal representative that the sale of the security might be construed as an improper exercise of power and subject the personal representative to liability under F.S. 733.609. TAX NOTE: The sale of estate securities generally gives rise to a gain or loss to the estate, measured by the difference between the basis of the securities in the hands of the estate and the amount received on disposition. « Ch. 9 », « § 9.2 », « F », « 4 • 1 Practice Under Florida Probate Code § 9.2.F.4 (2022)

4. Tangible Personal Property The principal assets of an estate sometimes consist of tangible personal property. The personal representative is charged with taking possession of all personal property as promptly as is reasonable, except as otherwise provided in F.S. 733.607. This type of estate asset may be a ready source for conversion into cash for the payment of claims, taxes, or administrative expenses. Except as required by the court or by the will, tangible personal property may be pledged, leased, or sold without court order. F.S. 733.612(21). However, the personal representative must also consider whether the property is exempt property under F.S. 732.402 before any sale is made.

More commonly, items of tangible personal property are the subject of a specific devise under the will. The personal representative is generally advised to transfer the tangible personal property to the devisees as soon as possible to avoid having to secure such property. « Ch. 9 », « § 9.2 », « G • 1 Practice Under Florida Probate Code § 9.2.G (2022)

G. Commingling Funds In many instances, assets of the estate may produce income. Under normal circumstances there is no requirement for the segregation of income from principal of the estate as these items come into the personal representative’s possession. A proper system of accounting, however, must be established, delineating what portion of the estate represents (1) ordinary income earned on assets, (2) proceeds from the sale of assets and the amount of gains or losses on the sales, and (3) the principal of the estate. In certain circumstances it may be necessary for the personal representative to maintain separate accounts, such as when the personal representative continues the business of the decedent. In that instance, only the net profits would be added to the assets of the estate. The personal representative, of course, must not commingle estate assets with the personal representative’s own assets or with the assets of others. See § 4.3.A.4 of this manual.

« Ch. 9 », « § 9.3 » 1 Practice Under Florida Probate Code § 9.3 (2022)

§ 9.3. INVESTMENT OF ESTATE FUNDS « Ch. 9 », « § 9.3 », • A » 1 Practice Under Florida Probate Code § 9.3.A (2022)

A. In General The primary duty of the personal representative is to gain possession of all the assets of the estate, determine the validity of claims, and pay the obligations, including expenses of administration, taxes, and all devises. Therefore, it is desirable for the personal representative to have on hand sufficient cash to meet the costs of administration and to pay the claims of creditors. To accomplish this, an evaluation of the cash requirements of the estate is essential. See § 9.2.F.1. Because creditors’ claims often may not be paid until the time for filing claims has passed, it is desirable that the personal representative invest the liquid assets of the estate to provide the greatest amount of income while simultaneously using only the most secure forms of investment permitted by law. The ability to accomplish this is governed by the provisions of the will, orders of the court, and limitations of the estate. F.S. 733.612(4) directs the personal representative to invest estate funds as provided in F.S. 518.10– 518.14, after “considering the amount to be invested, liquidity needs of the estate, and the time until distribution will be made.” The first investment inquiry the personal representative should make is to review the assets held by the decedent that have become part of the estate. The personal representative may retain assets owned by the decedent, pending distribution or liquidation. F.S. 733.612(1). Nevertheless, the personal representative must decide whether the investments should continue to be held or whether their nature requires the sale of some or all of the decedent’s investments. It would be appropriate to discuss the retention or sale of assets with the beneficiaries who will ultimately receive the benefit of the assets. It may be that a beneficiary will have an immediate need for cash once the estate assets are distributed. In that case, the personal representative may wish to liquidate the noncash assets. On the other hand, there may be

specific investments that the beneficiaries have a strong desire to retain. « Ch. 9 », « § 9.3 », « B » 1 Practice Under Florida Probate Code § 9.3.B (2022)

B. Prudent Investor Rule The personal representative may acquire and retain any type of property, including stocks, bonds, and other securities, on behalf of the estate. In acquiring, investing, exchanging, selling, and managing that property, however, the personal representative must exercise discretion on behalf of the estate with respect to the estate’s affairs, giving due consideration to the probable income production as well as the safety of capital. “A personal representative is a fiduciary who [must] observe the standards of care applicable to trustees.” F.S. 733.602(1). That standard of care is the “prudent investor rule,” F.S. 518.11. Under the rule, the fiduciary is required to “invest and manage [the] assets as a prudent investor would considering the purposes, terms, distribution requirements, and other circumstances of the [fund].” F.S. 518.11(1)(a). The standard calls for “the exercise of reasonable care and caution” and is not to be applied to any investment in isolation. Rather, each investment is to be considered in the context of the entire investment portfolio and as part of an overall investment strategy. If the personal representative has special skills or is named personal representative “on the basis of representations of special skills or expertise,” there is a duty to use those skills. For extensive discussion of the prudent investor rule, see ADMINISTRATION OF TRUSTS IN FLORIDA Chapters 2 & 4 (Fla. Bar 11th ed. 2022). « Ch. 9 », « § 9.3 », « C » 1 Practice Under Florida Probate Code § 9.3.C (2022)

C. Obtaining Investment Counseling A personal representative may employ investment advisers without a court order. F.S. 733.612(19). The personal representative must use ordinary care in the selection of the adviser and must exercise proper supervision. In re Estate of Rosenthal, 189 So. 2d 507 (Fla. 3d DCA 1966). The personal representative may go a step further and formally delegate investment functions to an investment agent, provided the beneficiaries

eligible to receive distributions from the estate are given written notice within 30 days of the delegation. F.S. 518.112(3)(b); see F.S. 733.612(19). If proper notice is provided to the beneficiaries, the personal representative will cease to be responsible for the investment decisions or the actions of the investment agent. F.S. 518.112(4). The personal representative should still supervise these duties personally. Certainly a careful analysis of the capabilities and qualifications of the adviser must be made before any duties are delegated. Compensation of investment agents is discussed in Chapter 15 of this manual. « Ch. 9 », « § 9.3 », « D » 1 Practice Under Florida Probate Code § 9.3.D (2022)

D. Liability Of Personal Representative The personal representative may be guilty of an abuse of discretion if large sums are allowed to remain uninvested for long periods of time. Funds not currently required for estate purposes should be made productive. However, the personal representative is not an insurer of the assets of the estate, and when prudent investments are made, including those made on the advice of a competent investment agent, there is a presumption that the personal representative’s duty has been properly discharged. Parker v. Shullman, 983 So. 2d 643 (Fla. 4th DCA 2008). If this duty is violated, the personal representative is personally liable for the consequences. See F.S. 733.609. « Ch. 9 », « § 9.3 », « E » 1 Practice Under Florida Probate Code § 9.3.E (2022)

E. What Funds To Invest Investments should be made only from the liquid assets of the estate not needed to meet immediate obligations. In determining which assets should be disposed of to provide liquidity, it may be preferable to dispose of the nonproductive or wasting assets, unless those assets are specifically devised under the terms of the will. “Switching” assets is a questionable practice, as the expense of sale may outweigh any gain realized. The personal representative may benefit from a discussion with the ultimate beneficiaries of the assets.

The personal representative should look at the complexity of the investments and the amount of service required to manage them as a determining factor in investment selection. Investments that will require extensive service or effort should be avoided in most cases, as they tend to increase the cost of administration. « Ch. 9 », « § 9.3 », « F » 1 Practice Under Florida Probate Code § 9.3.F (2022)

F. Authorized Investments « Ch. 9 », « § 9.3 », « F », • 1 » 1 Practice Under Florida Probate Code § 9.3.F.1 (2022)

1. In General The personal representative may invest the estate’s funds in investment vehicles sanctioned by the will. If the will is silent, those investments sanctioned by statute should prevail. F.S. 518.11. The objective is to preserve the estate for the payment of expenses and obligations and the distribution of the balance to the beneficiaries. It is not the objective of the administration to greatly enhance the value of the estate. Consequently, when investing any cash that will not be needed to pay the expenses and obligations of the estate, minimal risk should be taken by the personal representative. In most instances, the period of administration is of such short duration as to make other than short forms of investment imprudent without the approval of the ultimate recipients of the estate. Therefore, it is wise to obtain their consent before long-term investments are made. Except for investments in municipal or state securities, investments in out-of-state properties are frowned upon, as they may be difficult to control. If the principal of an estate has already been invested in out-of-state properties, the investment may be retained if it is not in the best interest of the estate to dispose of the investments. Other permissible investments exist, some of which are discussed in §§ 9.3.F.2–9.3.F.4. « Ch. 9 », « § 9.3 », « F », « 2 » 1 Practice Under Florida Probate Code § 9.3.F.2 (2022)

2. Real Property Investment in real property is not looked upon with favor. In some instances, the residuary beneficiaries may indicate a desire to retain investments in real property or to extend those investments. Only when the personal representative specifically obtains the written consent of the interested beneficiaries should such an investment be considered. « Ch. 9 », « § 9.3 », « F », « 3 » 1 Practice Under Florida Probate Code § 9.3.F.3 (2022)

3. Stocks And Bonds Generally, an investment in negotiable stocks and bonds should be entered into only when it is understood that the transaction is intended as a short-term transaction. Under certain circumstances, the residuary beneficiaries should be consulted when making these investments, because the investments might be distributed in kind. It is advised that unless the personal representative possesses particular investment skill, the prudent fiduciary would make such investments only after consultation with a carefully selected investment advisor who possesses the required skill and knowledge. See § 9.3.C. « Ch. 9 », « § 9.3 », « F », « 4 • 1 Practice Under Florida Probate Code § 9.3.F.4 (2022)

4. Mutual Funds Under normal circumstances, investments in mutual funds may be considered long-term investments, as they often have a high load factor. These securities should be analyzed in the same manner as negotiable stocks and bonds. If the investment appears to be in the best interest of the residuary beneficiaries, the investment may be a reasonable one, especially if the residuary beneficiaries agree. « Ch. 9 », « § 9.3 », « G » 1 Practice Under Florida Probate Code § 9.3.G (2022)

G. Credit Buying Or Necessary Borrowing The personal representative may incur obligations or buy on credit when necessary to continue the business of the decedent. Because F.S. 733.612(14)

permits the personal representative to borrow money, the personal representative may also use credit to accomplish other phases of the management, care, and settlement of the estate. Court approval should be sought if there is some substantial question as to the need to expend sums for the retention of estate assets, especially those that are perishable. TAX NOTE: IRC § 163 provides an income tax deduction for interest paid or accrued within the taxable year on indebtedness. IRC § 163(d), however, places several limitations on the deduction of interest incurred on investment indebtedness. Interest may also be deductible as an administrative expense under IRC § 2053 if it was incurred reasonably and necessarily. « Ch. 9 », « § 9.3 », « H » 1 Practice Under Florida Probate Code § 9.3.H (2022)

H. Effect Of Florida Uniform Principal And Income Act The purpose of the Florida Uniform Principal and Income Act, F.S. Chapter 738, is to establish the rights of income beneficiaries as opposed to the rights of the remainder beneficiaries. “Principal” means the realty or personalty that constitutes the corpus of the estate. “Income” is the return derived from the principal. See F.S. 738.102(5), (11). Income may include a portion of receipts from the sale or liquidation of a principal asset. F.S. 738.102(5). Accordingly, money received from the sale of property owned by the estate generally becomes part of principal, whereas rents, income from a business operated by the estate, and dividends on stocks or securities constitute income. Specific problems may arise with respect to determining whether any realized gain from the sale of property is to be considered principal or income. In applying the law, it is necessary to determine whether the transaction constitutes the carrying on of a business or the making of an investment. This is a determination that must be made by the personal representative. See F.S. 738.401–738.403, 738.503. See Chapter 12 and §§ 4.3.A.5 and 14.3.C.6.f of this manual for further discussion of the Florida Uniform Principal and Income Act. « Ch. 9 », « § 9.3 », « I » 1 Practice Under Florida Probate Code § 9.3.I (2022)

I. Obtaining Court Authorization To Invest Funds On occasion, the personal representative may find it expedient to obtain a court order authorizing a specific investment of estate funds. The practice varies from circuit to circuit, and many courts are reluctant to grant such orders. The court may prefer to rely on the personal representative to make a prudent fiduciary investment and will refuse to confirm or deny the quality of the investments under consideration. This is particularly true when the personal representative is given authority in the decedent’s will to invest estate funds. In other words, the court may refuse to act as the personal representative for the purpose of making investments or to substitute its judgment for that of the personal representative. Nevertheless, in certain cases it is proper to obtain a court order approving a specific investment. « Ch. 9 », « § 9.3 », « J • 1 Practice Under Florida Probate Code § 9.3.J (2022)

J. Designating Depository For Cash Assets « Ch. 9 », « § 9.3 », « J •, • 1 » 1 Practice Under Florida Probate Code § 9.3.J.1 (2022)

1. In General In many instances, the estate may find that its assets are largely of a liquid nature, such as accounts in savings and loan associations and banks, or the proceeds from the sale of estate assets. In these instances, the court might require the cash assets to be placed in a designated depository pursuant to F.S. 69.031. This may be accomplished by petitioning the court to authorize the personal representative to deposit the cash assets of the estate in a savings and loan association or bank with the condition that proceeds may not be withdrawn by the personal representative except by express order of the court, and then only to the extent set forth in the order. Under these circumstances, the court often will reduce the size of the bond required for the personal representative or eliminate the need for the bond entirely. However, the personal representative should weigh the costs of obtaining court orders authorizing expenditures from the depository account against the cost of the bond. Often the bond premium will be far less expensive than the cost of repeated applications for court orders. A form for a petition to deposit funds is set forth at § 9.3.J.2.a, and a form order is at § 9.3.J.2.b.

One solution to minimize costs is to establish two accounts. Most of the estate’s cash could be placed in a restricted depository account; a second, smaller, unrestricted operating account could be used to pay estate expenses. If this scheme is employed, the court should reduce any bond requirement to the amount of the unrestricted operating account. « Ch. 9 », « § 9.3 », « J •, « 2 • 1 Practice Under Florida Probate Code § 9.3.J.2 (2022)

2. Forms « Ch. 9 », « § 9.3 », « J •, « 2 •, • a » 1 Practice Under Florida Probate Code § 9.3.J.2.a (2022)

a. Petition For Order Designating Depository For Cash Assets (Title of Estate)

(Title of Court)

PERSONAL REPRESENTATIVE’S PETITION FOR ORDER DESIGNATING DEPOSITORY FOR CASH ASSETS Petitioner, _________, alleges: 1. Petitioner has been appointed personal representative of this estate. 2. Petitioner desires to deposit cash assets of this estate with the depository, as provided by F.S. 69.031, and as required by this court’s letters of administration issued (date). 3. _________ is willing to act as depository for cash assets belonging to this estate as reflected in the acceptance below or in a written acceptance filed herewith. WHEREFORE Petitioner requests that an order be entered designating _________ as depository for the cash assets of the estate and that any person or corporation having possession or control of cash assets belonging to the estate be authorized to deliver the cash assets to the designated depository upon demand of the depository for safekeeping in accordance with the provisions of F.S. 69.031 and that a receipt of

such cash assets be filed with this court and that a copy thereof be delivered to Petitioner. Under penalties of perjury, I declare that I have read the foregoing, and the facts alleged are true, to the best of my knowledge and belief. /s/ Petitioner /s/ (name of attorney) Attorney for Petitioner (address and phone number) (e-mail address(es)) Florida Bar No. ___

ACCEPTANCE _________ hereby accepts the designation as depository of assets of this estate, and will hold and disburse them pursuant to F.S. 69.031, provided, however, that the depository shall incur no liability in connection with this acceptance until it has filed with the court its duly executed receipt for such assets. /s/____________ Depository By: _________ « Ch. 9 », « § 9.3 », « J •, « 2 •, « b • 1 Practice Under Florida Probate Code § 9.3.J.2.b (2022)

b. Order Designating Depository For Cash Assets (Title of Estate)

(Title of Court)

ORDER DESIGNATING DEPOSITORY FOR CASH ASSETS On the petition of _________, personal representative of this estate,

for authorization to deposit assets belonging to the estate with (name and address of depository) as a depository, as provided by F.S. 69.031 IT IS ADJUDGED: 1. _________ is designated as the depository for those assets and it is hereby authorized and directed to receive and hold as depository, under the provisions of F.S. 69.031, cash assets of the estate to be held in safekeeping subject to such instructions by the personal representative as are authorized by orders of this court directed to the depository, and to permit withdrawal thereof only upon order of this court. 2. On receipt of such cash assets of the estate, the depository shall file with this court its receipt therefor. 3. Any person or corporation having possession or control of any cash assets of the estate, or owing interest, dividends, principal, or other indebtedness on account thereof, shall, upon the demand of the depository designated in this order, deliver such assets, interest, dividends, principal, or other indebtedness to the designated depository, and the receipt and acceptance thereof by the designated depository shall relieve the person or corporation from all further responsibility therefor. 4. A copy of this order shall be delivered to the depository and the depository shall file with this court, if it has not already done so, its acceptance or rejection within 15 days of receipt of the copy of this order. ORDERED at ____________, Florida, on /s/____________

(date).

Circuit Judge Copies furnished to:

« Ch. 9 », « § 9.4 » 1 Practice Under Florida Probate Code § 9.4 (2022)

§

9.4. CARRYING ON BUSINESS BY REPRESENTATIVE

OF

DECEDENT’S PERSONAL « Ch. 9 », « § 9.4 », • A »

1 Practice Under Florida Probate Code § 9.4.A (2022)

A. In General If the decedent owned an interest in a business, whether a corporation, partnership, limited liability company, or sole proprietorship, there is an additional and often complex task facing the personal representative. In a well-planned estate the personal representative may find sufficient guidance in the will of the deceased or in a partnership or stockholders’ agreement as to the course of action to take. If the will provides for the continuance of the business, the personal representative should be insulated from the dangers inherent in continuing the decedent’s commercial ventures. The personal representative should not be personally answerable for any resulting losses in the absence of bad faith or want of due prudence or diligence in the management of the business. It has been established conclusively that a personal representative is not an insurer of the business conducted by the personal representative during the administration of the estate. First Trust & Savings Bank v. Henderson, 101 Fla. 1437, 136 So. 370 (1931). See also In re Estate of Wilson, 116 So. 2d 440 (Fla. 2d DCA 1959). In the absence of a provision in the will authorizing the continuance of an unincorporated business, the personal representative may continue to operate that business for only four months from issuance of letters unless the court extends the authorization. F.S. 733.612(22); Fla. Prob. R. 5.350. The fourmonth period generally should give the personal representative time to close the business, if this is indicated. An order to extend the time to operate the business should be obtained if the business cannot be closed and liquidated with an adequate return to the estate within four months. To do otherwise

might expose the personal representative to an action for waste. If the will directs the continuance of a business of unusual character or speculative nature that requires special training or ability to oversee, or if the will directs continuance of a business when there is no reasonable purpose for its continuance, the personal representative may petition the court to discontinue the business pursuant to Rule 5.350. Before filing that petition the personal representative should consider hiring specially trained personnel to aid in the operation of the business, and obtain the necessary training or ability to operate the business for the benefit of the beneficiaries. In some instances when the petition is to be filed, the personal representative should consult the beneficiaries to obtain their consent before filing. Any interested person who believes it is in the best interest of the estate to terminate the business may file a petition to do so at any time. Rule 5.350(d). The personal representative is not obligated to expose himself or herself to liability. It should be pointed out that, when the will directs the continuation of the business, the only fund that is prima facie liable to subsequent creditors of the personal representative carrying on the business is the fund that was employed in the business. Fridenburg v. Wilson, 20 Fla. 359 (1883). The petition to continue an unincorporated business venture beyond the time authorized by statute must be verified and contain the following information specifically set forth in Rule 5.350(b): (1) a statement of the nature of that business or venture; (2) a schedule of specific assets and liabilities; (3) the reasons for continuation; (4) the proposed form and times of accounting for that business or venture; (5) the period for which the continuation is requested; and (6) any other information pertinent to the petition. The provisions in the Florida Probate Code for the continuance of a business grant the court wide discretion in determining the extent to which the business will be continued. F.S. 733.612(22)(b).

Forms to continue a sole proprietorship are set forth below in §§ 9.4.C.2.b.i–9.4.C.2.b.ii. See also §§ 9.4.B.3.b.i–9.4.B.3.b.ii. « Ch. 9 », « § 9.4 », « B » 1 Practice Under Florida Probate Code § 9.4.B (2022)

B. Duties, Authority, And Liability Of Personal Representative « Ch. 9 », « § 9.4 », « B », • 1 » 1 Practice Under Florida Probate Code § 9.4.B.1 (2022)

1. In General The liabilities of a personal representative electing to continue a business are not clearly spelled out by statute or case law. Therefore, a decision to continue a business should be given careful consideration. Upon such a determination, the court’s order authorizing the continuation of the business should be carefully drawn and provide a guide to the personal representative as to authority and any limitations placed on the personal representative. The order should contain the following information: Authority to employ agents: The order should provide that the personal representative may employ persons having the skills necessary to continue the management of the business, including professional help (e.g., accountants and lawyers), with certain exceptions. F.S. 733.612(19) appears to grant this authority to the personal representative without the need to obtain a court order, but it is recommended that the order continuing the business include an authorization to employ the persons needed. The order should provide a limitation on the compensation of agents. The order should carefully delineate the degree of responsibility the personal representative will have for the agents’ acts. Financial information: The order should set out clearly the form of contracts the personal representative may enter into and other obligations that may be incurred in carrying out the business. Guidelines may be set forth to

protect the repercussions.

personal

representative

against

subsequent

F.S. 733.612(14) provides authority for the personal representative to borrow money. It usually is not desirable to place or execute mortgages on properties that are to be distributed to beneficiaries unless that action is absolutely necessary to operate the estate. The beneficiaries may question selection of the assets mortgaged. Because the net profits of the business are assets of the estate, it is desirable to account separately for the net profits so that proper disposition of the earnings of the business can be made. Losses must be charged to the business assets, and the court should establish guidelines as to when the personal representative must inform the court about the condition of the business and the occurrence of any losses. This will enable the court to determine whether it is desirable to continue the business for the benefit of the estate. A provision authorizing compensation from the income of the business for the personal representative’s employment in this regard may be desirable. A clear determination as to the accounting procedures that will be applied should be made. An order that authorizes the continuance of the business and provides for the items covered in the above list should preclude any questions as to the authority of the personal representative. It is desirable to protect the personal representative from personal liability for losses of the business and if the guidelines are clearly set out, this will be accomplished. In making contracts, the personal representative should be careful to avoid personal liability on any contracts entered into in the capacity of personal representative. The personal representative must clearly indicate that any actions are only in the personal representative’s capacity as such. See Evans v. Tucker, 101 Fla. 688, 135 So. 305 (1931). When the actions are taken pursuant to a provision in the will, a statute, or a court order, the acts of the personal representative are prima facie valid. See F.S. 733.602(2).

« Ch. 9 », « § 9.4 », « B », « 2 » 1 Practice Under Florida Probate Code § 9.4.B.2 (2022)

2. Limitation On Authority To Make Contracts Charging The Estate F.S. 733.612(2) gives the personal representative authority to perform or refuse to perform, when proper, a decedent’s contract. The decision must be based on the prudent investor rule, discussed in § 9.3.B. A personal representative may make contracts when it is necessary to operate a business, but not to the extent that the assets of the estate, other than the business assets, will be charged with the obligation of the contracts. Fridenburg v. Wilson, 20 Fla. 359 (1883). « Ch. 9 », « § 9.4 », « B », « 3 » 1 Practice Under Florida Probate Code § 9.4.B.3 (2022)

3. Duty To Keep Records « Ch. 9 », « § 9.4 », « B », « 3 », • a » 1 Practice Under Florida Probate Code § 9.4.B.3.a (2022)

a. In General The personal representative must keep separate, full, and accurate records arising from the continuance of a business, including records of all receipts and expenditures for the conduct of the business. If the business is continued under a court order, reports to the court may be required. See Fla. Prob. R. 5.350. Forms with regard to monthly reports are set forth in §§ 9.4.B.3.b.i and 9.4.B.3.b.ii. A record of all contracts binding the business and the extent of the obligation should be carefully set forth in each report to the court. Only the net profits of the trade or business are assets of the estate and are reported by the personal representative as income to the estate. They are also to be included on the estate’s income tax return. On the disposition of the business, any sums remaining after the payment of all creditors and obligations of the business become part of the principal of the estate. « Ch. 9 », « § 9.4 », « B », « 3 », « b • 1 Practice Under Florida Probate Code § 9.4.B.3.b (2022)

b. Forms

« Ch. 9 », « § 9.4 », « B », « 3 », « b •, • i » 1 Practice Under Florida Probate Code § 9.4.B.3.b.i (2022)

i. Petition For Approval Of Monthly Report (Title of Estate)

(Title of Court)

PERSONAL REPRESENTATIVE’S PETITION FOR APPROVAL OF MONTHLY REPORT Petitioner, _________, as personal representative of this estate, alleges: 1. On (date), this court entered its order in this cause authorizing and directing petitioner as personal representative to continue the operations of the sole proprietorship of the decedent’s business conducted under the name and style of (name of business) and located at (street address, city, county, and state), for a period of _________ months. That order further directed petitioner to file monthly reports with this court reflecting the conduct of the proprietorship business. 2. A report reflecting the conduct of the sole proprietorship business for the month of ___ has been prepared by _________, a duly licensed certified public accountant. The report is attached to this petition as Exhibit “A” and made a part of it. WHEREFORE Petitioner requests that this court enter an order: 1. Approving the report attached to this petition. 2. Authorizing and directing Petitioner, as personal representative of this estate, to include the items shown on the report as the statement of profit and loss of the sole proprietorship before taxes as a single entry in any current or final account filed by Petitioner. Under penalties of perjury, I declare that I have read the foregoing, and the facts alleged are true, to the best of my knowledge and belief. /s/ Petitioner (Certificate of Service)

/s/ (name of attorney) Attorney for Petitioner (address and phone number) (e-mail address(es)) Florida Bar No. ___ COMMENT: The report could be called for on a monthly basis, or it could be for another period of time as directed by the court. Notice to interested parties is required. Fla. Prob. R. 5.040(b). « Ch. 9 », « § 9.4 », « B », « 3 », « b •, « ii • 1 Practice Under Florida Probate Code § 9.4.B.3.b.ii (2022)

ii. Order Approving Monthly Report (Title of Estate)

(Title of Court)

ORDER APPROVING PERSONAL REPRESENTATIVE’S REPORT This action was heard on the petition of _________, as personal representative of this estate, for an order approving a report reflecting the operation of (name of business) for the month of _________, and IT IS ADJUDGED: 1. The report for the month of _________, filed by (name of petitioner), as personal representative under the will of _________, reflecting the operations of the sole proprietorship business conducted under the name and style of (name of business) and located at (street address, city, county, and state), is ratified. 2. (Name of petitioner), as personal representative of this estate, is authorized and directed to include the amount shown on the report as the statement of profit or loss of the sole proprietorship as a single entry item in any interim or final account filed by Petitioner. ORDERED at _________, Florida on

(date).

/s/____________ Circuit Judge Copies furnished to: « Ch. 9 », « § 9.4 », « B », « 4 » 1 Practice Under Florida Probate Code § 9.4.B.4 (2022)

4. Requirement To Give Appropriate Bond If the personal representative is authorized to operate a business, the court may require an increase in the penal sum of the bond filed by the personal representative. The amended bond should secure the estate and all creditors against the actions of the personal representative in operating the business. « Ch. 9 », « § 9.4 », « B », « 5 • 1 Practice Under Florida Probate Code § 9.4.B.5 (2022)

5. Right To Mortgage Property Or Borrow Money When it appears necessary and in the best interest of the estate (in the continuance of the decedent’s business) to borrow money on a promissory note (either unsecured or secured by a mortgage, pledge, or other lien on the property of the estate), the court may issue whatever order it deems proper. It should be noted that the power of sale contained in a will may not include the power to mortgage property. The pertinent proceedings are almost the same as those required for a sale. See Chapter 10 of this manual. This procedure is also required if authority is sought to renew or extend an existing obligation. There is no personal liability on the part of the personal representative if the personal representative signs in that capacity. Notice must be given to all interested persons. Creditors are included by implication in the definition of “interested person.” F.S. 731.201(23). When an order is entered authorizing the continuance of a trade or business, the court may empower the personal representative to make necessary contracts, incur debts, and pay out money. See Fla. Prob. R. 5.350(c). « Ch. 9 », « § 9.4 », « C • 1 Practice Under Florida Probate Code § 9.4.C (2022)

C. Duties Peculiar To Certain Business Entities

« Ch. 9 », « § 9.4 », « C •, • 1 » 1 Practice Under Florida Probate Code § 9.4.C.1 (2022)

1. S Corporations Upon the death of a shareholder of a corporation that has made an election under IRC § 1362(a), an “S” corporation, the estate is considered to be a new shareholder. The personal representative must take action only if it is determined that it is possible to terminate the election under IRC § 1362(d) and it is in the best interest of the estate to do so. An election may be terminated only if shareholders holding more than one half of the shares of stock of the corporation on the day of the revocation consent. IRC § 1362(d) (1)(B). A revocation made on or before the 15th day of the third month of the taxable year will be effective on the first day of that taxable year. Any election made after this date will be effective the following taxable year. IRC § 1362(d)(1)(C). The decision of the personal representative may be facilitated when a shareholders’ agreement exists requiring the continuation of the business. Otherwise, the personal representative must make a careful evaluation of the estate to determine whether it is advisable to continue the interest of the shareholder in the corporation and, if so, whether the estate holds sufficient shares to terminate the S corporation election if desired. The major question is whether it is better for the undistributed income of the business to be taxable to the estate and other shareholders or be taxable to the corporation. Allowing the election to continue will cause the income of the corporation to be taxable to its shareholders, including the estate, IRC § 1366, and not taxable to the corporation, IRC § 1363(a). Another consideration is whether the relationship of the beneficiaries and the remaining shareholders is such that conflict between them will occur if the personal representative makes a decision favoring the beneficiaries. Also, the personal representative must consider the potential position of the beneficiaries as minority shareholders of a corporation that might not declare dividends. It may be prudent to have early discussions with the beneficiaries expected to inherit the shares in the S corporation about these matters. It would be wise for the attorney representing any shareholder in an S corporation to be certain that there are provisions in a shareholders’ agreement requiring the continuity of the election, the payment of dividends,

or the buyout of the estate’s shares. In general, the personal representative should distribute S corporation stock as soon as possible. The estate must pay the tax on the distributable share of income represented by the stock it holds, whether or not the money is actually distributed. If there is more than a single beneficiary and only one beneficiary is entitled to the stock, the estate will effectively pay the tax obligation of the beneficiary entitled to the stock to the detriment of other beneficiaries. The early distribution of S corporation stock to the beneficiary entitled to it will prevent such distortions. TAX NOTE: IRC §§ 1361(c)–(e) limit the type of trusts that may qualify as new shareholders. A transfer by the personal representative of stock into a nonqualified testamentary trust may cause a termination of the S corporation election. The time periods for which an estate versus a revocable trust that becomes irrevocable upon the settlor’s death may hold S corporation stock are different. Some consideration should be given to making an election to treat the decedent’s revocable trust as part of the estate for income tax purposes if the decedent’s will and revocable trust are coordinated and the revocable trust holds the S corporation stock at the decedent’s death. Careful calendaring and attention to the S corporation rules should be maintained to ensure that the S corporation stock is not held so long that it jeopardizes the S corporation election. IRC § 1361(c)(2)(A). « Ch. 9 », « § 9.4 », « C •, « 2 » 1 Practice Under Florida Probate Code § 9.4.C.2 (2022)

2. Sole Proprietorships « Ch. 9 », « § 9.4 », « C •, « 2 », • a » 1 Practice Under Florida Probate Code § 9.4.C.2.a (2022)

a. In General If the business owned by the deceased was a sole proprietorship and the will does not require its sale or disposition, the beneficiaries may want to continue the business. The personal representative must determine whether that would be desirable under the circumstances. A petition for authorization to continue the business is necessary under F.S. 733.612(22) and Fla. Prob. R. 5.350 if the will did not address the situation. If, however, the assets of the

business are necessary to meet the obligations of the estate to creditors, the personal representative should take appropriate action to fulfill that obligation for the payment of all claims against the estate. Forms relating to the continuance of the sole proprietorship follow. « Ch. 9 », « § 9.4 », « C •, « 2 », « b • 1 Practice Under Florida Probate Code § 9.4.C.2.b (2022)

b. Forms « Ch. 9 », « § 9.4 », « C •, « 2 », « b •, • i » 1 Practice Under Florida Probate Code § 9.4.C.2.b.i (2022)

i. Petition To Continue Sole Proprietorship (Title of Estate)

(Title of Court)

PERSONAL REPRESENTATIVE’S PETITION TO CONTINUE SOLE PROPRIETORSHIP Petitioner, _________, as personal representative of this estate, alleges: 1. During [his] [her] lifetime, the decedent owned and operated a sole proprietorship under the name and style of (name of business) located at (street address, city, county, and state) . Through this sole proprietorship, the decedent engaged in the business of (state nature of the business). 2. The business was operated profitably by the decedent for many years. Certain persons are currently employed in the business who are qualified and expert in the duties assigned to them, and who will remain in their present employment. 3. The business has due and owing to it certain substantial accounts receivable and has substantial inventories in the form of (state nature of inventory). The business has established an excellent reputation in its market area and in its industry. 4. Petitioner believes that it is in the best interest of this estate to continue to operate the sole proprietorship for a period of _________

without further order of this court. Petitioner further states that [he] [she] will devote time to the business to ensure its continued operation. 5. Petitioner believes that the filing of monthly reports relating to the operations of the sole proprietorship is unnecessary. WHEREFORE Petitioner asks that this court enter an order: 1. Authorizing Petitioner, as personal representative of this estate, to operate that sole proprietorship business for a period of ___________ without further order of this court; 2. Authorizing Petitioner to (set forth the principal business practices to be performed by the petitioner); and 3. Waiving the filing of reports on the operations of the sole proprietorship for the period of ___________. (Verification) /s/ Petitioner (Certificate of Service) /s/ (name of attorney) Attorney for Petitioner (address and phone number) (e-mail address(es)) Florida Bar No. ___ COMMENT: See Fla. Prob. R. 5.040 for notice requirements. « Ch. 9 », « § 9.4 », « C •, « 2 », « b •, « ii • 1 Practice Under Florida Probate Code § 9.4.C.2.b.ii (2022)

ii.

Order Granting Proprietorship

Authority

To

Continue

Sole

(Title of Estate)

(Title of Court)

ORDER GRANTING AUTHORITY TO CONTINUE SOLE PROPRIETORSHIP This action was heard on the sworn petition of _________, as personal representative of this estate, for an order authorizing the personal representative to continue the operation of a sole proprietorship business formerly conducted by the decedent, and IT IS ADJUDGED: 1. Petitioner, as personal representative of this estate, is authorized and empowered to operate the sole proprietorship business of the decedent conducted under the name and style of (name of business), and located at (street address, city, county, and state), for a period of _________ without a further order of this court. 2. The authority of Petitioner shall include, but shall not be limited to, (state the principal business practices to be performed by the petitioner). 3. Petitioner shall maintain a separate bank account under the name and style of (name of business) in _________ (bank), located at (street address, city, county, and state); all receipts from the business are to be deposited into that account and all expenditures on behalf of the business are to be withdrawn from that account. 4. Petitioner is excused from filing reports on the conduct of the sole proprietorship business operating under the name and style of (name of business) for a period of _________. ORDERED at _________, Florida on

(date).

/s/____________ Circuit Judge Copies furnished to: « Ch. 9 », « § 9.4 », « C •, « 3 » 1 Practice Under Florida Probate Code § 9.4.C.3 (2022)

3. Partnerships « Ch. 9 », « § 9.4 », « C •, « 3 », • a » 1 Practice Under Florida Probate Code § 9.4.C.3.a (2022)

a. General Partnership Interest Under the Revised Uniform Partnership Act, F.S. Chapter 620, Part II, the death of a partner may or may not lead to the dissolution of the partnership. Although the death of a partner causes that partner’s dissociation from the partnership under F.S. 620.8601(7)(a), the partnership may continue unless one of the events set out in F.S. 620.8801 occurs. See F.S. 620.8801(2) (a). See also § 13.2.G.6.b of this manual. If the partnership is dissolved, the surviving partner or partners should give the personal representative an accounting and pay over as rapidly as possible all amounts and property due the personal representative. If there was in existence a partnership agreement providing the express terms and conditions under which the partnership should be terminated, the method provided in that agreement should be binding on the estate and the personal representative. The agreement may provide for a continuation of the business for a period of time until the business itself may be liquidated in an orderly manner, or it may provide that the partnership will continue with the beneficiaries retaining their interest. TAX NOTE: A decedent’s interest in a partnership constitutes an interest includable in the gross estate. IRC § 2033. The fair market value of the decedent’s interest in the partnership is the net amount that a willing purchaser would pay to a willing seller when neither is under any compulsion to buy or to sell and both have reasonable knowledge of relevant facts. The fair market value is determined on the basis of all relevant factors, including a fair appraisal as of the applicable valuation date of all assets of the business, tangible and intangible, including goodwill, and the demonstrated earning capacity of the business. See generally IRC § 2033; Reg. § 20.2031-3. Moreover, when a partnership interest is subject to a bona fide arm’s-length buy-sell agreement that is binding both during life and on death, the value established in it may fix the value of the partnership interest for estate tax purposes. See also IRC § 2703. Generally, a partnership interest acquired from a decedent will have an initial basis equal to the date of death (or alternate valuation date) value

under IRC §§ 1014(a) and 742. The “inside” basis of the partnership’s assets may be adjusted to reflect the basis of the decedent’s successor, provided the partnership has an IRC § 754 election in effect. IRC § 743. The partnership may already have a § 754 election in effect, or the partnership may make that election by filing a written statement with its partnership return for the taxable year during which the partnership interest was acquired. The personal representative must always consider requesting the partnership to make a § 754 election whenever a partnership interest is an asset of the estate. « Ch. 9 », « § 9.4 », « C •, « 3 », « b • 1 Practice Under Florida Probate Code § 9.4.C.3.b (2022)

b. Limited Partnership Interest The decedent may own an interest in a limited partnership, as a limited partner. Unless the decedent is also a general partner in the partnership, it is most unlikely that the decedent had anything to do with the management or operation of the partnership. In every case, there will be a written limited partnership agreement. That agreement will address the rights and obligations the decedent had as a limited partner. The agreement may also restrict the class of beneficiaries who may succeed to the decedent’s limited partnership interest or may require the estate to sell the limited partnership interest. The personal representative must carefully review the agreement and determine what can be done with the interest. As is the case with the general partnership interest and stock in an S corporation, the limited partnership interest may produce phantom income. That is, the limited partner might have taxable income even though no dollars are distributed from the partnership to the limited partner. It may be in the best interest of the estate to distribute the limited partnership interest to the beneficiary as quickly as possible. « Ch. 9 », « § 9.4 », « C •, « 4 • 1 Practice Under Florida Probate Code § 9.4.C.4 (2022)

4. Limited Liability Companies The decedent may own a membership interest in a limited liability company. If the limited liability company is a single-member LLC, the estate will become the single member and the personal representative will be

responsible for the management and operations of the entity. If there are multiple members of the limited liability company, ordinarily there will be an operating agreement that will address the rights and obligations of the estate, as well the rights and interests of the beneficiary who succeeds to the decedent’s interest. If the LLC is a multi-member entity that has elected to be taxed as a partnership, the tax implications and consequences should be the same as found in a partnership.

« Ch. 9 », « § 9.5 » 1 Practice Under Florida Probate Code § 9.5 (2022)

§ 9.5. DIGITAL ASSETS Of ever growing concern for the personal representative is the significance of “digital assets.” A “digital asset” is “an electronic record in which an individual has a right or interest. The term does not include an underlying asset or liability unless the asset or liability is itself an electronic record.” F.S. 740.002(9). “Electronic” means something “relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.” F.S. 740.002(10). Digital assets include cryptocurrency, online accounts and digital files that the decedent owns, such as e-mail accounts (e.g., Gmail or Yahoo mail), social networking accounts (e.g., Facebook, Instagram, and Twitter), online banking, shopping and bill-payment accounts, websites, blogs and domain names, and websites that store or share pictures, music, videos, and other documents in the cloud (e.g., Flickr, iCloud, Dropbox, and Google Photos). Many novel issues arise with digital assets, because the technology is constantly changing, and the statutes and other laws governing the ownership of the assets and the contents stored online, as well as who has access to the accounts following the death of the user, are also subject to change. In addition to the assets themselves, it is becoming increasingly important for the personal representative to gain access to the decedent’s online information. Sometimes the only information concerning a decedent’s bank or brokerage accounts, or credit card and other debts, will be found online. It may no longer be possible for the personal representative to obtain information concerning all of the decedent’s assets without access to the decedent’s online information. In addition, it may not be possible to make a diligent search to determine the names and addresses of creditors of the decedent who are reasonably ascertainable, as required by F.S. 733.2121(3), without a thorough search of the decedent’s online statements and other records. Florida has now adopted a statutory framework for digital assets known as the Florida Fiduciary Access to Digital Assets Act (FFADAA), F.S.

Chapter 740. Effective since July 2016, the FFADAA governs access to digital assets by personal representatives, trustees, agents under powers of attorney, and guardians. F.S. 740.08 provides that the FFADAA applies to fiduciaries acting under wills, trusts, or powers of attorney executed on, after, or before July 1, 2016, and also applies to personal representatives of estates of decedents who died on, before, or after July 1, 2016. F.S. 740.08(1)(a)–(1)(b). The practitioner should note that the actual e-mails within an e-mail account constitute “electronic communications,” and a personal representative’s access to “electronic communications” generally are subject to a more rigorous standard than access to all other digital assets such as online bank accounts or other financial accounts, and photo, data, music, and video storage websites. The following general principals apply to digital assets: If the decedent’s will is silent, and the decedent has not prohibited disclosure of digital assets, the personal representative, upon presentation of specified documents, likely will have the ability to receive from the provider or custodian a catalog or list of the decedent’s e-mails both sent and received, but not the content or actual e-mails themselves. F.S. 740.007. In contrast, the personal representative likely will be able to access the decedent’s other digital assets. Id. If the decedent’s will specifically authorizes the personal representative to have access to the decedent’s electronic communications, the personal representative likely will be able to access the content of the decedent’s e-mails. F.S. 740.006. The procedures that must be followed in making requests for electronic communications and digital assets are set forth in F.S. 740.006 (electronic communications) and F.S. 740.007 (other digital assets). The FFADAA also grants to the custodians of the electronic communications and other digital assets the right to require court orders under certain circumstances. Id. With respect to cryptocurrency, like other digital assets, it may not be immediately obvious that the decedent owned cryptocurrency. Many cryptocurrencies are accessible only via a private key, seed phrase, or

passcode. If the fiduciary does not have the required access codes or information, the cryptocurrency is gone forever. For further discussion of the need for the personal representative to review the decedent’s digital assets and the issues arising in managing those assets, see Brunner, Access to Digital Assets—Florida’s New Law for Fiduciaries; What Are Digital Assets and Why Are They Relevant, 90 Fla. Bar J. 34 (Nov. 2016).

« Ch. 9 », « § 9.6 • 1 Practice Under Florida Probate Code § 9.6 (2022)

§ 9.6. ENVIRONMENTAL LAW CONCERNS « Ch. 9 », « § 9.6 •, • A » 1 Practice Under Florida Probate Code § 9.6.A (2022)

A. In General The estate may include property that is actually or potentially in violation of environmental laws. The property may be owned directly by the decedent or may be owned by a corporation, partnership, or other entity owned or controlled by the decedent. The potentially hazardous property can take almost any form, including commercial, industrial, farming, or even residential property. « Ch. 9 », « § 9.6 •, « B » 1 Practice Under Florida Probate Code § 9.6.B (2022)

B. Investigation, Reporting, And Remedy F.S. 733.6121(2) authorizes the personal representative to inspect and investigate any property or interest in property subject to administration for the purpose of compliance with all environmental laws and to charge the costs against the estate. That subsection also authorizes the personal representative to take action necessary to prevent, abate, or otherwise remedy any actual or potential violation of environmental laws. If any claim is asserted against the estate for an alleged violation of any environmental law, the personal representative may settle or compromise the claim. Id. The personal representative may proceed without court authorization. F.S. 733.6121(1). « Ch. 9 », « § 9.6 •, « C • 1 Practice Under Florida Probate Code § 9.6.C (2022)

C. Liability The personal representative is not liable to any interested person for a decrease in the value of property as a result of compliance or efforts to comply with environmental law. F.S. 733.6121(3).

If the personal representative never previously had an interest or control in the property before the death of the decedent, the personal representative is not considered to have acquired an ownership interest or control of the property by reason of occupying the position of personal representative. F.S. 733.6121(4). Therefore, if the personal representative had no previous involvement with the property that is in violation of environmental laws, there should be no concern that the mere acceptance of the fiduciary position as personal representative will make the personal representative liable for any existing violation. “A personal representative who willfully, knowingly, or recklessly causes or exacerbates a release or threatened release of a hazardous substance is personally liable for the cost of the response, to the extent [such] release is attributable to the personal representative’s” action or inaction. Id. Given the potential for liability, the personal representative must become familiar with all real property and interests in real property, whether owned directly or indirectly by the decedent. Having investigated such property, the personal representative should act quickly to remedy any actual or potentially hazardous conditions. Footnotes — Chapter 9: *

J.D., 2003; LL.M., 2004, University of Florida. Ms. Kadyszewski is a member of The Florida Bar and the Palm Beach County Bar Association. She is Florida Bar Board Certified in Wills, Trusts and Estates. Ms. Kadyszewski practices with Murphy Reid LLP, in Palm Beach Gardens.

Licensed to Otis K Pitts, Otis K Pitts

« Ch. 10 » 1 Practice Under Florida Probate Code Ch. 10 (2022)

Chapter 10 SALES AND TRANSFERS OF ESTATE ASSETS TAMI F. CONETTA* Contents § 10.1. INTRODUCTION § 10.2. GENERAL CONSIDERATIONS A. Preference For Distribution In Kind B. Sale Of Assets To Pay Estate Taxes C. Sale Of Assets To Pay Administration Expenses And Claims § 10.3. PERSONAL REPRESENTATIVE’S AUTHORITY TO SELL ESTATE ASSETS A. In General B. Personal Property 1. Statutory Power Of Sale 2. Power Of Sale Limited By Will 3. Art Objects, Jewelry, And Other Personal Property Of Unique Nature C. Real Property 1. General Power Of Sale 2. When Power Of Sale Is Limited 3. Intestate Estates And Wills Lacking Power Of Sale D. Special Circumstances 1. Personal Representative Or Successor Not Named In Will 2. When Personal Representative Is Purchaser 3. Multiple Personal Representatives 4. Sale By Ancillary Administrator 5. Sale When Testator Survived By Spouse

6. Sale Of Exempt Assets 7. Sale Of Specifically Devised Assets 8. Sale Of Protected Homestead By Personal Representative In Possession § 10.4. CONSIDERATIONS IN SALE OF ESTATE ASSETS A. In General B. Public Or Private Sale C. Purchase Money Financing D. Sale Of Contract To Purchase Real Property E. Sale Of Real Property Subject To Contract To Purchase F. Sale Of Real Property Subject To Right Of First Refusal G. Sale Of Real Property Subject To Mortgage H. Sale Of Foreign Decedent’s Real Property 1. Conveyances Within Two Years Of Decedent’s Death 2. Conveyances After Two Years From Decedent’s Death § 10.5. COURT AUTHORIZATION OR CONFIRMATION A. Procedure To Secure Court Authorization Prior To Sale Or Transfer 1. In General 2. Petition For Court Authorization a. Contents b. Form For Petition To Secure Court Authorization 3. Notice a. General Requirements b. Form For Waiver Of Notice And Consent To Sale Or Transfer 4. Hearing 5. Order Of Court Authorizing Sale Or Transfer a. In General b. Form For Order Authorizing Sale 6. Vacation Of Order Authorizing Sale B. Court Confirmation Of Completed Sale Or Transfer 1. In General 2. Petition And Order Confirming Sale § 10.6. TRANSFER OF ESTATE ASSETS

A. Encumbered Assets B. Transfer Of Personal Property 1. In General 2. Motor Vehicles And Vessels 3. Securities 4. Firearms 5. Digital Assets C. Transfer Of Real Property 1. In General 2. Personal Representative’s Release And Certificate Of Distribution Of Real Property D. Exchange Of Properties E. Partition Of Real Property F. Leases § 10.7. TAX CONSEQUENCES OF SALES AND EXCHANGES OF REAL PROPERTY A. Income In Respect Of Decedent B. General Tax Consequences On Sales And Transfers Of Estate Assets « Ch. 10 », • § 10.1 » 1 Practice Under Florida Probate Code § 10.1 (2022)

§ 10.1. INTRODUCTION This chapter discusses the sale and conveyance of estate property by the personal representative, including when a sale of estate property may be appropriate or necessary, the mechanics for facilitating a sale, obtaining court approval, and transfer of title to beneficiaries. The chapter also addresses the tax consequences of sales and exchanges of real property. Partial distributions to beneficiaries are covered in Chapter 13, and the requirements for final distribution are covered in Chapter 14.

« Ch. 10 », « § 10.2 » 1 Practice Under Florida Probate Code § 10.2 (2022)

§ 10.2. GENERAL CONSIDERATIONS « Ch. 10 », « § 10.2 », • A » 1 Practice Under Florida Probate Code § 10.2.A (2022)

A. Preference For Distribution In Kind Absent a contrary intention in the will, there is a general preference that estate assets be distributed in kind to the beneficiaries. F.S. 733.810. See In re Estate of Smith, 200 So. 2d 547 (Fla. 2d DCA 1967); In re Estate of Gamble, 183 So. 2d 849 (Fla. 1st DCA 1966). But distribution in kind may be impractical, or even impossible, in many situations. The personal representative may be required to sell estate assets to create liquidity to pay estate administration expenses, creditors’ claims, and taxes. The testator’s will may direct the personal representative to sell some or all of the estate assets to facilitate distribution to the beneficiaries. Market conditions may also determine when a sale of assets by the personal representative is appropriate. « Ch. 10 », « § 10.2 », « B » 1 Practice Under Florida Probate Code § 10.2.B (2022)

B. Sale Of Assets To Pay Estate Taxes Occasionally, it may be necessary for the personal representative to sell estate assets to pay state and federal estate taxes. F.S. 733.608(1) provides that both real and personal property, except protected homestead, are assets in the hands of the personal representative for the payment of taxes. In addition, F.S. 198.24 empowers a personal representative to “sell, convey, and dispose of real estate” for the payment of the state estate tax if the estate is liable for the tax under F.S. Chapter 198. « Ch. 10 », « § 10.2 », « C • 1 Practice Under Florida Probate Code § 10.2.C (2022)

C. Sale Of Assets To Pay Administration Expenses And Claims The power of sale to pay taxes is the same as the personal

representative’s power to sell the property to pay the debts of the decedent and expenses of administration. Under the common law, real property owned by the decedent could not be sold to pay the decedent’s debts and expenses of administration unless the realty was charged specifically with payment by the will. This rule has been changed by statute in Florida. Under F.S. 733.608, all the real estate and personal property of the decedent, except protected homestead, are assets in the hands of the personal representative for the payment of devises, debts, family allowance, estate and inheritance taxes, claims, charges, and expenses of administration. This property is also available to enforce contribution, equalize advancement, and effect distribution. The conversion of estate assets into cash for payment of claims is discussed in §§ 9.2.F.1–9.2.F.4 of this manual.

« Ch. 10 », « § 10.3 » 1 Practice Under Florida Probate Code § 10.3 (2022)

§

10.3. PERSONAL REPRESENTATIVE’S AUTHORITY TO SELL ESTATE ASSETS « Ch. 10 », « § 10.3 », • A »

1 Practice Under Florida Probate Code § 10.3.A (2022)

A. In General The personal representative’s authority to sell estate assets may be found in the will and the Florida Probate Code. In general, the extent of the personal representative’s authority, and whether court approval is required, depends on the power of sale included in the will, the type of asset to be sold, and the circumstances of the sale. A provision in the will that the personal representative “shall have the power to dispose of any of my property and to execute all instruments of conveyance without order or confirmation of any court” gives broad discretion to the personal representative to administer the estate. However, any discretionary action by the personal representative must be in the best interest of the estate and for the benefit of the interested persons, including creditors. See In re Estate of Smith, 200 So. 2d 547 (Fla. 2d DCA 1967); In re Estate of Gamble, 183 So. 2d 849 (Fla. 1st DCA 1966). The personal representative is held to the same standards of care as a trustee. F.S. 733.602(1). As such, the personal representative is under a duty to settle and distribute the assets of the estate “as expeditiously and efficiently as is consistent with the best interests of the estate.” Id. In carrying out these duties, the personal representative must use all authority granted by the will, and seek further authority from the court when appropriate. F.S. 733.603 encourages the handling of most matters of administration without judicial authorization. However, if there is any doubt as to the personal representative’s authority to consummate a particular sale or transfer under the power granted by statute or will, it is good practice for the personal representative to obtain a court order. See In re Estate of Smith. But a personal representative with an unlimited power of sale should not abandon the duty to exercise judgment by unnecessarily subjecting the sale or conveyance to a court proceeding.

The court in In re Granger, 318 So. 2d 509 (Fla. 1st DCA 1975), discussed the principles applicable when a personal representative who has specific power of sale under the will seeks court approval to sell real property to pay expenses of administration. The factors to be considered in the decision to approve (or disapprove) such sale include adequacy of consideration, good faith, whether the transaction will benefit one or more of the beneficiaries to the detriment of others, and whether fraud is involved. The necessity of sale to pay taxes or expenses of administration is not a consideration, unless specifically required by the will. « Ch. 10 », « § 10.3 », « B » 1 Practice Under Florida Probate Code § 10.3.B (2022)

B. Personal Property « Ch. 10 », « § 10.3 », « B », • 1 » 1 Practice Under Florida Probate Code § 10.3.B.1 (2022)

1. Statutory Power Of Sale The personal representative does not need a court order to sell personal property. F.S. 733.612(21) provides that the personal representative may sell, mortgage, or lease personal property “for cash, credit, or for part cash or part credit, and with or without security for the unpaid balance.” « Ch. 10 », « § 10.3 », « B », « 2 » 1 Practice Under Florida Probate Code § 10.3.B.2 (2022)

2. Power Of Sale Limited By Will In contrast to the general rule described in § 10.3.B.1, when the sale of personal property is limited by the terms of the will, whether limited to a specific asset or a general class of assets, those assets may not be sold unless the sale is necessary to provide funds for the administration of the estate, including payment of creditor’s claims and payments to specific legatees. « Ch. 10 », « § 10.3 », « B », « 3 • 1 Practice Under Florida Probate Code § 10.3.B.3 (2022)

3. Art Objects, Jewelry, And Other Personal Property Of Unique Nature As with all personal property, art objects, jewelry, and other personal

property of a unique nature should be sold for the best price possible. It is often difficult, however, for a layperson to ascertain the true value of property in this category, and for the court to determine whether the offer received is the best price obtainable. Furthermore, for federal tax purposes, it is often necessary to prove and substantiate the value of specific personal property of this nature. Before holding an auction or entering into a contract for the sale of unique personal property, therefore, it is advisable to obtain the services of a specialized appraiser who handles and is licensed to appraise this type of personal property. See Chapter 6 of this manual. After an appraisal is obtained, the court and the personal representative will have some guideline in determining whether the offer from a prospective purchaser is reasonable and is the best price obtainable by the estate. « Ch. 10 », « § 10.3 », « C » 1 Practice Under Florida Probate Code § 10.3.C (2022)

C. Real Property « Ch. 10 », « § 10.3 », « C », • 1 » 1 Practice Under Florida Probate Code § 10.3.C.1 (2022)

1. General Power Of Sale In general, the personal representative does not need a court order to sell or convey real property when the will contains a general power of sale. F.S. 733.613(2). Although no specific language is required to confer a power of sale, the will must evidence either an express or implied intention by the testator to grant the power. If the general power is unambiguous, it is not necessary to establish necessity or obtain an order confirming the sale. In In re Granger, 318 So. 2d 509, 510 (Fla. 1st DCA 1975), a will that provided that the personal representative was authorized to “sell and convey any and all of the property of my estate and Trust, or any part thereof, upon such terms, conditions, and for such consideration as they may deem appropriate,” was unambiguous and gave an unlimited power of sale, obviating any need for court order to authorize or confirm the sale as being justified by necessity. If the personal representative seeks to secure court approval of a particular sale, however, the court “may consider such things as adequacy of consideration, whether or not the transaction is in good faith, whether or not the sale will benefit one or more beneficiaries to the detriment

of others and whether or not there is fraud involved.” Id. at 511. For further discussion of sales by personal representatives, see FLORIDA REAL PROPERTY SALES TRANSACTIONS § 7.3.E (Fla. Bar 10th ed. 2020). « Ch. 10 », « § 10.3 », « C », « 2 » 1 Practice Under Florida Probate Code § 10.3.C.2 (2022)

2. When Power Of Sale Is Limited When the power of sale of real property is limited by the terms of the will or the personal representative desires to execute a sale without complying with the terms of the power (i.e., for a purpose not granted in the power), court permission must be secured to consummate the sale. In re Estate of Gamble, 183 So. 2d 849 (Fla. 1st DCA 1966). « Ch. 10 », « § 10.3 », « C », « 3 • 1 Practice Under Florida Probate Code § 10.3.C.3 (2022)

3. Intestate Estates And Wills Lacking Power Of Sale When the decedent dies intestate or a power of sale is not provided in the will, the personal representative must secure court permission to sell real property. F.S. 733.613(1). See also § 10.3.A. (See § 10.3.C.1 regarding the personal representative’s request for court approval when a sale has been authorized by will.) The personal representative can obtain court permission in the form of authorization before the sale, or confirmation after the sale has been made. Except in unusual circumstances, the better practice is to obtain authorization before the sale. This is a particularly good idea if any objection to the sale is anticipated. When authorization or confirmation of a sale is required, the failure to obtain a court order prevents the passage of title. See Fla. Prob. R. 5.370 for the procedure to follow to obtain authorization or confirmation. There may be instances when court authorization is impractical, however, such as when the sale must take place immediately or not at all, or when the buyer will not wait for the petition to be presented to the court. In this case, confirmation may be more desirable, but approval of interested parties should be obtained in advance of the sale, if possible. Interested persons who have not consented to the sale or joined in the petition must be given notice. See F.S. 731.301(1); Rules 5.040, 5.041(a).

« Ch. 10 », « § 10.3 », « D • 1 Practice Under Florida Probate Code § 10.3.D (2022)

D. Special Circumstances « Ch. 10 », « § 10.3 », « D •, • 1 » 1 Practice Under Florida Probate Code § 10.3.D.1 (2022)

1. Personal Representative Or Successor Not Named In Will Under former F.S. 733.22 (1974), a power to sell real property could be exercised by a successor personal representative only if the will specifically provided that the power extended to successors. F.S. 733.614 reverses the statutory presumption by providing that the successor may exercise the power unless the power is made personal to the named personal representative. If the successor personal representative believes that a power of sale of real property is implied and not specifically granted, or that the power given was personal to the named personal representative, it would be advisable to obtain an appropriate court order. « Ch. 10 », « § 10.3 », « D •, « 2 » 1 Practice Under Florida Probate Code § 10.3.D.2 (2022)

2. When Personal Representative Is Purchaser F.S. 733.610 specifies that a sale or encumbrance of estate property to the personal representative or to the personal representative’s spouse, agent, lawyer, or any corporation or trust in which the personal representative has a substantial beneficial interest is voidable as a transaction affected by a conflict of interest. However, the sale or transaction may proceed if expressly authorized by the will, if the decedent had entered into the contract prior to death (thereby waiving the conflict), or if consented to by the beneficiaries (after full disclosure). Also, the personal representative may seek court approval of the transaction after providing notice to interested persons. Id. The personal representative should obtain either waivers from fully informed interested persons or approval of the court after notice to interested parties. The personal representative may be liable for attorneys’ fees and costs incurred by an administrator ad litem, successor personal representative, or beneficiaries who are successful in setting aside a transaction involving the personal representative that was undertaken without court approval. Brake v. Murphy, 749 So. 2d 1278 (Fla. 3d DCA 2000).

« Ch. 10 », « § 10.3 », « D •, « 3 » 1 Practice Under Florida Probate Code § 10.3.D.3 (2022)

3. Multiple Personal Representatives A majority of the joint personal representatives is required for all acts if the will or codicil was executed on or after October 1, 1987, or the decedent died intestate on or after that date. F.S. 733.615(1). The above restrictions on the personal representatives may be removed by a will provision or by a delegation of authority. One of the joint personal representatives may also take emergency action when joinder cannot be obtained in the time available. Id. If the joinder of personal representatives is not required, the authority to act without joinder should be clearly shown in the documents of conveyance. If the will or codicil was executed before October 1, 1987, and if two or more personal representatives are appointed, the concurrence of all joint personal representatives will be required for all acts in connection with the administration and distribution of the estate, including signing the petitions, deeds, transfers, and bills of sale required to close a sale. Id. « Ch. 10 », « § 10.3 », « D •, « 4 » 1 Practice Under Florida Probate Code § 10.3.D.4 (2022)

4. Sale By Ancillary Administrator An ancillary administrator is a personal representative appointed for a nonresident decedent’s estate to administer property in Florida. F.S. 734.102(1). F.S. 734.102(7) provides: Ancillary personal representatives shall have the same rights, powers, and authority as other personal representatives in Florida to manage and settle estates; to sell, lease, or mortgage local property; and to raise funds for the payment of debts, claims, and devises in the domiciliary jurisdiction. No property shall be sold, leased, or mortgaged to pay a debt or claim that is barred by any statute of limitation or of nonclaim of this state. This authority clearly includes conducting sales without court approval. The ancillary representative in Florida may sell Florida property to procure funds for paying the costs and expenses incident to the ancillary

proceeding, even though it appears that property located in the domiciliary jurisdiction is sufficient to cover these costs and expenses. In re Wilson’s Estate, 143 Fla. 812, 197 So. 557 (1940). Ancillary administration is the subject of Chapter 17 of this manual. See also § 10.4.H. « Ch. 10 », « § 10.3 », « D •, « 5 » 1 Practice Under Florida Probate Code § 10.3.D.5 (2022)

5. Sale When Testator Survived By Spouse A surviving spouse in Florida has the right to an “elective share,” defined as a “percentage of a deceased spouse’s estate, set by statute, that a surviving spouse … may choose to receive instead of taking under a will or in the event of being unjustifiably disinherited.” BLACK’S LAW DICTIONARY (11th ed. 2019). Before January 1, 1976, it was necessary for a surviving widow to join in the sale of property by the personal representative because of her right to dower. Under the Florida Probate Code, dower was abolished, F.S. 732.111, and the elective share was created, F.S. 732.201. Because the spouse has no right to specific property under the elective share provisions, joinder of the spouse is no longer necessary. See F.S. 732.2075. The elective share is the subject of Chapter 7 of this manual. « Ch. 10 », « § 10.3 », « D •, « 6 » 1 Practice Under Florida Probate Code § 10.3.D.6 (2022)

6. Sale Of Exempt Assets Certain assets are given preferential treatment under the Florida Probate Code if the decedent is survived by a spouse or child(ren). These assets are shielded from creditors’ claims and are defined as “exempt” assets under F.S. 732.402. They include household furniture, furnishings, and appliances in the decedent’s usual place of abode up to a net value of $20,000 as of the date of death, as well as two motor vehicles held in the decedent’s name and regularly used by the decedent or members of the decedent’s immediate family as their personal motor vehicles. A waiver is required from the surviving spouse or children entitled to

receive the exempt property before it can be sold by the personal representative. This exempt property under the statute has priority over all claims against the estate, other than a perfected security interest in that item of exempt property. F.S. 732.402(3). « Ch. 10 », « § 10.3 », « D •, « 7 » 1 Practice Under Florida Probate Code § 10.3.D.7 (2022)

7. Sale Of Specifically Devised Assets If it is necessary for the personal representative to sell specifically devised assets, it is prudent to obtain prior court approval with notice to all affected beneficiaries. This situation most often arises when the estate residue is insufficient to satisfy all taxes, claims, and expenses of administration. Assets are appropriated for payment in the order provided in F.S. 733.805, unless the testator provides otherwise. With some exceptions, demonstrative devises of real and personal property abate proportionately. F.S. 733.805(2). If the personal representative sells specifically devised property, the other devisees are required to contribute to the devisee whose devise was sold. Id. A petition for determination of contribution by devisees must be filed with the court and the amount of each devisee’s required contribution must be determined before final distribution of the estate. A devisee who is required to contribute may either pay the determined amount or have it withheld from the final distribution. For further discussion, see § 14.3.A.4 of this manual. « Ch. 10 », « § 10.3 », « D •, « 8 • 1 Practice Under Florida Probate Code § 10.3.D.8 (2022)

8. Sale Of Protected Homestead By Personal Representative In Possession As discussed in § 19.4.A.2 of this manual, the general rule is that protected homestead is not a probate asset, and not subject to sale by the personal representative. F.S. 733.607(1). “Protected homestead” is described in Article X, § 4(a)(1), of the Florida Constitution. As protected homestead, the property is exempt from claims of creditors of the decedent under Article X, § 4(b), of the Florida Constitution. Additionally, protected homestead property passes free of claims of the decedent’s creditors if the devisee of the property is an heir of the decedent—that is, someone within the class of persons who could be a beneficiary of the decedent under the laws of

intestacy. Snyder v. Davis, 699 So. 2d 999 (Fla. 1997). In Clifton v. Clifton, 553 So. 2d 192, 194 n.3 (Fla. 5th DCA 1989), the court held that “[h]omestead property, whether devised or not, passes outside of the probate estate. Personal representatives have no jurisdiction over nor title to homestead, and it is not an asset of the testatory estate.” There is an exception, however, when the will directs that the homestead be sold and the proceeds added to the estate. With a direction to sell, the personal representative has authority to sell the homestead and apply the proceeds to satisfy devises, creditors’ claims, and administration expenses. McKean v. Warburton, 919 So. 2d 341 (Fla. 2006). A notable progeny of the Warburton decision is Cutler v. Cutler, 994 So. 2d 341 (Fla. 3d DCA 2008). In that case, the decedent specifically devised the protected homestead to one child, and a vacant lot to another child. In the residuary clause of the will, the testator directed that if her estate was insufficient to pay all claims and expenses of administration, then the shortfall was to be borne equally by the specific devises to her children. The court held that even though the decedent did not direct the sale of the homestead property, she did direct that it be used to satisfy her debts, and this direction was the equivalent of a direction to sell. The court stated that the daughter to whom the decedent devised the protected homestead took it “impressed with the obligation to pay the testatrix’s debts” and could be forced to contribute to the shortfall from her share. Id. at 346. If the personal representative takes possession of protected homestead under F.S. 733.608, the personal representative is entitled to a lien to secure repayment of estate funds expended “to preserve, maintain, insure, or protect the property” while it is in the possession of the personal representative. F.S. 733.608(3). A notice of lien must be recorded by the personal representative in the public records of the county where the property is located. F.S. 733.608(4). See also Fla. Prob. R. 5.402, addressing the filing, contents, and service of such a notice. Once the lien is properly reflected in the public records, it must be satisfied to clear title to the property for subsequent sale. The lien can be cleared by (1) recording a satisfaction or release signed by the personal representative, (2) discharge of the personal representative when the estate is closed, (3) expiration of one year from the recording of the lien unless a proceeding to determine or enforce the lien has been filed, or (4)

entry of an order releasing the lien. F.S. 733.608(5). If the apparent owner of the property is unable to satisfy the lien, the personal representative may petition the court to sell or encumber the protected homestead. The court may transfer the lien to the portion of the sale or loan proceeds represented by the lien amount, and the proceeds are placed in a restricted depository subject to the lien. The proceeds are held until the court finally determines the amount properly reimbursable to the personal representative. F.S. 733.608(12). Alternatively, if the personal representative and the apparent owner agree to sell or encumber the property, they can also agree to have the closing agent retain the disputed amount in escrow pending final determination of the amount owed. Id. Although F.S. 733.608(2) gives the personal representative the authority to take possession of protected homestead property when necessary to protect it for the heirs, it does not authorize the personal representative to sell the property. Harrell v. Snyder, 913 So. 2d 749 (Fla. 5th DCA 2005).

« Ch. 10 », « § 10.4 » 1 Practice Under Florida Probate Code § 10.4 (2022)

§ 10.4. CONSIDERATIONS IN SALE OF ESTATE ASSETS « Ch. 10 », « § 10.4 », • A » 1 Practice Under Florida Probate Code § 10.4.A (2022)

A. In General Having determined that it is necessary or desirable to sell assets of the estate, the personal representative must assess relevant market conditions and estimate the value of assets to be sold to facilitate a sale most favorable to the estate. « Ch. 10 », « § 10.4 », « B » 1 Practice Under Florida Probate Code § 10.4.B (2022)

B. Public Or Private Sale F.S. 733.612(5) and 733.613 specifically allow the personal representative to sell property of the decedent at a public or private sale. To discharge the fiduciary duty fully, the personal representative should select the method of sale calculated to bring the best possible price for the property. If a public sale is selected, the personal representative should act prudently to ensure that the sale is adequately publicized. If a private sale is selected, the personal representative should seek prior court approval if there is any possible conflict of interest or other unusual aspect to the sale. The agent handling the sale of real or personal property for an estate is also under a fiduciary relationship to the estate as an agent. Care should be taken to eliminate any conflict of interest. It is wise, therefore, to secure an independent appraisal of the property and not have the sole appraisal made by the agent who might attempt to ensure that the offer received is actually the one accepted. See §§ 6.4.A.3 and 6.4.A.5 of this manual. The personal representative should also consider that appraisals may not accurately reflect current fair market value in a market that is rapidly appreciating or depreciating. Another alternative, or supplemental, method of determining

value is to obtain a market analysis from multiple agents. See § 6.4.A.4 The personal representative should also consider the length of time that has passed since the date of the most recent appraisal and potential sale, and whether an updated appraisal should be obtained to ensure the most accurate valuation. Public sale by auction is less common with real property, but quite common with tangible personal property, particularly art and collectibles. Many auction houses will provide a complimentary auction estimate of value, which may reflect their best estimate of current market conditions for the property but is not an appraisal. The process of selecting an auction house, the timing of sale, establishing a range of estimates, and a reserve, if any, should be undertaken carefully. The reserve is the minimum amount the seller will accept for an item. It is not disclosed to potential bidders because the minimum bid amount is often much lower to engage competitive bidding. If the reserve is set too high, the seller risks not selling the item. But if no reserve is set, the item could be sold for far less than its estimated value. Thus, a reserve is an amount typically agreed to that protects the estate from significant downside, but has a high probability of ensuring a sale. The personal representative may need to engage the services of an attorney with expertise in negotiating the consignment agreement and commission structure with the auction house because the terms can vary significantly. « Ch. 10 », « § 10.4 », « C » 1 Practice Under Florida Probate Code § 10.4.C (2022)

C. Purchase Money Financing Sales of personal property on credit are authorized by F.S. 733.612(5). The discretion of the representative is controlled primarily by the duty to act as a prudent investor. See F.S. 518.11. The taking of a mortgage or other security interest by the personal representative does not delay the final settlement of the estate. If the estate is settled and distributed before the payment in full of the note, the mortgage and the note may be assigned without recourse to the person or persons who would have been entitled to the property sold by the estate. When the personal representative sells real or personal property on credit, the estate may have the option to qualify the sale as an installment sale under

IRC § 453. Tax treatment of an installment sale is generally favorable to the seller. Instead of the tax becoming due in the year the sale occurs, the tax is paid over the term in which the installment payments are received. See § 13.2.E.2.c of this manual. « Ch. 10 », « § 10.4 », « D » 1 Practice Under Florida Probate Code § 10.4.D (2022)

D. Sale Of Contract To Purchase Real Property The Florida Probate Code does not specifically address the protocol that should be followed when the decedent is obligated under a contract to purchase real estate at the time of death. When the contract has value to another purchaser, it is recommended that the personal representative follow the procedures formerly outlined in F.S. 733.33. These procedures permitted the personal representative to sell the interest of the estate created by a contract to purchase real property entered into by the decedent. The statute provided that the personal representative could sell the interest in the property and under the contract in the same manner as if the decedent had owned the property in fee simple. But before a sale could be completed, the holder of the fee simple title had to deliver a release to the personal representative relieving the estate from liability under the contract. This release was not required if the vendor failed to file a claim on the contract within the period for filing claims against the estate. The intended effect was to make the new purchaser an assignee of the contract without recourse against the estate. The personal representative can remove the necessity for a release by obtaining a bond from the purchaser of the contract held by the estate. This bond should be in a sum sufficient to protect the estate for the performance of the contract obligations by the purchaser of the contract. (The prior statute required a sum equal to double the amount due under the contract.) It should also indemnify and save harmless the personal representative and all persons interested in the estate as to all claims and demands arising out of the contract. « Ch. 10 », « § 10.4 », « E » 1 Practice Under Florida Probate Code § 10.4.E (2022)

E. Sale Of Real Property Subject To Contract To Purchase If the decedent entered into a contract to convey real property and was the

owner of the property at death, F.S. 733.612(2) permits the interest of the estate in the property and under the contract to be sold by the personal representative in the same manner as other real estate. The buyer may enforce the contract by filing a claim. See F.S. 733.702. Contingent claims that may arise from the sale should also be filed to protect the claimant. Simpson v. First National Bank & Trust Co. of Lake Worth, 318 So. 2d 209 (Fla. 4th DCA 1975). Creditors’ claims are discussed extensively in Chapter 8 of this manual. If the personal representative objects to the claim filed on the contract, the person claiming the right to the conveyance may petition the court for an order requiring the personal representative to complete the sale. See, e.g., In re Estate of Weinstein, 339 So. 2d 700 (Fla. 3d DCA 1976). The petition must be made under oath and have attached to it the agreement or a copy of it. Notice of hearing to interested persons is required. After the hearing on the petition and any responses to it, the court may issue an order directing the personal representative to execute and deliver the conveyance or transfer it to the person entitled to it. This order must describe the property to be conveyed or transferred and serves as prima facie evidence of the validity of the proceedings and of the authority of the personal representative to make the conveyance or transfer. A certified copy of any order relating to real property should be recorded in the official records book of any county where the real property or any part of it is situated. The court may award costs and fees under F.S. 733.106(1) and 733.609. If the decedent was the owner of real property subject to an agreement for deed, the personal representative should include the estate’s interest as owner and vendor in the administration of the estate so that legal title can be given to the buyer when the agreement is satisfied. F.S. 733.612(2)(b) allows an escrow arrangement whereby the personal representative executes a deed in escrow for delivery to the buyer when the estate or its distributees have been paid in full. « Ch. 10 », « § 10.4 », « F » 1 Practice Under Florida Probate Code § 10.4.F (2022)

F. Sale Of Real Property Subject To Right Of First Refusal Although the Florida Probate Code does not specifically address the sale of estate property that is subject to a right of first refusal, care should be taken

by the personal representative to identify any outstanding options or grants, or rights of first refusal that may be given by the terms of the decedent’s will, and to comply with any notice requirements and implementing terms of the agreement. « Ch. 10 », « § 10.4 », « G » 1 Practice Under Florida Probate Code § 10.4.G (2022)

G. Sale Of Real Property Subject To Mortgage The Florida Probate Code makes no apparent distinction in the sale of real property that is subject to a mortgage. There are a number of factors the personal representative should consider when the estate assets include real property encumbered by a mortgage. If the amount owed on the mortgage exceeds the current value of the property, it may be necessary to obtain the mortgagee’s consent to a “short sale.” Alternatively, the personal representative may deem it prudent to allow the mortgagee to foreclose on the property or tender a deed in lieu of foreclosure. Whether such actions are prudent will depend on a number of factors, including the current value of the property and general pricing trends; the ongoing expenses of the property, including mortgage, taxes, insurance, and maintenance or repairs; the anticipated timeframe to facilitate a sale and the projected proceeds; whether the beneficiaries are in a position to continue the mortgage payments and general expenses if the property is not sold; and whether the mortgagee is entitled to a deficiency judgment against the estate in the event of a short sale or foreclosure. Mortgagees should be promptly served with notice to creditors to determine the mortgagee’s ability to collect a deficiency from the general estate assets. It would also be prudent for the personal representative to obtain court approval of a short sale or a decision to abandon the property to foreclosure. « Ch. 10 », « § 10.4 », « H • 1 Practice Under Florida Probate Code § 10.4.H (2022)

H. Sale Of Foreign Decedent’s Real Property « Ch. 10 », « § 10.4 », « H •, • 1 » 1 Practice Under Florida Probate Code § 10.4.H.1 (2022)

1. Conveyances Within Two Years Of Decedent’s Death There are two ways to ensure the marketability of a foreign decedent’s Florida property conveyed within two years of the decedent’s death: F.S. 734.102 provides for an ancillary administration of the foreign decedent’s real property. After qualification or appointment, the ancillary personal representative who complies with Fla. Prob. R. 5.470 can convey Florida realty during the ancillary administration in the same manner as other personal representatives in Florida. F.S. 734.102(7). When the will does not grant a power of sale or when a power of sale is granted exclusively to a person other than the ancillary personal representative, it is necessary to obtain a court order authorizing or confirming the sale. When the value of a nonresident decedent’s property in this state is less than $50,000, on the filing of an authenticated transcript of the foreign proceedings and of the will and all codicils, the court determines if the will and codicils comply with F.S. 732.502(1), (2), or (3). If they comply, the court must admit them to record. F.S. 734.1025(1). Notice to creditors is then given in accordance with F.S. 734.1025(2) and Rule 5.475(b). See Rule 5.475 for the specific procedure. Presumably, the provisions in F.S. Chapter 735 concerning summary administration and disposition without administration would be applicable in appropriate circumstances to ancillary conveyancing after two years. See § 10.4.H.2 and Chapter 18 of this manual. For further discussion see FLORIDA REAL PROPERTY SALES TRANSACTIONS § 7.3.G (Fla. Bar 10th ed. 2020). « Ch. 10 », « § 10.4 », « H •, « 2 • 1 Practice Under Florida Probate Code § 10.4.H.2 (2022)

2. Conveyances After Two Years From Decedent’s Death If two years have passed from the date of the death of the foreign testator, a personal representative under a foreign will may convey marketable title to Florida realty under F.S. 734.104. This statute provides that, on the recording of authenticated copies of the will and certain other documents in connection with the foreign probate, the title passes in the same manner as if there were a

properly probated Florida will. Also, the record or a certified transcript constitutes presumptive evidence of the authority of any person to convey real property under a power granted in the will. Although not required, the filing of an official record of death is recommended. See Fla. Prob. R. 5.205. The lawyer should also record appropriate documents to reflect release of the federal estate tax lien, such as the estate tax closing letter or a release of lien, and the state estate tax for estates liable for the tax under F.S. Chapter 198, such as a Florida final certificate. If there is no liability for state estate tax, that status may be evidenced by a Florida nontax certificate, Affidavit of No Florida Estate Tax Due (DR-312) or Affidavit of No Florida Estate Tax Due When Federal Return is Required (DR-313). See F.S. 198.13(4).

« Ch. 10 », « § 10.5 » 1 Practice Under Florida Probate Code § 10.5 (2022)

§

10.5. COURT CONFIRMATION

AUTHORIZATION

OR

« Ch. 10 », « § 10.5 », • A » 1 Practice Under Florida Probate Code § 10.5.A (2022)

A. Procedure To Secure Court Authorization Prior To Sale Or Transfer « Ch. 10 », « § 10.5 », • A », • 1 » 1 Practice Under Florida Probate Code § 10.5.A.1 (2022)

1. In General If court approval of the sale of real property is required by statute, or should be obtained for the protection of the personal representative in borderline cases, the following steps, discussed in §§ 10.5.A.2.a–10.5.A.5.b, are required: A verified petition for authorization or confirmation of the sale. The joinder or consent of interested persons or notice of hearing. See Rules 5.040 and 5.180. A hearing on the petition. A court order authorizing or confirming the sale or transfer. See F.S. 733.613(1) and Fla. Prob. R. 5.370. The same steps should be followed to obtain court approval of the sale of personal property. « Ch. 10 », « § 10.5 », • A », « 2 » 1 Practice Under Florida Probate Code § 10.5.A.2 (2022)

2. Petition For Court Authorization « Ch. 10 », « § 10.5 », • A », « 2 », • a » 1 Practice Under Florida Probate Code § 10.5.A.2.a (2022)

a. Contents The petition should include the following:

The reasons for the sale. The reasons for sale must be set forth in sufficient detail to show that the sale will serve the best interest of the estate and persons interested in it. Fla. Prob. R. 5.370(a); F.S. 733.613(1). For example, if a sale is desired to facilitate distribution, the petition should state why a distribution in kind is impractical. A petition for a sale to obtain funds to pay debts should show that there are valid claims against the estate and that sufficient liquid assets are not available to discharge them. Why court approval is necessary or desirable. If the personal representative is a purchaser or has any personal interest in the sale, the petition should describe the personal representative’s interest in the transaction. A description of the asset sold or intended to be sold. Rule 5.370(a). The description should be sufficiently detailed to identify the particular property clearly. See In re Estate of Corbin, 637 So. 2d 51 (Fla. 1st DCA 1994). In the case of land, the legal description should be given. If the property is stocks or bonds, the description should contain the name of the issuing corporation, the type of security, the CUSIP number, and the number of shares or face amount of bonds. The price and terms of the sale. Rule 5.370(a). Generally, the price of the asset should be set forth specifically. In re Estate of Corbin. When the assets to be sold are stocks or bonds that are listed on a recognized stock exchange, the petition may request an order merely authorizing the personal representative to sell the stock at the current price. Special payment terms. If the estate will be extending purchase money financing, the petition should clearly state the terms of the financing and whether the estate will be granted a security interest in the asset to be sold or other assets to secure the financing obligation. « Ch. 10 », « § 10.5 », • A », « 2 », « b • 1 Practice Under Florida Probate Code § 10.5.A.2.b (2022)

b. Form For Petition To Secure Court Authorization IN THE CIRCUIT COURT FOR _________ COUNTY,

FLORIDA PROBATE DIVISION File Number ___ IN RE: ESTATE OF _________, Deceased.

PERSONAL REPRESENTATIVE’S PETITION FOR ORDER AUTHORIZING SALE Petitioner, _________, as personal representative of this estate, alleges: 1. Part of the assets of the estate consists of: (insert description of property to be sold—if real property, legal description; if stocks or bonds, name of corporation and number; if other personalty, describe in same way as on a bill of sale). 2. A power of sale is granted in the will; however, (state reason why court approval is sought, such as it is limited in scope, it does not extend to this personal representative, or there is a conflict of interest).

OR Decedent died intestate.

OR No power of sale is granted in the will. 3. It is expedient, necessary, and in the best interest of the estate and those interested in it that the described property be sold in order to (state reasons, such as facilitating distribution, paying taxes and expenses, or other liquidity needs). 4. Petitioner has received [an offer] [a signed contract for sale, conditioned upon court approval] to purchase the described property from the estate upon the following terms:

(Indicate price, terms or conditions of sale, and any special financing considerations.) The only persons having an interest in this proceeding and their respective addresses are ____________, all of whom have either filed with the court their written consent and waiver of notice of sale of the property described in paragraph 1 or have been served notice of this petition. WHEREFORE Petitioner requests that an order be entered authorizing the sale of the described property by Petitioner as personal representative, upon the terms and conditions set forth above, and further authorizing Petitioner to execute all instruments necessary to effectuate such sale. Under penalties of perjury, I declare that I have read the foregoing, and the facts alleged are true, to the best of my knowledge and belief. Signed on (date). /s/____________ Personal Representative (Certificate of Service) /s/ (name of attorney) Attorney for Personal Representative (address and phone number) (e-mail address(es)) Florida Bar No. ___ COMMENT: The personal representative must sign the petition, Fla. Prob. R. 5.330(c), and the pleading must be verified, Rule 5.370(a). If the buyer’s name is on the contract or offer, it is not advisable to attach a copy of the contract to the petition, because another order will be needed if someone else buys the asset. See § 10.5.A.6. This form may be altered to request confirmation of a sale after the fact. For other forms for the petition see § 4.3.A.3.i.v of this

manual and FLORIDA REAL PROPERTY SALES TRANSACTIONS § 7.3.E. (Fla. Bar 10th ed. 2020). « Ch. 10 », « § 10.5 », • A », « 3 » 1 Practice Under Florida Probate Code § 10.5.A.3 (2022)

3. Notice « Ch. 10 », « § 10.5 », • A », « 3 », • a » 1 Practice Under Florida Probate Code § 10.5.A.3.a (2022)

a. General Requirements A petition for an order authorizing or confirming a sale of property must be served on all interested persons who have not joined in the petition or consented to the sale. Fla. Prob. R. 5.040, 5.041. “Interested persons” for purposes of service may include any specific devisee of the property being sold, residuary devisees if the property is part of the residue, and creditors whose rights may be affected by the sale. If all interested persons do not consent, the petitioner should obtain a hearing date and provide notice of the hearing. It is particularly important to provide notice to interested persons who have not signed a waiver, to avoid any possibility of the application of F.S. 733.610, which could make the sale voidable. « Ch. 10 », « § 10.5 », • A », « 3 », « b • 1 Practice Under Florida Probate Code § 10.5.A.3.b (2022)

b. Form For Waiver Of Notice And Consent To Sale Or Transfer (Title of Estate)

(Title of Court)

WAIVER AND CONSENT The undersigned, a person interested in the above estate as (specify nature of interest, such as beneficiary or creditor as it relates to the property being sold), waives notice of the petition of the personal representative for [authorization] [confirmation] of the sale of (insert description of property), consents to the sale of the property as described in the petition, and waives any notice of hearing thereon, and consents to the entry of an order authorizing sale without further notice or hearing.

Dated ______. /s/ ____________ (printed name) COMMENT: A form for notice of hearing is Form No. P-1.0530. A general form for Consent and Waiver of Notice is Form No. P1.0600. Both are available from Florida Lawyers Support Services, Inc.© (FLSSI), P.O. Box 195909, Winter Springs, FL 32719-5909 (407/515-1501; [email protected]; www.flssi.org/form). For another form for consent to the sale of property, see FLORIDA REAL PROPERTY SALES TRANSACTIONS § 7.3.E.6 (Fla. Bar 10th ed. 2020). « Ch. 10 », « § 10.5 », • A », « 4 » 1 Practice Under Florida Probate Code § 10.5.A.4 (2022)

4. Hearing If the petition for an order authorizing the sale requires notice, see § 10.5.A.3.a, the hearing will proceed and be conducted as in other cases before the court. At any hearing, the court has the discretion to require an appraisal of the property. A current appraisal may be ordered even though one has been made previously. « Ch. 10 », « § 10.5 », • A », « 5 » 1 Practice Under Florida Probate Code § 10.5.A.5 (2022)

5. Order Of Court Authorizing Sale Or Transfer « Ch. 10 », « § 10.5 », • A », « 5 », • a » 1 Practice Under Florida Probate Code § 10.5.A.5.a (2022)

a. In General Like the petition (see §§ 10.5.A.2.a–10.5.A.2.b), the order of the court should set forth the description of the property to be sold and the price and terms of the sale if it is a private sale. Fla. Prob. R. 5.370(b). The reasons for the sale should be set forth in the order. When the order is one confirming a sale, a copy of the contract may be attached to the order for simplification purposes. If the order authorizes a sale, all of the terms and conditions should be spelled out. When, however, the assets to be sold are stocks and bonds that are listed on an established stock exchange, the order may authorize a sale at

the current market price without otherwise designating the price. A certified copy of an order relating to real property should be recorded in each county where any part of the property is located. « Ch. 10 », « § 10.5 », • A », « 5 », « b • 1 Practice Under Florida Probate Code § 10.5.A.5.b (2022)

b. Form For Order Authorizing Sale (Title of Estate)

(Title of Court)

ORDER AUTHORIZING SALE OF [PERSONAL] PROPERTY

[REAL]

This action was heard on the petition of _________, personal representative of this estate, and THE COURT FINDS: 1. All interested persons have been served notice of this hearing. 2. It is in the best interest of the estate that certain assets of the estate be sold in order to provide funds for (state reasons for the sale). 3. The best interest of the estate will be served by a sale of the property at a [public] [private] sale. 4. The sale should be for the sum of $______. (Describe the terms of the sale.) IT IS ADJUDGED Petitioner, as personal representative of this estate, is authorized to sell (insert description of property) for $______. (Specify further terms.) ORDERED at _________, Florida, on (date). /s/____________ Circuit Judge Copies furnished to: _________. COMMENT: For another form for an order authorizing sale see FLORIDA REAL PROPERTY SALES TRANSACTIONS § 7.3.E.7 (Fla. Bar 10th

ed. 2020). « Ch. 10 », « § 10.5 », • A », « 6 • 1 Practice Under Florida Probate Code § 10.5.A.6 (2022)

6. Vacation Of Order Authorizing Sale An order vacating a previous order authorizing a sale of estate assets may be obtained if the sale was not consummated. A petition to vacate an order authorizing sale may be necessary if, for example, a named buyer is unable to complete the sale, the terms of the sale change significantly after the order is entered, or the original order was obtained without full disclosure to interested persons. The order is not needed, however, if the original order authorizing the sale did not contain the name of the buyer and the only change is the buyer’s name. The need to vacate an existing order and obtain a new order can be avoided if the name of the buyer is omitted in the petition for an order authorizing the sale. If the sale has been consummated and there is a question of breach of fiduciary duty on the part of the personal representative, an interested party may file a petition to determine the propriety of the personal representative’s action under F.S. 733.609. « Ch. 10 », « § 10.5 », « B • 1 Practice Under Florida Probate Code § 10.5.B (2022)

B. Court Confirmation Of Completed Sale Or Transfer « Ch. 10 », « § 10.5 », « B •, • 1 » 1 Practice Under Florida Probate Code § 10.5.B.1 (2022)

1. In General It may not be practical for the personal representative to obtain court approval before the actual sale or transfer of the asset. In such a case, and when the personal representative has determined that court approval is warranted or required, the personal representative may file a petition for confirmation of the completed act. If possible, the personal representative should obtain consents from the beneficiaries before the sale or transfer. « Ch. 10 », « § 10.5 », « B •, « 2 • 1 Practice Under Florida Probate Code § 10.5.B.2 (2022)

2. Petition And Order Confirming Sale

The procedure and forms provided in §§ 10.5.A.1–10.5.A.5.b can be easily adapted to a confirmation of a completed transfer. In addition to the information ordinarily provided, the personal representative should indicate in the petition why it was necessary to complete the sale before authorization was received from the court. If consents were obtained from the beneficiaries, those should also be filed with the petition.

« Ch. 10 », « § 10.6 » 1 Practice Under Florida Probate Code § 10.6 (2022)

§ 10.6. TRANSFER OF ESTATE ASSETS « Ch. 10 », « § 10.6 », • A » 1 Practice Under Florida Probate Code § 10.6.A (2022)

A. Encumbered Assets If specifically devised property is encumbered, the personal representative may not satisfy the obligation at the expense of the residue of the estate unless specifically authorized by the will. A general direction in the will to pay debts of the decedent is not sufficient. F.S. 733.803. See §§ 1.2.E.5 and 14.3.A.5. If the provisions of the will that authorize payments of the debts of the decedent fail to distinguish between secured and unsecured debts, it would not be prudent for the personal representative to satisfy the secured encumbrances prior to distribution absent a court order confirming such a satisfaction. « Ch. 10 », « § 10.6 », « B » 1 Practice Under Florida Probate Code § 10.6.B (2022)

B. Transfer Of Personal Property « Ch. 10 », « § 10.6 », « B », • 1 » 1 Practice Under Florida Probate Code § 10.6.B.1 (2022)

1. In General Certain estate assets, such as motor vehicles, airplanes, and vessels, should be transferred to the recipients as soon as practicable after the personal representative is appointed and the recipient is finally determined. These assets generally experience depreciation in value because of passage of time and lack of use. They may also present potential liability to the estate, and insurability issues. Particular care must be exercised by the personal representative if the decedent possessed firearms and ammunition, as discussed below. « Ch. 10 », « § 10.6 », « B », « 2 »

1 Practice Under Florida Probate Code § 10.6.B.2 (2022)

2. Motor Vehicles And Vessels A certificate of title, in either electronic or paper form, is the proof of ownership of a vehicle, mobile home, or vessel in the state of Florida. The rise of electronic registration simplifies the transfer process, and there are now separate requirements if the title is maintained electronically rather than paper. It is probably wise to secure a new paper certificate of title as soon after the death of the decedent as is practicable so that any subsequent transfer of the motor vehicle may be consummated expeditiously and the liability for ownership removed from the estate. When a motor vehicle is transferred by inheritance or devise, the beneficiary must apply for registration and a new certificate of title to the Department of Highway Safety and Motor Vehicles (“HSMV”) in Tallahassee. F.S. 319.28. For a paper title, the “Application for Title by Purchaser” section must be accurately completed and signed by the personal representative as seller for the estate. An electronic title must be printed to allow the personal representative to transfer ownership to anyone not specifically named in the will as the devisee. See HSMV Division of Motorist Services Procedure TL-18, Application for Certificate of Title and Satisfaction of Liens Involving Registered Owners or Lienholders Who Are Deceased (available online at www3.flhsmv.gov/dmv/Proc/tl/tl-18.pdf). The personal representative must complete an application for a duplicate title certificate in the name of the decedent, using form HSMV 82101. Forms may be downloaded from the Department of Highway Safety and Motor Vehicles’ website, www.flhsmv.gov/resources/forms. If a lien is recorded on the certificate of title, it must either be satisfied or the lienholder must authorize a “Transfer of Equity.” To do so, the lienholder must provide a statement that authorizes the removal of the decedent’s name and the transfer of the lien to the new owner. The prior certificate of title, if in paper form, should accompany the application if possible. If that certificate is unavailable, the applicant must

present to the department satisfactory proof of ownership and right of possession. The tax collector’s office in the county in which the decedent resided will generally take applications for transfers of title and supply the appropriate forms upon request. If the decedent died intestate and an heir or heirs make the application, an order of a probate court is not necessary. F.S. 319.28(1)(b). F.S. 319.28(1)(a) provides that a new certificate of title will be issued “upon the surrender of the prior certificate of title or, when that is not possible, presentation of satisfactory proof … of ownership and right of possession to [the] motor vehicle.” The applicant will also be required to file an affidavit that the estate is not indebted and the surviving spouse and the heirs, if any, have amicably agreed among themselves to the transfer of title. F.S. 319.28(1)(b). If the previous owner died testate, the application should be made by the personal representative of the estate and accompanied by a certified copy of the will and an affidavit stating that the estate is solvent with sufficient assets to pay all claims. If for some reason the will is not probated, a sworn copy of the will and an affidavit that the estate is not indebted may accompany the application. F.S. 319.28(1)(b). If a title includes the name of both spouses, the surviving spouse may request a title replacement removing the name of the deceased spouse at no cost. The surviving spouse must complete form HSMV 82152, Surviving Spouse Transfer of Florida Certificate of Title for a Motor Vehicle. This form must then be submitted to a motor vehicle service center along with a certified copy of the death certificate and identification. A marriage certificate will also be required unless the name of the surviving spouse is shown on the death certificate. The surviving spouse is not required to obtain a new certificate of title if he or she would prefer to dispose of the vehicle rather than retaining it for his or her own use. Instead, the surviving spouse may assign the certificate of title to a transferee. An application for a certificate of title by a transferee from the surviving spouse must be accompanied by the same documentation as would a direct application by the surviving spouse. F.S. 319.28(1)(c). Boats and other watercraft are also issued certificates of title by the Department of Motor Vehicles, and similar procedures apply to the transfer

of these vessels. However, if the vessel is documented with the United States Coast Guard, a special bill of sale will be required to allow the transferee to re-document the vessel. It is recommended to consult the Motor Vehicle Procedures Manual, specifically Procedure TL-18 and the chart in Exhibit B, to identify the specific requirements for each particular type of transfer. « Ch. 10 », « § 10.6 », « B », « 3 » 1 Practice Under Florida Probate Code § 10.6.B.3 (2022)

3. Securities The Florida Securities and Investor Protection Act (Florida’s “Blue Sky Law”), F.S. Chapter 517, specifically exempts all personal representatives’ sales from securities registration. F.S. 517.061(1). Certain requirements, however, are imposed on the transfer of securities by a fiduciary under F.S. Chapter 678 (Uniform Commercial Code—Investment Securities). See also F.S. 517.301(1), which addresses fraudulent transactions and deceit. The transfer requirements must be taken into consideration. To have the transfer proceed smoothly from the name of the decedent to the name of the personal representative or from the name of the decedent to a purchaser or recipient under the will, the following documents would be helpful and, in certain instances, may be required: Certified copy of the letters of administration, which should bear a current certification date, usually within 60 days of the request to transfer. Original certificates indorsed by the personal representative with a guarantee of the personal representative’s signature. The signature is typically guaranteed by a broker, bank, or trust company participating in the Securities Transfer Agents Medallion Program (STAMP), an official signature guarantee program recognized and approved by the financial industry. Affidavit of domicile of the decedent. Letter of instruction from the personal representative to the transfer agent specifying the shares to be transferred and to whom, also with a signature guarantee.

These are some of the basic transfer requirements. Some transfer agents may require additional documents. It is best to contact the transfer agent directly and request that it notify the personal representative regarding the documents required. The requirements of transfer agents vary significantly, depending on the domicile of the issuing corporation. See F.S. 678.4011 and 678.4021 for the applicable transfer requirements in Florida. « Ch. 10 », « § 10.6 », « B », « 4 » 1 Practice Under Florida Probate Code § 10.6.B.4 (2022)

4. Firearms The personal representative must be aware of the federal, state, and local laws that govern the possession, transfer, and sale of certain firearms and ammunition. The National Firearms Act (NFA), IRC §§ 5801–5872, governs the manufacturing, importing, sale, and taxation of the transfer of firearms, which are defined as a shotgun having a barrel(s) less than 18 inches long; a weapon made from a shotgun if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels less than 18 inches long; a rifle having a barrel or barrels less than 16 inches long; a weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches or barrel(s) less than 16 inches long; any other weapon as defined in 18 U.S.C. § 5845(e); a machine gun; a muffler or a silencer for any firearm whether or not such firearm is included within this definition; or a destructive device. IRC § 5845(a). If the personal representative is in possession of a firearm, as defined in the statute, there are requirements that must be met to transfer ownership to a beneficiary or other third party. The Federal Regulations provide that the personal representative’s possession of a firearm registered to a decedent during the pendency of

probate is not considered a transfer and no registration in the name of the personal representative is required. 27 C.F.R. § 479.90a. However, before the personal representative can transfer possession to a beneficiary or other third party, the personal representative must submit an application to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). The requirements differ if the firearm is transferred to a beneficiary versus a non-beneficiary. If the firearm is being transferred to a beneficiary, the personal representative must complete and file ATF Form 5 (Application for Tax Exempt Transfer and Registration of Firearm). The recipient beneficiary must also provide their fingerprints with the application. Transfers to a beneficiary are exempt from the transfer tax imposed by IRC § 5811. If the firearm is being transferred to a nonbeneficiary, the personal representative must complete and file ATF Form 4—(Application for Tax Paid Transfer and Registration of Firearm). The nonbeneficiary transferee must provide their fingerprints and photograph and the transfer tax applies. Regardless of whether the firearm is being transferred to a beneficiary or a nonbeneficiary, the personal representative must also provide a certified copy of letters of administration, a copy of the decedent’s death certificate, a copy of the decedent’s Last Will and Testament (if any), and any other documentary evidence of the personal representative’s authority to dispose of property. The personal representative is prohibited from completing the transfer if ATF determines that any federal, state, or local law prohibits the transferee from receiving or possessing the firearm. Upon approval, the personal representative will receive an approved copy of application to be delivered with the firearm to the transferee. Because the approval of the application effectuates registration of the firearm to the transferee, the physical transfer of the firearm must be completed immediately. The personal representative must not transfer the firearm until the application has been approved and received. If the physical transfer of the firearm cannot be completed immediately, the personal representative should contact the National Firearm Association for instructions. The practitioner should note that these are the federal rules applicable to firearms, as defined under the Federal Regulations. The personal representative should also be aware of any state laws and restrictions

applicable to a transferee because, as previously noted, if federal, state, or local laws prohibit transfer of the firearm to the beneficiary or third party, the ATF will not approve the transfer application. F.S. Chapter 790, governing weapons and firearms in Florida, should be carefully reviewed by counsel for the personal representative. F.S. Chapter 790 identifies a number of types of weapons that carry a criminal penalty for possessing. There are no specific mentions or exceptions for the personal representative of an estate. F.S. Chapter 790 also claims preemption over all local ordinances, rules, and regulations regarding the possession, transfer, storage, transportation, or sale of firearms and ammunition. See F.S. 790.33. « Ch. 10 », « § 10.6 », « B », « 5 • 1 Practice Under Florida Probate Code § 10.6.B.5 (2022)

5. Digital Assets “Digital assets” are defined as data, information, and intellectual property that is transmitted or stored on electronic devices. It is a very broad category that can include social media accounts, frequent flier miles, cryptocurrency, online banking and investment accounts, online businesses, digital photographs and music, and more. The personal representative’s access to digital assets is authorized by the Florida Fiduciary Access to Digital Assets Act, F.S. Chapter 740. The accounts holding these assets are always governed by a terms-ofservice agreement. These agreements typically restrict access to the account after the owner’s death and restrict the transferability of the digital assets to the decedent’s beneficiaries. Access to the digital assets is further complicated by federal privacy laws that make it a criminal offense to access the accounts without proper authorization. See 18 U.S.C. § 2701(a). The personal representative may utilize the Florida Fiduciary Access to Digital Assets Act to access the account, and possibly receive a “dump” of the assets, which could then be distributed to beneficiaries. The terms-of-service agreement should be carefully reviewed for each digital asset account to determine whether the assets may be transferred, and the requirements. Many digital assets are actually just lifetime leases that cannot be transferred, such as music subscriptions or book downloads. Of

particular note is the rise of cryptocurrency, which uses blockchain technology to create a personal key for access. If the personal representative does not have the key, the asset is likely lost forever. « Ch. 10 », « § 10.6 », « C » 1 Practice Under Florida Probate Code § 10.6.C (2022)

C. Transfer Of Real Property « Ch. 10 », « § 10.6 », « C », • 1 » 1 Practice Under Florida Probate Code § 10.6.C.1 (2022)

1. In General A deed distributing real property from the personal representative to the beneficiary is neither required nor appropriate, because title to real property is not held by the personal representative, but rather vests in the beneficiary as of the death of the decedent. See § 14.3.C.6.a of this manual. See also Standards 5.1 and 5.2, Uniform Title Standards, published by the Real Property, Probate and Trust Law Section of The Florida Bar, which can be downloaded at www.rpptl.org/uploads/UTS%20Updated%203.30.2021.pdf. It has become a common practice for the personal representative to record a “certificate of distribution” to provide a public record of the surrender of the property to the beneficiary. Practitioners should note, however, that the personal representative may seek recovery of the property or its equivalent value if the distribution was improper. F.S. 733.811. The lawyer should also record appropriate documents to reflect release of the federal estate tax lien, such as the estate tax closing letter or a release of lien, and the state estate tax for estates liable for the tax under F.S. Chapter 198, such as a Florida final certificate. Although a change in federal law eliminated Florida’s estate tax as of 2005, the personal representative of an estate may still need to complete either of the following forms to remove the automatic Florida estate tax lien: the Affidavit of No Florida Estate Tax Due (DR-312) or the Affidavit of No Florida Estate Tax Due When Federal Return is Required (DR-313). See F.S. 198.13(4). These forms are not filed with the Department of Revenue, but may need to be recorded in each county where estate real property is located. The lawyer may also need to record portions of the probate file if the real property is not located in the county where the estate is being administered. This would include an authenticated

copy of the will, order admitting will to probate, petition for administration, order determining beneficiaries (if intestate), and order of discharge. If federal estate tax is owed by the decedent’s estate, the personal representative must procure a release of the lien before sale or distribution of the property. The personal representative must complete and file IRS Form 4422 (Application for Certificate Discharging Property Subject to Estate Tax Lien). The personal representative and the IRS then agree to either (1) enter into an escrow agreement and appoint an escrow agent to hold the entire net proceeds of the sale pending release by the IRS; or (2) deposit the entire net proceeds with the IRS to be held as a payment on account of the federal estate tax. If deposited with the IRS, the amount will accrue interest at the underpayment rate commencing 45 days after a timely filed estate tax return (i.e., Form 706). The term “net proceeds,” as defined by the IRS, means the gross sale proceeds, less senior encumbrances, attorneys’ fees, broker fees, recording fees, and transfer fees. The IRS will provide a conditional release of discharge (IRS Letter 5751) to allow the sale to proceed, but the final discharge is not provided until the sale proceeds have been delivered to the IRS or the escrow agent. The proceeds themselves are not released until the estate tax closing letter has been issued by the IRS. The personal representative must request that a closing letter be issued. If a closing agent, title company, or other transfer agent requests proof of discharge in situations where the estate does not meet the threshold to file an estate tax return, the personal representative may file Form 4422 with the IRS and request the issuance of a letter (IRS Letter 1352), stating that no estate tax is due and the property is not subject to a lien. « Ch. 10 », « § 10.6 », « C », « 2 • 1 Practice Under Florida Probate Code § 10.6.C.2 (2022)

2. Personal Representative’s Release And Certificate Of Distribution Of Real Property Florida is a “recording state” for title purposes, which simply means that documents must be recorded in the public records to affect title. As a result, many lawyers prefer to record some evidence that title to real property has been released from the personal representative’s possession. There are no specific requirements for such a document, but standard content should include adequate identification of the decedent, the personal representative,

and the location of the estate administration; identification of the property being released, including legal description, physical address, and parcel identification number; and an acknowledgment by the personal representative that the property is no longer needed for the purposes of F.S. 733.607 and 733.608. Forms for a release and certificate of distribution by the personal representative include FLSSI Form Nos. P-5.0600 (single personal representative), P-5.0605 (multiple personal representatives), and P-5.0610 (corporate personal representative). « Ch. 10 », « § 10.6 », « D » 1 Practice Under Florida Probate Code § 10.6.D (2022)

D. Exchange Of Properties Usually, a sale of estate assets can be effected only to provide greater liquidity in the estate, to enable the estate to pay off obligations of the decedent, or to provide funds for distribution. It therefore is questionable whether the personal representative, under a power of sale, is authorized to trade real property when the estate receives no cash as a result. If there is no power of sale granted in the will, it is doubtful that the court would grant an order authorizing or confirming the trade. There are, however, extraordinary circumstances that may justify a trade. For example, property that is not immediately marketable may be subject to trade for readily marketable property. That kind of trade should probably be authorized, because the purpose is not to make money for the estate but to settle the accounts of the decedent and distribute the decedent’s property. When the estate receives cash in addition to receiving other real property for the transfer of its assets, the exchange could probably be justified if the money is sufficient to pay off obligations of the estate. A problem could then arise as to whether the money or “boot” is principal or income to the estate. Also, the problem of apportionment of income and principal between the residuary legatee and other beneficiaries of the estate arises. It generally appears that the “boot” is principal, although it will likely be subject to income taxation. See IRC § 1031. Apportionment of income and principal is to be determined in accordance with the Florida Uniform Principal and Income Act, F.S. Chapter 738. « Ch. 10 », « § 10.6 », « E » 1 Practice Under Florida Probate Code § 10.6.E (2022)

E. Partition Of Real Property F.S. 733.814 provides that the personal representative, or one or more of the beneficiaries entitled to an undivided interest in a particular piece of property, may petition the court before the closing of the estate to make partition. A proceeding to partition real property is an adversary proceeding governed by the Florida Rules of Civil Procedure. Fla. Prob. R. 5.025(a). Therefore, formal notice to interested beneficiaries is required, after which the court may partition the property in the same manner as provided for in civil actions for partition. Rule 5.025(d). The court may direct the personal representative to sell any property that cannot be partitioned without prejudice or conveniently allocated to one party. F.S. 733.814. Whether the property should be partitioned in kind or sold is a factual determination for the court. See In re Estate of VanLandingham, 380 So. 2d 1178 (Fla. 4th DCA 1980). The difficulty of fairly partitioning property was highlighted in Schroeder v. Lawhon, 922 So. 2d 285, 293 (Fla. 2d DCA 2006): Because land is not fungible, any parcel of real property is likely to have features that make it more or less valuable than another parcel. Therefore, the shares allotted to the parties in partition need not be exactly equal in value. An unequal division of the property may even be justified where one cotenant has improved the property to be divided without contribution by the other cotenant or cotenants. Under these circumstances, the party who made the improvements should receive the benefit of the enhancement he or she has made to the value of the property if this result can be achieved equitably. The practitioner should note that, in 2020, the Florida Uniform Partition of Heirs’ Property Act, F.S. Chapter 64, Part I, was enacted to provide the heirs of an intestate estate an opportunity to purchase the entire property before the property is partitioned and sold. For a more detailed discussion of partition actions, see FLORIDA REAL PROPERTY LITIGATION Chapter 4 (Fla. Bar 10th ed. 2020). « Ch. 10 », « § 10.6 », « F • 1 Practice Under Florida Probate Code § 10.6.F (2022)

F. Leases

The personal representative generally may lease real property of the estate without permission of the court. F.S. 733.612(7)–(8), 733.613(2). If the will requires court permission for a lease or if court authorization is sought for some other reason, the proceedings resemble those for the application for the sale of property. Notice must be given to all interested persons. See § 10.5.A. The lease may be executed in the usual form for any lease, provided that words are added to indicate that the lessor is the personal representative of the decedent. If a court order is obtained, the order should be referred to specifically in the lease. Regardless of whether a court order is obtained, the lease should not exceed the expected administration period of the estate unless the affected beneficiaries consent.

« Ch. 10 », « § 10.7 • 1 Practice Under Florida Probate Code § 10.7 (2022)

§ 10.7. TAX CONSEQUENCES OF SALES AND EXCHANGES OF REAL PROPERTY « Ch. 10 », « § 10.7 •, • A » 1 Practice Under Florida Probate Code § 10.7.A (2022)

A. Income In Respect Of Decedent The personal representative has to be aware of the tax consequences of income received by the estate from transactions entered into by the decedent before death. Such income is reportable by the estate. Under IRC § 691, it is known as “income in respect of a decedent.” With respect to sales and transfers of estate assets, it would include the following: A sale made by the decedent before death for which the proceeds were not received until after death. A sale by the decedent before death that was not completed until after death. The personal representative will need to determine if the estate acquired an interest in the assets that were sold or if it acquired a right to income in respect of a decedent from the disposition of those assets. Treatment of the income received by the estate in such a situation is not entirely clear from case law or from the statute. In the former Fifth Circuit, which would control a Florida estate, the court in Trust Company of Georgia v. Ross, 392 F.2d 694, 695 (5th Cir. 1968), enunciated the “right to income” test, which states: Although it is pertinent to inquire whether the income received after death was attributable to activities and economic efforts of the decedent in his lifetime, these activities and efforts must give rise to a right to that income. And the right is to be distinguished from the activity which creates the right. Absent such a right, no matter how great the activities or efforts, there would be no taxable income under [IRC §] 691. An installment sale entered into by the decedent before death. The proceeds after the decedent’s death would be reportable by the estate as

income in respect of a decedent. See IRC § 691(a)(4) and § 13.2.E.2.c of this manual for further discussion of the tax treatment of installment sale proceeds received by the estate or beneficiaries. Income in respect of a decedent must be included in the estate’s gross income for the taxable year of receipt, if the right to receive the amount is acquired by the deceased’s estate from the decedent. If, instead of the estate, a person acquires the right to the income, that person must report the income in the year received. If the amount is received after the estate distributes the right to income, the beneficiary must report the income. The character of the income is the same for the estate or beneficiary as it would have been if the decedent had lived and received the income. IRC § 691(a)(3). The estate is allowed an income tax deduction for the estate tax that is paid by the estate and that is attributable to the inclusion in the gross estate of income in respect of a decedent. IRC § 691(c). « Ch. 10 », « § 10.7 •, « B • 1 Practice Under Florida Probate Code § 10.7.B (2022)

B. General Tax Consequences On Sales And Transfers Of Estate Assets An estate is treated under the Internal Revenue Code as a separate taxable entity. An estate reports income and pays taxes. Any distributions of income made by the estate to a beneficiary result in a deduction to the estate and inclusion of the distribution in the gross income of the beneficiary. Estate income is defined under IRC § 641(a)(3) as “income received by estates of deceased persons during the period of administration or settlement of the estate.” Regardless of when a personal representative is appointed for the estate, the existence of the estate as a taxable entity begins upon the death of the decedent. See IRC § 443(a)(2). The personal representative has the option to choose the accounting period of the estate by filing the initial fiduciary income tax return of the estate (IRS Form 1041) at any time within the first 12 months from the death of the decedent. Depending on the assets of the estate, the income of the estate, and the length of time that the estate is anticipated to be open, the initial election for estate income tax purposes could have a significant tax

benefit. See Treas. Reg. § 1.443-1(a)(2). The personal representative also has the ability to select the method of accounting for the estate. The personal representative may determine that it would be better to select either the cash or the accrual method as allowed under IRC § 446(c). A method of accounting should be selected only after consideration of the character of the estate and the kinds of income expected to be received. The timing of the receipt of the income could have significant tax impact, depending on the accounting method being used. The personal representative may elect to file a combined return with the trustee of a decedent’s qualified revocable trust by making an election under IRC § 645. This allows the trust to take advantage of the estate’s options for accounting period and method of accounting. Under the Internal Revenue Code, taxation of an estate is determined without regard to accounting requirements under the Florida Probate Code. Although capital gains may be treated as principal and added to the corpus of the estate under F.S. 738.501, those capital gains are computed by the estate and reported to the IRS as income. Under IRC § 1014(a)(1), the basis of assets held by the estate is the fair market value of the property on the date of the decedent’s death. Usually, this “stepped-up basis” substantially reduces the amount of gain that the estate incurs on the sale of the asset. The estate reports gain or loss on the difference between the sales price and the adjusted basis. The gain represented by the difference between the decedent’s basis and the adjusted basis escapes taxation altogether. It is important to note that the basis adjustment could also result in a “stepped-down basis” if the fair market value of the property on the date of death is less than the decedent’s basis in the property. IRC § 1014(f) requires consistency in the treatment of basis of property acquired from a decedent with the values reported on the decedent’s estate tax return. The personal representative must file Form 8971 (Information Regarding Beneficiaries Acquiring Property From a Decedent) with the IRS to report the adjusted basis of the property in the hands of the beneficiary or heir to comply with the basis consistency rules. IRC § 6035. At the same time, the personal representative must provide a copy of Schedule A of Form

8971 to each beneficiary, showing the assets likely to be received by that beneficiary and the reported basis. Id., Prop. Reg. § 1.6035-1. For estates of decedents dying in 2010, when the personal representative elected not to pay estate tax, the basis of assets in the decedent’s estate are determined pursuant to IRC § 1022. IRC § 1022 provides a framework for a modified carryover basis. The calculation of the modified carryover basis is beyond the scope of this chapter. However, the decedent’s adjusted basis must be reported by the personal representative on a Form 8939. The personal representative must be aware that the sale or transfer of estate assets may have both estate tax and income tax consequences. The sale of an estate asset may set the value of the asset for estate tax purposes and, at the same time, will fix the income tax consequences to the estate for that asset. Footnotes — Chapter 10: *

J.D. with honors, 1990, University of Florida. Ms. Conetta is a member of The Florida Bar and serves on the Executive Council of the Real Property, Probate and Trust Law Section of The Florida Bar. She is a Fellow of the American College of Trust and Estate Counsel (ACTEC), and is Chair of the State Laws Committee of ACTEC. Ms. Conetta is the Director of Wealth Strategies for the East Region of The Northern Trust Company, in Sarasota.

Licensed to Otis K Pitts, Otis K Pitts

« Ch. 11 » 1 Practice Under Florida Probate Code Ch. 11 (2022)

Chapter 11 DETERMINATION OF BENEFICIARIES AND THEIR INTERESTS PAMELA O. PRICE* Contents § 11.1. INTRODUCTION § 11.2. INTESTATE ESTATES A. Finding Potential Heirs 1. Order Of Succession 2. Duty To Search And Standard Of Care 3. Practical Methods Of Finding Heirs 4. Methods Of Proof 5. Right To Employ Investigator 6. Payment Of Investigation Expense B. Who May Inherit 1. Inheritance By Half Blood 2. Inheritance By Killer 3. Inheritance By Collateral Heirs 4. Inheritance By Illegitimates 5. Inheritance By Alien 6. Inheritance By Adopted Children 7. Afterborn Heirs 8. Effect Of Prenuptial And Postnuptial Agreements C. Effect Of Termination Of Parental Rights D. Inheritance Per Stirpes E. Escheat To State Of Florida F. Will Discovered After Administration

§ 11.3. TESTATE ESTATES A. Charitable Devises B. Devises To Aliens C. Devises Conditioned Upon Survivorship D. Doctrine Of Equitable Conversion E. Substitutionary Gifts F. Ademption And Nonademption G. Lapsed And Void Devises H. Pretermitted Spouse And Children I. Abatement § 11.4. COMMUNITY PROPERTY § 11.5. DEVISES TO LAWYERS AND OTHER DISQUALIFIED PERSONS § 11.6. EFFECT OF DISSOLUTION OF MARRIAGE ON BENEFICIARY DESIGNATION § 11.7. EFFECT OF SIMULTANEOUS DEATH LAW § 11.8. OBTAINING ORDER DETERMINING BENEFICIARIES AND SPECIFYING THEIR SHARES IN ESTATE A. In General B. Contents Of Petition C. Form For Petition For Determination Of Beneficiaries D. Notice; Appointment Of Guardian Ad Litem; Virtual Representation E. Hearing And Order Determining Beneficiaries § 11.9. PAYMENT OF ESTATE TAXES A. Estate Taxes For The Year 2010 B. Liability For Tax 1. In General—No Liability 2. Liability Under Federal And Florida Governments For Older Estates C. Apportionment Of Tax To Recipients 1. In General 2. Tax Attributable To Each Interest 3. Statutory Apportionment

4. Effect Of Provisions In Governing Instrument That Direct Payment Of Taxes a. In General b. Express Direction Requirement c. Specificity Requirements Regarding Certain Federal Rights Of Recovery d. General Power Of Appointment e. Coordination Of Will And Revocable Trust f. Conflicts Between Governing Documents g. Permission Versus Direction h. Remaining Tax i. Case Law 5. Order Of Apportionment And Recovery Of Tax From Recipients a. Order Of Apportionment b. Deficiency c. Relief From Duty d. Uncollected Tax e. Contribution f. Foreign Tax 6. Effect On Marital And Charitable Deduction D. Explanation Of 2015 Amendments To Apportionment Statute 1. Introduction 2. Applicability 3. Specific Provisions a. Removal Of Gift Taxes And Portion Of Any Intervivos Transfer Included In Gross Estate b. Homestead c. Common Instrument Construction d. Express Direction Requirement e. Waiver Of Apportionment f. Additional Specificity Requirements Regarding Certain Federal Rights Of Recovery g. Property Includable Under IRC §§ 2044 And 2041 h. Power Of Appointment Property Subject To Marginal Tax

i. Conflicts Between Governing Documents j. Order Of Apportionment k. Other Notable Provisions E. Conflict Of Laws § 11.10. DISCLAIMER § 11.11. ALLOCATION OF WRONGFUL DEATH SETTLEMENTS § 11.12. GENEALOGICAL CHART « Ch. 11 », • § 11.1 » 1 Practice Under Florida Probate Code § 11.1 (2022)

§ 11.1. INTRODUCTION The Florida Probate Code (the Code), F.S. Chapter 731, defines a “beneficiary” as an “heir at law” in an intestate estate and a “devisee” in a testate estate. F.S. 731.201(2). The term “beneficiary” does not apply to an heir at law, devisee, or beneficial interest owner after that beneficiary’s interest in the estate has been satisfied. In the event of a devise to an existing trust or trustee, or a trust or trustee described by will, the trustee is the beneficiary of the estate. However, if each trustee is also a personal representative of the estate, the qualified beneficiaries of the trust are also regarded as the beneficiaries of the estate. Id. Qualified beneficiaries of a trust are defined in F.S. 736.0103(16). Qualified beneficiaries are a subset of all potential beneficiaries and are the ones to whom notice is required. Problems may arise before or during the administration of an estate, requiring the determination of beneficiaries or their interests. Proceedings under F.S. 733.105 to determine beneficiaries may occur in either testate or intestate estates. In intestate proceedings, the personal representative may need to find heirs to an estate when the decedent left no known relatives; heirs related to the decedent in a closer degree of kinship than those presently known or claiming; heirs known by name, but whose present whereabouts or status are unknown;

missing branches of a family; or heirs who are related to the decedent in the same degree of kinship as those already claiming, but whose names or addresses are unknown. Even when testate proceedings are involved, the personal representative may have to determine the whereabouts of beneficiaries whose addresses are unknown; beneficiaries when a will, or portions of a will, become inoperative because of improper execution, lack of a residuary clause, or another factor that might bring into play intestate succession; heirs of predeceased blood beneficiaries when no lapse has occurred; or the shares or amounts that the known beneficiaries are entitled to receive under the will or as a pretermitted spouse or child. In this chapter, primary treatment is given to the determination of heirs in an intestate succession, with some discussion devoted to the determination of their interests. The determination of devisees is treated in § 11.3. Discussion of the rights of beneficiaries of testamentary trusts, however, is not within the scope of this chapter. The lawyer should consult F.S. Chapter 736 (the Florida Trust Code) and ADMINISTRATION OF TRUSTS IN FLORIDA (Fla. Bar 11th ed. 2022) for determination of the rights of trust beneficiaries. The tax consequences of receiving a share of the estate are discussed in § 11.8. Chapter 14 of this manual also relates to the determination of the interests of the beneficiaries. Chapters 2, 3, 4, and 7 of LITIGATION UNDER FLORIDA PROBATE CODE (Fla. Bar 13th ed. 2022) should also be consulted concerning proceedings to determine beneficiaries.

« Ch. 11 », « § 11.2 » 1 Practice Under Florida Probate Code § 11.2 (2022)

§ 11.2. INTESTATE ESTATES « Ch. 11 », « § 11.2 », • A » 1 Practice Under Florida Probate Code § 11.2.A (2022)

A. Finding Potential Heirs « Ch. 11 », « § 11.2 », • A », • 1 » 1 Practice Under Florida Probate Code § 11.2.A.1 (2022)

1. Order Of Succession F.S. 732.101–732.111 set forth specifically the manner in which real and personal property of an intestate decedent is required to descend and be distributed to the decedent’s heirs. The surviving spouse is entitled to the entire intestate estate if the decedent is not survived by descendants and, conversely, the decedent’s descendants are entitled to the entire estate if there is no surviving spouse. For decedents dying before October 2011, if the decedent dies leaving a spouse and surviving descendants, all of whom are descendants of the surviving spouse, the surviving spouse takes the first $60,000 of the intestate estate, plus half of the balance, and the other half of the balance descends to the decedent’s descendants. F.S. 732.102(2) (2011), 732.103(1). If any of the surviving descendants of the decedent are not descendants of the surviving spouse, the first $60,000 share does not go to the surviving spouse; the spouse takes only half of the estate, and the decedent’s descendants take the other half. F.S. 732.102(3) (2011), 732.103(1). See Solomon v. Dunlap, 372 So. 2d 218 (Fla. 1st DCA 1979). For decedents dying on or after October 1, 2011, if the decedent is survived by one or more descendants, all of whom are descendants of the surviving spouse, and the surviving spouse has no other descendant, the surviving spouse is entitled to the entire intestate estate. F.S. 732.102(2). If the decedent is survived by one or more descendants who are not the descendants of the spouse, the surviving spouse is entitled to half and the decedent’s descendants the other half. F.S. 732.102(3).

If there is no surviving spouse or descendants, the estate descends as follows: to the father and mother equally, or to the survivor between them; or, if none, to the decedent’s brothers and sisters and descendants of deceased brothers and sisters. F.S. 732.103(2)–(3). If there is no surviving spouse or descendant, father or mother, or brother or sister or descendant of deceased brothers and sisters, the estate is divided with one half going to the decedent’s paternal kindred and the other half going to the decedent’s maternal kindred in the order set forth in F.S. 732.103(4). If no heir at law of the decedent is located within the categories set forth in F.S. 732.102 and 732.103(1)–(4), the whole estate goes to the kindred of the last deceased spouse of the decedent as if the deceased spouse had survived the decedent and then died intestate. F.S. 732.103(5). The terms “descendant,” “lineal descendant,” and “issue” are synonymous. F.S. 731.201(9). The word “lineal” in many instances has been removed where the term “lineal descendants” had been used in the Code, to provide more consistent terminology throughout the Code. A list of other statutes affecting heirship and shares appears in § 1.2.E.2.a.i of this manual. « Ch. 11 », « § 11.2 », • A », « 2 » 1 Practice Under Florida Probate Code § 11.2.A.2 (2022)

2. Duty To Search And Standard Of Care The personal representative must use reasonable diligence to ascertain the identity and location of all the beneficiaries of an estate, but does not have to prove their identity to the exclusion of every possible doubt. See In re Estate of Pennington, 226 So. 2d 881 (Fla. 2d DCA 1969); In re Estate of Wilson, 186 So. 2d 283 (Fla. 1st DCA 1966). It is not necessary to have a collateral administration of the estate of a known person presumed to be dead to have the benefit of presumption of death in an independent proceeding brought to determine the beneficiaries of another person. See Wilson. And, although the record should set forth in detail what investigation has been done by the personal representative to determine the heirs and report the results, the personal representative must be

neutral as to any contested or competing claims. In re Estate of Lynagh, 177 So. 2d 256 (Fla. 2d DCA 1965). See also Barnett v. Barnett, 340 So. 2d 548 (Fla. 1st DCA 1977), which reversed a fee award for a trustee’s lawyer. « Ch. 11 », « § 11.2 », • A », « 3 » 1 Practice Under Florida Probate Code § 11.2.A.3 (2022)

3. Practical Methods Of Finding Heirs The task of locating the heirs of an intestate decedent may be complex. Generally, the farther the degree of relationship from the decedent, the more difficult the job. The problem for the lawyer and personal representative is finding information regarding the heirs of a decedent. Some of the more readily available sources of this information are as follows: Birth certificates, marriage applications, and death certificates. All of these normally have background material indicating marital status, maiden name, parents’ names, and date and place of birth. Military records, which can be obtained through the Department of Defense. If the decedent was ever a member of the armed services, data will be available as to marital status, birthplace and date, parents’ names, and former residences of both the decedent and other members of the family. Governmental records, such as those maintained by the Census Bureau, Social Security Administration, Internal Revenue Service, and Supervisor of Elections. All of these are prime sources of background material and data, giving information regarding not only the decedent but also collateral family members. Private institutional records, such as those maintained by hospitals and cemeteries. These often provide meaningful information, depending on the nature and extent of the record-keeping done by the individual institution. Financial records, such as those maintained by insurance companies, savings and loan associations, and commercial banks. Applications used by many of these firms seek family and background data.

Employment records, including but not limited to those records maintained by trade associations or unions through local, state, and national organizations. Civic and fraternal organizations. These are often a source of substantial background information on local, state, and national levels. Family records. Many families keep detailed records of their various branches and relatives, perhaps in family bibles or through amateur attempts at tracing the family tree. These records can provide valuable links to long-neglected relatives or those who have been out of touch. Court records, such as adoption or dissolution of marriage proceedings and probate matters, often provide material information of an original or corroborating nature. Internet searches. See also FLORIDA REAL PROPERTY LITIGATION §§ 7.5–7.9 (Fla. Bar 10th ed. 2020) for sources of information for use in making a diligent search and inquiry. Many of the agencies and sources listed above have special requirements that must be satisfied before confidential information will be released. When inquiry is made of these organizations, they normally will set forth what they require, which ranges from certified copies of letters of administration to the completion of detailed applications. For example, although information disclosed to the Social Security Administration is confidential and will not be disclosed except on a very restricted basis, a letter may be addressed to the administrator giving the name and social security number of the missing person and explaining in detail the reasons why it is necessary to locate that particular person. The District Director then will make an administrative decision as to whether circumstances are such as to justify forwarding the letter to the person involved. Furthermore, after the death of an individual, any information may be given to the decedent’s personal representative, or to close relatives, and available information concerning the fact, date, or circumstances of death may be given to any person, as long as that disclosure is not detrimental to the decedent or the estate and does not interfere with administration of the social security program. See the SOCIAL SECURITY HANDBOOK (available at www.ssa.gov/OP_Home/handbook/handbook.html)

for an explanation of the policy governing disclosure of information. « Ch. 11 », « § 11.2 », • A », « 4 » 1 Practice Under Florida Probate Code § 11.2.A.4 (2022)

4. Methods Of Proof In most determination proceedings, it is impractical to present live testimony before the court. Accordingly, proof is most readily available in the form of affidavits and certified copies of records. All governmental agencies, whether local, state, federal, or foreign, have the capacity to certify or exemplify records. In the case of foreign countries, the translation and certification can be attested to by the American consul. In proceedings under the Code, the Florida Evidence Code (F.S. Chapter 90), generally is applicable unless specifically changed by the Code. F.S. 731.1035; Fla. Prob. R. 5.170. Under F.S. 731.103, additional rules relating to evidence as to death and status are as follows: (1) An authenticated copy of a death certificate issued by an official or agency of the place where the death purportedly occurred is prima facie proof of the fact, place, date, and time of death and the identity of the decedent. (2) A copy of any record or report of a governmental agency, domestic or foreign, that a person is alive, missing, detained, or, from the facts related, presumed dead is prima facie evidence of the status and of the dates, circumstances, and places disclosed by the record or report. (3) A person who is absent from the place of his or her last known domicile for a continuous period of 5 years and whose absence is not satisfactorily explained after diligent search and inquiry is presumed to be dead. The person’s death is presumed to have occurred at the end of the period unless there is evidence establishing that death occurred earlier. Evidence showing that the absent person was exposed to a specific peril of death may be a sufficient basis for the court determining at any time after such exposure that he or she died less than 5 years after the date on which his or her absence commenced. * * *

(4) This section does not preclude the establishment of death by direct or circumstantial evidence prior to expiration of the 5-year time period set forth in subsection (3). F.S. 731.201(1) provides that “ ‘[a]uthenticated,’ when referring to copies of documents or judicial proceedings required to be filed with the court … , means a certified copy or a copy authenticated according to the Federal Rules of Civil Procedure.” Rule 5.015(b)(1) defines “certified copy” to be “a copy of a document signed and verified as a true copy by the officer to whose custody the original is entrusted.” See 28 U.S.C. § 1738. It is important that the items proving the allegations that are submitted into evidence be interwoven so as to overlap and reconfirm the essential allegations. Thus, the birth certificate of a decedent normally should show the names of the mother and father, and preferably the mother’s maiden name. The parents’ application for a marriage license also would indicate the mother’s maiden name, while birth certificates of brothers and sisters would have the same parental information as contained on the decedent’s birth certificate. It may be very beneficial if all of the various items of proof are keyed to a genealogical chart indicating in graphic form the family history reflected by the documents. Such a chart (see § 11.11) is of great value to the court and serves as a reference to the documents admitted into evidence. « Ch. 11 », « § 11.2 », • A », « 5 » 1 Practice Under Florida Probate Code § 11.2.A.5 (2022)

5. Right To Employ Investigator Complex searches for heirs of a decedent may be time-consuming, and certainly the lawyer or personal representative must make a value judgment as to whether the search should be conducted by a professional investigator. Although private investigators can conduct these searches, the estate may be better served by a genealogist, who is an investigator specializing in the search for heirs. Genealogists are generally more familiar with the methods of locating heirs than are investigators who specialize in civil matters. A personal representative, while acting reasonably for the benefit of the interested persons, has the statutory authority to employ persons (including investigators), without order of court, to assist in the performance of the

personal representative’s administrative duties. F.S. 733.612(19). Because the improper or bad-faith exercise of that statutory power may subject the personal representative to payment of attorneys’ fees, F.S. 733.609, and any compensation paid to a person so employed by the personal representative will be taken into consideration in determining the personal representative’s compensation, it is recommended that the personal representative petition for specific instructions and authority before an investigator is employed. In that event, it should be noted that, unless otherwise waived, informal notice must be given to all interested persons who are then known to the petitioner. Fla. Prob. R. 5.040(c). Genealogical tracing services are discussed briefly in LITIGATION UNDER FLORIDA PROBATE CODE § 2.9 (Fla. Bar 13th ed. 2022). « Ch. 11 », « § 11.2 », • A », « 6 • 1 Practice Under Florida Probate Code § 11.2.A.6 (2022)

6. Payment Of Investigation Expense Subject to the caveat set forth in § 11.2.A.5, the cost of the search undertaken by the personal representative in good faith is normally considered an expense of administration, because it is the duty of the personal representative to attempt to locate the heirs of the decedent. The question for the court to determine is the reasonableness of the costs incurred when compared to the results achieved. See F.S. 733.106 as to allocation and award of costs and attorneys’ fees by the court generally. The amount of compensation to be paid to a personal representative’s agent may be challenged under F.S. 733.6175. Although the factors to be considered in fixing the compensation to be paid to the personal representative’s agents under F.S. 733.617 (1991) have been removed, many of those factors would be relevant to a determination of the fee of the agent. Genealogists normally will make an investigation on either a per diem or contingent basis. Each method of payment has its merits and drawbacks and should be analyzed by the personal representative before entering into any agreement. If the heirs are located quickly, normally the per diem expense will leave more of the estate for distribution to the heirs. If the search is lengthy or unfruitful, however, much of the estate could be eaten up by the cost, and the eventual distributees might receive little or nothing.

The contingency fee percentage may range from a fifth to a half, and generally includes all of the costs involved in investigation, travel, and the furnishing of the necessary certified documents. The fee may also include the services of a lawyer at the situs, to represent the heirs and seek their adjudication as beneficiaries. Certainly, the percentage is a negotiable item, and the size of the estate is a major factor. There are a number of active genealogist firms in Florida, all of whom independently investigate estates that disclose no known heirs. These firms enter into contingency fee agreements with heirs whom they are able to locate, and thereafter contact the personal representative indicating that they have located an heir of the decedent. In those situations, they will furnish to the court and personal representative a genealogical chart and all of the supporting documentation establishing the relationship of their client to the decedent. If the personal representative is in doubt as to the nature or quantum of the proof offered, a petition for determination of heirs should be filed and served on such a claimant, as required by the Code. However, the personal representative must remain neutral, leaving the sufficiency of the evidence to the court. In re Estate of Lynagh, 177 So. 2d 256 (Fla. 2d DCA 1965). For further discussion of fees and other expenses of administration, see Chapter 15 of this manual. « Ch. 11 », « § 11.2 », « B » 1 Practice Under Florida Probate Code § 11.2.B (2022)

B. Who May Inherit « Ch. 11 », « § 11.2 », « B », • 1 » 1 Practice Under Florida Probate Code § 11.2.B.1 (2022)

1. Inheritance By Half Blood If the estate of an intestate decedent passes to collateral heirs, a collateral heir related to the decedent by half blood inherits only half as much as one related by whole blood. If all are half blood relatives, however, each inherits a whole portion. F.S. 732.105. See § 11.2.B.3. For further discussion, see LITIGATION UNDER FLORIDA PROBATE CODE § 2.2.A.2.4 (Fla. Bar 13th ed. 2022).

« Ch. 11 », « § 11.2 », « B », « 2 » 1 Practice Under Florida Probate Code § 11.2.B.2 (2022)

2. Inheritance By Killer Under Florida’s “slayer statute,” also called the “Murder Probate Statute,” a “person who unlawfully and intentionally kills or participates in procuring the death of” a decedent cannot inherit from the decedent or take any portion of that decedent’s estate as a devise. F.S. 732.802(1). The portion of the estate to which the killer otherwise would be entitled passes to those persons who may be entitled to it as though the killer had predeceased the decedent. Id. F.S. 732.802(2) applies to property held as joint tenancy with right of survivorship or as an estate by the entireties. Under that provision, the killer becomes the owner of an undivided half interest. The cotenant’s heirs acquire the other half of the property. Julia v. Russo, 984 So. 2d 1283 (Fla. 4th DCA 2008); Capoccia v. Capoccia, 505 So. 2d 624 (Fla. 3d DCA 1987). Similarly, F.S. 732.802(3) applies to the proceeds of a life insurance policy, bond, or contract when the alleged killer is the named beneficiary. The policy, bond, or contract becomes payable as though the killer predeceased the decedent. However, the obligor on the policy, bond, or contract will have no liability under this provision if it makes payment before it receives written notice of a claim under the statute. F.S. 732.802(6). The insurance company may interplead the policy proceeds when a homicide investigation is pending and the beneficiary of the policy is a suspect in the investigation. Genworth Life Insurance Co. v. Sehorne, 2008 U.S. Dist. LEXIS 30369, 2008 WL 912438 (M.D. Fla. 2008). However, the court in New York Life Insurance & Annuity Corp. v. Gerth, 2013 U.S. Dist. LEXIS 110556, 2013 WL 4014987 (M.D. Fla. 2013), denied a stay of an interpleader action pending the outcome of the criminal investigation against one of the beneficiaries of an annuity when the decedent had been dead for over one and a half years and the suspect beneficiary had not been arrested or charged. The court pointed out that the competing beneficiaries could prove their case without a conviction. Although F.S. 732.802(1) disqualifies a person who either “unlawfully and intentionally kills or participates in procuring the death” of a person, F.S.

732.802(3) does not include the phrase “or participates in procuring the death.” The court in Guardian Life Insurance Company of America v. Lutz, 2013 U.S. Dist. LEXIS 148897, 2013 WL 5639971, *1 (M.D. Fla. 2013), held that the allegation that a person “participated in the procurement of decedent’s death” was not sufficient to state a claim seeking to disqualify a named beneficiary under a life insurance policy. Public policy does not prohibit the children of a convicted killer from receiving the killer’s share of an estate under the antilapse statute. The killer is treated as if he or she predeceased the decedent. The killer’s children take the killer’s share either under the per stirpital will provision or under the antilapse statute. See In re Estate of Benson, 548 So. 2d 775 (Fla. 2d DCA 1989). However, the children of a convicted killer are precluded from inheriting under an alternate devise in their step-parent’s will if the alleged undue influence of the killer in procuring the will was undertaken to benefit not only the killer but the killer’s children. Fiel v. Hoffman, 169 So. 3d 1274 (Fla. 4th DCA 2015). The court in Cosman v. Rodriguez, 153 So. 3d 371 (Fla. 2d DCA 2014), construed the slayer statute to treat the killer husband as if he predeceased his wife under the Florida Wrongful Death Act, thus permitting the claims of the decedent’s children. No right to a jury trial exists in a probate adversary proceeding on a petition to determine beneficiaries that seeks to disqualify a killer beneficiary under the slayer statute. In re Estate of Howard, 542 So. 2d 395 (Fla. 1st DCA 1989). In Lopez v. Rodriguez, 574 So. 2d 249 (Fla. 3d DCA 1991), a Totten trust account was owned by a husband and wife for the benefit of the husband’s son. The husband killed the wife and then himself. The court held that F.S. 732.802(2) did not apply to sever the account to create a 50% interest in both the husband’s and wife’s estates, but that the innocent beneficiary of the Totten trust was entitled to the trust proceeds. F.S. 732.802(5) provides that “[a] final judgment of conviction of murder in any degree is conclusive for purposes of this section. In the absence of a conviction of murder in any degree, the court may determine by the greater

weight of the evidence whether the killing was unlawful and intentional for purposes of this section.” Thus, a party invoking the slayer statute “to prevent an unconvicted killer’s acquisition of property has the burden of proving that the killing was both intentional and unlawful.” Congleton v. Sansom, 664 So. 2d 276, 280 (Fla. 1st DCA 1995). See In re Estate of Brumage, 460 So. 2d 989 (Fla. 4th DCA 1984). In Jackson National Life Insurance Co. v. Tottenham for estate of Sievers, 2018 U.S. Dist. LEXIS 6309, 2018 WL 1449579 (M.D. Fla. 2018), the court found that the estate of the decedent failed to meet its burden to prove the slayer statute. Although criminal charges were filed and the case was pending, there had been no final conviction. Furthermore, no civil action had been filed to determine whether the husband, by the greater weight of the evidence, intentionally and unlawfully killed his wife. Acquittal on criminal charges, even if by reason of insanity, does not foreclose disqualifying an alleged killer from taking estate property. Congleton v. Sansom, 664 So. 2d 276 (Fla. 1st DCA 1995). Additionally, an appeal of a conviction does not suspend the operation of the slayer statute, because the adjudication of guilt by the trial court causes the convicted person to be treated as having predeceased the testator. Cohen v. Cohen, 567 So. 2d 1015 (Fla. 3d DCA 1990); Prudential Insurance Company of America, Inc. v. Baitinger, 452 So. 2d 140 (Fla. 3d DCA 1984). The Cohen court also held that the convicted person would not suffer irreparable harm by operation of the slayer statute; in the event the conviction was reversed on appeal, the person could seek money damages from the resulting beneficiaries through appropriate court proceedings. The District Court of Appeal, Third District, has been followed by the First District. Barber v. Parrish, 963 So. 2d 892 (Fla. 1st DCA 2007). See also American United Life Insurance Co. v. Barber, 2008 U.S. Dist. LEXIS 31056, 2008 WL 1766916 (M.D. Fla. 2008). See § 7.8.C.2 of this manual regarding the slayer statute as a bar to the elective share. « Ch. 11 », « § 11.2 », « B », « 3 » 1 Practice Under Florida Probate Code § 11.2.B.3 (2022)

3. Inheritance By Collateral Heirs There are two levels of collateral heirs. The first level of collateral heirs

includes brothers and sisters and descendants of deceased brothers and sisters. If the decedent is not survived by a surviving spouse, descendant, or parent, these collateral heirs are entitled to share in the estate. The second level of collateral heirs includes aunts and uncles and descendants of deceased aunts and uncles. This latter group of collateral heirs inherits only if there is no surviving spouse, descendants, parents, or grandparents on their side of the family. F.S. 732.103. « Ch. 11 », « § 11.2 », « B », « 4 » 1 Practice Under Florida Probate Code § 11.2.B.4 (2022)

4. Inheritance By Illegitimates For the purpose of intestate succession under the Code, F.S. 732.108(2) provides that a person born out of wedlock is a descendant of his or her mother and is one of the natural kindred of all members of the mother’s family. The person is also a descendant of his or her father and is one of the natural kindred of all members of the father’s family, if: (a) The natural parents participated in a marriage ceremony before or after the birth of the person born out of wedlock, even though the attempted marriage is void. (b) The paternity of the father is established by an adjudication before or after the death of the father. [F.S.] Chapter 95 shall not apply in determining heirs in a probate proceeding under this paragraph. (c) The paternity of the father is acknowledged in writing by the father. F.S. 732.108 applies only to estates in which the decedent died after December 1975. For decedents dying before January 1976, see former F.S. 731.29; In re Estate of Burris, 361 So. 2d 152 (Fla. 1978). F.S. 732.108(2)(b) was amended effective July 1, 2009, to provide that F.S. Chapter 95 does not apply in determining heirs in a probate proceeding under paragraph (2)(b), legislatively overruling In re Estate of Smith, 685 So. 2d 1206 (Fla. 1997). The four year statute of limitations applicable to paternity proceedings to establish support was formerly held to apply to

actions to establish paternity for purposes of intestacy. F.S. 95.11(3)(b); In re Estate of Smith. In Thurston v. Thurston, 777 So. 2d 1001 (Fla. 1st DCA 2001), a case predating the 2009 Amendment, the court held that the statute of limitations in F.S. 95.11(3)(b) applies to both F.S. 732.108(2)(a) and 732.108(2)(b), because an adjudication of paternity is required in either case. In so holding, the court explained that F.S. 732.108(2)(a) applies when the natural parents participated in a marriage ceremony, which requires the putative heir to establish that the marriage was between the putative heir’s natural parents, and which requires a determination of paternity. It remains to be seen whether Chapter 95 continues to apply to F.S. 732.108(2)(a) after the 2009 Amendment to F.S. 732.108. F.S. 95.11(3)(b) generally should not apply to F.S. 732.108(2)(c), because no adjudication is necessary. Holmen v. Holmen by Rahn, 697 So. 2d 866 (Fla. 4th DCA 1997). F.S. 732.108(2)(b) was recently limited in Dixon v. Bellamy, 252 So. 3d 349 (Fla. 3d DCA 2018), in which the court, discussing the 2009 Amendments, held that the purported daughter of the decedent could not rely on F.S. 732.108(2)(b) so as to allow her, as part of the action to determine her heirship, to establish that the decedent was her father, when the four-year limitations period, as set by F.S. 95.11(3)(b), had run out by the time F.S. 732.108(2)(b), as amended in 2009, took effect. The paternity of the father may be determined in a proceeding in probate court to establish intestate succession. Paternity may be proved by other than a written acknowledgment of the father or marriage of the parents. Fagan v. Cramer, 877 So. 2d 945 (Fla. 4th DCA 2004). However, when a proceeding to establish paternity has previously been brought under F.S. Chapter 742, F.S. 732.108(2)(b) does not create a separate independent cause of action to establish paternity. The prior adjudication will control intestate succession unless vacated. Glover v. Miller, 947 So. 2d 1254 (Fla. 4th DCA 2007); Miller v. Cogoni, 302 F.App’x 898 (11th Cir. 2008). In testate estates, illegitimate children are included in class gift terminology and terms of relationship in accordance with the rules for determining relationship for the purposes of intestate succession. F.S. 732.608. In In re Estate of Robertson, 520 So. 2d 99 (Fla. 4th DCA 1988), a child born during the marriage of her natural mother to a man who was not her

natural father was allowed to bring an action under F.S. 732.108 to bastardize herself so that she could inherit from her natural father. The court found the evidence sufficient to establish the decedent’s paternity and cited favorably Williams and Jerrido, which had construed F.S. 731.29, the predecessor statute to F.S. 732.108. For further discussion of inheritance by illegitimates, see LITIGATION UNDER FLORIDA PROBATE CODE Chapter 2 (Fla. Bar 13th ed. 2022). For a discussion of the right to recover damages for wrongful death, see Chapter 12 of that manual, and for a general discussion of paternity, see ADOPTION, PATERNITY, AND OTHER FLORIDA FAMILY PRACTICE Chapter 4 (Fla. Bar 14th ed. 2022). Regarding proof of paternity, see Williams v. Estate of Long, 338 So. 2d 563 (Fla. 1st DCA 1976), and In re Estate of Jerrido, 339 So. 2d 237 (Fla. 4th DCA 1976). « Ch. 11 », « § 11.2 », « B », « 5 » 1 Practice Under Florida Probate Code § 11.2.B.5 (2022)

5. Inheritance By Alien F.S. 732.1101 expressly provides that “aliens” (i.e., noncitizens of the United States) “have the same rights of inheritance as citizens.” When an alien is seeking to be determined as a beneficiary of the decedent, the court can limit discovery and not require the alien’s appearance in Florida for deposition. Fla. Prob. R. 5.080(b). See also In re Estate of Crosley, 384 So. 2d 274 (Fla. 4th DCA 1980). Nevertheless, there is the practical problem of making distribution to an alien who resides in a country that does not maintain a diplomatic relationship with the United States. From time to time, Treasury Department Regulations prohibit or restrict the transmittal of funds to certain foreign nationals. The United States Treasury and State departments maintain current lists of those countries having reciprocal rights of inheritance and may assist in making this determination. Accordingly, even though a Cuban alien, for example, is entitled to inherit under the Cuban Assets Control Regulations, 31 C.F.R. Part 515, there may be prohibitions on distributing the property. These regulations have been relaxed for some but not all Cubans. If distribution is prohibited, the property should not be distributed or transferred to a Cuban national or resident of

Cuba, but rather placed in a “blocked account” or held in a “blocked estate.” See 31 C.F.R. §§ 515.327, 515.523, 515.407, 515.508. See also Lieberman v. Golden, 545 So. 2d 304 (Fla. 3d DCA 1989). The disposition of a deposit account in a Florida bank, including joint accounts or Totten trusts, is governed by the law of Florida rather than the law of the decedent’s domicile. F.S. 655.55. See Sanchez v. Sanchez De Davila, 547 So. 2d 943 (Fla. 3d DCA 1989). If the personal representative holds unclaimed funds that cannot be distributed to the lawful owner (including an alien) because of the inability to find that person or because no lawful owner is known, the personal representative may be directed to deposit the funds with the clerk. F.S. 733.816. A personal representative holding abandoned personal property may invoke the provisions of the Florida Disposition of Unclaimed Property Act, F.S. Chapter 717. « Ch. 11 », « § 11.2 », « B », « 6 » 1 Practice Under Florida Probate Code § 11.2.B.6 (2022)

6. Inheritance By Adopted Children F.S. 732.108(1) provides in part: “For the purpose of intestate succession by or from an adopted person, the adopted person is a descendant of the adopting parent and is one of the natural kindred of all members of the adopting parent’s family.” These rules also apply to testate situations under F.S. 732.608. The adopted child inherits from the adopting parents. The adopting parents likewise inherit from the adopted child, and the adopted child is regarded as the natural brother or sister of the natural children and other adoptive children of the adopting parents. F.S. 732.108. It is immaterial whether the adoption occurred within or outside Florida, as long as the court’s judgment establishing the adoption relationship was issued pursuant to due process of law. F.S. 63.192. See Dennis v. Kline, 120 So. 3d 11 (Fla. 4th DCA 2013), a trust beneficiary case giving full faith and credit to the adoption of an adult under Pennsylvania law notwithstanding Pennsylvania’s differing notice requirements. Under F.S. 732.108(1), the adopted child is no longer considered to be a

descendant of the child’s blood parents, nor is the child the kindred of any member of a natural parent’s family or any prior adoptive parent’s family, except for certain stepparent and close relative adoptions. An adopted child, therefore, was not allowed to inherit under a provision of the natural father’s will, executed after adoption, that provided for “my children who survive me,” in the absence of any evidence of an intent to include the child in DePrycker v. Brown, 358 So. 2d 1140 (Fla. 1st DCA 1978). There are exceptions to the general rule of F.S. 732.108(1) for certain adoptions. An exception exists in a stepparent adoption to ensure that the adoption by the stepparent does not affect the relationship between the child and the natural parent who is the spouse of the stepparent, or the natural parent’s family. F.S. 732.108(1)(a). See also Turner v. Weeks, 384 So. 2d 193 (Fla. 2d DCA 1980). Furthermore, when the natural parent dies before the adoption and before the marriage of the adopting parent and the surviving natural parent, the adoption has no effect on the relationship between the child and the family of the deceased natural parent. F.S. 732.108(1)(b). Additionally, when the child is adopted by a close relative, as defined in F.S. 63.172(2), the adoption has no effect of the relationship between the child and the family of the deceased natural parent. F.S. 732.108(1)(c). See Kemp & Associates, Inc. v. Chisolm, 162 So. 3d 172 (Fla. 5th DCA 2015). A child adopted after execution of the testator’s will may be considered a “pretermitted child” entitled to take a pretermitted child’s part under F.S. 732.302. See In re Estate of Frizzell, 156 So. 2d 558 (Fla. 2d DCA 1963). See also § 11.3.H. The District Court of Appeal, Fifth District, has found a “virtual adoption” to allow an inheritance from “adoptive” parents who died intestate. Matter of Heirs of Hodge, 470 So. 2d 740 (Fla. 5th DCA 1985). In Hodge, the court found an agreement between the natural parent and another person that the other person would adopt the child and also found part performance by the other person by taking the child into their home and treating the child as their child. But see Urick v. McFarland, 625 So. 2d 1253 (Fla. 2d DCA 1993) (stepson who had never been legally adopted by his stepfather was not entitled to intestate share of stepfather’s estate under doctrine of virtual adoption, absent proof of agreement for adoption). The doctrine of virtual adoption does not apply to a promise to adopt an adult. Miller v. Paczier, 591

So. 2d 321 (Fla. 3d DCA 1991). For further discussion of adoption, see LITIGATION UNDER FLORIDA PROBATE CODE § 2.2.A (Fla. Bar 12th ed. 2020); BASIC ESTATE PLANNING IN FLORIDA § 4.5 (Fla. Bar 11th ed. 2022); and ADOPTION, PATERNITY, AND OTHER FLORIDA FAMILY PRACTICE Chapter 2 (Fla. Bar 14th ed. 2022). « Ch. 11 », « § 11.2 », « B », « 7 » 1 Practice Under Florida Probate Code § 11.2.B.7 (2022)

7. Afterborn Heirs If any heirs of a decedent are conceived before, but born after, the decedent’s death, they inherit intestate property as if they had been born during the decedent’s life. F.S. 732.106. For further discussion, see LITIGATION UNDER FLORIDA PROBATE CODE § 2.2.A.3 (Fla. Bar 13th ed. 2022). « Ch. 11 », « § 11.2 », « B », « 8 • 1 Practice Under Florida Probate Code § 11.2.B.8 (2022)

8. Effect Of Prenuptial And Postnuptial Agreements The effect of a decedent’s prenuptial or postnuptial agreement is governed by F.S. 732.702. Unless the waiver provides to the contrary, a waiver of “all rights,” or equivalent language, in the property or estate of a present or prospective spouse, or a complete property settlement entered into after, or in anticipation of, separation, dissolution of marriage, or divorce, is a waiver of all rights to elective share, intestate share, pretermitted share, homestead, exempt property, family allowance, and preference in appointment as personal representative of an intestate estate, by the waiving party in the property of the other and a renunciation by the waiving party of all benefits that would otherwise pass to the waiving party from the other by intestate succession or by the provisions of any will executed before the written contract, agreement, or waiver. F.S. 732.702(1). In Hulsh v. Hulsh, 431 So. 2d 658 (Fla. 3d DCA 1983), the court held that a surviving spouse who executed a prenuptial agreement waiving all rights to the other spouse’s property was deemed to have predeceased the

decedent for the purpose of construing the decedent’s pre-existing will. Following Hulsh, the court in Steffans v. Evans, 70 So. 3d 758, 761 (Fla. 4th DCA 2011), held that a postnuptial agreement waiving “all rights” had the effect of waiving all of the surviving spouse’s rights as beneficiary under a pre-existing will and treating the surviving spouse as if she predeceased the decedent notwithstanding a provision in the postnuptial agreement stating: “Notwithstanding the terms of this Agreement, either party shall have the right to voluntarily transfer or convey to the other party any property or interest therein … by will.” The court construed that provision to apply only to wills executed after the postnuptial agreement. The Florida Supreme Court in City National Bank of Florida v. Tescher, 578 So. 2d 701 (Fla. 1991), held that the surviving spouse of the decedent who executed a prenuptial agreement waiving all rights to homestead is treated as if the surviving spouse predeceased the decedent for the purpose of the devise and descent of homestead. Because the decedent had no minor children (they were all adults), the homestead could be devised. A marital settlement agreement incident to a divorce was binding on the one-half interest in the homestead retained by the former husband. Under that agreement, the former wife was entitled to possession of the former husband’s undivided one-half interest until their mutual children (who lived there) finished high school. At the former husband’s death, his undivided one-half interest in the property lived in by his minor children retained its homestead character, his surviving (second) wife received a life estate subject to the terms and conditions of the marital settlement agreement (including the right of the former spouse and minor children to live there), and his minor children received the remainder interest. Friscia v. Friscia, 161 So. 3d 513 (Fla. 2d DCA 2014). In Stone v. Stone, 157 So. 3d 295 (Fla. 4th DCA 2015), the court held that a homeowner’s transfer of his home to a qualified personal residence trust (QPRT) meeting the terms of F.S. 732.4017 was not a devise even if it provided for the reversion to the homeowner’s estate if he died before the end of the QPRT term. However, where the property reverted to the homeowner’s estate because he failed to survive the QPRT term, the disposition of the property pursuant to the homeowner’s will was a devise. The court further held that the surviving spouse had waived her homestead rights by

participating in the severance of the homestead into undivided one-half interests and then transferring the homestead property to their respective QPRTs. The court noted that the deed from the surviving spouse to her husband in which she “grants, bargains, sells, aliens, remises, releases, conveys, and confirms the property together with all the tenements, hereditaments, and appurtenances thereto belonging or in anywise appertaining” was a waiver of the homestead rights in the property because it did not provide to the contrary. Because the surviving spouse had waived her homestead rights and the decedent was not survived by a minor child, the decedent was free to devise the homestead in his will to anyone. Following Stone, F.S. 732.7025 was enacted permitting a spouse to waive his or her right to inherit homestead property by executing a deed that specifically acknowledged that waiver. However, the statutory deed waiver of homestead rights applies only to the spouse’s right to inherit the property and is not a waiver of the restrictions against alienation by mortgage, sale, gift, or deed without the joinder of the spouse. See Ch. 2018-22, § 1, Laws of Fla. See Chapter 19 for a further discussion of homestead. « Ch. 11 », « § 11.2 », « C » 1 Practice Under Florida Probate Code § 11.2.C (2022)

C. Effect Of Termination Of Parental Rights F.S. 732.1081 provides that for the purpose of intestate succession, “a natural or adoptive parent is barred from inheriting from or through a child if the natural or adoptive parent’s parental rights were terminated pursuant to [F.S.] [C]hapter 39 prior to the death of the child.” In that case, the natural or adoptive parent is treated as if the parent predeceased the child. This statute applies only to estates of persons dying on or after July 1, 2012. « Ch. 11 », « § 11.2 », « D » 1 Practice Under Florida Probate Code § 11.2.D (2022)

D. Inheritance Per Stirpes Descent and distribution, whether to descendants or to collateral heirs, is per stirpes. F.S. 732.104. This means that an intestate estate is divided so that a class or group of heirs takes the share to which their deceased relative would have been entitled in the estate of the decedent. They take by

representation (per stirpes), not as so many individuals (per capita). See In re Estate of Davol, 100 So. 2d 188 (Fla. 3d DCA 1958). This is often confusing to heirs, who although equally related to the decedent can share unequally. For example, if a decedent had two brothers, both having predeceased him, and one brother was survived by one child and the other by two children, the one child will take one half of the decedent’s estate, while the two children will share their father’s one half, thus receiving one fourth each. « Ch. 11 », « § 11.2 », « E » 1 Practice Under Florida Probate Code § 11.2.E (2022)

E. Escheat To State Of Florida When a person dies leaving an estate without being survived by any person entitled to receive a part of it, that part escheats to the state. F.S. 732.107(1). In that event, or if the personal representative has doubt as to whether any person exists who is entitled to the property, the personal representative is required to institute proceedings within one year after issuance of letters for determination of beneficiaries under Fla. Prob. R. 5.386. See § 11.7.A. Notice of those proceedings must be served on the Department of Legal Affairs (department). If the personal representative fails to institute the proceedings during the one-year period, the department is authorized to do so. Rule 5.386(a). In In re Estate of Faskowitz, 941 So. 2d 390 (Fla. 2d DCA 2006), when a decedent’s property passed by intestacy and there were no intestate heirs having priority over the maternal or paternal kindred, the court held that the paternal kindred would be entitled to all of the estate if there were no maternal kindred. No property would escheat to the state. The Faskowitz case was decided under F.S. 732.107(1) (1999). The statute was amended in 2001 to clarify that F.S. 732.107 applies to both partial and complete intestacy. For example, if part of the estate passes under the will but the residuary clause fails (or there is no residuary clause), there is partial intestacy. The result under Faskowitz should be the same after the 2001 Amendment. Although every decedent is presumed to leave next of kin, the presumption is rebuttable. The state will overcome the presumption of kinship (and establish the prima facie escheat of an intestate’s property) on proof that after diligent search and inquiry the state has been unable to find that the decedent left ascertainable heirs. The burden is then on a particular

claimant to prove by the ordinary rules and competent evidence that in fact the claimant is an heir. In re Estate of Tim, 180 So. 2d 161 (Fla. 1965). Any property escheating to the State of Florida is to be sold and the funds are to be delivered to the Chief Financial Officer (CFO) for deposit in the state school fund. F.S. 732.107(2). Any person claiming to be entitled to the escheated property has 10 years to petition the court to reopen the administration of the estate to assert a right to the escheated property. F.S. 732.107(3). (The 10-year period runs from the date of deposit of the funds with the CFO, rather than from the granting of letters of administration.) If no claim is asserted within that period, the state’s title to the property becomes absolute. Id. If the claimant is successful, the court will fix the amount to which the claimant is entitled. Notice must be given to the department, which represents the state in all escheat proceedings. Rule 5.386; F.S. 732.107(4). The personal property (but not the real property) of a veteran who died intestate without heirs while a member of or patient in a Department of Veterans Affairs facility or hospital escheats to the United States instead of to the State of Florida. 38 U.S.C. § 5502(e). See F.S. 733.816, which provides for the disposition and ultimate escheat of unclaimed funds held by a personal representative. Funds deposited under F.S. 733.816 may be claimed within 10 years from the date of deposit of the funds with the CFO. F.S. 733.816(3). The difference between a lapsed or void devise and an unclaimed devise is discussed in § 11.3.G. « Ch. 11 », « § 11.2 », « F • 1 Practice Under Florida Probate Code § 11.2.F (2022)

F. Will Discovered After Administration F.S. 733.103(1) provides that, “[u]ntil admitted to probate in this state or in the state where the decedent was domiciled, the will shall be ineffective to prove title to, or the right to possession of, property of the testator.” F.S. 733.208, however, provides that “[n]o will or codicil may be offered after the testate or intestate estate has been completely administered and the personal representative discharged.” See F.S. 733.903, which codifies In re Estate of

Killinger, 448 So. 2d 1187 (Fla. 2d DCA 1984). See also F.S. 733.811. F.S. 733.812 provides for the recovery of property improperly distributed. In Dean v. Bentley, 848 So. 2d 487 (Fla. 5th DCA 2003), the trial court reopened the estate for fraud on the court and failure to notify an interested person when the personal representative knew of a later will and did not advise the court or notify the sole beneficiary under the later will. See also § 1.2.D.3 of this manual for a discussion regarding multiple wills and § 14.3.D.4 for further discussion on wills discovered after administration.

« Ch. 11 », « § 11.3 » 1 Practice Under Florida Probate Code § 11.3 (2022)

§ 11.3. TESTATE ESTATES « Ch. 11 », « § 11.3 », • A » 1 Practice Under Florida Probate Code § 11.3.A (2022)

A. Charitable Devises Florida’s Mortmain Statute, F.S. 732.803, allowing lineal descendants to set aside charitable devises under certain circumstances, was declared unconstitutional in Shriners Hospitals for Crippled Children v. Zrillic, 563 So. 2d 64 (Fla. 1990), and the statute was repealed by the legislature in 1991. See Kaplan, Florida’s Supreme Court Strikes the State’s Mortmain Statute as Unconstitutional, 18 Fla. St. U. L. Rev. 897 (1991). The District Court of Appeal, Fifth District, in Florida Elks Children’s Hospital v. Stanley, 610 So. 2d 538 (Fla. 5th DCA 1993), held that the Florida Supreme Court’s decision in Zrillic holding F.S. 732.803 unconstitutional is to be applied retroactively. « Ch. 11 », « § 11.3 », « B » 1 Practice Under Florida Probate Code § 11.3.B (2022)

B. Devises To Aliens F.S. 732.1101 provides that aliens have the same right of inheritance as citizens. By constitutional provision, all natural persons are equal before the law and have an inalienable right to acquire, possess, and protect property. Art. I, § 2, Fla. Const. A nonresident decedent, whether or not a citizen of the United States, may provide by will that the testamentary disposition of tangible or intangible personal property having a situs in Florida may be construed and regulated by Florida law. F.S. 731.106(2). To the extent a nonresident’s will does not specify that Florida law applies, the personal property not so directed is to be disposed of under the laws of the decedent’s domicile. In re Estate of Fajardo, 597 So. 2d 362 (Fla. 3d DCA 1992). On the other hand, effective July 1, 2016, the validity and effect of a disposition, whether testate or intestate, of real property in Florida is determined by Florida law. F.S. 731.1055. Ch. 2016-189, § 1, Laws of Fla.,

which created F.S. 731.1055, also amended F.S. 731.106 to delete its reference to real property, thus restoring the common-law rule in Florida. Under former F.S. 731.106, the court in Saunders v. Saunders, 796 So. 2d 1253 (Fla. 1st DCA 2001), held the disposition of the Florida real property owned by a Colorado decedent was disposed of under Colorado law because the decedent did not provide in his will that Florida law applied to the disposition of his Florida real property, denying the pretermitted spouse a share in the Florida real property under F.S. 732.301. In so holding, the Saunders court noted that the former statute was a departure from common law. Under the Saunders facts, the spouse would receive a pretermitted share under the new statute. See also Melican v. Parker, 711 S. E. 2d 628 (Ga. 2011) (Florida law applied to disposition of Georgia decedent’s Florida real property under Georgia law). The court may (and, when the decedent is a resident of a foreign country, must) direct the personal representative (appointed in Florida) of a nonresident decedent to distribute the decedent’s personal property “to those designated by the decedent’s will as beneficiaries … or to the persons entitled to receive the decedent’s personal estate under the laws of the decedent’s domicile.” F.S. 731.106(2). As to when distribution to an alien may be deferred, see § 11.2.B.5. « Ch. 11 », « § 11.3 », « C » 1 Practice Under Florida Probate Code § 11.3.C (2022)

C. Devises Conditioned Upon Survivorship A testator may condition a testamentary gift upon the survivorship of the designated beneficiary. In the absence of a contrary intent being manifested in the will, the “survivorship” relates to the death of the testator. See F.S. 732.514, 732.603. See also In re Estate of Wagner, 423 So. 2d 400 (Fla. 2d DCA 1982). A provision in a will leaving property to a person’s “heirs at law” means those persons, including the surviving spouse of the person, who are entitled under the statutes of intestate succession to the property of the decedent. It is not limited to “blood relatives.” F.S. 731.201(20); Karasek v. William J. Lamping Trust, 909 So. 2d 552 (Fla. 4th DCA 2005). See § 11.2.D for the meaning of “per stirpes.”

« Ch. 11 », « § 11.3 », « D » 1 Practice Under Florida Probate Code § 11.3.D (2022)

D. Doctrine Of Equitable Conversion The doctrine of equitable conversion applies when a testator directs in the will, either expressly or impliedly, that assets of the estate be converted from one form to another. For example, if there is a direction that land be sold, the land will be treated as money and is subject to distribution in the converted form. The equitable conversion doctrine is a creature of equity “and is an application of the maxim that equity treats that as done which ought to be done.” Trotter v. Van Pelt, 144 Fla. 517, 198 So. 215, 218 (1940), 131 A.L.R. 1018. Florida also recognizes the doctrine of “reconversion,” under which, when the will directs the personal representative to sell land and distribute the proceeds among designated beneficiaries, those beneficiaries may elect before the sale has taken place to take the land instead of its proceeds. Mitchell v. Bogue, 142 Fla. 787, 196 So. 306 (1940). See also In re Wilson’s Estate, 143 Fla. 812, 197 So. 557 (1940). Under the doctrine of equitable conversion, sale proceeds received under a binding real estate contract executed by the testator during his or her lifetime but consummated after death are considered personal property. In one case, it was held that the proceeds would not go to a son who was devised “all of the real property” the decedent owned at her death. In re Estate of Sweet, 254 So. 2d 562, 563 (Fla. 2d DCA 1971). Equitable conversion does not apply if the property is homestead. In re Estate of Skuro, 487 So. 2d 1065 (Fla. 1986).) See In re Estate of Hamel, 821 So. 2d 1276 (Fla. 2d DCA 2002), in which it was held that creditors could not reach proceeds of a sale of protected homestead contracted before death but consummated after death. See § 11.3.F regarding ademption. « Ch. 11 », « § 11.3 », « E » 1 Practice Under Florida Probate Code § 11.3.E (2022)

E. Substitutionary Gifts A substitutionary devise is one made for the benefit of another person

when a named beneficiary predeceases the testator. In this manner, the testator is able to prevent a gift from lapsing if the first named beneficiary predeceases the testator. This can be accomplished either by specifically naming a substituted beneficiary or by making the gift to a named beneficiary “or his/her heirs.” In Hall v. Morris, 112 So. 2d 40 (Fla. 2d DCA 1959), after recognizing that the word “heir” alone is one of limitation when preceded by the conjunctive “and” and one of substitution when preceded by the disjunctive “or,” the court held that a residuary devise to the decedent’s wife, “her heirs or assigns forever,” were words of limitation and the testator’s heirs (rather than the wife’s heirs or assigns) would be entitled to his estate when his wife predeceased him. The court quoted with approval the rule that generally the use of the word “assigns” makes it clear the gift was absolute and not alternative. « Ch. 11 », « § 11.3 », « F » 1 Practice Under Florida Probate Code § 11.3.F (2022)

F. Ademption And Nonademption Testamentary gifts may be adeemed (canceled) either by extinction or by satisfaction. Generally, if the subject matter of a specific devise is not in the estate at the time of the testator’s death, the specific devise will fail and the named devisee takes nothing. This is ademption by “extinction.” An exception exists under the Code when specifically devised property is sold by a guardian for the ward’s care or when proceeds of condemnation or insurance are paid to the guardian. The specific devisee in those circumstances is entitled to an amount equal to the net sales price or condemnation award or insurance proceeds paid to the guardian or collected after the testator’s death. F.S. 732.606. This statutory provision for nonademption does not apply if, subsequent to the sale, condemnation, or casualty, the testator’s disability is removed and the testator survives the restoration adjudication by one year. Id. F.S. 732.606(1) and (2) are not to be read together, because subsection (1) applies only to specifically devised property sold by a guardian and subsection (2) applies to all testators, not just those who have guardians, Ott

v. Ott, 418 So. 2d 460 (Fla. 4th DCA 1982), so that if specifically devised property is sold by the testator, the devisee or devisees are entitled to the unpaid balance of the purchase price or any part of the specifically devised property not sold. If the testator makes an inter vivos gift of specifically devised property to the beneficiary named in the will, the specific devise will be adeemed “by satisfaction.” Whether an inter vivos gift of specifically devised property made subsequent to the execution of the will operates to satisfy a general legacy partially or fully depends on the intent of the testator. Under F.S. 732.609, the circumstances that will produce an ademption by satisfaction are limited. The will must provide for the deduction of the gift, or the testator must state in a contemporaneous writing that the gift is to be deducted from the devise or is in satisfaction of it, or the devisee must acknowledge in writing that the gift is in satisfaction of the devise. If the inter vivos gift is made only for the purpose of part satisfaction, the property is to be valued at the time the devisee comes into possession or enjoyment of the property or at the time of the testator’s death, whichever occurs first. But see Shinn v. Schneider, 549 So. 2d 194 (Fla. 3d DCA 1989). F.S. 732.605(2) provides for the nonademption of specifically devised securities in certain situations. In In re Estate of Padgett, 547 So. 2d 342 (Fla. 1st DCA 1989), a provision in a will granting a beneficiary the option to purchase certain properties owned by the testator that were later sold by the testator during his lifetime did not entitle the beneficiary to the remaining payments owed by the purchaser after the testator’s death. The option did not create a specific devise of the real property. Ademption is discussed further in § 14.3.A.3 of this manual. See also Dobson v. Lawson, 370 So. 2d 1238 (Fla. 1st DCA 1979); Fenn & Koren, The 1974 Florida Probate Code—A Marriage of Convenience, 27 U. Fla. L. Rev. 1 (1974). « Ch. 11 », « § 11.3 », « G » 1 Practice Under Florida Probate Code § 11.3.G (2022)

G. Lapsed And Void Devises

As a matter of common law, when a will provides for a bequest to a person who predeceases the testator, the gift lapses. The potentially harsh effects of this common law rule are, however, ameliorated to an extent by the operation of Florida’s antilapse statute, F.S. 732.603. Whether a devise in favor of a beneficiary who predeceases the testator fails and lapses depends on the intent of the testator as well as on the relationship of the beneficiary to the testator. Under F.S. 732.603(1), a devise to a grandparent, or to a descendant of a grandparent of the testator leaving descendants, does not lapse. The descendants of the devisee take the property per stirpes in the same manner as the named beneficiary would have taken had he or she survived the testator. This applies whether the devisee is dead at the time of execution of the will, fails to survive the testator, or is required by the will or operation of law to be treated as predeceasing the testator. Id. This result follows unless the will contains a provision that conditions the gift upon the beneficiary surviving the testator or that provides for a substituted or alternative beneficiary. See F.S. 732.603(3), which is a codification of case law to this effect; see also In re Estate of Scott, 659 So. 2d 361 (Fla. 1st DCA 1995). In Lorezo v. Medina, 47 So. 3d 927 (Fla. 3d DCA 2010), the court held that a devise to the decedent’s brother if he survived the decedent, and if not then to the brother’s wife, lapsed when both the brother and the brother’s wife predeceased the decedent in that order. The antilapse statute did not apply to devise the property to the brother’s descendants because the brother was survived by his spouse and the antilapse statute did not apply to the substituted gift to the brother’s wife. F.S. 732.603(2) expressly applies to outright interests created by the exercise of testamentary powers of appointment. Thus, when the appointee who is a grandparent or descendant of a grandparent of the donor of the power fails to survive the testator, the appointee’s surviving descendants take per stirpes. This applies whether the appointee is dead at the time of the execution of the will or the creation of the power, or is required by the will, the document creating the power, or by operation of law to be treated as predeceasing the testator. However, this result will not follow if there is a contrary intent expressed in the instrument creating the power or in the testator’s will that expressly excludes the substitution of descendants of an

appointee. In 2007, the aspects of the antilapse statute applicable to trusts were removed from F.S. 732.603 with the enactment of the Florida Trust Code, F.S. Chapter 736. The heirs of a decedent’s stepchild do not come within the purview of F.S. 732.603 by having it read in conjunction with F.S. 732.611. Tubbs v. Teeple, 388 So. 2d 239 (Fla. 2d DCA 1980). See also In re Estate of Skinner, 397 So. 2d 1193 (Fla. 4th DCA 1981). Under F.S. 732.611, devisees to multigenerational classes, such as descendants, are per stirpes, unless the will provides otherwise. The distinction between a lapsed devise and an unclaimed one was made clear in In re Estate of Russell, 387 So. 2d 487 (Fla. 2d DCA 1980). In an appeal from a determination of beneficiaries proceeding, the court held that a devise to beneficiaries whose location was unknown must be deposited with the court under F.S. 733.816 rather than delivered to the remaining heirs under F.S. 732.101. See F.S. 732.604. In Vaughan v. Boerckel, 963 So. 2d 915 (Fla. 4th DCA 2007), real property owned by the decedent’s wholly owned corporation was not part of the decedent’s probate estate nor his pour-over trust, so the devise of the real property by the trust failed. In Vaughn, the stock in the corporation that owned the real property was devised to a person other than the ones to whom the real estate was devised. The Florida Supreme Court in Aldrich v. Basile, 136 So. 3d 530 (Fla. 2014), dealt with a missing devise rather than a lapsed or void devise. The decedent had devised certain specifically described assets to a named beneficiary. The listed assets consisted of substantially all of her assets at the time she executed the will. The court held that after-acquired property passed by intestacy because the will contained no general devise that could include the subject property and no residuary devise. The court did not permit extrinsic evidence to vary the terms of the will because the will was not ambiguous. F.S. 732.6005(1). See § 11.9 for a discussion of disclaimers. « Ch. 11 », « § 11.3 », « H » 1 Practice Under Florida Probate Code § 11.3.H (2022)

H. Pretermitted Spouse And Children F.S. 732.301, the pretermitted spouse statute, generally provides that when a person marries after executing a will, the surviving spouse is entitled to an intestate share, unless the spouse waived the right or was provided for in a prenuptial or postnuptial agreement; “the spouse is provided for in the will; or” “the will discloses an intention to omit the spouse.” F.S. 732.302, the pretermitted children statute, generally provides that children born (or adopted) after the will was executed will be entitled to receive what the child would have received if the decedent had died intestate, unless: (i) it appears the omission was intentional, or (ii) “the testator had one or more children when the will was executed and devised substantially all the estate to the other parent of the pretermitted child and that other parent survived the testator and is entitled to take under the will.” In Estate of Maher v. Iglikova, 138 So. 3d 484 (Fla. 3d DCA 2014), the court determined that a child born before execution of the will but legitimized by an adjudication of paternity after the execution of the will was not a pretermitted child. The court further determined that the child was not omitted by the will, because there was a class gift for children. The spouse is not considered “provided for” in the will unless the spouse is specifically named in the will and the testator contemplated marrying the named person at the time the will was executed. Estate of Ganier v. Estate of Ganier, 418 So. 2d 256 (Fla. 1982). “The primary purpose of [this] pretermitted spouse rule is to assure that the decedent spouse considered the surviving spouse as a spouse when making [the] will.” Id. at 261. The same rule generally applies to pretermitted children. F.S. 732.302, 732.507. After the court determined that the decedent’s last will was invalid because of undue influence, the surviving spouse became pretermitted under an earlier will in Hoffman v. Kohns, 385 So. 2d 1064 (Fla. 2d DCA 1980), disapproved on other grounds 460 So. 2d 895. In Babcock v. Estate of Babcock, 995 So. 2d 1044 (Fla. 4th DCA 2008),

the court held that the pretermitted spouse had no claim to automobiles and household goods as exempt property that were specifically devised to the decedent’s son. When a testator’s will simply pours the estate into an inter vivos trust, the provisions of the trust agreement are relevant to the determination of whether the surviving spouse is a pretermitted spouse. See In re Estate of Norem, 561 So. 2d 434 (Fla. 4th DCA 1990). In In re Estate of Gaspelin, 542 So. 2d 1023 (Fla. 2d DCA 1989), a pretermitted spouse was not disqualified as such merely because the decedent’s will, executed before her marriage to the decedent, named her as personal representative and as a specific devisee. It is noteworthy that the person who subsequently became the spouse was declared in the will to be the decedent’s “good friend.” Furthermore, she was not estopped to receive her rights as pretermitted spouse because she had filed a conditional election to take the elective share. See also Estate of Ganier (widower not estopped from claiming pretermitted spouse status because of allegation of misappropriation of funds). In Via v. Putnam, 656 So. 2d 460 (Fla. 1995), the Florida Supreme Court held that the surviving spouse’s right to receive either an elective share or pretermitted spouse’s share of the decedent’s estate had priority over the claims of the decedent’s children who were third-party beneficiaries of the mutual wills of the decedent and his first wife. In the case of a nonresident decedent, F.S. 732.301 and 732.302 did not apply to protect a pretermitted spouse or child when the decedent’s will did not provide that Florida law applied to the disposition of his or her property. Saunders v. Saunders, 796 So. 2d 1253 (Fla. 1st DCA 2001), citing F.S. 731.106(2). The wife of the nonresident decedent in Saunders would have received a pretermitted spouse’s share of the Florida real property if the nonresident testator had died after June 30, 2016. See § 11.3.B. For further treatment of this subject, see McEachern, The Pretermitted Spouse, 57 Fla. Bar J. 727 (Dec. 1983). « Ch. 11 », « § 11.3 », « I • 1 Practice Under Florida Probate Code § 11.3.I (2022)

I. Abatement

If the distributable assets of the estate are insufficient to satisfy the devises contained in the will, a question arises as to the order in which those devises will abate. The testator may provide specifically for the order of abatement; in the absence of such a provision, the statutory order of abatement as to the funds and property of the estate controls. F.S. 733.805 provides that property not disposed of by the will abates first, residuary devises next, general devises next, and specific and demonstrative devises last. See In re Estate of Potter, 469 So. 2d 957 (Fla. 4th DCA 1985). To the extent of the insufficiency, demonstrative devises are considered general devises on the failure or insufficiency of the fund or property out of which payment should be made. Except as specifically provided by the statute, devises “abate equally and ratably and without preference or priority as between real and personal property.” F.S. 733.805(2). In Lauritsen v. Wallace, 67 So. 3d 285 (Fla. 5th DCA 2011), the court held that the release by the decedent’s will of a debt owed to the decedent was a testamentary devise and was effective only to the extent the decedent’s estate was solvent to pay all debts and costs of administration of the estate. F.S. 733.805(2) provides that, if the devise was given to the surviving spouse in satisfaction or in lieu of the spouse’s statutory rights in the estate, the devise does not abate until other devises of the same class are exhausted. Also, “[d]evises given for a valuable consideration shall abate with other devises of the same class only to the extent of the excess over the amount of value of the consideration until all others of the same class are exhausted.” Id. In McKean v. Warburton, 919 So. 2d 341 (Fla. 2006), the Florida Supreme Court held that when protected homestead is not specifically devised but passes through the residuary clause to heirs of the decedent, the homestead property, in the absence of a specific testamentary directive otherwise, is not subject to forced sale and cannot be used to satisfy a general bequest of cash. The holding is based on the premise that protected homestead property under those circumstances is not part of the probate estate. The Warburton court, citing Estate of Price v. West Florida Hospital, Inc., 513 So. 2d 767 (Fla. 1st DCA 1987), and In re Estate of Hamel, 821 So. 2d 1276 (Fla. 2d DCA 2002), noted that the proceeds of the sale of homestead would have been available to fund the general devisees if the testator had ordered the sale of the protected homestead and directed that the

proceeds be made available to his estate. See Pajares v. Donahue, 33 So. 3d 700 (Fla. 4th DCA 2010). In Cutler v. Cutler, 994 So. 2d 341 (Fla. 3d DCA 2008), the decedent specifically devised his homestead to his daughter, and other real property to his son. The residuary estate was insufficient to pay all expenses and debts. The testator’s will allocated debts and expenses equally to the homestead and the other real property if the residuary was insufficient. The court held that this was the equivalent of ordering the homestead sold to pay debts. Thus, under Price, the homestead property lost its protection from creditors. In determining contribution required under F.S. 733.607(2), subsections (1) through (3) of F.S. 733.805 and subsection (2) of F.S. 736.05053 are to be applied as if the beneficiaries of the estate and the beneficiaries of a trust described in F.S. 733.707(3) were taking under a common instrument. For example, a devise of assets by will to an F.S. 733.707(3) trust will not be regarded as a residuary devise unless the assets pass as a part of the residuary of the trust. Nonresiduary devises under wills and trusts abate prorata. F.S. 736.05053(5). F.S. 733.817, providing for apportionment of estate taxes, applies before F.S. 733.805 applies. F.S. 733.805(3). A more detailed discussion of abatement appears in § 14.3.A.4 of this manual. See Chapter 19 for a more detailed discussion of homestead.

« Ch. 11 », « § 11.4 » 1 Practice Under Florida Probate Code § 11.4 (2022)

§ 11.4. COMMUNITY PROPERTY Although Florida is not a community property state, people moving to Florida may bring community property with them. Community property does not lose its character as community property merely by being moved to Florida. Property acquired in Florida with the proceeds of community property is community property. Quintana v. Ordono, 195 So. 2d 577 (Fla. 3d DCA 1967). In 1992, Florida enacted the Florida Uniform Disposition of Community Property Rights at Death Act, F.S. 732.216–732.228. Under F.S. 732.219, the community property interest of the surviving spouse is not subject to disposition by the deceased spouse. The decedent’s one-half of the property is subject to disposition by the decedent or distribution under the laws of succession. Furthermore, the personal representative has no duty to discover whether the property held the decedent is community property unless a written demand is made by the surviving spouse within three months after service of notice of administration on the surviving spouse. See F.S. 732.223. In Johnson v. Townsend, 259 So. 3d 851 (Fla. 4th DCA 2018), the court held that the surviving spouse’s vested community property interests in real property were barred due to her failure to file a claim against the decedent’s estate within the time limit for filing claims under F.S. 733.702 and 733.710 when the real property was titled in the decedent’s name. The Johnson court further held that the trust exception for filing claims did not apply because the surviving spouse did not allege the existence of an express trust or some other clearly defined means by which the decedent held the community property interest on her behalf. See Scott v. Reyes, 913 So. 2d 13 (Fla. 2d DCA 2005). For an in-depth discussion of community property, including coverage of the Florida Community Property Trust Act, which became effective July 1, 2021, see BASIC ESTATE PLANNING IN FLORIDA Chapter 14 (Fla. Bar 11th ed. 2022).

« Ch. 11 », « § 11.5 » 1 Practice Under Florida Probate Code § 11.5 (2022)

§ 11.5. DEVISES TO LAWYERS AND OTHER DISQUALIFIED PERSONS Gifts to lawyers and other disqualified persons are governed by F.S. 732.806 of the Code. F.S. 732.806(1) provides as follows: Any part of a written instrument which makes a gift to a lawyer or a person related to the lawyer is void if the lawyer prepared or supervised the execution of the written instrument, or solicited the gift, unless the lawyer or other recipient of the gift is related to the person making the gift. This does not apply to the appointment of the lawyer (or related person) as a fiduciary. F.S. 732.806(7)(a) provides as follows: A lawyer is deemed to have prepared, or supervised the execution of, a written instrument if the preparation, or supervision of the execution, of the written instrument was performed by an employee or lawyer employed by the same firm as the lawyer. A person is “related” to an individual if, at the time the lawyer prepared or supervised the execution of the writing or solicited the gift, the person is a spouse, lineal ascendant or descendant, sibling, other relative of the individual or the individual’s spouse with whom the lawyer maintains a close familial relationship, a spouse of any of the foregoing, or a “person” who cohabitates with the individual. F.S. 732.806(7)(b). A “gift” includes an inter vivos gift, testamentary transfer, and the power to make a transfer, whether the power is held in a fiduciary or nonfiduciary capacity. F.S. 732.806(7)(d). The rights and remedies provided in F.S. 732.806 are in addition to any other rights or remedies that may exist in law or equity. F.S. 732.806(8). The statute should be consulted for additional provisions.

« Ch. 11 », « § 11.6 » 1 Practice Under Florida Probate Code § 11.6 (2022)

§

11.6. EFFECT MARRIAGE DESIGNATION

OF DISSOLUTION OF ON BENEFICIARY

A decedent’s former spouse is treated as predeceasing the decedent if the beneficiary designation to or for the benefit of the spouse was made before the dissolution of marriage or court order invalidating the marriage for life insurance, employee benefit plans, individual retirement accounts, payable on death accounts, and transfer on death accounts. However, this does not apply to the extent a will or trust governs the disposition of the asset and F.S. 732.507(2) or F.S. 736.1005 applies, or to the extent other statutory limitations apply. F.S. 732.703; Ch. 2012-148, Laws of Fla. This provision is effective as to decedents dying on or after July 1, 2012. Id. F.S. 732.507(2) provides that any provision of a will executed by a married person that affects the spouse becomes void upon dissolution or annulment of the marriage. The will is administered as if the former spouse had died at the time of dissolution, divorce, or annulment. If there is a contingent beneficiary, a devise to the former spouse goes to the contingent beneficiary even if the contingency contemplated has not occurred. Lamontagne v. Hunter, 341 So. 2d 1074 (Fla. 2d DCA 1977); In re Estate of Fredericks, 311 So. 2d 376 (Fla. 2d DCA 1975). But see In re Estate of Guess, 213 So. 2d 638 (Fla. 3d DCA 1968), in which remarriage of the parties did not revive the will clause that was voided by the divorce. See the discussion in LITIGATION UNDER FLORIDA PROBATE CODE § 2.2.A.7.d (Fla. Bar 13th ed. 2022). In Carroll v. Israelson, 169 So. 3d. 239 (Fla. 4th DCA 2015), the court held as void both the devise to the testator’s divorced spouse and the alternate devise to her revocable trust in the event she predeceased him under F.S. 732.507(2). See also F.S. 736.1105. In Gordon v. Fishman, 253 So. 3d 1218, 1220–1221 (Fla. 2d DCA 2018), the court held that F.S. 732.507(2) “applies only when the marriage predates the will.” Because the decedent did not marry his wife until about 15 months

after he executed his will, the statute did not apply. The practitioner should note, however, that Gordon has been legislatively overruled by amendment. F.S. 732.507(2) now provides that it applies whether the marriage occurred before or after the execution of the will. This amendment “applies to wills of decedents who die on or after June 29, 2021.” F.S. 732.507(3).

« Ch. 11 », « § 11.7 » 1 Practice Under Florida Probate Code § 11.7 (2022)

§ 11.7. EFFECT OF SIMULTANEOUS DEATH LAW Florida’s Simultaneous Death Law, F.S. 732.601, provides that when title to property or its devolution (i.e., the succession of rights, duties, or powers) depends on the sequence of death and it is impossible to determine who predeceased whom, the property of each person will be disposed of as if each had survived the other. If the will clearly provides that one party is presumed to have survived the other party, the provision in the will governs. A simultaneous death provision in a will may be so worded as to be operable only when there is insufficient evidence to determine the sequence of death between the testator and the devisee. If, in that case, the sequence of death can be established, the simultaneous death provision is a nullity. Use of the phrase “in a common disaster” has been held to be broad enough to include nonsimultaneous deaths resulting from one accident. Silver v. Schroeder, 474 So. 2d 857 (Fla. 3d DCA 1985). Proof beyond a reasonable doubt is not required to establish that death occurred other than simultaneously within the meaning of F.S. 732.601. Proof by a preponderance of the evidence is the standard. Rimmer v. Tesla, 201 So. 2d 573 (Fla. 1st DCA 1967). When two or more beneficiaries are designated to take successively by reason of survivorship under another person’s disposition of property and there is insufficient evidence that the beneficiaries died otherwise than simultaneously, the property thus disposed of shall be divided into as many equal parts as there are successive beneficiaries and the parts shall be distributed to those who would have taken if each designated beneficiary had survived. F.S. 732.601(2). If the parties dying simultaneously held property as joint tenants with right of survivorship or as tenants by the entireties, the property is divided into equal shares with one share going to the estate of each tenant. F.S.

732.601(3). If the insured and the beneficiary under a life insurance policy die simultaneously, the proceeds of the policy will be distributed as if the insured had survived the beneficiary. F.S. 732.601(4). See also F.S. 222.13.

« Ch. 11 », « § 11.8 » 1 Practice Under Florida Probate Code § 11.8 (2022)

§ 11.8. OBTAINING ORDER DETERMINING BENEFICIARIES AND SPECIFYING THEIR SHARES IN ESTATE « Ch. 11 », « § 11.8 », • A » 1 Practice Under Florida Probate Code § 11.8.A (2022)

A. In General A petition for determination of beneficiaries may be filed when a devisee is not sufficiently identified in a will or when there is doubt as to the identity of the heirs in an intestate estate. It may also be filed if there is doubt as to the shares and amounts any person is entitled to receive. F.S. 733.105(1). Customarily, the petition is filed by the personal representative in the administration proceedings. Any interested person, however, may petition to determine the heirs or devisees of a deceased person under Fla. Prob. R. 5.385 irrespective of whether the estate is being administered, the administration has been closed, or the personal representative has been discharged. A separate civil action may be brought when the estate has not been administered. F.S. 733.105(3). As is noted in § 11.2.E, the personal representative is required to institute proceedings for the determination of beneficiaries within one year after issuance of letters if it appears the estate property may escheat to the state. If the personal representative fails to institute timely proceedings, the Department of Legal Affairs is authorized to file the petition. See F.S. 732.107; Rule 5.386. The personal representative, as well as any other person interested in the decedent’s estate, may have a declaration of rights in the estate, including a determination of beneficiaries, or a determination of any equitable or legal relationship in respect to it under the Florida declaratory judgment law. See F.S. 86.041. When administration of the estate has been completed except for distribution, the personal representative is required to file a final accounting

and petition for discharge, which will include a proposed distribution of the estate assets. Rule 5.400(a). This petition is then served on all interested persons and if no objection is filed within 30 days from the date of service, the personal representative may distribute the estate according to the plan set forth in the petition without court order and free from the claims of any interested person so served. Rules 5.400(b)(6), (c)–(d). Accordingly, when a personal representative already knows the identity and whereabouts of the beneficiaries but is in doubt as to the shares each is entitled to receive, the allocation of the shares could become final under Rule 5.400 and F.S. 733.901, in which case the personal representative need not institute proceedings under F.S. 733.105. A petition for the determination of beneficiaries may be properly joined with proceedings for construction of the decedent’s will, but no pleading seeking construction of the will may be maintained until the will has been admitted to probate. F.S. 733.213. See also F.S. 733.103. The procedure for determination of beneficiaries is also discussed in LITIGATION UNDER FLORIDA PROBATE CODE Chapter 2 (Fla. Bar 13th ed. 2022). See Fla. R. Gen. Prac. & Jud. Admin. 2.425(b)(6) regarding minors. « Ch. 11 », « § 11.8 », « B » 1 Practice Under Florida Probate Code § 11.8.B (2022)

B. Contents Of Petition A petition to determine beneficiaries must set forth the names, residences, and post office addresses (as far as known or ascertainable by diligent search and inquiry) of all persons in interest other than creditors of the decedent. Fla. Prob. R. 5.385(b)(1). It must specify the nature of their respective interests, Rule 5.385(b)(2), designating those believed to be minors or incapacitated and stating whether those so designated are under legal guardianship in Florida, Rule 5.385(b)(3). Also, if the petitioner “believes that there are, or may be, persons whose names are not known to petitioner who have claims against, or interest in, the estate as beneficiaries,” a statement to that effect must be made. Rule 5.385(b)(4). If the petition asks for the appointment of a guardian ad litem, Rule 5.120(b) requires that the petition for appointment provide specific

information about the identities and status of each minor or incapacitated person, the name and address of any guardian appointed for each, the name and residence address of any living natural guardians or living natural guardian having legal custody of each, a description of the interest in the proceedings of each, and facts showing the necessity for the appointment of a guardian ad litem. The proceeding is an adversary proceeding and the petition must be served by formal notice. Rules 5.025(a), (d)(1), 5.385(c). Furthermore, if there are, or may be, persons who have claims or interests in the estate as heirs or devisees whose names or whereabouts are unknown after diligent search and inquiry, the petition should be verified and contain the statements required to obtain constructive service of process by publication under F.S. Chapter 49. See Rule 5.040(a). The contents of the petition are also discussed in LITIGATION UNDER FLORIDA PROBATE CODE § 2.2.B.2.a (Fla. Bar 13th ed. 2022). « Ch. 11 », « § 11.8 », « C » 1 Practice Under Florida Probate Code § 11.8.C (2022)

C. Form For Petition For Determination Of Beneficiaries IN THE CIRCUIT COURT FOR _________ COUNTY, FLORIDA PROBATE DIVISION File Number ___ IN RE: ESTATE OF _________, Deceased _________, Petitioner v. _________, Respondents.

PERSONAL REPRESENTATIVE’S PETITION FOR DETERMINATION OF

BENEFICIARIES Petitioner, _________, as personal representative of this estate, petitions for the entry of an order determining the beneficiaries of the decedent pursuant to F.S. 733.105 and Fla. Prob. R. 5.385 and alleges: 1. Petitioner is in doubt as to who is entitled to receive [a part of] the assets of this estate. 2. The names, residences, and post office addresses of all persons in interest, except creditors, as far as known or ascertainable by diligent search and inquiry, and the nature of their respective interests are as follows: NAME

ADDRESS

INTEREST

____________ ____________ ____________ ____________ ____________ ____________ ____________ ____________ ____________

3. Except as indicated above, none of the above persons is believed to be a minor or an incapacitated person or under legal guardianship in this state. 4. There are or may be persons who have interests in this estate as beneficiaries of the decedent whose names are not known to the petitioner. WHEREFORE Petitioner asks this court, after formal notice and hearing, to enter its order determining the beneficiaries of the decedent and indicating the share or amount each is entitled to receive. Under penalties of perjury, I declare that I have read the foregoing, and the facts alleged are true, to the best of my knowledge and belief. /s/ Petitioner (Certificate of Service) /s/ (name of attorney)

Attorney for Petitioner (address and phone number) (e-mail address(es)) Florida Bar No. ___ « Ch. 11 », « § 11.8 », « D » 1 Practice Under Florida Probate Code § 11.8.D (2022)

D. Notice; Appointment Of Guardian Ad Litem; Virtual Representation After a petition for determination of beneficiaries is filed, the proceeding is conducted as an adversary proceeding. Fla. Prob. R. 5.025(a). Because Rule 5.025(d)(1) requires formal notice of an adversary proceeding, the petitioner must give such notice to all interested persons in accordance with the requirements of F.S. 731.301(1) and Rule 5.040(a). In American & Foreign Insurance Co. v. Dimson, 645 So. 2d 45 (Fla. 4th DCA 1994), the court held that an estate is not required to serve notice on a creditor’s lawyer if the lawyer has not appeared in the probate proceeding even though the lawyer was representing the creditor in other litigation. If the petition alleges that there are, or may be, persons who have interests in the estate as beneficiaries, but those names or residences are unknown to the petitioner, a notice of action should be issued by the clerk and published in the manner provided in F.S. 49.08 and 49.10. It must be directed to all persons having or claiming to have any right, title, or interest in the estate of the decedent. Proof of service must be made as provided in Rule 5.040(a). See §§ 2.2.D.1–2.2.D.3 of this manual regarding formal notice. Thereafter, Rule 5.025(d)(2) provides that the proceedings as nearly as practicable are to be conducted as in a civil action and the Florida Rules of Civil Procedure govern, including the rule calling for the entry of default if the person served fails to file a response to the petition within the required time. Upon the filing of the petition, the court may appoint a guardian ad litem to represent the interests of any incapacitated, unborn, or unascertained person whose identity or address is unknown if the court determines that representation of the interest would otherwise be inadequate. Rule 5.120(a). If

not precluded by a conflict of interest, one guardian ad litem may be appointed to represent several persons or interests. The procedural requirements to be followed in obtaining the appointment of a guardian ad litem are set forth with particularity in Rule 5.120. In considering on whom formal notice must be served or whether the appointment of a guardian ad litem is required in a given situation, the lawyer should carefully consider the principles of virtual representation. See F.S. 731.303. This doctrine is discussed in § 2.5 of this manual. The Servicemembers Civil Relief Act, 50 U.S.C. §§ 3901 et seq. (formerly known as the Soldiers’ and Sailors’ Civil Relief Act) applies to probate proceedings. If the petitioner is unable to file the necessary affidavit as to the nonmilitary service of a respondent before entry of the judgment, the petitioner should apply to the court for appointment of a lawyer to represent that respondent. « Ch. 11 », « § 11.8 », « E • 1 Practice Under Florida Probate Code § 11.8.E (2022)

E. Hearing And Order Determining Beneficiaries After the hearing on the petition and the other pleadings, the court is to enter an order determining the beneficiaries of the estate and the shares and amount that they are entitled to take. Thereafter, any personal representative who makes distribution or takes any other action in accordance with the order is protected fully by it. F.S. 733.105(2). In In re Estate of Tim, 161 So. 2d 40 (Fla. 3d DCA 1964), quashed on other grounds 180 So. 2d 161, it was held that the determination of heirs by a court of competent jurisdiction in the decedent’s domicile determines who takes the decedent’s tangible and intangible property wherever its situs may be. A personal representative is a proper party to heirship proceedings instituted by another, but has no real interest in the final determination as to who are the estate’s beneficiaries. The personal representative should not take an affirmative position for or against any faction claiming the estate when all of the potential beneficiaries are before the court. Furthermore, the allowance of court costs to the personal representative in that proceeding is improper. In re Estate of Lynagh, 177 So. 2d 256 (Fla. 2d DCA 1965). See § 11.2.A.2, which sets forth the standard of care that a personal representative must

exercise to determine beneficiaries and the need to reflect those efforts in the record. In proceedings under F.S. 733.105 and Fla. Prob. R. 5.385, the presumption of death of a known heir whose unexplained absence has continued for more than five years may be established without the necessity of administering the estate of the absent heir. See In re Estate of Wilson, 186 So. 2d 283 (Fla. 1st DCA 1966); F.S. 731.103(3).

« Ch. 11 », « § 11.9 » 1 Practice Under Florida Probate Code § 11.9 (2022)

§ 11.9. PAYMENT OF ESTATE TAXES « Ch. 11 », « § 11.9 », • A » 1 Practice Under Florida Probate Code § 11.9.A (2022)

A. Estate Taxes For The Year 2010 There was no federal estate tax or generation-skipping transfer tax for decedents dying in or dispositions occurring in 2010 until the United States Congress, on December 17, 2010, adopted the Tax Relief, Unemployment Reauthorization, and Job Creation Act of 2010, Pub. L. No. 111-312, 124 Stat. 3296 (the “2010 Tax Act”), retroactively reinstating these taxes to January 1, 2010. However, the 2010 Tax Act gave the personal representative an election to opt out of the estate tax and elect to have the modified carryover basis rules apply instead for decedents dying in 2010. Many existing wills and trusts have tax-sensitive dispositive provisions based on a tax system that was not in effect for most of 2010. In the spring of 2010, the Florida Legislature enacted F.S. 733.1051 and 736.04114 to deal with this situation. Ch. 2010-132, § 12, Laws of Fla.; Ch. 2010-122, § 4, Laws of Fla. These statutes provide authority for courts to construe tax formulas and other tax sensitive provisions of wills and trusts in light of the ambiguities and unintended results that could flow from the temporary hiatus in the tax, the retroactive reinstatement of the tax, and the election to opt out of the tax. Both statutes permit extrinsic evidence to determine the testator/settlor’s “probable intent.” The statutory provisions are limited to this purpose and apply only to decedents dying during the period January 1, 2010, through December 16, 2010. The statutory provisions are retroactive to January 1, 2010. There is no requirement that actions under these statutes be filed during 2010. « Ch. 11 », « § 11.9 », « B » 1 Practice Under Florida Probate Code § 11.9.B (2022)

B. Liability For Tax

« Ch. 11 », « § 11.9 », « B », • 1 » 1 Practice Under Florida Probate Code § 11.9.B.1 (2022)

1. In General—No Liability The Florida estate tax and generation-skipping transfer tax was phased out with the phaseout of the federal credit for state death taxes and federal generation-skipping transfer taxes at the end of 2004. The Florida Constitution does not permit the imposition of an estate tax in excess of the federal tax credit. The Florida estate and generation-skipping transfer tax provisions have not been repealed even though presently there is no Florida tax and no Florida estate tax or generation-skipping tax return is required. Art. VII, § 5, Fla. Const.; F.S. 198.13. Although Florida currently does not impose an estate tax, lawyers may still be dealing with older estates in which liability for state estate taxes may be an issue. Therefore, the following sections discuss both state and federal estate taxes. « Ch. 11 », « § 11.9 », « B », « 2 • 1 Practice Under Florida Probate Code § 11.9.B.2 (2022)

2. Liability Under Federal And Florida Governments For Older Estates The federal and Florida governments place the liability for the payment of tax as follows: Federal estate tax. The personal representative is liable to the federal government for the full amount of the federal estate tax to the extent of the property in his or her possession. If there is no personal representative, any person in possession of property subject to the tax is liable for the full amount of the tax to the extent of the property in his or her possession. If the estate tax is not paid when due, any transferee or surviving tenant is liable for the full amount of the tax to the extent of the property in his or her possession. IRC §§ 2203, 6324(a)(2); Treas. Reg. § 20.2002-1. Florida estate tax. Both the personal representative and any person in possession of property subject to the tax are liable to the state of Florida for the full amount of the tax to the extent of the property in the person’s possession. F.S. 198.01(2), 198.23.

Federal generation-skipping transfer tax. Under IRC § 2603, liability for the federal generation-skipping transfer tax (GST tax) is as follows: Taxable distribution—the transferee is liable for the tax. Taxable termination or direct skip from a trust—the trustee is liable for the tax. Direct skip (other than from a trust)—the transferor is liable for the tax. Florida generation-skipping transfer tax. Under F.S. 198.155, liability for the Florida GST tax is the same as for the federal tax. IRC § 2032A qualified use property. The heir is liable for any additional tax with respect to the disposition or cessation of use of IRC § 2032A qualified use property. Although the federal government or state of Florida impose liability for payment of taxes on the personal representative, other fiduciary, or person in possession of property passing from the decedent, the ultimate burden of taxes is on some or all of the recipients. « Ch. 11 », « § 11.9 », « C » 1 Practice Under Florida Probate Code § 11.9.C (2022)

C. Apportionment Of Tax To Recipients « Ch. 11 », « § 11.9 », « C », • 1 » 1 Practice Under Florida Probate Code § 11.9.C.1 (2022)

1. In General Under Florida law, the ultimate burden of the federal and Florida estate and generation-skipping transfer taxes, as well as any other estate, inheritance, or death tax levied or assessed under the tax laws of Florida or any other state, political subdivision, or country, is determined under F.S. 733.817. State law governs property rights, the construction of wills and trusts, and what constitutes a will. The federal government looks to the executor to pay the estate tax but left it up to the states to apportion the burden of the estate tax from the recipients. In a few instances, the federal government created a right for the estate to recover estate taxes from the recipients of certain nonprobate property. Riggs v. Del Drago, 317 U.S. 95,

63 S. Ct. 109, 87 L. Ed. 106 (1942), 142 A.L.R. 1131; First National Bank of Nevada v. Wells, 148 S.E. 2d 119 (N.C. 1966). See In re Estate of Gordon, 134 Misc.2d 247, 510 N.Y.S. 2d 815 (N.Y. Sur. Ct. 1986), in which the state law requirement for waiver of the right of recovery under IRC § 2207A was more stringent than that of the federal statute at the time. The rights of recovery granted by IRC § 2207A (former QTIP property), IRC § 2207B (transfers with retained interest), and IRC § 2603 (the generation-skipping transfer tax) require greater specificity to waive than other property subject to the estate tax. In 2015, the Florida Legislature amended and restated F.S. 733.817. See Ch. 2015-27, § 6, Laws of Fla. The 2015 Amendment included those additional specificity requirements for the types of property interests granted by IRC §§ 2207A, 2207B, and 2603, eliminating any conflict with the federal statutes. The discussion that follows will refer to this amended and restated 2015 statute. Provisions that clarify existing law apply retroactively to all proceedings pending or commenced on or after July 1, 2015, in which the apportionment of taxes has not been determined or agreed, without regard to the date of the decedent’s death. Changes in the law are effective for decedent’s dying on or after July 1, 2015. An explanation of the changes and the effective date provisions is in § 11.8.D. Because lawyers may occasionally have to deal with estates of decedents dying before the effective date of the amended legislation, both the former law and the current law are discussed in the following sections. For the remainder of this chapter, the term “former statute” or “1999 statute” refers to F.S. 733.817 on or after October 1, 1998, but before July 2015, and the “statute,” or “amended statute,” or “2015 statute,” refers to F.S. 733.817 on or after July 1, 2015. Amendments to F.S. 733.817 on or after October 1, 1998, but before July 2015, were largely stylistic and therefore inconsequential. See §§ 11.9.C.2– 11.9.C.6 regarding apportionment under the 2015 statute. « Ch. 11 », « § 11.9 », « C », « 2 » 1 Practice Under Florida Probate Code § 11.9.C.2 (2022)

2. Tax Attributable To Each Interest Before determining who ultimately bears the burden of the tax, one must determine how much tax is attributable to each property interest being taxed. This determination must be made for each different tax. Except as effectively

directed in the governing instrument under F.S. 733.817(4), the net tax attributable to an interest is determined under F.S. 733.817(2). The aggregate of the net tax attributable to each interest must total 100% of the estate tax. The net tax attributable to each interest included in the measure of the tax will be proportionate to the value of all interests included in the measure of the tax except for the following circumstances: Credits. Most credits against the tax (such as the applicable credit amount for the estate tax, the credit for gift taxes, and the credit for tax on prior transfers with respect to the federal estate tax) are taken off the top so that all properties included in the measure of the tax benefit proportionately. This applies to both the former and amended statute. F.S. 733.817(1)(g). The foreign death tax credit and the state death tax deduction are handled separately. First, figure the tax attributable to each interest before applying the foreign tax credit or the state death tax deduction. When there is tax attributable to interests included in the measure of the tax by reason of IRC § 2044 (“Section 2044 interests,” commonly known as “QTIP property”), the lawyer must first calculate the tax attributable to the Section 2044 interests, deduct the amount so calculated from the total estate tax, then allocate the balance of the estate tax to the remaining interests. F.S. 733.817(2)(a). If the decedent effectively directs so by will, property subject to a general power of appointment may have the tax attributable to those interests calculated in a manner resulting in a tax greater than applicable to the other remaining interests provided it may not exceed the effective rate of tax attributable to Section 2044 interests. See F.S. 733.817(4)(e). If the decedent effectively directed that the tax attributable to any other interest included in the measure of the tax be more or less than the share of tax that would be attributable to all remaining interests other than the Section 2044 interests, the tax on that should be determined next. If there is more than one such exception, the taxes on these various interests must be allocated in the order that would give effect to the decedent’s effective directions and result in the allocation of 100% of

the total tax. The direction must be in the governing instrument and meet the requirements of F.S. 733.817(4) for effective express directions. F.S. 733.817(2). The foreign tax credit benefits the recipients of foreign property first, and the balance of the credit, if any, is taken off the top to benefit all other properties proportionately. F.S. 733.817(2)(b). The reduction in the net tax attributable to the deduction for state death taxes allowed by IRC § 2058 is allocated to the recipients of interests that produced the deduction. For this purpose the reduction in net tax is calculated in the manner provided for interests other than Section 2044 interests. F.S. 733.817(2)(c). If a Florida tax is imposed, the reduction in Florida tax on the estate of a Florida resident for tax paid to other states should be allocated to the recipients being taxed by other states. This avoids double tax on the recipients charged with the other states’ tax. To accomplish this, the Florida tax on the estate of a Florida resident for tax paid to other states is allocated under F.S. 733.817(2)(d) as follows: The lawyer must first determine the net Florida estate tax that would be attributable to the property taxable by another state calculated as if no tax were payable to any other state. This is the “tentative Florida tax” attributable to the property. F.S. 733.817(1) (r). If the net tax paid to another state is greater than or equal to the tentative Florida tax attributable to the property subject to tax in the other state, none of the Florida tax shall be attributable to that property. If the net tax paid to another state is less than the tentative Florida tax attributable to the property subject to tax in the other state, the net Florida tax attributable to the property subject to tax in the other state shall be the excess of (1) the amount of the tentative Florida tax attributable to the property, over (2) the net tax payable to the other state with respect to the property. Any remaining net Florida tax shall be attributable to property included in the measure of the Florida tax exclusive of property

subject to tax in other states. The net federal tax attributable to the property subject to tax in the other state shall be determined as if it were located in the state of Florida. Tax attributable to a temporary interest is attributable to the principal that supports it. F.S. 733.817(2)(e). « Ch. 11 », « § 11.9 », « C », « 3 » 1 Practice Under Florida Probate Code § 11.9.C.3 (2022)

3. Statutory Apportionment The next step is to determine who ultimately bears the burden of each type of tax. Generally, property interests bear their prorata share of the estate and generation-skipping transfer taxes, but there are exceptions for property passing under wills and trusts and other special types of properties. F.S. 733.817(3) provides for the apportionment of the taxes unless the decedent effectively directs otherwise in the governing instrument under F.S. 733.817(4). If the decedent has not effectively directed otherwise, the taxes are apportioned in accordance with F.S. 733.817(3) as follows: Generation-skipping transfer tax is apportioned as provided in IRC § 2603 after the application of the remaining provisions of F.S. 733.817(3). F.S. 733.817(3)(a). Section 2044 interests: The estate tax on Section 2044 interests is apportioned to those interests in proportion to the value of each. See F.S. 733.817(3)(b) for coordination provisions relating to other interests passing under wills or trusts. F.S. 733.817(3)(b). Section 2044 interests are former QTIP interests. Property passing under the decedent’s will (F.S. 733.817(3)(c)): First, the residuary estate (whether or not included in the measure of the tax) bears the tax on nonresiduary devises. If the residuary estate is insufficient to pay the tax on nonresiduary devises, nonresiduary devisees bear the tax on the balance in proportion to their interests included in the measure of the tax.

Then, residuary devisees whose devises are included in the measure of the tax bear the tax on the residuary estate in proportion to their interests. If the residuary estate is insufficient to pay the tax attributable to both the nonresiduary and the residuary devises, the balance is charged against the nonresiduary devisees in proportion to their interests included in the measure of the tax. A will provision that directed that the devisee receive half of the estate as valued for purposes of inventory, and not reduced by debts, claims, or taxes, was held in In re Estate of Miller, 301 So. 2d 137 (Fla. 4th DCA 1974), to be a general, nonresiduary devise. The 2015 Amendments to the statute do not change this result. Trusts other than a trust created under the decedent’s will (F.S. 733.817(3)(d)): First, the residuary interests (whether or not included in measure of the tax) bear the tax on nonresiduary interests. If residuary interests are insufficient, nonresiduary interests bear tax on the balance in proportion to their interests included in measure of the tax.

the the the the

Then, residuary interests included in the measure of the tax bear the tax on the residue in proportion to their interests. If the residuary interests are insufficient to pay the tax attributable to both the nonresiduary and the residuary interests, the balance is charged against the nonresiduary in proportion to the interests included in the measure of the tax. Common Instrument Construction. F.S. 733.817(3)(g). The decedent’s will and revocable trusts are treated as if they were a common instrument for the purpose of apportionment under F.S. 733.817(3)(b)– (3)(f). This applies if the estate is a beneficiary of the decedent’s revocable trust or the revocable trust is a beneficiary of the decedent’s estate. It also applies to a revocable trust of the decedent and another revocable trust of the decedent if either is a beneficiary of the other. For example, the decedent’s will provides for specific devises of personal property to the decedent’s sister, with the remainder of the probate estate

passing to the decedent’s revocable trust; the decedent’s revocable trust provides for the distribution of General Motors stock to the decedent’s sister, with the rest of the assets in the revocable trust passing to the decedent’s brother. Under the common instrument provision, the will and trust are treated as if one fund, the devise of personal property (under the will) and the distribution of General Motors stock (under the trust) are regarded as nonresiduary interests, and the rest of the assets are residuary interests. Protected homestead, exempt property, and family allowance. F.S. 733.817(3)(e). Protected homestead means the decedent’s homestead that passes to a person to whom inures the decedent’s exemption from forced sale under the Florida Constitution. See F.S. 731.201 (defining “protected homestead”). The net tax attributable to protected homestead, exempt property, and the family allowance is apportioned against the recipients of other interests in the probate estate and any revocable trust under F.S. 733.817(3)(e) in the following order: a. Class I: Recipients of interests passing by intestacy that are included in the measure of the federal estate tax. b. Class II: Recipients of residuary devises, residuary interests, and pretermitted shares under F.S. 732.301 and 732.302 that are included in the measure of the federal estate tax. c. Class III: Recipients of nonresiduary devises and nonresiduary interests that are included in the measure of the federal estate tax. The net tax apportioned to a class, if any, is apportioned among the recipients in the class in the proportion that the value of the interest of each bears to the total value of all interests included in that class. The net tax apportioned under this provision may not be apportioned against the portion of any interest that is applied in satisfaction of the elective share, whether or not included in the measure of the tax. The balance of net tax attributable to protected homestead, exempt

property, and family allowance not apportioned as provided above is apportioned to the recipients of those interests included in the measure of the tax. Construction. F.S. 733.817(3)(f). If the decedent’s estate is a beneficiary of an insurance policy or other contractual right, or is the taker as a result or in default of the exercise of a power of appointment, that interest must be regarded as passing under the decedent’s will if the decedent died testate, or by intestacy if it is not disposed of by will. Similarly, if the recipient is a trust, the interest will be regarded as passing under the trust. Other Interests. F.S. 733.817(3)(h). The tax on all other interests is apportioned proportionately among the recipients of the other interests. This would include recipients of property passing by intestacy, jointly held interests passing by survivorship, insurance, properties in which the decedent held a reversionary or revocable interest, and annuities. The court is authorized to apportion the tax in an equitable manner if not effectively apportioned under the governing instrument or F.S. 733.817(3). See F.S. 733.817(3)(i)2. The term “tax” as used in the statute includes penalties and interest imposed in addition to the tax. F.S. 733.817(1)(p). If the court finds that it is inequitable to apportion interest, penalties, or both, in the manner provided above, the court may assess liability for the payment of these items in the manner it finds equitable. F.S. 733.817(3)(i)1. F.S. 733.805(3) provides that F.S. 733.817 applies before F.S. 733.805 applies. This means that any estate taxes apportioned to the probate estate either by the decedent’s effective express direction or by F.S. 733.817 would be charged first before the application of F.S. 733.805 to the payment of debts, taxes, family allowance, and other things. « Ch. 11 », « § 11.9 », « C », « 4 » 1 Practice Under Florida Probate Code § 11.9.C.4 (2022)

4. Effect Of Provisions In Governing Instrument That Direct Payment Of Taxes « Ch. 11 », « § 11.9 », « C », « 4 », • a » 1 Practice Under Florida Probate Code § 11.9.C.4.a (2022)

a. In General F.S. 733.817(4) provides that the apportionment provided by F.S. 733.817 may be varied by the direction of the decedent in the governing instrument. These rules are intended to make it clear that the testator considered the issue and made a deliberate decision about the burden of taxation so there is no inadvertent waiver. Any provision directing the apportionment of taxes in a manner different from F.S. 733.817 must be express. That applies both to the tax on assets passing under the governing instrument and the tax on assets passing outside of it. A provision that is permissive is not a direction. These rules, rules for resolving conflicts between governing instruments, and others are discussed below. « Ch. 11 », « § 11.9 », « C », « 4 », « b » 1 Practice Under Florida Probate Code § 11.9.C.4.b (2022)

b. Express Direction Requirement A governing instrument may not direct that taxes be paid from property other than that passing under the governing instrument except as provided in F.S. 733.817(4). F.S. 733.817(4)(a). For a direction in a governing instrument to be effective to direct payment of taxes attributable to property passing under the governing instrument in a manner different than that provided in F.S. 733.817, the direction must be express. F.S. 733.817(4)(b). For a direction in a governing instrument to be effective to direct payment of taxes attributable to property passing under the governing instrument on property not passing under the governing instrument, the decedent must expressly direct that the property passing under the governing instrument bear the tax for property not passing under the governing instrument. The statute provides that “a direction in the governing instrument to the effect that all taxes are to be paid from property passing under the governing instrument whether attributable to property passing under the governing instrument or otherwise” is effective except as provided in F.S. 733.817(4)(d). F.S. 733.817(4)(c). See In re Estate of McClaran, 811 So. 2d 799 (Fla. 2d DCA 2002) (provision in will excepting certain nonprobate interests from payment of taxes by probate estate was not express indication

that property passing under will should be used to pay taxes for other property passing outside of will under F.S. 733.817(5)(h)4 (1999)). The result in McClaran would be the same under the 2015 statute. See F.S 733.817(4) (c). « Ch. 11 », « § 11.9 », « C », « 4 », « c » 1 Practice Under Florida Probate Code § 11.9.C.4.c (2022)

c. Specificity Requirements Regarding Certain Federal Rights Of Recovery F.S. 733.817(4)(d) deals with the rights of recovery granted to a decedent’s estate for taxes described in IRC §§§ 2207A, 2207B, or 2603. These rights of recovery are granted against the recipients of the property generating the taxes. The decedent may waive these rights of recovery in his or her will or revocable trust provided the decedent specifically indicates the intent to waive the right of recovery as provided in those statutes. To waive these rights of recovery, the decedent must meet the requirements of F.S. 733.817(4)(d) in addition to the other provisions of subsection (4). The provisions describing what would satisfy the specificity requirements are in the nature of safe harbor provisions and are not intended to be exclusive. F.S. 733.817(4)(d)1a incorporates the specificity requirements of IRC § 2207A for a waiver of the right of recovery for Section 2044 interests. F.S. 733.817(4)(d)1.b. provides that if property is included in the decedent’s gross estate for estate tax purposes under both IRC § 2041 (power of appointment property) and § 2044 (Section 2044 interests), that the property is deemed included under IRC § 2044 for purposes of the allocation and apportionment of the tax. F.S. 733.817(4)(d)2. deals with the specificity requirements of IRC § 2207B for a waiver of the right of recovery for Section 2036 interests. If property is included in the decedent’s gross estate for estate tax purposes under both IRC § 2036 and § 2038, the property is deemed included under IRC § 2038. A general statement in the decedent’s will or revocable trust waiving all rights of reimbursement or recovery under the Internal Revenue Code is not an express waiver of the rights of recovery under IRC §§ 2207A or 2207B. F.S. 733.817(4)(d)3.

F.S. 733.817(4)(d)4. deals with the specificity requirements of IRC § 2603 for a waiver of the right of recovery for the generation-skipping transfer tax. « Ch. 11 », « § 11.9 », « C », « 4 », « d » 1 Practice Under Florida Probate Code § 11.9.C.4.d (2022)

d. General Power Of Appointment F.S. 733.817(4)(e) permits a decedent to direct the calculation of the tax attributable to property subject to a general power of appointment as if it were Section 2044 property. The tax attributable to the power of appointment property may not exceed the difference between the tax that would be imposed on all other properties and the tax imposed with the power of appointment property included. This provision further deals with the application of this provision if tax is also attributable to one or more Section 2044 interests. The author notes that this deals only with the calculation of the tax attributable to the power. Occasionally, general powers of appointment created for tax reasons are limited in such a manner that they will not be exercised. This provision makes it clear that the decedent may direct that it bear the additional taxes incurred due to the inclusion of the power in the decedent’s gross estate. This provision does not limit the ability of the decedent to exercise the general power of appointment to appoint the property subject to the general power in any manner permitted by the terms of the power (subject to its tax obligations). « Ch. 11 », « § 11.9 », « C », « 4 », « e » 1 Practice Under Florida Probate Code § 11.9.C.4.e (2022)

e. Coordination Of Will And Revocable Trust If the decedent’s will expressly provides that the tax is to be apportioned as provided in the decedent’s revocable trust by specific reference to the revocable trust, an express direction in the revocable trust is deemed to be a direction contained in the will as well as in the revocable trust. F.S. 733.817(4)(f). An express direction in the decedent’s will to pay the tax from the decedent’s revocable trust by specific reference to the revocable trust is effective unless a contrary express direction is contained in the revocable trust. F.S. 733.817(4)(g).

« Ch. 11 », « § 11.9 », « C », « 4 », « f » 1 Practice Under Florida Probate Code § 11.9.C.4.f (2022)

f. Conflicts Between Governing Documents If governing instruments contain conflicting but otherwise effective directions for the payment of taxes, the most recently executed effective apportionment provision controls to the extent of the conflict. The date of the codicil to the will or amendment to another governing instrument will be regarded as the date of the will or governing instrument only if it contains an express apportionment provision. The ratification or republication of all provisions not otherwise amended does not meet this condition. If the will and other governing instrument were executed on the same date, the will is deemed executed after the other governing instrument. F.S. 733.817(4)(h). « Ch. 11 », « § 11.9 », « C », « 4 », « g » 1 Practice Under Florida Probate Code § 11.9.C.4.g (2022)

g. Permission Versus Direction A grant of permission or authority to request payment of tax or to pay tax is not a direction apportioning the tax. F.S. 733.817(4)(i). See Nationsbank, N.A. v. Brenner, 756 So. 2d 203 (Fla. 3d DCA 2000). See also In re Estate of McClaran, 811 So. 2d 799 (Fla. 2d DCA 2002). « Ch. 11 », « § 11.9 », « C », « 4 », « h » 1 Practice Under Florida Probate Code § 11.9.C.4.h (2022)

h. Remaining Tax F.S. 733.817 applies to any tax remaining unpaid after the application of any effective express directions. An express direction for the payment of tax on specific property or a type of property is not a direction for payment of tax on other property or other types of property. F.S. 733.718(4)(j). In other words, this section applies to the extent the decedent did not effectively direct otherwise under this section. See In re Estate of McClaran, 811 So. 2d 799 (Fla. 2d DCA 2002). « Ch. 11 », « § 11.9 », « C », « 4 », « i • 1 Practice Under Florida Probate Code § 11.9.C.4.i (2022)

i. Case Law

A discussion of some noteworthy Florida cases and the likely results under current law follows: Hagerty v. Hagerty, 52 So. 2d 432 (Fla. 1951). When a will directed all taxes be paid from the residue so that all testamentary distributees would receive their shares free of those taxes, this did not preclude charging nonprobate assets, such as a joint bank account and insurance proceeds, with their equitable share of taxes. Because there was no express direction that the probate assets were to bear the burden for property not passing under the will, the result would be the same under the 1999 statute, F.S. 733.817(5)(h)4, and under the 2015 statute, F.S. 733.817(4) (c). In re Estate of Strohm, 241 So. 2d 167 (Fla. 4th DCA 1970). When a revocable trust instrument directed the trust to bear its equitable share of estate taxes, but a later will directed all estate taxes imposed with respect to any property passing under or outside the will be paid out of the residuary estate, it was held that the later will provision controlled. Under the 1999 statute, F.S. 733.817(5)(h)5b, the trust provision directing the payment of estate taxes attributable to the trust from the trust would be given effect, because the provision in the will did not expressly override the provision in the trust. Under the 2015 statute, the later will would control. F.S. 733.817(4)(c), (4)(h). Guidry v. Pinellas Central Bank & Trust Co., 310 So. 2d 386 (Fla. 2d DCA 1975). In Guidry, the revocable trust provided that it was to pay the taxes attributable to the trust assets as well as assets passing outside of the estate or trust as may be requested by the executor. If not requested by the executor within eight months, the trustee was not required to pay the taxes. Under the then-applicable statute, this was ineffective to direct the payment of taxes attributable to nontrust assets. The result in Guidry would be the same under the 1999 statute, F.S. 733.817(5)(h)4, and under the 2015 statute, F.S. 733.817(4)(i). It is still ineffective because the burden of taxation would be at the discretion of the executor and not at the direction of the decedent. Thus, it is not an express direction that the trust pay taxes on nontrust assets. See also Nationsbank, N.A. v. Brenner, 756 So. 2d 203 (Fla. 3d DCA 2000). Yoakley v. Raese, 448 So. 2d 632 (Fla. 4th DCA 1984). In Yoakley, the

decedent’s revocable trust provided that the trustee was to pay the executor the amount of taxes that the executor certified the residuary estate was unable to pay because of insufficient assets. A later will provided that the residuary estate was to pay all estate taxes on the gross estate, whether passing under the will or otherwise. The court held that the will controlled and that the insufficiency was paid according to F.S. 733.805 rather than from the trust. However, the court noted that the trust would be responsible for its own estate taxes to the extent the residue of the estate was insufficient under then F.S. 733.817. Under both the 1999 statute, F.S. 733.817(5)(h)4, and the 2015 statute, F.S. 733.817(4)(c), the direction in the trust does not appear to be an express provision to pay estate taxes on property passing outside of the trust. However, the trust would be responsible for the payment of any remaining taxes attributable to the trust assets if the residuary estate was insufficient. Furthermore, if heard today, subsequent amendments to F.S. 733.607(2) would have to be considered. See F.S. 733.805(3), providing that F.S. 733.817 is to be applied before F.S. 733.805. The inadequacy of a decedent’s estate to satisfy specific bequests in the will because of estate taxes does not constitute an act of disaffirmance of prior Totten trusts. Litsey v. First Federal Savings & Loan Ass’n of Tampa, 243 So. 2d 239 (Fla. 2d DCA 1971), 46 A.L.R. 3d 477. In re Estate of Collin, 368 So. 2d 1350 (Fla. 4th DCA 1979). A general direction in a will directing payment of estate taxes from the residuary estate (when only assets passing under the will were involved) was held to be sufficient to direct against the apportionment statute with the result that both the charitable and noncharitable remainder beneficiaries paid their prorata share of estate taxes. The remainder beneficiaries were each to receive a percentage of the residue. The court conceded that there was no explicit direction for the charities to bear part of the tax on the residuary interests, but divined the decedent’s intent from the grouping in the general direction to pay estate taxes, expenses, and debts from the residue in the same sentence. The result likely would be the same under the 1999 statute. Under the 2015 statute, the result would be different. In order for the direction to be effective to direct payment of taxes attributable to property passing under the governing instrument in a manner different than that provided in F.S. 733.817, the direction must

be express. F.S. 733.817(4)(b). When a portion of the residue passes to charity, the charity would bear its proportionate share of estate taxes attributable to the nonresiduary devises. However, the charity would not bear any of the estate taxes imposed on the residuary interests themselves absent an express direction to do so. F.S. 733.817(3)(c). The general boilerplate direction in Collin is not an express direction for the charities to bear a part of the tax on the residuary interests. Ferrone v. Soffes, 558 So. 2d 146 (Fla. 3d DCA 1990). A general will provision that directed the personal representative of the estate to pay all estate taxes that might be assessed by reason of the testator’s death was not sufficient to transfer the burden of estate tax imposed by former F.S. 733.817(1)(e) (1987) from the joint owner of property to the probate estate. In so holding, the Ferrone court stated that “the statute requires there to be a clear and unequivocal direction in the will in order to require the estate to bear the burden of taxation for property passing outside the will.” Id. at 147. The court further stated that it must be “unmistakably clear that the testator considered the issue and made a deliberate decision about the burden of taxation. It is that degree of particularity which is contemplated by the phrase, “otherwise directed by the will.” Id. The court expressly disagreed with Collin. The language that was not sufficient under Ferrone to shift the burden of estate taxes from the apportionment statute is also not sufficient under the 1999 statute, F.S. 733.817(5)(h)4, nor under the 2015 statute, F.S. 733.817(4)(c), which requires that the governing instrument must “expressly direct” that property passing under the governing instrument is to bear the burden of taxation for property not passing under the governing instrument for it to do so. In re Estate of McClaran, 811 So. 2d 799 (Fla. 2d DCA 2002). The district court (in construing F.S. 733.817(5)(h)4 (1999)) held that a direction to pay from the residue “estate and inheritance taxes assessed by reason of my death” except for the tax on former QTIP property, did not expressly indicate that property passing under the will should be used to pay the taxes attributable to any other property not passing under the will. Furthermore, the court refused to consider the language of the testator’s irrevocable trust in construing the testator’s intent in his will, because F.S. 733.817(5)(h)4 (1999) required express language in the

will itself. The McClaran result would be the same under the 2015 statute. F.S. 733.817(4)(c). Boulis v. Blackburn, 16 So. 3d 186 (Fla. 1st DCA 2009). The District Court of Appeal, First District, followed McClaran in Boulis. The decedent directed the payment of estate taxes assessed by reason of his death, and waived the right to recover such taxes, including from any beneficiary of life insurance. Like the decedent in McClaran, the decedent did not expressly indicate that the property passing under the will was to bear the burden of taxation for property not passing under the will. The result was that the elective share (under prior law) of the noncitizen spouse who did not form a QDOT was apportioned its share of estate taxes. Estate taxes on insurance were apportioned to the insurance, and estate taxes on protected homestead were apportioned to the residuary devisees of the will and revocable trust under F.S. 733.817(5)(c)2 (2000). The result under the 2015 statute would be that the taxes on insurance and interests applied in satisfaction of the elective share would bear their own share of the estate taxes under F.S. 733.817(3)(h), and the estate taxes on homestead would be borne by the residue of the estate and revocable trust under F.S. 733.817(3)(e)1.b. (None of the interests passing to the spouse qualified for the marital deduction.) Sheets v. Palmer, 917 So. 2d 246 (Fla. 1st DCA 2005). In the absence of a provision in a settlement agreement between a beneficiary and the estate excluding a specific bequest from the operation of F.S. 733.817, that bequest must contribute its proportionate share of the taxes charged to all specific bequests if the residuary is insufficient. « Ch. 11 », « § 11.9 », « C », « 5 » 1 Practice Under Florida Probate Code § 11.9.C.5 (2022)

5. Order Of Apportionment And Recovery Of Tax From Recipients « Ch. 11 », « § 11.9 », « C », « 5 », • a » 1 Practice Under Florida Probate Code § 11.9.C.5.a (2022)

a. Order Of Apportionment F.S. 733.608 provides that all real and personal property within Florida (except homestead) is deemed to be assets in the hands of the personal

representative for the payment of items such as taxes and debts. F.S. 733.817(5) provides that the personal representative (or fiduciary) is not required to distribute assets that are “reasonably anticipated to be necessary” to pay any state or federal taxes. Furthermore, the personal representative (or other fiduciary) is not required to transfer any property until the amount of tax due from the recipient is paid or, if the apportionment of tax has not been determined, until adequate security is furnished for payment. Effectively, the 2015 statute calls for the recipient to receive his or her share less the taxes apportioned to that share. This is a clarification of F.S. 733.817(6) (1999). At any time, the personal representative may petition for an order of apportionment. Any time after 90 days from the decedent’s death, if no administration has been started, any fiduciary may petition for an order of apportionment in the court in which venue would be proper for administration of the decedent’s estate. Any time after six months from the decedent’s death, any recipient may petition that court for an order of apportionment. F.S. 733.817(6)(a). This is substantially the same as F.S. 733.817(7)(a) (1999). The court must determine all issues concerning apportionment. If the tax to be apportioned has not been finally determined, the court must determine the probable tax due or to become due from all interested persons, apportion the probable tax, and retain jurisdiction over the parties and issues to modify the order of apportionment from time to time as may be appropriate until after the tax is finally determined. F.S. 733.817(6)(b). This is substantially the same as F.S. 733.817(7)(b) (1999). « Ch. 11 », « § 11.9 », « C », « 5 », « b » 1 Practice Under Florida Probate Code § 11.9.C.5.b (2022)

b. Deficiency If the personal representative (or fiduciary) does not have possession of sufficient property otherwise distributable to the recipient to pay the tax apportioned to the recipient (whether under F.S. 733.817, the Internal Revenue Code, or the governing instrument, whichever is applicable), the personal representative (or fiduciary) is required to recover the deficiency in the tax so apportioned against the recipient. F.S. 733.817(7)(a). In any action to recover the tax apportioned, the court must award taxable costs and reasonable attorneys’ fees as in chancery actions. F.S. 733.817(7)(c).

Furthermore, under F.S. 733.817(7)(c), the court “may award penalties and interest on the unpaid tax in accordance with equitable principles.” This is substantially the same as F.S. 733.817(8) (1999). « Ch. 11 », « § 11.9 », « C », « 5 », « c » 1 Practice Under Florida Probate Code § 11.9.C.5.c (2022)

c. Relief From Duty A personal representative (or fiduciary) may be relieved of this duty to collect the tax by an order of the court finding that the costs of recovery approximate or exceed the amount to be recovered, that the interested party is a resident of a foreign country other than Canada and refuses to pay, or that it is impractical to enforce contribution because of the improbability of obtaining or of collecting any judgment, or otherwise. F.S. 733.817(8)(a). In addition, the personal representative (or fiduciary) is not liable for failure to attempt to enforce collection if the personal representative (or fiduciary) reasonably believes the attempt “would have been economically impracticable.” F.S. 733.817(8)(b). This is substantially the same as F.S. 733.817(9) (1999). « Ch. 11 », « § 11.9 », « C », « 5 », « d » 1 Practice Under Florida Probate Code § 11.9.C.5.d (2022)

d. Uncollected Tax Any apportioned tax that is not collected must be reapportioned as if the portion of the property to which the uncollected tax had been apportioned had been exempt. F.S. 733.817(9). F.S. 733.817(9) is substantially the same as F.S. 733.817(10) (1999). « Ch. 11 », « § 11.9 », « C », « 5 », « e » 1 Practice Under Florida Probate Code § 11.9.C.5.e (2022)

e. Contribution Any person who has paid more than the amount of tax apportionable to that person has the right to obtain contribution from those who have not paid the full amount of tax apportionable to them. In any action to enforce contribution, the court “shall” award taxable costs as in chancery actions, including reasonable attorneys’ fees. F.S. 733.817(10). F.S. 733.817(10) is substantially the same as F.S. 733.817(11) (1999).

« Ch. 11 », « § 11.9 », « C », « 5 », « f • 1 Practice Under Florida Probate Code § 11.9.C.5.f (2022)

f. Foreign Tax Nothing contained in F.S. 733.817 requires the personal representative (or fiduciary) to pay any tax levied or assessed by any foreign country, unless specific directions to that effect are contained in the will or other instrument under which the personal representative (or fiduciary) is acting. F.S. 733.817(11). F.S. 733.817(11) is substantially the same as F.S. 733.817(12) (1999). « Ch. 11 », « § 11.9 », « C », « 6 • 1 Practice Under Florida Probate Code § 11.9.C.6 (2022)

6. Effect On Marital And Charitable Deduction Property interests that initially qualify for the marital or charitable deduction are not “included in the measure of the tax.” This means that no tax is attributable to these interests. This remains true even if the marital or charitable deductions are reduced because of any taxes chargeable to those interests. Property interests that “initially” qualify mean that any required elections (like QTIP elections) have been made. F.S. 733.817(1)(e). This is substantially the same as F.S. 733.817(1)(d) (1999). If the marital or charitable deduction interests passing under a will or trust are residuary interests, the tax attributable to nonresiduary interests will be paid from the marital or charitable residuary interests in proportion to their interests in the residuary without regard to the fact that the marital or charitable interests are not included in the measure of the tax. F.S. 733.817(3) (c), (3)(d). The tax effect of this is to decrease the marital or charitable deduction by the amount of the tax paid, which then increases the total tax to be paid, which then decreases the marital and charitable deduction, which then increases the tax to be paid and so on. This interrelated computation greatly increases the total tax. If the marital or charitable deduction interests are nonresiduary interests, none of the tax attributable to the other nonresiduary interests or the residuary interests is apportioned against these marital or charitable interests, and the interrelated calculation is avoided as to those interests.

Marital or charitable deduction residuary interests do not bear any part of the tax on any residuary interests included in the measure of the tax as those interests bear their own tax. F.S. 733.817(3)(c), (3)(d). The same was true under 733.817(5) (1999). This minimizes the estate tax but decreases the net amount of the residuary interests passing to the nonmarital or noncharitable beneficiaries as they bear the entire tax on the residue. The decedent may wish to minimize taxes at all costs, or the decedent may wish to leave part of the residue to charity but prefer to maximize what passes to the noncharitable residuary beneficiaries by having the charity share in the payment of estate tax. If the decedent wishes to direct the apportionment of the estate tax attributable to property passing under the governing instrument in a manner other than as provided in the statute, the direction must be express. For example, a direction in a will that “any property otherwise qualifying for the marital or charitable deduction shall not bear any part of the estate tax on other property passing under the will” would be an express direction. A direction in a will that “estate taxes are to be charged to exempt organizations if they are a part of a residuary devise in proportion to their interests in the residuary estate, even though this may increase the total estate taxes to my estate” would be an express direction (when the exempt organization is a charity). For example, a direction in a will that “any property otherwise qualifying for the marital or charitable deduction shall not bear any part of the estate tax on other property passing under the will” would be an express direction exonerating the marital and charitable deduction devises from any estate tax on nonresiduary devises under the statute. Additionally, a direction that “estate taxes are to be charged to exempt organizations if they are a part of a residuary devise in proportion to their interests in the residuary estate, even though this may increase the total estate taxes to my estate” would be an express direction for the charity to share in the payment of the taxes on the residue (when the exempt organization is a charity). « Ch. 11 », « § 11.9 », « D » 1 Practice Under Florida Probate Code § 11.9.D (2022)

D. Explanation Of 2015 Amendments To Apportionment Statute

« Ch. 11 », « § 11.9 », « D », • 1 » 1 Practice Under Florida Probate Code § 11.9.D.1 (2022)

1. Introduction As previously stated in § 11.9.C, in 2015, the Florida Legislature substantially amended and restated F.S. 733.817. Ch. 2015-27, Laws of Fla. The 2015 statute reorganized the 1999 statute and clarified many provisions. Other provisions were added or changed. This explanation is limited to the changes from the 1999 statute. As previously stated, amendments to the 1999 statute before the 2015 Amendments were largely insubstantial and are therefore ignored for the purpose of this explanation. Also, as previously noted, the term “former statute” or “1999 statute” refers to F.S. 733.817 on or after October 1, 1998, but before July 2015. References to the statute, without specifying more, means the 2015 statute. « Ch. 11 », « § 11.9 », « D », « 2 » 1 Practice Under Florida Probate Code § 11.9.D.2 (2022)

2. Applicability The applicability of F.S. 733.817, as amended in 2015, is set forth in the Editor’s Notes to the 2015 statute as follows: (1) The amendment made by this act to [F.S.] 733.817(1)(g) and (2)(c), Florida Statutes, is remedial in nature, is intended to clarify existing law, and applies retroactively to all proceedings pending or commenced on or after July 1, 2015, in which the apportionment of taxes has not been finally determined or agreed for the estates of decedents who die after December 31, 2004. (2) The amendment made by this act to [F.S.] 733.817(1)(e)3., (3)(e), (3) (g), (4)(b), (4)(c), (4)(d)1.b., (4)(e), (4)(h), and (6), Florida Statutes, applies to the estates of decedents who die on or after July 1, 2015. (3) Except as provided in subsections (1) and (2), the amendment made by this act to [F.S.] 733.817, Florida Statutes, is remedial in nature, is intended to clarify existing law, and applies retroactively to all proceedings pending or commenced on or after July 1, 2015, in which the apportionment of taxes has not been finally determined or agreed and

without regard to the date of the decedent’s death. Ch. 2015-27, Laws of Fla. « Ch. 11 », « § 11.9 », « D », « 3 • 1 Practice Under Florida Probate Code § 11.9.D.3 (2022)

3. Specific Provisions « Ch. 11 », « § 11.9 », « D », « 3 •, • a » 1 Practice Under Florida Probate Code § 11.9.D.3.a (2022)

a. Removal Of Gift Taxes And Portion Of Any Intervivos Transfer Included In Gross Estate The term “included in the measure of the tax” no longer includes gift taxes included in the gross estate under IRC § 2035 or the portion of any intervivos transfer included in the gross estate under IRC § 529. F.S. 733.817(1)(e)3. The result is that the recipients of those gifts and the § 529 plans do not bear any part of the estate tax, spreading the tax among the recipients of other interests included in the measure of the tax. « Ch. 11 », « § 11.9 », « D », « 3 •, « b » 1 Practice Under Florida Probate Code § 11.9.D.3.b (2022)

b. Homestead The provisions for the payment of tax on protected homestead have changed and been expanded to include payment of tax on exempt property and family allowance as well. As in the 1999 statute, only interests included in the measure of the tax that pass from the probate estate or under the revocable trust are responsible for payment of the tax on these special interests. Class I recipients now include only recipients of property passing by intestacy. This means that recipients of property not passing by intestacy, such as property passing to a pretermitted spouse or pretermitted child or the elective share, are not Class I recipients. Class II recipients of property now include not only recipients of residuary interests as before, but also recipients of pretermitted shares. Class III recipients continue to be recipients of nonresiduary interests. The statute now expressly excludes the recipient of the elective share

from having to contribute, whether or not the elective share is included in the measure of the tax. However, if the elective share is elected, any property passing to the surviving spouse in excess of the elective share will not be exempt from payment if included in the measure of the tax. The statute describes how this is determined and which class or classes the excess would be included in. The statute now provides that the balance of the tax, if not paid by the Class I, II, and III interests, is to be paid by the homestead, exempt property, and family allowance recipients in proportion to the value of those interests included in the measure of the tax. See F.S. 733.817(3)(e) for the details of these provisions. « Ch. 11 », « § 11.9 », « D », « 3 •, « c » 1 Practice Under Florida Probate Code § 11.9.D.3.c (2022)

c. Common Instrument Construction The common instrument construction now requires that it applies only if the decedent’s will or revocable trust pours into the other, or if the decedent’s revocable trust pours into another revocable trust of the decedent. The common instrument construction no longer applies in the absence of the pour-over. The purpose of the common instrument construction provision is to treat the assets subject to these instruments as if in one fund to determine which interests are in effect nonresiduary and which are in effect residuary interests. See F.S. 733.817(3)(g). See the discussion in § 11.9.C.2. « Ch. 11 », « § 11.9 », « D », « 3 •, « d » 1 Practice Under Florida Probate Code § 11.9.D.3.d (2022)

d. Express Direction Requirement As previously discussed, the statute now requires that for a direction in a governing instrument to be effective to direct apportionment in a manner different from that provided in F.S. 733.817, the direction must be express. F.S. 733.817(4)(b). « Ch. 11 », « § 11.9 », « D », « 3 •, « e » 1 Practice Under Florida Probate Code § 11.9.D.3.e (2022)

e. Waiver Of Apportionment

The statute no longer permits the decedent to direct that property subject to the governing instrument bear the tax on property not passing under the governing instrument by reference to this “section.” As used in F.S. 733.817 (1999), the term “this section” meant F.S. 733.817. That was not the intended reference and did not work, because there could be unintended consequences. See F.S. 733.817(4)(c). « Ch. 11 », « § 11.9 », « D », « 3 •, « f » 1 Practice Under Florida Probate Code § 11.9.D.3.f (2022)

f. Additional Specificity Requirements Regarding Certain Federal Rights Of Recovery As previously discussed, F.S. 733.817(4)(c) makes it clear that the additional specificity required by F.S. 733.817(4)(d) for waiving the rights of recovery granted to a decedent’s estate for taxes described in IRC §§ 2207A, 2207B, or 2603 must be met in addition to the other provisions of subsection (4). The safe harbor language in F.S. 733.817(4)(c), alone, is not sufficient to waive the right of recovery for these taxes. « Ch. 11 », « § 11.9 », « D », « 3 •, « g » 1 Practice Under Florida Probate Code § 11.9.D.3.g (2022)

g. Property Includable Under IRC §§ 2044 And 2041 The statute now provides that if property in included in the gross estate under both IRC § 2044 (former QTIP property) and IRC § 2041 (power of appointment property), the property is deemed included in the gross estate under IRC § 2044 for the purposes of F.S. 733.817. See F.S. 733.817(4) (d)1.b. « Ch. 11 », « § 11.9 », « D », « 3 •, « h » 1 Practice Under Florida Probate Code § 11.9.D.3.h (2022)

h. Power Of Appointment Property Subject To Marginal Tax The statute expressly permits the decedent to direct that the tax attributable to general power of appointment property could exceed the tax determined without regard to this provision, but it may not exceed the amount calculated in the same manner as the tax attributable to Section 2044 property. The practitioner should note that this provision does not limit the exercise of the general power of appointment. See F.S. 733.817(4)(e). See the

discussion of this provision in § 11.9.C. « Ch. 11 », « § 11.9 », « D », « 3 •, « i » 1 Practice Under Florida Probate Code § 11.9.D.3.i (2022)

i. Conflicts Between Governing Documents As previously discussed in § 11.9.C, the 2015 statute provides that if governing instruments contain effective directions that conflict as to the payment of taxes, the most recently executed effective directions control. This is a departure from prior law in which the will controlled. A general statement in an amendment or codicil ratifying or republishing all provisions not otherwise amended does not meet this condition. However, an express apportionment provision or express modification of an apportionment provision would meet this condition. F.S. 733.817(4)(h). See the discussion in § 11.9.C.4 of this manual. « Ch. 11 », « § 11.9 », « D », « 3 •, « j » 1 Practice Under Florida Probate Code § 11.9.D.3.j (2022)

j. Order Of Apportionment The requirement of formal notice for the petition for order of apportionment has been changed to “in the manner provided for service of formal notice” in anticipation of a similar modification in the probate rules. F.S. 733.817(6). « Ch. 11 », « § 11.9 », « D », « 3 •, « k • 1 Practice Under Florida Probate Code § 11.9.D.3.k (2022)

k. Other Notable Provisions F.S. 733.817(2)(c) provides that reduction in the net estate tax attributable to the deduction for state death taxes in IRC § 2058 is allocated to the recipients of the interests that produced the deduction. For this purpose, the reduction in net tax is calculated in the manner provided for interests other than Section 2044 interests in F.S. 733.817(2)(a). F.S. 733.817(3)(i)2 provides that if the payment of any tax was not either effectively directed by the governing instrument or apportioned under F.S. 733.817(3), the court may assess liability for the payment of

such tax in the manner the court finds equitable. This applies to the portion of the tax not otherwise apportioned. This does not authorize the court to disregard the apportionment statute. F.S. 733.817(4)(i) is a codification of Nationsbank, N.A. v. Brenner, 756 So. 2d 203 (Fla. 3d DCA 2000). A grant of permission or authority to request payment of tax or to pay tax is not a direction apportioning the tax. F.S. 733.817(4)(j) is a codification of In re Estate of McClaran, 811 So. 2d 799 (Fla. 2d DCA 2002). F.S. 733.817 applies to any tax remaining unpaid after the application of any effective express directions. An express direction for the payment of tax on specific property or a type of property is not a direction for payment of tax on other property or other types of property. F.S. 733.718(4)(j). In other words, F.S. 733.817(3) applies to the extent the decedent did not effectively direct otherwise under F.S. 733.817(4). « Ch. 11 », « § 11.9 », « E • 1 Practice Under Florida Probate Code § 11.9.E (2022)

E. Conflict Of Laws If some of the decedent’s property has a situs outside of Florida at the time of the decedent’s death, there may be a question as to what law to apply if the apportionment laws of the state in which the property is located differ from Florida’s apportionment statute. Some of the states that have considered this issue have determined that the law of the domiciliary state applies, while others have decided that the law of the state in which the situs of the property is located applies. See Mazza v. Mazza, 475 F.2d 385 (D.C. Cir. 1973); Doetsch v. Doetsch, 312 F.2d 323 (7th Cir. 1963). See also First National Bank of Nevada v. Wells, 148 S. E. 2d 119 (N.C. 1966). Florida applies the law of the domicile. In re Bernays’ Estate, 150 Fla. 414, 7 So. 2d 444 (1942), 140 A.L.R. 830. The law of the domicile appears to be the better rule because it permits uniformity within an estate. See Annot., What law governs apportionment of estate taxes among persons interested in estate, 16 A.L.R. 2d 1282 (1951).

« Ch. 11 », « § 11.10 » 1 Practice Under Florida Probate Code § 11.10 (2022)

§ 11.10. DISCLAIMER It is often advantageous from a tax standpoint for a beneficiary to disclaim a part or all of the beneficiary’s share of a decedent’s property. The disclaimed interest may not pass to the disclaimant by reason of the disclaimer. There is an exception to this rule when the disclaimant is the decedent’s spouse. Furthermore, the disclaimant may not direct the disposition of the disclaimed interest. Timing is crucial because a disclaimer generally must be made within nine months of a decedent’s date of death to be effective. If a disclaimer is effectively made, the disclaiming beneficiary generally is treated as if the disclaimant predeceased the decedent and the interest in the property disclaimed never vested in the disclaimant. A disclaimer may be effective for local law purposes and not for tax purposes, resulting in gift tax consequences to the disclaimant. To make an effective disclaimer for tax purposes, both the requirements of local law and the estate and gift tax provisions of the Internal Revenue Code must be met. See F.S. Chapter 739; IRC §§ 2046, 2518, and the corresponding regulations. In 2005, F.S. 689.21 and 732.801 were repealed and replaced by the Florida Uniform Disclaimer of Property Interests Act, F.S. Chapter 739. F.S. 739.103 provides that, except as provided in F.S. 739.701, F.S. Chapter 739 is the exclusive means by which a disclaimer may be made under Florida law.

« Ch. 11 », « § 11.11 » 1 Practice Under Florida Probate Code § 11.11 (2022)

§ 11.11. ALLOCATION OF WRONGFUL DEATH SETTLEMENTS The personal representative has a duty to bring an action for the wrongful death of the decedent on behalf of both the survivors and the estate. F.S. 768.20. The Florida Wrongful Death Act, F.S. 768.16–768.26, provides for damages for the estate, the surviving spouse, children (in some instances), and parents (in some instances), and for medical or funeral expenses arising from the decedent’s injury or death that were paid by or on behalf of the decedent. When there is a wrongful death settlement that is less than the claims of all those entitled to recover under the Florida Wrongful Death Act, the settlement proceeds must be allocated among the estate and the survivors. When the surviving spouse is also the personal representative, an administrator ad litem should be appointed if the allocation of the settlement will affect other interested parties or other survivors. See Continental National Bank v. Brill, 636 So. 2d 782 (Fla. 3d DCA 1994). When a survivor is a minor or an incapacitated person, the settlement must be approved by the court. F.S. 768.23, 768.25. If a wrongful death action has been commenced, the court having jurisdiction of the action is the court having jurisdiction to approve the settlement. F.S. 744.387(3)(a); Maugeri v. Plourde, 396 So. 2d 1215 (Fla. 3d DCA 1981). The court is authorized to appoint a guardian ad litem to represent a minor’s interest before approving a settlement in which a minor has a damages claim in which the gross settlement is more than $15,000 if the court believes a guardian ad litem is necessary to protect the minor’s interest, and the court is required to appoint a guardian ad litem when the gross settlement is $50,000 or more unless a guardian is serving that has no potential adverse interest to the minor. F.S. 744.3025(1). See Allen v. Montalvan, 201 So. 3d 705 (Fla. 4th DCA 2016). If the amount of the minor’s settlement exceeds $15,000, the court will require the appointment of a guardian. F.S. 744.387(3)(b). If there is no legal guardian, a guardian ad litem may be necessary if there is a

conflict of interest or the interest of the minor is not adequately represented. Maugeri. See Wisekal v. Laboratory Corp. of America Holdings, 182 F. Supp. 3d 1296 (S.D. Fla. 2016). The personal representative has a duty to both the survivors and the estate and, therefore, a duty to allocate the settlement proceeds in a fair and equitable manner. See University Medical Center v. Zeiler, 625 So. 2d 120 (Fla. 5th DCA 1993). In In re Estate of Wiggins, 729 So. 2d 523 (Fla. 4th DCA 1999), the personal representative obtained the probate court’s approval of the allocation of wrongful death settlement proceeds between the estate and the survivors. (Apparently there was no pending wrongful death action.) The personal representative based its allocation on the prorata share of each survivor and the estate based on their relative shares as if there had been a full recovery, and supported it with expert testimony. The district court found the method of apportionment reasonable and equitable. Estate debts cannot be paid from wrongful death benefits payable to survivors. In re Estate of Barton, 631 So. 2d 315 (Fla. 2d DCA 1994). In Thompson v. Hodson, 825 So. 2d 941 (Fla. 1st DCA 2002), it was held that a defendant, entitled to attorneys’ fees from an estate as a result of a refused offer of judgment, could recover from estate assets but not from the settlement proceeds of a separate wrongful death settlement allocated to the survivors.

« Ch. 11 », « § 11.12 • 1 Practice Under Florida Probate Code § 11.12 (2022)

§ 11.12. GENEALOGICAL CHART The genealogical chart that follows is based on F.S. 732.103, and indicates those who might inherit the part of the intestate estate not passing to the surviving spouse under F.S. 732.102. The shaded part of the chart shows the expansion of the scope for descendants of Holocaust victims under F.S. 732.103(6) for proceedings filed on or before December 31, 2004.

Footnotes — Chapter 11: *

J.D. with high honors, 1973, University of Florida. Ms. Price is a member of The Florida Bar and is Florida Bar Board Certified in Wills, Trusts and Estates. She is a former Chair of the Probate Law Committee of the Real Property, Probate and Trust Law Section of The Florida Bar. Ms. Price is a Fellow of the American College of Trust and Estate Counsel. She is Of Counsel in GrayRobinson, P.A., in Orlando.

Licensed to Otis K Pitts, Otis K Pitts

« Ch. 12 » 1 Practice Under Florida Probate Code Ch. 12 (2022)

Chapter 12 FIDUCIARY ACCOUNTINGS SANDRA GRAHAM SHEETS* CRAIG A. MUNDY** Contents § 12.1. INTRODUCTION A. Scope Of Chapter B. Fiduciary Accountings § 12.2. PRELIMINARY CONSIDERATIONS A. Required Fiduciary Accountings B. Use Of Waivers C. Establishing A Fiduciary Accounting System D. Selecting Fiduciary Accounting Period § 12.3. PREPARATION OF FIDUCIARY ACCOUNTINGS A. Initial Determinations B. Types Of Fiduciary Accountings C. Practice And Procedure D. Commencement Of Fiduciary Accounting Period § 12.4. SIMPLE ACCOUNTINGS § 12.5. EXAMPLES OF PRINCIPAL AND INCOME ALLOCATIONS § 12.6. MODEL ACCOUNTING FORM A. Probate Accounting Rule B. Structure Of Model Accounting Form C. Schedule A: Receipts D. Schedule B: Disbursements E. Schedule C: Distributions F. Schedule D: Capital Transactions And Adjustments

G. Schedule E: Assets On Hand At Close Of Accounting Period § 12.7. FORMS AND SAMPLES A. Form For Notice Of Final Accounting And Petition For Discharge B. Form For Proof Of Service Of Notice Of Final Accounting And Petition For Discharge C. Sample Accounting « Ch. 12 », • § 12.1 » 1 Practice Under Florida Probate Code § 12.1 (2022)

§ 12.1. INTRODUCTION « Ch. 12 », • § 12.1 », • A » 1 Practice Under Florida Probate Code § 12.1.A (2022)

A. Scope Of Chapter This chapter discusses the preparation and filing of fiduciary accountings for judicial accounting purposes, selection of the appropriate accounting system, issues regarding fiduciary accounting income and principal allocations, and the required reporting format. When the term “income” is used in this chapter, that term refers to “fiduciary accounting income” unless otherwise stated. Because many estate accounting principles also apply to trusts, a trustee can adapt the principles of this chapter to accountings required for trust administration. See F.S. Chapter 736. See also ADMINISTRATION OF TRUSTS IN FLORIDA Chapter 5 (Fla. Bar 11th ed. 2022). The Florida Uniform Principal and Income Act (the “Act”), F.S. Chapter 738, is applicable “to any receipt or expense received or incurred and any disbursement made after January 1, 2003, by any trust or decedent’s estate, whether established before or after January 1, 2003, and whether the asset involved was acquired by the trustee or personal representative before or after January 1, 2003.” F.S. 738.804. Consistent with prior law, the Act provides that the attorney first looks to the applicable provisions of the will or trust agreement to determine principal and income allocations, and then looks to the provisions of the Act for situations not covered by the will or trust agreement. F.S. 738.103(1)(a)–(c). The Act contains an extensive definition

section (F.S. 738.102) and is much more expansive in its allocation rules than prior law. Lawyers are cautioned to handle fiduciary accountings in accordance with the applicable laws. The examples in § 12.5 reference pertinent provisions of the Act. Although not applicable to estates, the trustee’s power to adjust and the total return trust are discussed in ADMINISTRATION OF TRUSTS IN FLORIDA, supra. See The Florida Senate Bill Analysis and Fiscal Impact Statement for CS/SB 1050 by the Judiciary Committee and the Real Property, Probate, and Trust Law Section of The Florida Bar, White Paper on a Proposed Bill to Amend the Florida Uniform Principal and Income Act, Chapter 738, Florida Statutes (2010). This chapter does not address Florida tax apportionment and final distribution and discharge. Those subjects are covered in Chapters 11 and 14 of this manual, respectively. « Ch. 12 », • § 12.1 », « B • 1 Practice Under Florida Probate Code § 12.1.B (2022)

B. Fiduciary Accountings Fiduciary accounting is based on the recognition that, in most cases, beneficiaries have different interests in an estate or trust. For example, the terms of a trust might provide for the distribution of income to one person or class of persons for a stated period, and then the distribution of the income or principal to another person or class of persons after the expiration of the first stated period. Thus, to determine the appropriate distributee, all receipts and disbursements must be classified as either income or principal. F.S. 738.1041 now provides for a total return trust, whereby the classification as income or principal is not important because the payments are based on a percentage of the total trust assets as of a certain date. See Chapter 2 of ADMINISTRATION OF TRUSTS IN FLORIDA (Fla. Bar 11th ed. 2022) for a discussion of total return trusts. This law, however, is not applicable to probate estates. Although the distinction between principal and income is important when different persons are entitled to receive the income (e.g., life tenants) and the principal (e.g., remaindermen), the distinction generally is not critical if estate assets are left outright to the beneficiaries. In all trusts, including those

established under a will, the accounting records must differentiate principal and income. This typically is handled by maintaining separate principal and income columns and general ledger accounts. By doing so, the accounting records will disclose the respective principal and income interests at any given time. The separation of principal and income is the primary feature distinguishing fiduciary accountings from commercial or tax accountings. Fiduciary accounting concepts are determined by state statutory law as well as state common law. Commercial and tax accountings are governed by generally accepted accounting principles and the Internal Revenue Code of 1986, as amended (the Code). Generally, fiduciary income includes the earnings from estate or trust assets (such as dividends, interest, rents, and royalties), less the customary expenses related to those earnings (e.g., interest, custody fees, income taxes, and commissions). Generally, increases and decreases resulting from sales of estate or trust assets (i.e., gains and losses) constitute principal. The distinction between transactions affecting principal and those affecting income can be clarified by a simple example. An estate consists solely of non-income-producing assets: a residence, its furnishings, a parcel of vacant land, and cash. If the parcel of land is sold for its value as reflected on the inventory, then one asset (the land) is simply exchanged for another (cash), and neither income nor principal is affected. However, if the land is sold for more than its carrying value, the amount of estate principal is increased for fiduciary accounting purposes and a capital gain results for commercial or tax accounting purposes. This transaction does not produce income but is a modification of the inventory figure. If the proceeds from the land sale are invested in bonds, the investment constitutes an exchange of one asset for another, affecting neither income nor principal. The land was characterized as principal, and, therefore, the proceeds from its sale and the subsequent investment of those proceeds in bonds remain characterized as principal. In the foregoing example, interest earned on the bonds constitutes income (although the bonds remain principal). Assume that the net income then accumulates in an amount that warrants its investment, and it is also invested in bonds. These bonds do not become principal but are still classified as

income. Only the form of the income has changed, from cash to bonds, but it retains its characterization as an income asset. The statutory rules for classification of transactions as between income and principal are set forth in F.S. Chapter 738, the principal and income law. This law provides that the testator or settlor can direct the allocation of receipts and expenditures in any manner that he or she deems appropriate, with the law providing the default rules when the will or trust instrument does not otherwise specify the allocations between principal and income. Thus, as noted at § 12.1.A, in determining the proper treatment of any particular estate or trust transaction, the lawyer must look first to the applicable provisions of the will or trust agreement. F.S. 738.103(1)(a). In the absence of contrary terms in the will or trust agreement, the lawyer must look to the provisions of state law. F.S. 738.103(1)(c). Certain situations will not be covered by the provisions of the will or trust agreement or by state law. In those cases, the fiduciary must use a reasonable and equitable approach, taking into consideration the interests of the income beneficiaries as well as the remainder beneficiaries. F.S. 738.103(2). Fiduciary accounting is further complicated because an estate or trust constitutes a separate taxable entity for income tax purposes and, to the extent its income is not distributed, the estate or trust itself will be taxed at rates that can be substantially higher than the beneficiary’s income tax rate. Although the discussion of the income taxation of an estate or trust is outside the scope of this chapter, taxable income is determined by the Code and generally is not the same as income determined for fiduciary accounting purposes. Although the state principal and income law may have only limited effect in determining the taxable income of an estate or trust, the law can have a significant impact in determining the amount distributed to a beneficiary.

« Ch. 12 », « § 12.2 » 1 Practice Under Florida Probate Code § 12.2 (2022)

§ 12.2. PRELIMINARY CONSIDERATIONS « Ch. 12 », « § 12.2 », • A » 1 Practice Under Florida Probate Code § 12.2.A (2022)

A. Required Fiduciary Accountings The personal representative of an estate is vested with the responsibility of properly conducting the administration of the estate. Accordingly, the fiduciary must be prepared to report activity concerning estate property to the beneficiaries in the form of an accounting. Nevertheless, only an initial inventory and a final accounting are required by F.S. 733.604, Fla. Prob. R. 5.340 (inventory), and Rule 5.400 (accounting). Rule 5.345 provides that interim or periodic accountings are optional, unless required by the court. The requirements of the final accounting are contained in Rule 5.346. As noted below, the final accounting may be waived under Rule 5.180. In summary administrations, accountings generally are not used. Nevertheless, even in such cases, an accurate record of estate transactions should be maintained for reporting to the beneficiaries. The only difference may be in the form or detail included in the records. « Ch. 12 », « § 12.2 », « B » 1 Practice Under Florida Probate Code § 12.2.B (2022)

B. Use Of Waivers F.S. 731.302 authorizes a waiver of the final accounting upon consent of all interested persons, and Fla. Prob. R. 5.180 addresses procedural aspects of the waiver. The statute permits an interested party to also waive disclosure of the amount of compensation for the personal representatives, lawyers, accountants, appraisers, and other agents employed by the personal representative. See Rule 5.180(b)(4). The waiver must be signed by each party bearing the impact of the compensation, Rule 5.180(a), and must be filed with the court, Rule 5.180(c). The waiver is not valid unless it contains

express language declaring that the waiving party has actual knowledge of the amount and manner of determining the compensation, and expressly acknowledging that the waiving party either (1) has agreed to the amount and manner of determining the compensation and is waiving any objections to its payment; or (2) has the right to petition the court to determine the compensation and is waiving that right. Rules 5.180(b)(3)–(b)(4). Forms for waivers incorporating these requirements are Form Nos. P-5.0500, P-5.0501, P-5.0520, P-5.0550, P-5.0551, and P-5.0570, available from Florida Lawyers Support Services, Inc.© (FLSSI), P.O. Box 195909, Winter Springs, FL 32719-5909 (407/515-1501; www.flssi.org/forms). No waiver is necessary and no petition or action by the court is required to document the absence of interim accountings because such accountings are not required. A waiver of the 30-day period for filing objections to the final accounting and the petition for discharge is also permitted. F.S. 731.302. Prudent practice dictates that, when a waiver is used, the form of waiver should include a specific waiver of the filing of the final accounting as well as the 30-day objection period, to avoid any uncertainty. Although beneficiaries may waive the final accounting at the conclusion of administration, the lawyer should determine whether such waivers are prudent. The existence of numerous beneficiaries, particularly when not all are family members, or the existence of complications, such as special legacies, specific distributions of income, or a business operated or substantially owned by the decedent, often dictates a judicial settlement. Despite the obvious temptation to waive the filing requirement, the personal representative and the lawyer should consider that filing often eliminates a later objection by beneficiaries alleging that they were pressured into waiving or that they waived without realizing its significance. This type of assertion is easy to claim and difficult to counter. Proper accountings provide a permanent record of the facts that will negate any inaccurate accusations. An additional benefit of filing accountings relates to tax controversies arising after the completion of administration. Factual matters controlling tax results often can be obtained readily from estate accountings when otherwise obtaining the necessary information might be impossible because of poorly maintained or lost records, not to mention faulty memories and the unavailability of principals.

Occasionally the decedent’s will contains a provision waiving any accountings. Apparently there is no authority for such a waiver and most courts would rule that it is ineffective. Waivers can be effectively made only by the beneficiaries. Furthermore, because waivers are controlled by the court, the court, on its own motion or on the application of any interested party, can order accountings to the extent necessary for proper administration. Rule 5.150. « Ch. 12 », « § 12.2 », « C » 1 Practice Under Florida Probate Code § 12.2.C (2022)

C. Establishing A Fiduciary Accounting System The fiduciary accounting system should provide the personal representative with the necessary financial information to administer the estate, including the cash balance, the amount of income, the amount available for distribution to beneficiaries, and the quantity and carrying value of estate assets; facilitate the preparation of the accounting and detail original assets received, increases or decreases on their sale, redemption, and distribution, payments among categories of disbursements, such as debts of the decedent, funeral and administration expenses, distributions to beneficiaries, and new investments; and provide the necessary information for the preparation of the estate tax return and the fiduciary income tax returns. The estate tax return requires segregation of the decedent’s assets at the date of death into various categories, such as real estate, stocks and bonds, and life insurance. The fiduciary income tax return requires the separation of income into categories such as dividends, interest (taxable and nontaxable), rents, and royalties. Additionally, the basis of assets for income tax purposes may differ from their carrying value for fiduciary accounting purposes. In those cases, the system should be designed to report both values. The system should be as simple as possible without sacrificing the ability to accomplish the purposes set forth above. For example, a small and simple estate might require nothing more than a record of transactions and some worksheets. A larger estate might be adequately accounted for through the

use of a single-entry bookkeeping system, whereas a very large and complex estate might require a complete double-entry set of books, including subsidiary journals and ledgers. The size of the estate is not the sole factor determining the complexity of the accounting system. Other factors include whether the estate owns a business that must be incorporated into the fiduciary accounting system, and the need to separate principal and income, as discussed above. The vast majority of fiduciary accounting systems use the cash method of accounting. Although an accrual method is permissible, it is rarely used. The cash method does not record receivables and liabilities until they are received or paid in cash. An exception is that certain amounts receivable by the decedent as of the date of death might be recorded as part of the opening entry. Generally, however, debts of the decedent may not be recorded until paid. If such debts are not recorded, the personal representative should maintain a record of the unpaid liabilities. When a corporate fiduciary serves as personal representative, it customarily maintains the appropriate records of receipts and disbursements. If an individual serves as the personal representative, the lawyer should consider how the records may best be maintained. In that situation, the best technique for the lawyer to control the administration might be to insist that the attorney maintain the checkbook, records, securities, and files. Alternatively, companies have been established that will perform the “back office” duties for the lawyer. Control can then be maintained over the administration by ensuring that all items due the estate are collected when due and deposited, and over the expenditures by issuing all estate checks for the personal representative’s signature. Although depositing all receipts in the estate account and issuing all checks constitute routine functions by the lawyer, this might be far less time-consuming than permitting the personal representative to handle the routine banking. The latter frequently results in confusion, reconciliations, and remedial effort by the lawyer to compile the information necessary to prepare the estate accountings and tax returns. Frequently, it is by handling every minute transaction of an estate that every asset and liability can be revealed. Every facet of the decedent’s affairs must be ascertained to prepare the estate tax return, if required. Although the return is not due until nine months after the decedent’s death, IRC § 6075(a),

the nine-month period often will be needed to collect all the relevant facts concerning the decedent’s property. With close supervision by the lawyer, the delegation to a third party for banking, recordkeeping, and preparation of the tax returns might be advisable. The lawyer must conduct an adequate administration so that the lawyer knows all the facts concerning the estate and the legal and federal tax implications flowing from these facts. An estate lawyer not actively participating in the collection of the facts and in the preparation of the estate accountings and tax returns might not be properly representing the personal representative. Although, in theory, routine recordkeeping and banking are the responsibility of the personal representative, it is not always clear who is responsible for the preparation of tax returns. As tax matters become more complex, tax return preparation is increasingly and properly considered legal in nature. Although the tax returns can be prepared by the estate’s accountant, this should usually be performed in consultation with, or under the supervision of, the personal representative’s lawyer. « Ch. 12 », « § 12.2 », « D • 1 Practice Under Florida Probate Code § 12.2.D (2022)

D. Selecting Fiduciary Accounting Period Former probate law required calendar-year accountings. The use of a fiscal year was allowed only after filing notice of the fiscal year selected. The Florida Probate Code does not require a calendar year accounting or the filing of a notice. Rather, Fla. Prob. R. 5.345(a)(1) simply provides that the personal representative may select a fiscal year or any other period. For income tax purposes, the Internal Revenue Code permits an estate to select any fiscal year ending on the last day of a month if the first fiscal year does not cover more than a 12-month period. On the other hand, unless a trust makes an election under IRC § 645, most trusts do not have the flexibility to select a fiscal year but must use a calendar year. The personal representative, in consultation with the lawyer and the accountant, should examine the income tax situation of an estate periodically during the first year so that the most advantageous tax year can be selected. Although not required, the accounting year for probate purposes (if annual accountings are prepared) should coincide with the tax year for the sake of simplicity. This approach

usually will make the administration of the estate and its attendant tax implications more understandable to the beneficiaries. Certain fiduciaries, particularly corporate fiduciaries, adopt a fiscal year ending at the close of the month immediately preceding the decedent’s death. Although this has the advantage of spreading the workload of accounting preparation throughout the year, this procedure might make it necessary to reference two accountings to prepare one income tax return when a calendaryear tax return is filed. This procedure is technically acceptable and might be more convenient to the fiduciary, but it is not the optimal method to present the accountings and tax information to the beneficiaries. Accountings are primarily for the benefit of beneficiaries. Accordingly, the accountings and the fiduciary income tax returns preferably relate to the same period to constitute an integrated package. This concern, however, is minimized because the Florida Probate Code no longer requires annual accountings.

« Ch. 12 », « § 12.3 » 1 Practice Under Florida Probate Code § 12.3 (2022)

§

12.3. PREPARATION ACCOUNTINGS

OF

FIDUCIARY « Ch. 12 », « § 12.3 », • A »

1 Practice Under Florida Probate Code § 12.3.A (2022)

A. Initial Determinations The first step in preparing an accounting is to determine the accounting requirements. Preferably, this is undertaken as a group project with the lawyer, the personal representative, and the accountant. The accounting system and required accountings should take into consideration the terms of the will, the composition of estate assets, the type of settlement, and the possibility or probability of objections by beneficiaries. « Ch. 12 », « § 12.3 », « B » 1 Practice Under Florida Probate Code § 12.3.B (2022)

B. Types Of Fiduciary Accountings Generally, three basic accountings are used in the administration of estates: The initial accounting (the inventory). Annual or interim accountings. The final accounting. A fourth accounting, usually referred to as a supplemental report of distribution, might be necessary to report events subsequent to filing the petition for discharge and final accounting. The topic of final distribution and discharge is covered in Chapter 14 of this manual. The accounting format and the applicable standards are governed by Fla. Prob. R. 5.346, as further discussed in § 12.6.A. Additionally, Appendix A to Rule 5.346 sets forth a model format for an accounting. Nevertheless, within the confines of that rule, the personal representative has broad discretion in the organization and presentation of the accounting information. Any basic

chronological form of accounting can be used. For instance, if each transaction is recorded with sufficient explanation to satisfy the basic requirements of the particular administration, a simple chronological listing of receipts and disbursements may be sufficient. In most cases, however, transactions will need to be segregated between principal and income. When an estate is settled by receipt and consent, which includes a waiver of an accounting, the beneficiaries signify that they received the property to which they are entitled, are satisfied with the accounting, and consent to the discharge of the personal representative. In these cases, a wide latitude in the form and arrangement of the accounting is permissible, and difficult problems in the presentation or allocation of receipts and disbursements can be settled by consultation and agreement between the parties. Additionally, all interested persons can completely waive the requirement of an accounting, including a final accounting. « Ch. 12 », « § 12.3 », « C » 1 Practice Under Florida Probate Code § 12.3.C (2022)

C. Practice And Procedure A requirement of Fla. Prob. R. 5.346 is that the final accounting include “all cash and property transactions since the date of the last accounting or, if none, from the commencement of administration.” Rule 5.346(a)(1). This language condones the filing of interim accountings even though by implication they are optional. Rule 5.345(a) also specifically authorizes the personal representative to file interim accountings at any time. Interim accountings are frequently desirable in large estates. If the estate is required to file an estate tax return or an estate income tax return, it might be preferable to prepare and file interim accountings rather than wait until final distribution, when (unless waived) a final accounting would be filed. If interim accountings are prepared, the personal representative must provide notice of filing and a copy of the interim accountings to interested persons. Rule 5.345(b). See FLSSI Form No. P-5.0300. The notice must state that objections are required to be filed within 30 days from the date of service of notice. Rule 5.345(b). The accounting is deemed approved if objections are not filed within that 30-day period. Rule 5.345(c). If there are quarrelsome beneficiaries, it might be advisable to file interim accountings so that objections must be raised in the early stages of administration or be deemed

waived. A final consideration is that some lawyers prefer to file interim accountings rather than file a final accounting covering the entire administration period. Interim accountings distribute the accounting preparation rather than concentrate the work at the conclusion of administration. It is advisable to inform beneficiaries of a large estate regarding the status of the estate at least annually, and this can be accomplished with an interim accounting. Interim accountings also facilitate preparation of the estate tax return and the estate income tax returns. Accordingly, the lawyer should carefully consider the advisability of filing interim accountings, even though they are not required. Rule 5.400(c) provides: The final accounting and petition for discharge shall be filed and served on interested persons within 12 months after issuance of letters for an estate not filing a federal estate tax return, otherwise within 12 months from the date the return is due, unless the time is extended by the court for cause shown after notice to interested persons. The petition to extend time shall state the status of the estate and the reason for the extension. FLSSI Form No. P-5.0411 provides a form for a Proof of Service of Notice of Final Accounting and Petition for Discharge. See § 12.7.B for the text of this form. In certain estates, it will not be possible to close the estate within the 12-month period, typically because of the failure to receive clearance from the IRS and the Florida Department of Revenue regarding the estate tax return. See F.S. 198.26. If an extension of time is necessary, an appropriate petition should be filed. Forms for a petition and order to extend the time for filing the final accounting and the petition for discharge are FLSSI Form Nos. P-5.0100 and P-5.0200, respectively. « Ch. 12 », « § 12.3 », « D • 1 Practice Under Florida Probate Code § 12.3.D (2022)

D. Commencement Of Fiduciary Accounting Period The personal representative is generally required to take possession or control of the decedent’s property. F.S. 733.607. The real or tangible personal property may be retained by or surrendered to the beneficiary. If property is distributed to a beneficiary and if the property will not be needed for the

administration of the estate, the personal representative should obtain a receipt from the beneficiary and file it with the court or secure an order of partial distribution. Either action would relieve the personal representative of accountability for the property (but not necessarily liability for the action, if found to be improper). For a further discussion of voluntary partial distributions, see Chapter 13 of this manual. The personal representative is required to file a verified inventory in reasonable detail regarding the estate’s property. F.S. 733.604(1). This includes all personal property and Florida real property of a resident decedent. Real property situated outside Florida is not part of the Florida probate estate. Nevertheless, FLSSI Form No. P-3.0900 requires the listing of real estate located outside the state of Florida on an attached schedule. The estimated fair market value of each asset at the date of the decedent’s death must be disclosed. As a general rule, protected homestead property is not an asset of the probate estate, but it must be reflected on the inventory as a separate item and designated as protected homestead property. Fla. Prob. R. 5.340(a). The preparation of the inventory is covered in Chapter 6 of this manual. The inventory serves as the beginning point for the initial accounting. If interim accountings are not prepared, the inventory also serves as the starting point for the final accounting. Supplemental inventories are necessary to reflect after-discovered property or certain changes in value. F.S. 733.604(2); Rule 5.340(c). The inventory lists items of principal owned by the decedent at death and is reflected as the first entry in the estate’s initial accounting. Principal received during the accounting period, to the extent not included on the inventory, is added to this figure. Because the inventory reflects property owned by the decedent at death, all items constitute principal even though the inventory might include accrued items that are treated as income in respect of a decedent for income tax purposes. Accordingly, the beginning balance for income on the initial accounting will be zero. Some fiduciaries begin the accounting from the date of their appointment, rather than from the date of the decedent’s death, on the theory that they cannot account for a period before their appointment. However, because their fiduciary responsibilities require possession of all the decedent’s property

owned at the date of death, the accounting properly should begin from that date. See F.S. 733.601. The fiduciary is responsible for collecting all assets, including those arising in the period between the decedent’s death and the date of appointment. This distinction is more academic than real because lawyers generally recognize the duty of the fiduciary to collect and administer all assets of the decedent without consideration of this interim period. The inventory lists assets owned by the decedent at death without regard to the decedent’s liabilities at that time. The accounting, therefore, does not reflect the decedent’s liabilities, except as they are paid. Accordingly, the accounting reflects the assets owned at that time and liabilities actually paid or satisfied by the end of the accounting period. The court and the beneficiaries necessarily depend on the personal representative to collect assets and satisfy liabilities and, to a considerable extent, the court and beneficiaries are advised of these liabilities by claims filed within the pertinent filing period, as provided by F.S. 733.702. There are, of course, estate liabilities that are incurred after the decedent’s death for which claims need not be filed, such as funeral expenses, taxes, and administration costs. The final accounting cannot be filed and the estate cannot be closed until all liabilities have been satisfied or otherwise provided for, except those barred by the failure to file claims. See id.

« Ch. 12 », « § 12.4 » 1 Practice Under Florida Probate Code § 12.4 (2022)

§ 12.4. SIMPLE ACCOUNTINGS Simple accountings do not allocate items to principal and income. This type of accounting might be acceptable when estate principal and income are distributed to named beneficiaries and there are no income tax issues. A simple accounting might be appropriate when the residue in a small estate is devised outright to named individuals. In that case, the residue of the estate, regardless of whether it is composed of principal or income, is paid to the named beneficiaries. Arguably, simple accountings are no longer permitted under the provisions of Fla. Prob. R. 5.346 and Appendix A to that rule. Conversely, although the Committee Notes to the rule state that accountings must comply with the Florida principal and income law, this requirement may be waived under F.S. 731.302. Thus, if no allocation is needed and all interested persons waive that right, a simple accounting should be sufficient. Accountings that reflect principal and income are necessary when there are different beneficiaries receiving principal and income distributions. One example is when the estate residue is devised to a trust providing for the distribution of income to individuals other than the beneficiaries of trust principal. F.S. 738.301–738.303 require the distribution of estate income to the trustee with the income characteristic surviving distribution and its continued treatment as income by the trustee. Unless principal and income allocations are maintained in the estate, the trustee will not know what portion of the distribution is principal and what is income. Consequently, the trustee would be unable to make the distribution required by the trust instrument.

« Ch. 12 », « § 12.5 » 1 Practice Under Florida Probate Code § 12.5 (2022)

§

12.5. EXAMPLES OF PRINCIPAL INCOME ALLOCATIONS

AND

The following examples illustrate Florida law (absent a contrary provision in the governing document) for allocating receipts and disbursements between income and principal under F.S. Chapter 738, the Florida Uniform Principal and Income Act. Except as otherwise provided, lawyers should assume that the entities in these examples do not constitute a non-publicly traded entity or investment entity (as defined by F.S. 738.401(7) (d)). 1. Ali Gator died on December 2, 2020. Included in his estate were 100 shares of XYZ Corporation. On October 15, 2020, the corporation declared a dividend of $1 per share payable on December 15, 2020, to stockholders of record on December 1, 2020. The personal representative received a $100 cash dividend on December 16, 2020. The $100 dividend is allocated to principal because it is deemed to be due on the record date. Because Ali Gator is the recordholder on December 1, 2020, this amount is treated as due but not paid at date of death. This is because a dividend’s due date is its record date. F.S. 738.301, 738.302(1), (3), 738.401(3). 2. Same facts as Example 1 above, except that Ali Gator died on November 29, 2020. The $100 dividend is allocated to income because the estate is the recordholder on December 1, 2020. F.S. 738.301, 738.302(2)–(3), 738.401(2). 3. The personal representative received an additional $100 cash dividend from XYZ Corporation on March 16, 2021. Cash dividends that become due during estate administration are allocated to income. F.S. 738.401(2). 4. The personal representative received 5 shares of XYZ Corporation on

June 16, 2021, as a 5% stock dividend. Stock dividends are allocated to principal. F.S. 738.401(3)(a). 5. On September 15, 2021, the personal representative received from XYZ Corporation a $5,000 distribution as a result of a partial liquidation. Money received from a partial (or total) liquidation is allocated to principal. F.S. 738.401(3)(c). 6. On January 15, 2021, the personal representative also elected to receive an additional share of XYZ stock in lieu of $25 cash that he could have received. The additional share of stock is allocated to income because the personal representative has an option to receive cash or shares of the distributing corporation. F.S. 738.401(4). 7. In November 2021, the personal representative received 100 rights to subscribe to additional shares of stock of XYZ Corporation. The stock rights are allocated to principal. F.S. 738.401(3)(a). 8. XYZ Corporation was liquidated on January 1, 2021. On January 15, the personal representative received a $10 cash dividend (which had been declared on December 15, 2020) and a $1,000 liquidation payment. The cash dividend is allocated to income, F.S. 738.401(2), and the liquidation payment is allocated to principal, F.S. 738.401(3)(c). 9. Also included in Ali Gator’s estate was a $10,000 XYZ Corporation Debenture, 5.0%, due January 1, 2027. Fair market value at date of death was $9,500. Interest of $250 was received on January 1, 2021. The interest is allocated to income because the due date occurred after death and the due date is a periodic due date. F.S. 738.302(2)–(3). 10. Ali Gator also owned an apartment house. In connection with that property, the personal representative made the following disbursements: December 15, 2020—$1,000 for 2020 real estate taxes: Because the taxes became a lien as of January 1, 2020, pursuant to state law, this represented a debt of the estate. Therefore, the

payment is charged against principal. F.S. 738.201(2)(c). December 15, 2021—$1,000 for 2021 real estate taxes: Because this obligation was incurred after the date of death, this tax payment represents a regular expense of the estate. Therefore, the payment is charged against income. F.S. 738.701(3). January 15, 2021—$500 for repairs: The allocation depends on when the repairs were performed. If repairs are made before the date of death, the payment will be charged against principal as a debt of the estate. F.S. 738.201(2)(c). If repairs are made after the date of death, the payment will be charged against income as an ordinary expense of administration. F.S. 738.701(3). June 16, 2021—$5,000 for an addition to the building: Capital improvements are allocated to principal. F.S. 738.702(1) (h). 11. On January 5, 2021, Ali Gator’s race horse gave birth to a colt. This is not specifically covered under the principal and income law. If there are no specific provisions in Ali Gator’s will addressing this situation, and if the personal representative is given a discretionary power of administration, the personal representative must make an allocation based on what is fair and equitable under the circumstances. F.S. 738.103(2). See F.S. 738.403 for accounting when the trustee determines it is in the best interest of the beneficiaries to account separately for a business. 12. Ali Gator wrote a book and, as of his death, the estimated value of future royalties was $50,000. On September 1, 2021, the personal representative received a royalty check in the amount of $10,000 regarding sales for the period January 1 through June 30, 2021. When an estate asset constitutes a “liquidating asset” that includes a royalty right, 5% of the receipts are allocated to income and the balance to principal. Accordingly, $9,500 of the royalty payment is allocated to principal, and the remaining $500 is allocated to income. F.S.

738.603(2). The amount allocated to principal will reduce the asset’s carrying value. Id. 13. Ali Gator owned a corporation that operated a small citrus grove in central Florida. At the time of his death, the unmatured fruit on the trees was appraised at $20,000. The crop was harvested and sold in April 2021, and in May 2021, the corporation collected $50,000 for the crop and distributed the $50,000 to the personal representative. Based on F.S. 738.401(2), the entire $50,000 would be allocated to income. See F.S. 738.403. 14. Ali Gator owned timberland in North Florida. The personal representative entered into a contract to sell some timber to raise cash. The net receipts are allocated to income to the extent the amount of timber removed from the land does not exceed the growth rate of the timber during the accounting period, and to principal to the extent the amount of timber removed from the land exceeds the growth rate of timber or the net receipts are from the sale of standing timber. F.S. 738.605(1). The result is the same if the net receipts are from the lease of timberland or from a contract to cut timber from the land. F.S. 738.605(1)(c). 15. Assume Ali Gator died on January 1, 2019, leaving a net estate of $200,000 to be divided equally between his wife and daughter. On November 1, 2019, the personal representative distributed $50,000 to Ali’s wife. On May 1, 2020, the personal representative distributed $25,000 to Ali’s daughter. On November 1, 2020, another $25,000 was distributed to Ali’s wife. Then, on May 1, 2021, final distribution will be made. The income earned by the estate during administration was as follows: For period January 1 through October 31, 2019: $9,000 For period November 1, 2019, through April 30, 2020: $4,200 For period May 1 through October 31, 2020: $3,000 For period November 1, 2020, through April 30, 2021: $2,400 The income of the estate must be allocated to the respective

beneficiaries based on their changing percentage interests in the estate. This example is designed to illustrate the bookkeeping nightmare of disproportionate distributions. To determine the income allocations, one first must determine the changing principal shares as follows: DATE

WIFE TOTAL AMOUNT

1/1/19

$200,000

$100,000

11/1/19 $(50,000)

$(50,000)

$150,000 5/1/20

$50,000

%

DAUGHTER AMOUNT

%

50%

$100,000

50%

________ 33%

$(25,000) ________ $125,000

11/1/20 $(25,000) $100,000

$50,000

40%

$75,000

60%

________ 25%

5/1/21 $(100,000) $(25,000) $-0-

67%

$(25,000)

$(25,000) $25,000

$100,000

$75,000

75%

$(75,000)

$-0-

$-0-

Based on the foregoing, the allocation of the income earned during the administration between the beneficiaries would be as follows: FOR THE WIFE PERIOD: TOTAL AMOUNT

%

DAUGHTER AMOUNT

%

1/1/17– 10/31/19

$9,000

$4,500

50%

$4,500

50%

11/1/17– 4/30/20

$4,200

$1,386

33%

$2,814

67%

5/1/18– 10/31/20

$3,000

$1,200

40%

$1,800

60%

11/1/18– 4/30/21

$2,400

$600

25%

$1,800

75%

16. The personal representative also received two separate payments from insurance companies. The first was a payment of $100,000 received on January 31, 2018, regarding a life insurance policy owned by Ali Gator on his life in which the estate was named as the beneficiary. Another payment of $75,000 was received on November 30, 2018, for damage incurred to Ali Gator’s vacation home caused by a hurricane. Both payments are allocated entirely to principal. F.S. 738.504(1). 17. The personal representative received a $24,000 distribution on

November 30, 2018, from the probate estate of Ali Gator’s mother, which was still being administered. The distribution comprised $4,000 representing Ali Gator’s pro rata share of that probate estate’s net income and a $20,000 principal distribution. Ali Gator’s probate estate will allocate $20,000 of the distribution to principal and $4,000 to income. F.S. 738.402. 18. Ali Gator’s probate estate owns a number of investment properties that are subject to depreciation. The probate estate may not transfer any net cash receipts to principal with regard to a principal asset that is subject to depreciation. F.S. 738.703(2)(b). 19. Ali Gator’s probate estate holds three promissory notes. Note A accrues interest at a fixed rate of 5%, and Note B accrues interest at a floating rate that is currently set at 4%. Note C has a face amount of $20,000 with a variable interest rate of 10%. Note C can be prepaid with a $1,000 prepayment penalty. On July 1, 2021, the personal representative receives a $1,200 interest payment on Note A and a $1,500 interest payment on Note B. Additionally, on July 1, 2021, the personal representative received a payment of $22,000 in full payment of Note C. This represents a principal payment of $20,000, an interest payment of $1,000, and a prepayment penalty of $1,000. All interest payments were for the period January 1 through June 30, 2021. The interest payments on all three notes and the prepayment penalty on Note C are allocated to income, and the remaining receipt of $20,000 regarding Note C is allocated to principal. F.S. 738.503(1)–(2). 20. The personal representative paid legal fees, accounting fees, and personal representative fees for the estate in 2021. The expenses can be allocated between income and principal in the personal representative’s discretion. F.S. 738.201(2)(b). 21. Ali Gator owned a $100,000 individual retirement account (IRA) at the date of his death. Unfortunately, for income tax purposes, the beneficiary of the IRA was the estate. A required minimum distribution of $20,000 was made to the personal representative in 2021. The IRA

custodian did not separately account for the interest and principal amount and the personal representative cannot reasonably determine the income amount. Assume for this example that the applicable rate determined in accordance with the Act is 5%. The amount of $1,000 (5%) will be allocated to income and $19,000 (95%) will be allocated to principal, even though the entire $20,000 constitutes income for tax purposes. F.S. 738.602(3). 22. Ali Gator owned several derivatives and asset-backed securities. The personal representative received receipts from the derivatives and the asset-backed securities. Unless separately accounted for as provided in F.S. 738.403, the receipts from derivatives are allocated to principal. F.S. 738.607(2). If the personal representative receives an interest payment from the assetbacked securities, the allocation to income will be the amount the payor identifies as interest and the balance will be allocated to principal. F.S. 738.608(2). If the payments are one of a series of payments that results in the liquidation of the interest over more than a single accounting period, 10% shall be allocated to income and the balance to principal. F.S. 738.608(3). 23. Ali Gator also owned a 50% general partnership interest in the Swamp General Partnership. Assume that Swamp General Partnership constitutes a non-publicly traded entity but not an “investment entity” (as defined by F.S. 738.401(7)(d)1). Assume further that the partnership’s gross assets exceed $200,000. The personal representative received a partnership distribution check on December 31, 2021, in the amount of $20,000. This distribution covered the period January 1 through December 31, 2021. The entire $20,000 distribution is allocated to income. The distribution was not a liquidating distribution because it did not exceed 20% of the estate’s pro rata share of the gross assets of Swamp General Partnership. See F.S. 738.401(5)(b), (6)(b). In calculating the excess over the 20% threshold, moneys are not counted to the extent cumulative distributions from the partnership allocated to income are under an amount equal to the greater of a cumulative annual return of 3% of the entity’s carrying value or the state’s income tax on its pro rata share of the entity’s

taxable income, multiplied by the number of years the estate has held the partnership interest. F.S. 738.401(6)(a)–(6)(b). In the case of “passthrough” entities for federal income tax purposes (such as partnerships, S Corporations, and LLCs), tax payments are allocated to principal to the extent that the probate estate’s share of the entity’s taxable income exceeds the amounts actually received from the entity. F.S. 738.705(3) (c). See also example 24 below. 24. The personal representative paid Ali Gator’s income taxes reflected on his final IRS Form 1040 and paid Ali Gator’s estate taxes. The personal representative also received a Schedule K-1 from the Swamp General Partnership reflecting taxable income of $25,000 for 2021. As stated in example 23, the personal representative received a cash distribution of only $20,000 in 2021. The payment of the decedent’s income taxes and estate taxes is charged to principal. F.S. 738.201(2)(c). The tax attributable to the Schedule K-1 income on the estate’s income tax return will be charged to principal to the extent the estate’s share of that income exceeds the total receipts from the partnership—5,000/25,000 (20%), and the remaining tax attributable to the Schedule K-1 income—20,000/25,000 (80%)—will be charged to income. See F.S. 738.705(3)(a), (3)(c). 25. Assume that Swamp, LLC is a non-publicly traded entity that constitutes an investment entity (as defined in F.S. 738.401(7)(d)1). The personal representative of Ali Gator’s estate received a $20,000 distribution in 2020. In 2020, Swamp, LLC had a total of $50,000 of ordinary taxable items and $100,000 of long-term capital gain items. Thus, the proportion of accounting income and principal was 1/3 to income and 2/3 to principal (of the $150,000). The distribution is treated in the same manner as if the personal representative had directly held the estate’s pro-rata (50%) share of the assets of the investment entity attributable to such designated amounts, and thus $6,667 would be allocated to income and $13,333 would be allocated to principal (of the $20,000 distribution). F.S. 738.401(7)(a). If Swamp, LLC was not an investment company, the portion of the distribution to the estate that would be allocated to income would be determined by applying the 20% threshold to the estate’s pro rata share

of the gross assets of Swamp, LLC (after allowing for income in the amount of the greater of a cumulative annual return of 3% of the entity’s carrying value or the estate’s cumulative income tax on its pro rata share of the income). F.S. 738.401(5)(b), (6).

« Ch. 12 », « § 12.6 » 1 Practice Under Florida Probate Code § 12.6 (2022)

§ 12.6. MODEL ACCOUNTING FORM « Ch. 12 », « § 12.6 », • A » 1 Practice Under Florida Probate Code § 12.6.A (2022)

A. Probate Accounting Rule The contents and format of probate accountings, and the related accounting standards required for all transactions occurring on or after January 1, 1994, are governed by Fla. Prob. R. 5.346. The Committee Notes to the rule state that accountings that substantially conform to the model formats are acceptable and that the model format included in Appendix A to the rule is only a suggested form. See FLSSI Form No. P-5.0340. « Ch. 12 », « § 12.6 », « B » 1 Practice Under Florida Probate Code § 12.6.B (2022)

B. Structure Of Model Accounting Form The model form developed by Florida Lawyers Support Services, Inc. (Form No. P-5.0340), consists of a cover page, a summary page, and five schedules. An example of a completed form is provided in § 12.7.C. The first page of the form is a cover page, followed by a summary page that lists the asset values as set forth on the probate inventory (or, if interim accountings have been filed, the value of assets on hand at the close of the last accounting period). The summary then adds the total receipts (as itemized on Schedule A) for the accounting period (except proceeds from the sale of assets), subtracts all of the disbursements and distributions (as itemized on Schedules B and C, respectively) during the accounting period, and adds or subtracts the net gain or loss realized from the sale of assets or other changes in the carrying value of assets (as itemized on Schedule D). The ending balance on the summary page must equal the carrying value of the assets on hand at the close of the accounting period (as itemized on Schedule E). « Ch. 12 », « § 12.6 », « C » 1 Practice Under Florida Probate Code § 12.6.C (2022)

C. Schedule A: Receipts

Schedule A provides an income column and a principal column. Most items received by the personal representative will be interest and dividends earned by the probate assets and will be listed in the income column. Assets owned by the decedent at death but not discovered until after filing the probate inventory, and specific items allocable to principal will be listed in the principal column. The receipts can be listed in the order that is most easily understood and that will provide information for postmortem planning and preparation of the estate’s tax returns. In the sample form at § 12.7.C, dividends are listed first, and dividends received from each company are grouped together. The personal representative or interested persons can then easily determine if any dividends have not been received. Interest is listed next, and the interest received from each asset is grouped together. This format also illustrates how much income must be distributed with a specifically devised asset. If the accounting is prepared promptly after appointment of the personal representative and is updated monthly, the information for postmortem planning, including the total income for any fiscal year, will be available at all times. It is important to note that receipts from the sale of assets listed on the inventory are not reflected on Schedule A. Entries reporting the sale of assets or adjusting the carrying value of assets are shown on Schedule D. « Ch. 12 », « § 12.6 », « D » 1 Practice Under Florida Probate Code § 12.6.D (2022)

D. Schedule B: Disbursements Schedule B lists only items paid during the accounting period. Consistent with Schedule A, Schedule B provides an income column and a principal column to reflect whether a payment was charged to income or to principal (in accordance with F.S. 738.201). The presentation of disbursements can be organized in any manner that is most informative in the particular circumstances. Generally, however, it will be useful to present them in a manner that assists in preparing the estate’s tax returns. On the sample form at § 12.7.C, Schedule B has been divided into groups that provide the information required by Schedule J (Expenses) and Schedule K (Debts) of the estate tax return (IRS Form 706). Entries reporting the purchase of assets or adjustments to the carrying value of assets are reported

on Schedule D and not Schedule B. « Ch. 12 », « § 12.6 », « E » 1 Practice Under Florida Probate Code § 12.6.E (2022)

E. Schedule C: Distributions Schedule C reports assets or amounts distributed to beneficiaries during the accounting period. By establishing separate sections for types of distributions, it is easy to determine which assets have been distributed to each specific and residuary beneficiary. The carrying value, rather than the fair market value at the time of distribution, is reported. « Ch. 12 », « § 12.6 », « F » 1 Practice Under Florida Probate Code § 12.6.F (2022)

F. Schedule D: Capital Transactions And Adjustments Schedule D lists all sales and purchases of assets, adjustments to carrying values, and changes such as a stock dividend or stock split. The purpose is to determine the net gain or loss from the sale of assets (so that the accounting will balance) and to advise all interested parties as to which assets have been bought, been sold, or changed composition since the decedent’s death. Each sales entry should reflect the inventory or adjusted carrying value of the asset, the related costs and expenses, and the net proceeds. The net gain or loss is reported in the appropriate column on Schedule D. Each purchase entry should reflect the price, any related expenses or other adjustments to the purchase price, and the total amount paid. No gain or loss is reported for purchases, but it may be clearer if a zero is entered in the gain and loss columns for each purchase. An entry also should be made for each change or adjustment to a capital asset, such as a stock split or stock dividend. The net gain or loss should be reflected in the appropriate column on Schedule D. Again, when there is no gain or loss, a zero can be placed in the gain and loss columns to avoid confusion. Schedule D provides the lawyer with the information necessary to prepare Schedule D of the estate’s federal income tax return (IRS Form 1041), as well as determining the alternate valuation for the federal estate tax

return regarding assets sold within six months after death. « Ch. 12 », « § 12.6 », « G • 1 Practice Under Florida Probate Code § 12.6.G (2022)

G. Schedule E: Assets On Hand At Close Of Accounting Period Schedule E requires a complete list of the estate’s probate assets at the close of the accounting period. It discloses the carrying value for each asset, as well as the estimated fair market value of each asset at that time. The total inventory or adjusted carrying value is the amount transferred to the summary page so that the accounting will balance. The market value is disclosed to provide interested parties with a more meaningful picture of the residuary estate’s current value. If an asset held at the close of the accounting period is subject to a mortgage or other claim, a more accurate picture of the residuary estate will be provided if the liability or other claim is reflected in the asset description, even though it is not deducted from the carrying value. If the accounting does not balance, several areas should be reviewed for errors: Confirm that the beginning inventory balance has been carried forward. Check all addition and subtraction. Confirm that all transactions in the estate bank and brokerage accounts also appear either on the inventory or in the accounting. Confirm that inventory assets appear in the accounting. Verify that all assets were either sold, distributed, or listed as assets on hand at the close of the accounting period. Review the calculation of any gains or losses on Schedule D. Verify that the basis used in the calculation is the same as that used on the inventory.

« Ch. 12 », « § 12.7 • 1 Practice Under Florida Probate Code § 12.7 (2022)

§ 12.7. FORMS AND SAMPLES « Ch. 12 », « § 12.7 •, • A » 1 Practice Under Florida Probate Code § 12.7.A (2022)

A. Form For Notice Of Final Accounting And Petition For Discharge IN THE CIRCUIT COURT FOR COUNTY, FLORIDA PROBATE DIVISION File No. ___ IN RE: ESTATE OF _________, Deceased.

NOTICE OF FINAL ACCOUNTING AND PETITION FOR DISCHARGE TO: YOU ARE NOTIFIED that a Final Accounting and a Petition for Discharge have been filed in this court by _________, the personal representative of the estate of _________, deceased, true copies of which accompany this notice. You are required to file with the clerk of the above court not later than 30 days after the date of service of this notice upon you any objections to the Petition for Discharge, to the Final Accounting, to the compensation paid or proposed to be paid, or to the proposed distribution of assets, and to serve a copy thereof on petitioner’s attorney, whose name and address are set forth below, and on all other interested persons. Any objections must be in writing and must state with particularity the item or items to which the objections are directed and must state the grounds on which the objections are based. If a notice of hearing of the objections is not served within 90 days of filing the objections, the objections shall be deemed abandoned and

the personal representative may distribute the estate according to the plan set forth in the Petition for Discharge, and judgment may be entered in due course upon the petition. I CERTIFY that copies of the Final Accounting, of the Petition for Discharge, and of this Notice have been served on the above addressees by (method of service) on (date). /s/____________ (name of attorney) Attorney for_________ (address and phone number) (e-mail address(es)) Florida Bar No. ___ COMMENT: modifications.

This is FLSSI Form No. P-5.0410, with slight « Ch. 12 », « § 12.7 •, « B »

1 Practice Under Florida Probate Code § 12.7.B (2022)

B. Form For Proof Of Service Of Notice Of Final Accounting And Petition For Discharge (Title of Estate)

(Title of Court)

PROOF OF SERVICE OF NOTICE OF FINAL ACCOUNTING AND PETITION FOR DISCHARGE I certify that copies of the NOTICE OF FINAL ACCOUNTING AND PETITION FOR DISCHARGE, the FINAL ACCOUNTING dated _________, and the PETITION FOR DISCHARGE dated _________, of this estate were served on the following interested persons by registered or certified mail, return receipt requested, postage prepaid, or were delivered in a manner permitted by Fla. Prob. R. 5.040, at the addresses specified below:

Signed receipts or other evidence that service was made to, or refused by, each addressee or the addressee’s agent are attached. Signed on ______. /s/____________ (name of attorney) Attorney for _________ (address and phone number) (e-mail address(es)) Florida Bar No. ___ COMMENT: modifications.

This is FLSSI Form No. P-5.0411, with minor « Ch. 12 », « § 12.7 •, « C •

1 Practice Under Florida Probate Code § 12.7.C (2022)

C. Sample Accounting COMMENT: This sample accounting is derived from FLSSI Form No. P-5.0340. It does not relate to the examples in § 12.5 and is for illustrative purposes only. All accountings require a verification. Fla. Prob. R. 5.345(h), 5.346(d). IN THE CIRCUIT COURT FOR PINELLAS COUNTY, FLORIDA PROBATE DIVISION File No. 18-1234-PR IN RE: ESTATE OF ALI GATOR, Deceased.

FINAL ACCOUNTING OF PERSONAL REPRESENTATIVE

FOR THE PERIOD COMMENCING DECEMBER 2, 2020 THROUGH AUGUST 31, 2021 The purpose of this accounting is to acquaint all interested persons with the transactions that have occurred during the period covered by the accounting and the assets that remain on hand. It consists of a SUMMARY sheet and Schedule A showing all Receipts, Schedule B showing all Disbursements, Schedule C showing all Distributions, Schedule D showing all Capital Transactions and Adjustments (the effect of which are also reflected in other schedules, if appropriate), and Schedule E showing assets on hand at the end of the accounting period. It is important that this accounting be examined carefully. Requests for additional information and any questions should be addressed to the personal representative or the attorneys for the personal representative, the names and addresses of whom are set forth below. Under penalties of perjury, the undersigned personal representative declares that I have read and examined this accounting and that the facts and figures set forth in the Summary and the attached Schedules are true, to the best of my knowledge and belief, and that it is a complete report of all cash and property transactions and of all receipts and disbursements by me as personal representative o`f the estate of ALI GATOR, deceased, from December 2, 2020, through August 31, 2021. Signed on September 9, 2021. /s/

Alexis Gator

Alexis Gator Personal Representative 321 Elm Street Anytown, Florida 33333 Attorney for Personal Representative: /s/ Ann Attorney Ann Attorney

Attorney for Personal Representative 123 Main Street Anytown, Florida 33333 904/555-1234 [email protected] Florida Bar No. 123456 SUMMARY I.

Starting Balance Assets per Inventory

II.

Receipts Schedule A—Income Principal

III.

Principal

Principal

32,094

$-023,353

(23,353)

$8,050 223,246 (231,296)

Capital Transactions and Adjustments Schedule D—Net Gain or (Loss)

VI.

9,975

Distributions Schedule C—Income

V.

$22,119

Disbursements Schedule B—Income

IV.

$900,753

$19,625

Assets on Hand at Close of Accounting Period Schedule E—Cash and Other Assets

$697,823

COMMENT: See Fla. Prob. R. 5.330(b), 5.345, 5.346, and 5.400. Entries on Summary are to be taken from totals on Schedules A, B, C, D, and E.

The Summary and Schedules A, B, C, D, and E are to constitute the full accounting. Every transaction occurring during the accounting period should be reflected on the Schedules. All purchases and sales, all adjustments to the inventory or carrying value of any asset, and any other changes in the assets (such as stock splits) should be described on Schedule D. The amount in the “Total” column for Item VI must agree with the total inventory or adjusted carrying value of all assets on hand at the close of the accounting period on Schedule E.

SCHEDULE A Receipts DATE

BRIEF DESCRIPTION INCOME PRINCIPAL OF ITEMS DIVIDENDS: ABC, Inc.

01/29

Quarterly Dividend on 2,024 shs

$506

04/29

Quarterly Dividend on 2,024 shs

$506

DEF Company 03/09

Quarterly Dividend on 1,000 shs

$400

05/31

Quarterly Dividend on 1,000 shs

$500

MNO, Inc. 03/10

Quarterly Dividend on 832 shs

$416

06/10

Quarterly Dividend on 832 shs

$457

RST Corp.

01/25 04/25 07/25

Quarterly Dividend on 1,200 shs Quarterly Dividend on 1,200 shs Quarterly Dividend on 1,200 shs

$420 $420 $420

XYZ, Inc. 01/22

Quarterly Dividend on 1,740 shs

$487

04/22

Quarterly Dividend on 1,740 shs

$487

Widgets, Inc. 03/03

Quarterly Dividend on 400 shs

$200

06/02

Quarterly Dividend on 400 shs

$200

Sub-Total DIVIDENDS

$5,419

INTEREST: U.S.T. Notes 10.375% 2/15/21 02/15

Semi-Annual Interest

$2,593

U.S.T. Notes 8.000% 2/29/21 02/29

Semi-Annual Interest

$2,000

U.S.T. Notes 7.250% 3/31/21 03/31

Semi-Annual Interest

$5,437

U.S.T. Notes 9.000% 11/15/24 06/09

Accrued Interest purchased

(98)

-0-

H. C. Money & Co.: HCM Government Reserves Money Market Fund (Monthly Interest Reinvested) 2021

January

$843

February

$522

March

$614

April

$566

May

$581

June

$662

July

$1,214

August

$1,065

Any Bank of Florida, N.A.: Estate Checking Account 06/30

Total Monthly Interest —Jan. to June

07/31

July

$31

08/31

August

$36

Sub-Total INTEREST

$134

$16,200

-0-

ROYALTIES: 02/01

08/01

Book royalties on sales for period 12/1/20– 7/31/21

$250

Book royalties on sales for period 8/1/21– 8/31/21

$250

Sub-Total ROYALTIES

$4,750

$4,750

$500

$9,500

ADDITIONS TO INVENTORY: 03/07

Medical Group: refund of payment made by Medicare on bill paid by estate 2/10/19

$61

03/10

Medicare Part B: claim payment

$84

03/31

Patient’s Medicare Supplement Insurance: claim payment re Home Services & Medical Group

$152

06/19

Medicare payment: ambulance service on 11/4/20

$94

06/24

Medicare payment: diagnostic X-Ray service on 11/26/20

$84

Sub-Total ADDITIONS

-0-

TOTAL—SCHEDULE A

$22,119

$475 $9,975

COMMENT: Schedule A should reflect only those items received during administration that are not shown on the inventory. Classification of items as income or principal is to be in accordance with the provisions of the Florida Principal and Income Act. Entries involving the sale of assets or other adjustments to the carrying values of assets are to be shown on Schedule D, and not on Schedule A.

SCHEDULE B

Disbursements DATE

DESCRIPTION DEBTS OF DECEDENT:

01/02

Gas Co: charge card balance

$24

Electric Co.: utility bill

$88

01/28

Tax Collector: 2020 property taxes—Beach residence

392

02/10

Payment of Claims filed:

02/15 02/22

INCOME PRINCIPAL

Physician Medical, P.A.

$745

Ambulance Service

$175

Medical Group

$463

Pharmacy, Inc.

102

EKG Associates

$67

Radiology Group

____

$254

Sub-Total DEBT

-0-

$2,310

FUNERAL EXPENSES 01/30

Funeral Home

02/10

Grave Marker Sub-Total FUNERAL EXPENSES

$4,876 ____

$195

-0-

$5,071

FEES 06/01

Attorney Fees

06/01

Personal Representative Fee Sub-Total FEES

$10,000 $5,000

-0-

$15,000

MISCELLANEOUS ADMINISTRATION EXPENSES

01/22

Reimbursement to Personal Representative for: Locksmith & packing supplies

$534

Postage

$18

02/15

Air fare for January trip to Florida

02/29

Any Bank: check order charge

$26

H. C. Money & Co: bond redemption fees

$34

05/27

$260

H. C. Money & Co: annual fee

$100

Sub-Total MISC. EXP.

-0-

$972

TOTAL—SCHEDULE B

$-0-

$23,353

COMMENT: Schedule B should reflect only those items paid out during the accounting period. Classification of disbursements as income or principal is to be in accordance with the provisions of the Florida Principal and Income Act. Entries involving the purchase of assets or adjustments to the carrying values of assets are to be shown on Schedule D, and not Schedule B.

SCHEDULE C Distributions DATE

DESCRIPTION INCOME PRINCIPAL SPECIFIC BEQUESTS

04/25

Pursuant to Article III of Will:

05/24

to Beneficiary-1

$10,000

to Beneficiary-2

$5,000

to Beneficiary-3

$5,000

Pursuant to Article IV of Will: to Beneficiary-4: 2017 Mercedes Benz Station Wagon

$38,000

Personal Effects

$1,200

Contents of beach residence

$20,300

Contents of lake cottage

$1,255

Jewelry Sub-Total SPECIFIC BEQUESTS

____

$10,000

-0-

$90,755

DISTRIBUTIONS TO BANK TRUST CO. AS RESIDUARY BENEFICIARY 05/24

06/15

2,024 shs ABC, Inc.

$56,166

1,740 shs XYZ, Inc.

$41,325

Lake Cottage

$35,000

Income

$8,050

Sub-Total DISTRIBUTIONS TO TRUST

$8,050

TOTAL—SCHEDULE C

$8,050

____ $132,491

$223,246

COMMENT: Schedule C should reflect only those items or amounts distributed to beneficiaries during the accounting period. Assets distributed should be shown at their inventory or adjusted carrying values. Classifications of distributions as income or principal is to be in accordance with the provisions of the Florida Principal and Income Act.

Entries involving adjustments to the carrying values of assets are to be shown on Schedule D, and not on Schedule C.

SCHEDULE D Capital Transactions and Adjustments (Does not include distributions. Distributions are shown on Schedule C.) DATE BRIEF DESCRIPTION OF TRANSACTION 02/01

02/15

NET GAIN

Adjustment to Inventory carrying value of Estimated Future Book Royalties to reflect payment of royalties for period of 2/1/20–7/31/21

NET LOSS

$4,750

Matured: U.S.T. Notes 10.375% 2/15/20

02/15

Inventoried @

$50,180

Proceeds

$50,000

$180

-0-

-0-

Stock Dividend: Received an additional 200 shs of Widgets, Inc., common stock

02/29

Matured: U.S.T. Notes 8.000% 2/29/19 Inventoried @

$50,102

Proceeds

$50,000

$102

04/22

Sold: Beach residence Gross sales price

$40,000

Charges @ closing: Title insurance

$225

Survey

$100

Commission Doc stamps

$2,400 $280

2021 property taxes, prorated

$320

Attorneys’ fees

$350 $3,675

NET TO SELLER Inventoried @ 06/11

Stock Dividend:

$36,325 35,000

1,325

-0-

-0-

Received an additional 1,000 shs of DEF Company 06/24

Sold: 2,000 shs DEF Company

06.23

Proceeds

$76,678

Inventoried @

$59,000 $17,678

Purchased: $50,000 U.S. Treasury Notes

-0-

-0-

8.25% due 6/30/24 for $50,066 08/01

Adjustment to Inventory carrying value of Estimated Future Book Royalties to reflect payment of royalties for period 8/1/20–1/31/21

08/09

Sold:

$4,750

400 shs Widgets, Inc. Proceeds

$44,404

Inventoried @

$34,000 $10,404

09/09

Purchased: $50,000 U.S. Treasury Notes

-0-

-0-

9% due 11/15/26 for $50,952 TOTAL NET GAINS AND (LOSSES)

$29,407 $9,782

SCHEDULE D—NET GAIN OR (LOSS)

$19,625

COMMENT: Schedule D should reflect all purchases and sales of assets and any adjustments to the carrying values of any assets. Entries reflecting sales should show the inventory or adjusted carrying values, the costs and expenses of the sale, and the net proceeds received. The net gain or loss should be extended in the appropriate column on the right side of Schedule D. Entries reflecting purchases should reflect the purchase price, any expenses of purchase or other adjustments to the purchase price, and the total amount paid. Presumably no gain or loss would be shown for purchases. Entries reflecting adjustments in capital assets should explain the change (such as a stock split) and the net gain or loss should be shown in the appropriate column on the right side of Schedule D. The net gain or loss should be entered in the Principal column of the summary.

SCHEDULE E Assets on Hand at Close of Accounting Period ESTIMATED

INVENTORY OR

DESCRIPTION

CURRENT VALUE

CARRYING VALUE

Bonds 150M

U.S.T. Notes 7.25% 03/31/21

$148,264

$148,312

50M

U.S.T. Notes 8.25% 06/30/26

$50,066

$50,066

50M

U.S.T. Notes 9.00% 11/15/26

$50,952

$50,952

Sub-Total BONDS

$249,282

$249,330

Stocks 832

MNO, Inc.

$38,376

$33,904

$1,200

RST Corp.

$58,575

$56,175

Sub-Total STOCKS

$96,951

$90,079

Estimated Future Royalties from sales of book written by Ali Gator

$40,500

$40,500

$8,793

$8,793

$108

$108

$295,500

$295,500

Book Royalties

Cash H. C. Money & Co.: Cash balance in brokerage account Income Principal HCM Government Reserves Money Market Fund

Any Bank of Florida: Estate Checking Account

$13,513

$13,513

Sub-Total CASH

$317,914

$317,914

TOTAL—SCHEDULE E

$704,647

$697,823

COMMENT: Schedule E should be a complete list of all assets on hand reflecting inventory values (or carrying values) for each item, adjusted in accordance with any appropriate entries on Schedule D. Current market values for any assets that are known to be different from the inventory or carrying values as of the close of the accounting period should be shown in the column marked “Current Value.” The total inventory or adjusted carrying value (not Current Value) must agree with the Total for Item VI on Summary. Footnotes — Chapter 12: * **

Biographical information for Ms. Sheets appears on page 1-1 of this manual. Biographical information for Mr. Mundy appears on page 1-1 of this manual.

Licensed to Otis K Pitts, Otis K Pitts

« Ch. 13 » 1 Practice Under Florida Probate Code Ch. 13 (2022)

Chapter 13 PARTIAL DISTRIBUTIONS PAMELA O. PRICE* Contents § 13.1. INTRODUCTION § 13.2. PRELIMINARY CONSIDERATIONS A. Restrictions On Compulsory Payment B. The Risk Period C. Circumstances Justifying Distribution Before Expiration Of Risk Period D. Recovery Of Assets Or Their Value E. Income Tax Consequences Of Partial Distribution 1. In General 2. Determining Overall Benefit a. Distribution To One Beneficiary b. Distribution To Several Beneficiaries; Separate Share Rule c. Installment Sale Obligations d. Depreciable Property e. Specific Devise f. Distribution Within First Six Months F. Distribution To Testamentary Trustee G. Distribution Of Specific Assets 1. Tangible Personal Property a. Worthless Personalty b. Sample Waiver And Consent To Distribution To Charitable Institution 2. Clothing And Personal Effects Of Decedent

3. Exempt Property 4. Storage And Shipping 5. Automobiles 6. Business Of Decedent a. In General b. Partnerships And S Corporations 7. Life Insurance Proceeds 8. Interest And Income On Specific Devises H. Personal Liability Of Personal Representative For Taxes § 13.3. PROCEDURE A. General Considerations B. Compulsory Partial Distribution 1. In General 2. Forms Relating To Compulsory Distribution a. Sample Petition For Compulsory Partial Distribution b. Sample Answer To Petition For Partial Distribution c. Sample Partial Distribution Bond d. Sample Order For Partial Distribution C. Voluntary Partial Distribution 1. In General 2. Forms Relating To Voluntary Distribution a. Sample Petition For Voluntary Partial Distribution b. Sample Receipt For Partial Distribution Of Assets Of Estate D. Repayment Of Partial Distribution § 13.4. EFFECT OF ESTATE TAX A. In General B. Securing Partial Estate Tax Releases § 13.5. ELECTIVE SHARE « Ch. 13 », • § 13.1 » 1 Practice Under Florida Probate Code § 13.1 (2022)

§ 13.1. INTRODUCTION

The term “partial distribution” is sometimes used in the sense of distributing a portion of a beneficiary’s devise or intestate share before the final distribution. In other instances it is used in the sense of a total distribution to a beneficiary before the final distribution to all beneficiaries. As used in this chapter, it contemplates any distribution made before final distribution. Authority for partial distribution is derived from F.S. 733.612(26) (permissive partial distribution) and F.S. 733.802 (compulsory partial distribution). See Fla. Prob. R. 5.380. There is very little case law on partial distributions in Florida. The problem with making partial distributions is that the remaining assets of the estate may be insufficient to pay all taxes, claims, and costs ultimately determined to be due, or the distributions may be made to persons who are not ultimately entitled to them. The personal representative is potentially liable if partial distributions turn out to be improper. The personal representative is personally liable to the taxing authorities for the payment of state and federal estate and income taxes. F.S. 198.23; 31 U.S.C. § 3713(b). See § 13.2.H. F.S. 733.602(2) provides that “[a] personal representative shall not be liable for any act of administration or distribution if the act was authorized at the time.” However, the statute also provides that “[n]othing in this section affects the duty of the personal representative to administer and distribute the estate in accordance with the rights of interested persons.” This has been explained in a special concurring opinion in In re Estate of Wejanowski, 920 So. 2d 190 (Fla. 2d DCA 2006). Pursuant to section 733.612, Florida Statutes (2002), the personal representative “acting reasonably for the benefit of the interested persons” may perform the “transactions authorized” “without court order.” If done, then the personal representative is entitled to the protection afforded by section 733.602(2). Obtaining court approval for actions already authorized by statute does not insulate the personal representative from personal liability, nor does it eliminate the requirements of section 733.612 that the personal representative act reasonably and for the benefit of the interested persons. Wejanowski, 920 So. 2d at 192 (Villanti, J., specially concurring).

Despite the potential liability, circumstances may justify a distribution before entry of the final order of distribution. The personal representative in each instance must determine whether the distribution is in order on the merits as they exist in that particular situation. The discussion in this chapter is limited to the peculiar problems and procedures relating to partial distribution. Chapter 14 covers in detail the subject of final distribution, and the potential problems discussed in § 14.3.A. (concerning, for example, abatement, advancements, and apportionment of taxes) are equally applicable to partial distributions and must be considered as well.

« Ch. 13 », « § 13.2 » 1 Practice Under Florida Probate Code § 13.2 (2022)

§ 13.2. PRELIMINARY CONSIDERATIONS « Ch. 13 », « § 13.2 », • A » 1 Practice Under Florida Probate Code § 13.2.A (2022)

A. Restrictions On Compulsory Payment F.S. 733.801(1) provides: “No personal representative shall be required to pay or deliver any devise or distributive share or to surrender possession of any land to any beneficiary until the expiration of 5 months from the granting of letters.” Under F.S. 733.802, a personal representative cannot be compelled to make distribution before final distribution “unless the beneficiary establishes that the property will not be required for the payment of debts, family allowance, estate and inheritance taxes, claims, elective share … , or expenses of administration,” or “for contribution or to enforce equalization in the case of advancements.” The petition for compulsory payment of the beneficiary’s devise or distributive share must allege the facts that entitle the beneficiary to relief. Fla. Prob. R. 5.380(a); see § 13.3.B.1. The two statutes and the rule, together, appear to indicate that under no circumstances is the personal representative required to distribute until final distribution except on a petition for compulsory distribution, and no petition should be considered until at least five months after letters have been granted. In spite of the restrictions on compulsory payment, the personal representative may make partial distributions at any time unless restricted by the will or court order or unless the property is needed to satisfy claims, funeral expenses, expenses of administration, taxes, family allowance, exempt property, the elective share, or for contribution or to enforce equalization in the case of advancements. F.S. 733.612(26), 733.802. « Ch. 13 », « § 13.2 », « B » 1 Practice Under Florida Probate Code § 13.2.B (2022)

B. The Risk Period

A personal representative desiring to make a partial distribution before the expiration of the five-month period set out in F.S. 733.801(1) or before the approval of the final accounting should consider, at a minimum, the possibilities mentioned in the following list. When a petition for compulsory partial distribution is filed, the personal representative may consider the list in deciding how to respond to the petition: The personal representative may be personally liable if for some reason sufficient funds are not available to pay all items of higher priority, including state and federal estate and inheritance taxes, debts and claims against the estate, administration costs, family allowances, and specific devises. A petition for equalization of advancements may be filed. See F.S. 733.805(2), 733.806. A petition for exempt property may be filed. F.S. 732.402. The surviving spouse may elect to take an elective share. F.S. 732.201 et seq. An antenuptial or postnuptial agreement may surface that affects the interest of the surviving spouse and may affect claims against the estate. The personal representative should be sure that all known or reasonably ascertainable creditors have been served with notice to creditors and that the claims period has expired with respect to the creditors given notice. The claims period may not have expired as to unknown creditors. The period for amending claims by the Agency for Health Care Administration may not have expired. F.S. 409.9101(2)–(4). A petition for revocation of the will may be filed. F.S. 733.109. A pretermitted spouse or child unknown to the personal representative may appear. See F.S. 732.301–732.302. For clarification of the share of a pretermitted spouse, see Solomon v. Dunlap, 372 So. 2d 218 (Fla. 1st DCA 1979). A dissolution of marriage may have occurred that would affect the right to receive estate assets. See F.S. 732.507(2).

A common-law marriage may have occurred that would affect the right to receive assets. The 1967 Legislature abolished common-law marriages purportedly entered into in Florida after January 1, 1968, however, a common-law marriage entered into in another state or country would be recognized. F.S. 741.211. See Johnson v. Lincoln Square Properties, Inc., 571 So. 2d 541 (Fla. 2d DCA 1990). A same-sex marriage may have occurred that may affect the entitlement to estate assets. A later will or codicil may be found. An unknown beneficiary may appear. However, the personal representative is protected if beneficiaries have been determined under F.S. 733.105. See §§ 11.7.A–11.7.E of this manual. Property may prove to be protected homestead property. If the partial distribution consists of the proceeds of an insurance policy, all of the implications of F.S. 222.13 (disposition of life insurance proceeds) should be taken into account. If the beneficiary is a minor, a proper guardian must execute a receipt for the minor. If the amount involved is $15,000 or less, the minor’s natural guardians may receive the money. See F.S. 744.301(2). If the amount is over $15,000, a court-appointed guardian of the property must act unless the transfer is made to a custodian for the benefit of the minor under F.S. 710.106 or 710.107. All income, estate, and gift tax implications should be considered fully. The personal representative should consider requiring the beneficiary to agree to refund or return all or any part of the property distributed to that beneficiary if needed by the estate for any lawful purpose. The personal representative should consider requiring the beneficiary to provide a bond with adequate sureties in a sum sufficient to cover the value of the partial distribution. All or part of a will may violate the rule against perpetuities and, using the doctrine of dependent relative revocation, it is possible for the court to consider a petition on that subject after the statutory time for filing a

petition to revoke a will has expired. In re Estate of Jones, 352 So. 2d 1182 (Fla. 2d DCA 1977). Distributions of currency, securities, precious metals, and other assets to non-favored countries and citizens may be prohibited. For example, when Cuba or Cuban nationals are involved, Title 31, Chapter V, United States Code, and 31 C.F.R. Part 515—the Cuban Assets Control Regulations—may prohibit the transfer or exportation of United States currency, securities, precious metals, or other assets to Cuba or to certain Cuban nationals. These regulations permit blocked United States trust accounts to be set up for distributions intended for certain Cuban nationals. See Lieberman v. Golden, 545 So. 2d 304 (Fla. 3d DCA 1989). Beginning in 2015, the Cuban Assets Control Regulations have been relaxed somewhat. For restrictions applicable to other countries, organizations, or property, see 31 C.F.R. Parts 501–598. See also § 11.2.B.5 of this manual. « Ch. 13 », « § 13.2 », « C » 1 Practice Under Florida Probate Code § 13.2.C (2022)

C. Circumstances Justifying Distribution Before Expiration Of Risk Period One of the more obvious circumstances that might justify a partial distribution is the existence of a wasting asset. For example, if an automobile is among the estate assets, it generally is worth more at the time of the decedent’s death than it would be several months later. The mere passage of time depresses its value. A desire to reduce the personal representative’s responsibility and liability in connection with certain high-risk assets may justify partial distribution. For example, Florida’s “dangerous instrumentality” doctrine makes the retention of automobiles by the estate risky if the vehicles are used at all. See § 13.2.G.5. Another circumstance may be that a beneficiary is in great present need of the assets to be distributed. This may be the case when the recipient is elderly or ill, or when the beneficiary’s economic situation is so desperate as to require immediate relief. Some consideration may also be in order as to the beneficiary’s business needs.

It may be desirable to make a partial distribution of assets having a relatively small value. Those assets may actually be a nuisance for the personal representative to keep on hand. Examples are furniture and personal effects. Another motivating factor may be the cost of storage and insurance, and the risk of loss of jewelry, coin, and stamp collections, works of art, antiques, and other similar kinds of assets. See § 13.2.G.4. If the estate is comfortably solvent, it may be convenient for the personal representative to distribute items devised, other than residuary devises. This type of partial distribution leaves the residuary beneficiaries in a position to settle future matters by agreement without having to get the agreement of the nonresiduary beneficiaries. There may be less risk to the personal representative if the beneficiary signs a receipt for the partial distribution that contains an agreement to refund immediately upon determination by the personal representative of a need for refund, or if the beneficiary provides a bond with a surety satisfactory to the personal representative. A form for the receipt is set out in § 13.3.C.2.b and for the bond in § 13.3.B.2.c. If it is the beneficiary (rather than the personal representative) who desires that the partial distribution be made, the court may require the beneficiary to provide a bond. F.S. 733.802(3). It may be that a partial distribution is desirable for income tax reasons. Partial distribution shortly following death in a taxable estate in which estate tax is not eliminated through use of the applicable exclusion amount and the marital or charitable deduction may also reduce estate taxes. For example, if it appears that a majority of the estate assets will decrease in value over the six-month period from the date of death to the alternate valuation date, but a portion of the estate assets will show a sharp increase in value over that same period, the personal representative who wishes to minimize the taxable estate may distribute the property that is likely to increase in value. The value of property for estate tax purposes under the alternate valuation date rules is fixed at the earlier of the date of distribution, sale, exchange, or other disposition, or the date that is six months after the decedent’s death. If the forecast of the decrease in value of the remaining assets was correct, the gross estate would be less on the alternate valuation date. Of course, there are other factors to consider. For example, a partial distribution of an asset that is

increasing in value will leave the asset with a lower tax basis than if the alternate valuation date is elected, and the income tax consequences to the beneficiary upon his or her later sale of the appreciating asset may overcome any estate tax advantage. Relative tax brackets of the estate and beneficiary should be considered, as well as the likelihood of immediate sale. The estate tax is discussed further in §§ 13.4.A–13.4.B. The practitioner should note that IRC § 2032(c) allows use of the alternate valuation rules only if two conditions are met: (1) the value of the gross estate must decrease, and (2) the amount of tax payable after all credits must be lower than would result from computing the tax on date-of-death values. The election is on an all-ornothing basis. Finally, the need for continuation of the decedent’s business may prompt partial distribution if the personal representative does not wish to operate the business. See § 13.2.G.6. « Ch. 13 », « § 13.2 », « D » 1 Practice Under Florida Probate Code § 13.2.D (2022)

D. Recovery Of Assets Or Their Value If a personal representative makes a voluntary partial distribution and later discovers that the remaining assets of the estate are insufficient to pay estate debts, taxes, expenses, statutory entitlements, or other obligations having priority over the distribution to the beneficiary, the personal representative may bring an action to recover the assets and income on the assets from the beneficiary to whom partial distribution was made, unless the distribution cannot be questioned because of adjudication, estoppel, or limitations. If the beneficiary does not have the property, the beneficiary is liable to return the value of the property and its income and gain. For this purpose, the value appears to be the value at the date of disposition by the beneficiary. F.S. 733.811, 733.812. The right to recover the property itself ends at the time the distributee transfers the property to an innocent thirdparty purchaser for value. See F.S. 733.813. A court order authorizing a distribution would not necessarily bar recovery if the basis for the distribution was erroneous. The four-year statute of limitations under F.S. 95.11(3) does not begin to run until the discovery of the deficiency of assets to pay debts. Clifton v.

Clifton, 54 Fla. 535, 45 So. 458 (1907); In re Estate of Vernon, 637 So. 2d 365 (Fla. 4th DCA 1994). Creditors likewise are required to return improper payments. F.S. 733.812; Vernon. « Ch. 13 », « § 13.2 », « E » 1 Practice Under Florida Probate Code § 13.2.E (2022)

E. Income Tax Consequences Of Partial Distribution « Ch. 13 », « § 13.2 », « E », • 1 » 1 Practice Under Florida Probate Code § 13.2.E.1 (2022)

1. In General Generally speaking, distributions from an estate to a beneficiary, except in satisfaction of a specific bequest, will have income tax consequences to the beneficiary. The Internal Revenue Code regards all distributions, except those made in satisfaction of a specific bequest (as defined in IRC § 663), as if made out of income to the extent of the estate’s income, and then made from principal. Income for this purpose is not fiduciary accounting income, but is “distributable net income” (DNI). The amount and characterization of DNI is determined under IRC § 643 and the regulations thereunder. This effectively results in a shift of the income tax from the estate to the beneficiary. Distributions in excess of the estate’s DNI generally have no income tax consequences to the beneficiary. Distributions in satisfaction of specific devises are discussed in § 13.2.E.2.e. If the estate distributes property, IRC § 643(e) must be considered. The estate will generally have no gain or loss on the distribution of property to a beneficiary unless (1) it is in satisfaction of a specific amount, (2) it is in lieu of specific property, or (3) the IRC § 643(e) election is made. Treas. Reg. § 1.661(a)-2(f). Furthermore, the estate will have gain if the property is encumbered by a mortgage that exceeds the estate’s basis in the property. See Commissioner v. Tufts, 461 U.S. 300, 103 S. Ct. 1826, 75 L. Ed. 2d 863 (1983); Crane v. Commissioner, 331 U.S. 1, 67 S. Ct. 1047, 91 L. Ed. 1301 (1947). The beneficiary’s basis in distributed property is its basis in the hands of the estate increased or decreased by any gain or loss recognized to the estate

upon its distribution. See IRC § 1014(a); Reg. § 1.1014-4(a). IRC § 643(e)(2) provides that the amount of the distribution for purposes of the general rules allowing the estate’s deduction under IRC § 661 and the beneficiary’s inclusion of income under IRC § 662 is the lesser of (1) the adjusted basis of the property to the beneficiary, or (2) the fair market value of the property when distributed. The IRC § 643(e) election is effective for all assets distributed in kind during the taxable year in which the election is made. IRC § 643(e)(3)(B). In other words, the election is an all-or-nothing election for assets distributed in kind during a taxable year. The personal representative may make an election under IRC § 643(e)(3) to treat the distribution as a sale or exchange of property to the beneficiary. If the election is made, gain or loss would be recognized to the estate as if the property had been sold to the beneficiary at its fair market value. The beneficiary’s basis will then be stepped up to fair market value. The tax effect on both the estate and the beneficiary must be considered. As a result of requiring an all-or-nothing election for distributions in a taxable year, the fiduciary will have to be careful to segregate distributions, making some in one year when the election is made and making others in another year when no election is made, to achieve the desired result. The IRC § 643(e) election may be particularly desirable if the estate has excess deductions due to administrative expenses. Generally, capital gains and losses are not included in DNI. IRC § 643(a) (3). See Rev. Rul. 68-392, 1968-2 C.B. 284. This means that capital gain will generally not be passed through to the beneficiary as a result of the distribution but will be taxed to the estate, except in the final year of the estate. Reg. § 1.643(a)-3. However, there are exceptions to this general rule. Quarterly estimated tax payments are required by an estate after its first two taxable years. IRC § 6654(l). Accordingly, the penalties for underpayment of income tax are applicable to the estate. The personal representative of an estate may now elect to treat distributions made within the first 65 days of the estate’s fiscal year as made for the preceding year. IRC § 663(b). The personal representative should consider the effect, if any, on the beneficiary in making this election. Because distributions carrying out DNI will reduce the estate’s taxable income, there are both planning opportunities and pitfalls.

The personal representative may elect, on Form 1041-T (Allocation of Estimated Tax Payments to Beneficiaries), to treat any portion of a payment of estimated tax made by the estate as made by the beneficiary during the tax year of the estate, if made on or before the 65th day after the close of the estate’s fiscal year, provided it is reasonably expected to be the last taxable year of the estate. IRC § 643(g). The amount allocated to the beneficiary will be treated as paid to the beneficiary by the estate (and the estimated payment made by the beneficiary). « Ch. 13 », « § 13.2 », « E », « 2 • 1 Practice Under Florida Probate Code § 13.2.E.2 (2022)

2. Determining Overall Benefit « Ch. 13 », « § 13.2 », « E », « 2 •, • a » 1 Practice Under Florida Probate Code § 13.2.E.2.a (2022)

a. Distribution To One Beneficiary A partial distribution may work to the overall benefit of the parties from an income tax standpoint or it may work to their detriment, depending on the facts in each situation. For example, if during its first taxable year, the estate has taxable income of $5,000 and the personal representative makes a partial distribution of $4,700 cash to a beneficiary, the beneficiary must report as taxable income the full $4,700 and the estate reports only $300 (the portion of the taxable income not distributed). This may be undesirable if the beneficiary is in a considerably higher tax bracket than the estate; furthermore, the estate would be wasting a portion of its $600 annual exemption. However, if the distribution was of a specific devise (as defined for tax purposes) instead of a distribution out of the residuary estate, the estate would remain taxable on the entire $5,000 of income. See § 13.2.E.2.e. On the other hand, a partial distribution may work as a tax advantage. For example, if the personal representative elected a “short” taxable year as the initial fiscal year, and within that “short” year distributed $55,000 to a beneficiary, but the estate had received only $1,500 in taxable income during that time, the beneficiary in effect would receive $53,500 without it being subject to income tax. The beneficiary would then pay income tax only on the $1,500 income of the estate for that fiscal year. Income later received from the property that was distributed to the beneficiary will be taxed to the

beneficiary rather than the estate. Whether this early distribution would have an overall tax advantage would depend on the relative tax brackets of the beneficiary and the estate. This method may be especially helpful when distribution is being made to a testamentary trust that at the outset would have no income from sources other than the sums distributed to it. However, if the testamentary trust is a mere conduit for income to the ultimate beneficiaries, that income may be taxed to the trust beneficiaries rather than the trust. See F.S. 738.201. The income and distribution deduction rules for trusts are similar to those for estates. See IRC §§ 643, 661–662. « Ch. 13 », « § 13.2 », « E », « 2 •, « b » 1 Practice Under Florida Probate Code § 13.2.E.2.b (2022)

b. Distribution To Several Beneficiaries; Separate Share Rule IRC § 663(c) applies the “separate share rule” to estates. If the estate beneficiaries have substantially separate and independent shares of the estate, each separate share calculates its DNI based on its portion of gross income that is includable in DNI and its portion of deductions and losses. The purpose is to prevent a beneficiary who receives a principal distribution from being unfairly taxed on income that is actually being accumulated for another beneficiary. Id.; Reg. § 1.663(c). Examples are found in Reg. § 1.663(c)-5. If the separate share rule does not apply, each beneficiary is required to include in his or her individual return the portion of the estate’s taxable income represented by the value of the property received by that beneficiary from the estate divided by the total value of property distributed (excluding specifically devised property). IRC § 662(a)(2)(B). In Harkness v. United States, 469 F.2d 310 (Ct. Cl. 1973), the testator intended that his widow receive 50% of the income of the estate. In one year, however, her distribution consisted of 75% of the property distributed. The court held that she must include 75% of the estate’s income in her income tax return. (This case was decided before IRC § 663(c) was modified to apply the separate share rule to estates.) Distributions should be planned carefully so that no beneficiary bears an unfair share of the income tax liability. A slightly different rule applies when part of the income is required to be distributed currently, and other amounts are in fact paid or distributed during the same year. This rarely occurs with estates, although it frequently occurs with trusts. See IRC § 662(a) and the regulations within.

« Ch. 13 », « § 13.2 », « E », « 2 •, « c » 1 Practice Under Florida Probate Code § 13.2.E.2.c (2022)

c. Installment Sale Obligations The general rule is that installment sale obligations of a decedent that are distributed to the beneficiaries from an estate are not accelerated by reason of that distribution. IRC §§ 453B(c), 691(a)(5). However, if the installment sale obligation is transferred by the decedent’s estate to the obligor (whether by devise or otherwise), or if the obligation is canceled, the obligation is deemed “transferred” and the gain inherent in the obligation is accelerated. IRC § 691(a)(5). The gain inherent in the obligation is also accelerated if the obligation is transferred in satisfaction of a devise of a specific amount. A pecuniary formula marital deduction bequest is a specific amount for purposes of acceleration of gain if satisfied by distribution of an installment obligation, but not a specific devise for purposes of the exclusion from carrying out DNI. Reg. § 1.663(a)-1(b)(1). The income inherent in installment sale obligations acquired from a decedent is treated as income in respect of a decedent. The estate’s basis in installment obligations of the decedent is the same as the decedent’s. IRC §§ 691, 1014(c). The estate does not get a stepped-up basis at death for either the installment obligations or the income in respect of a decedent. If the personal representative sells estate property on the installment basis and then distributes the installment sale obligation to the beneficiaries, any gain inherent in the installment obligation will be accelerated. However, because the property sold received a new basis because of the decedent’s death, there may be little or no gain to recognize on distribution. Basis generally will be based on fair market value as of the date of death unless the alternate valuation date applies. IRC § 1014. Finally, if the personal representative is considering a sale to a family member or other related party within the meaning of IRC § 318(a), provisions in the installment sale rules concerning sales of property to related parties should not be overlooked. See IRC §§ 453, 453B. See § 10.4.C of this manual. See also IRC § 267 dealing with nonrecognition of losses. « Ch. 13 », « § 13.2 », « E », « 2 •, « d » 1 Practice Under Florida Probate Code § 13.2.E.2.d (2022)

d. Depreciable Property Early distribution of depreciable property should be considered. If the property is IRC § 1245 or § 1250 property and the excess depreciation is subject to recapture on the property’s subsequent sale, an inequitable tax result may occur. For example, assume property remains in the estate for several years, during which time a number of beneficiaries benefit from the depreciation deduction. If that property subsequently is distributed to only one beneficiary, that beneficiary assumes all of the ordinary income recapture of depreciation. Early distribution of that property, however, will give the beneficiary both the benefit of the depreciation and the burden of the recapture provisions. This result may be different if the separate share rule applies. See § 13.2.E.2.b. « Ch. 13 », « § 13.2 », « E », « 2 •, « e » 1 Practice Under Florida Probate Code § 13.2.E.2.e (2022)

e. Specific Devise If a distribution is made in fulfillment of a specific devise, it generally does not carry out an income taint. IRC §§ 102(a), 663(a)(1); Reg. §§ 1.1021(d), 1.663(a)-1(b); see Rev. Rul. 68-49, 1968-1 C.B. 304. The beneficiary’s basis is the fair market value of the property as of the date of the decedent’s death (or the alternate valuation date, if applicable) unless the property is an installment sale obligation held by the decedent. IRC §§ 1014(b)(1), (c). Except for decedents dying in 2010 when the IRC § 1022 election was made, the holding period is deemed to be more than one year for any subsequent sale or disposition by the beneficiary. IRC § 1223(9); Rev. Proc. 2011-41, § 4.01. A personal representative should be certain that a devise is a specific “bequest” within the meaning of the tax law if the personal representative is relying on this rule. IRC § 663. A distribution of depreciable property that qualifies as a specific bequest avoids the recapture rules. This is a mixed blessing for the transferee, because the recapture rules come into play on the transferee’s subsequent disposition of the property. However, a disposition of property in satisfaction of a specific devise of an amount (or in satisfaction of other specific property) will be treated as a sale or exchange of the asset by the estate and will cause the estate to recognize gain, if any. See § 13.2.E.2.c regarding installment obligations.

« Ch. 13 », « § 13.2 », « E », « 2 •, « f • 1 Practice Under Florida Probate Code § 13.2.E.2.f (2022)

f. Distribution Within First Six Months If the personal representative chooses to distribute property within the first six months following the decedent’s date of death, the date of distribution sets the alternate value for alternate valuation date purposes if the alternate valuation election is made in a taxable estate. Thus, an early distribution may affect the subsequent income tax basis of the property. Future income tax considerations should be taken into account before making distributions within this time period. « Ch. 13 », « § 13.2 », « F » 1 Practice Under Florida Probate Code § 13.2.F (2022)

F. Distribution To Testamentary Trustee Under former probate law, qualification of a testamentary trustee was a prerequisite to the right to receive any part of the property devised to that person as trustee. Under the Florida Probate Code, the qualification requirement was removed except for one limited provision in former F.S. 733.808(2). That requirement was removed in 1977. Ch. 77-87, § 38, Laws of Fla. Currently, there is no need to qualify a testamentary trustee before an asset is distributed to the trustee. « Ch. 13 », « § 13.2 », « G » 1 Practice Under Florida Probate Code § 13.2.G (2022)

G. Distribution Of Specific Assets « Ch. 13 », « § 13.2 », « G », • 1 » 1 Practice Under Florida Probate Code § 13.2.G.1 (2022)

1. Tangible Personal Property « Ch. 13 », « § 13.2 », « G », • 1 », • a » 1 Practice Under Florida Probate Code § 13.2.G.1.a (2022)

a. Worthless Personalty Worthless property may be abandoned by the personal representative, provided it is not the subject of a specific devise. F.S. 733.612(9). However, before abandoning personalty that may constitute exempt property, the

personal representative should obtain a waiver and consent from those entitled to elect exempt property. See § 13.2.G.3. Furthermore, some items of personalty that appear to be worthless may in fact be valuable antiques or priceless family mementos. In any event, it would be prudent to obtain waivers and consents from those persons entitled to the worthless personalty. Frequently, charitable organizations will have use for used clothing and other personalty that has no value to anyone else. If the assets truly are worthless, the personal representative would be unwise to assume responsibility for the storage and care of them. A sample waiver follows in § 13.2.G.1.b. « Ch. 13 », « § 13.2 », « G », • 1 », « b • 1 Practice Under Florida Probate Code § 13.2.G.1.b (2022)

b. Sample Waiver And Consent To Distribution To Charitable Institution IN THE CIRCUIT COURT FOR BLANK COUNTY, FLORIDA PROBATE DIVISION File No. 21-1234 Division 01 IN RE: ESTATE OF JOHN DOE, Deceased

WAIVER AND CONSENT The undersigned, Jane Doe, being the widow and sole beneficiary under the Last Will and Testament of John Doe, waives all of her rights to the clothing owned by the decedent at the time of his death and consents to the donation and delivery, at the present time and before the expiration of the time for filing of claims against the above estate, by the First National Bank of Baywater, as personal representative of the estate, of the clothing to the Salvation Army, Baywater, Florida, to be its property absolutely and to be used as it deems fit.

DATED at Baywater, Blank County, Florida, on January 3, 2021. Witnesses: /s/ Jane Doe Jane Doe /s/ O.D. Robertson O.D. Robertson /s/ Irene M. Black Irene M. Black COMMENT: Neither witnesses nor an acknowledgment are necessary to the validity of the waiver and consent. « Ch. 13 », « § 13.2 », « G », « 2 » 1 Practice Under Florida Probate Code § 13.2.G.2 (2022)

2. Clothing And Personal Effects Of Decedent In the ordinary case, clothing and personal effects are without great value. Nonetheless, a beneficiary may desire an early distribution. Because of the relatively small value of those assets, the risk to the personal representative is slight. A problem may arise when there is more than one beneficiary entitled to receive the property. In that case, a waiver of interest and consent in favor of the party who is to receive the assets should be obtained. As the value of clothing and personal effects increases, however, problems increase. Furs and diamonds rarely elicit waivers and consents. If there is more than one beneficiary entitled to receive these assets and there is no written agreement among them, partial distribution to one of them often causes more problems than it solves. « Ch. 13 », « § 13.2 », « G », « 3 » 1 Practice Under Florida Probate Code § 13.2.G.3 (2022)

3. Exempt Property Exempt property is exempt from the claims of creditors. F.S. 732.402 provides in relevant part:

(1) If a decedent was domiciled in this state at the time of death, the surviving spouse, or, if there is no surviving spouse, the children of the decedent shall have the right to a share of the estate of the decedent as provided in this section, to be designated “exempt property.” (2) Exempt property shall consist of: (a) Household furniture, furnishings, and appliances in the decedent’s usual place of abode up to a net value of $20,000 as of the date of death. (b) Two motor vehicles as defined in s. 316.003, which do not, individually as to either such motor vehicle, have a gross vehicle weight in excess of 15,000 pounds, held in the decedent’s name and regularly used by the decedent or members of the decedent’s immediate family as their personal motor vehicles. (c) All qualified tuition programs authorized by s. 529 of the Internal Revenue Code of 1986, as amended, including, but not limited to, the Florida Prepaid College Trust Fund advance payment contracts under s. 1009.98 and the Florida Prepaid College Trust Fund participation agreements under s. 1009.981. (d) All benefits paid pursuant to s. 112.1915. * * * (5) Property specifically or demonstratively devised by the decedent’s will to any devisee shall not be included in exempt property. However, persons to whom property has been specifically or demonstratively devised and who would otherwise be entitled to it as exempt property under this section may have the court determine the property to be exempt from claims, except for perfected security interests thereon, after complying with the provisions of subsection (6). (6) Persons entitled to exempt property shall be deemed to have waived their rights under this section unless a petition for determination of exempt property is filed by or on behalf of the persons entitled to the exempt property on or before the later of the date that is 4 months after the date of service of the notice of administration or the date that is 40 days after the date of termination of any proceeding involving the

construction, admission to probate, or validity of the will or involving any other matter affecting any part of the estate subject to this section. Thus, after court authorization, the exempt property may be distributed to the surviving spouse or children with impunity (subject to estate tax considerations). See F.S. 733.817 and § 13.4.A of this manual. See also §§ 1.2.E.1 and 7.6.D of this manual regarding exempt property. « Ch. 13 », « § 13.2 », « G », « 4 » 1 Practice Under Florida Probate Code § 13.2.G.4 (2022)

4. Storage And Shipping F.S. 733.801(2) provides that, “[e]xcept as otherwise provided in the will, the personal representative shall pay as an expense of administration the reasonable expenses of storage, insurance, packing, and delivery of tangible personal property to a beneficiary.” « Ch. 13 », « § 13.2 », « G », « 5 » 1 Practice Under Florida Probate Code § 13.2.G.5 (2022)

5. Automobiles If an automobile is a part of the probate estate, the Division of Motor Vehicles (DMV) in the subject county will permit the transfer of the automobile, on execution by the personal representative of Form 1 on the reverse side of the certificate of title, if the division is furnished a certified copy of letters of administration, HSMV Form 82040 (Application for Certificate of Title With/Without Registration), and lien satisfaction if applicable. Under the Florida Probate Code, a court order is not required to enable the personal representative to transfer or distribute any personal property, provided that the property is not needed “to satisfy claims, expenses of administration, taxes, family allowance, exempt property, and an elective share, in accordance with the decedent’s will or as authorized by operation of law.” F.S. 733.612(26). If the estate is not being administered and is not indebted, the beneficiary should submit Form 82040, a copy of the death certificate, and a copy of the will if one exists. The “Release of Spouse or Heirs Interest” on Form 82040 will have to be signed by any other heirs or beneficiaries. For additional information, see Procedure No. TL-18 in Section 1 of the DMV Procedures

Manual (available at www3.flhsmv.gov/dmv/Proc/TL/TL-18.PDF). See also F.S. 319.28. As noted in § 13.2.C, an automobile is frequently an asset that the personal representative may desire to distribute promptly. It is an asset whose value generally depreciates rapidly, and, under Florida law, it is a “dangerous instrumentality.” The liability factor should not be overlooked by the personal representative. The personal representative should search for any existing insurance on the automobile. If some casualty to the automobile occurs, the beneficiary may be entitled to the proceeds of the policy. F.S. 732.606; In re Estate of Sacks, 267 So. 2d 888 (Fla. 3d DCA 1972). The personal representative should determine whether the automobile might be exempt property under F.S. 732.402 before making it the subject of a partial distribution. See § 13.2.G.3. If the automobile appears to be exempt property, a court determination should be made after a timely petition is filed. See §§ 18.4.A–18.4.B of this manual for further discussion of the procedure to transfer title to the automobile in summary proceedings. Care must be taken when distributing an automobile from an estate to be certain it does not carry out ordinary income taint. If the automobile passes to the beneficiaries as a part of a residuary devise (or as exempt property) rather than as a specific devise, it may be ordinary income to the beneficiary receiving it. IRC § 662; Reg. § 1.662(a)-3. This problem should be addressed early in the administration of the estate. See §§ 13.2.E.1–13.2.E.2.f for a general discussion of the income tax consequences of early distribution. « Ch. 13 », « § 13.2 », « G », « 6 » 1 Practice Under Florida Probate Code § 13.2.G.6 (2022)

6. Business Of Decedent « Ch. 13 », « § 13.2 », « G », « 6 », • a » 1 Practice Under Florida Probate Code § 13.2.G.6.a (2022)

a. In General Unless the power to continue the decedent’s unincorporated trade or business is given to the personal representative by will, the personal

representative must obtain an order from the court if continuance for more than four months is desired. It must appear that the continuance is in the best interest of the estate. F.S. 733.612(22); Fla. Prob. R. 5.350. The petition, which may be filed by any interested person, must contain, among other things, a statement of the period for which the continuation is desired. Rules 5.350(b), (d). The court may require periodic reports. Rather than continue a business with which the personal representative may be unfamiliar, the personal representative may prefer to distribute the business to the person who ultimately would be entitled to it. Personal representatives are rarely in a position to operate businesses. If the sale of the business is necessary for liquidity for the payment of debts and expenses of administration, the personal representative may be required to operate the business until it can be sold. « Ch. 13 », « § 13.2 », « G », « 6 », « b • 1 Practice Under Florida Probate Code § 13.2.G.6.b (2022)

b. Partnerships And S Corporations Under the Florida Revised Uniform Partnership Act, F.S. Chapter 620, the death of a general partner causes the dissociation of the general partner. F.S. 620.8601(7)(a). However, the death of a general partner does not necessarily cause the dissolution of the partnership. F.S. 620.8801(2) provides that a majority of the other partners may elect to dissolve the partnership within 90 days of the death of a partner. The personal representative would look to the surviving partners for an accounting and buyout of the deceased partner’s interest in the partnership. See F.S. 620.8701. The Florida Revised Uniform Limited Partnership Act provides guidance to personal representatives with respect to limited partnership interests. Unless otherwise provided in the partnership agreement, a person is dissociated from the partnership upon the person’s death. F.S. 620.1601(2)(f). The deceased limited partner’s rights become those of a transferee except as embellished by the rights of the personal representative under F.S. 620.1602 and 620.1704. The terms of the partnership agreement may override some or all of these provisions. F.S. 620.1110. The death of a partner terminates the tax year for the deceased partner but generally does not terminate the partnership’s tax year. IRC § 706(c). The

deceased partner’s final income tax return will include all pass-through items for the decedent’s short taxable year ending at death. The determination is made either by a pro rata allocation based on the number of days elapsed in the partnership year, or by the interim closing of the partnership books. The partnership agreement may or may not specify the method to be used. Reg. § 1.706-1(c)(2). S corporations may have as shareholders only individuals (other than nonresident aliens), estates, limited types of trusts, and certain exempt organizations. The decedent’s former revocable inter vivos trust may qualify as a shareholder, but only for the two-year period beginning with the date of the decedent’s death. However, this may not apply to any trust created by the former revocable trust after the decedent’s death. See IRC §§ 1361(b), (c)(2). Trusts that are permissible shareholders include Qualified Subchapter S Trusts (QSSTs) and Electing Small Business Trusts (ESBTs), but only if appropriate elections are timely made. The rules regarding the timing of the election and the requirements of the trust are very complex and should be consulted, and in some cases the elections need to be made immediately. See Reg. §§ 1.1361-1(j)(6), (m)(2). The attorney should be careful to avoid disqualification of Subchapter S status because of an excessive number of shareholders, ineligible shareholders, or failure to make timely elections. See IRC § 1361. Additionally, the attorney should consider the effect of the IRC § 645 election. See also 9.4.C.1 S of this manual. « Ch. 13 », « § 13.2 », « G », « 7 » 1 Practice Under Florida Probate Code § 13.2.G.7 (2022)

7. Life Insurance Proceeds F.S. 222.13(1) provides that insurance proceeds that become part of the estate are subject to creditors’ claims, taxes, and expenses of administration. F.S. 733.808 provides that insurance proceeds and other types of death benefits payable to trustees of either inter vivos or testamentary trusts are not estate assets and are not subject to claims, taxes, and expenses of administration, if there is a trustee to receive the proceeds and if the trustee makes a proper claim to the insurance company within six months of the decedent’s death. If one of those conditions is not met, the insurance company must make payment to the personal representative unless otherwise provided by agreement with the insured during the lifetime of the decedent.

This exemption from claims of creditors may be waived only if the decedent’s will or trust expressly refers to F.S. 733.808(4) and directs that it does not apply. See F.S. 736.05053(1). In clarifying the requirements for a waiver of this exemption in Chapter 2014-127, Laws of Florida, the legislature overruled Morey v. Everbank, 93 So. 3d 482 (Fla. 1st DCA 2012), in which insurance payable to an intervivos trust was not exempt due to a general provision in the trust to pay all debts before determining the residue of the trust, notwithstanding F.S. 733.808(4). Life insurance proceeds as assets of the decedent’s estate are discussed further in § 1.2.E.4.b.ii of this manual. « Ch. 13 », « § 13.2 », « G », « 8 • 1 Practice Under Florida Probate Code § 13.2.G.8 (2022)

8. Interest And Income On Specific Devises Except as otherwise provided by will, the net income and net principal receipts received from property specifically given to a beneficiary must be distributed to the beneficiary who is to receive the specific property. F.S. 738.103(1), 738.201(1). Pecuniary devises not in trust are not entitled to an allocation of income unless the will so provides. F.S. 738.201(3). Pecuniary devises in trust will share in the remaining net income, if any, with remainder beneficiaries. F.S. 738.201(4), 738.202. Practitioners should note that the Florida Uniform Principal and Income Act was adopted by Chapter 2002-42, Laws of Florida, and codified at F.S. Chapter 738, effective January 1, 2003. It applies to any receipt or expense received or incurred after January 1, 2003. F.S. 738.804. The Act was further modified by Chapter 2012-49, Laws of Florida, effective January 1, 2013. F.S. 733.608(1) provides that all property of the decedent (except protected homestead), and the income from that property, must be assets in the hands of the personal representative to be used (a) For the payment of devises, family allowance, elective share, estate and inheritance taxes, claims, charges, and expenses of the administration and obligations of the decedent’s estate. (b) To enforce contribution and equalize advancement. (c) For distribution.

However, see F.S. 733.805, 733.817, and Chapter 738. See also § 14.3.C.6.f of this manual. « Ch. 13 », « § 13.2 », « H • 1 Practice Under Florida Probate Code § 13.2.H (2022)

H. Personal Liability Of Personal Representative For Taxes A personal representative who pays any part of a debt of the deceased or the estate or makes distributions to beneficiaries before paying federal taxes or other government claim is personally liable to the government for the payment of the taxes and claims. 31 U.S.C. § 3713(b). This would include liability for payment of social security payments collected by the decedent if the decedent was not entitled to receive them. This personal liability is generally limited to the value of the assets in the estate and any amounts paid or payable to the personal representative from the decedent’s revocable trust under F.S. 733.607(2). The personal representative should consider potential liability for claims and taxes when making partial distributions. If the personal representative transfers assets and subsequently learns that the total of all debts owing to the United States, including taxes, exceeds the remaining value of property in the estate, the personal representative may be personally liable for the difference. The personal representative may have the right to recover from the transferee. IRC § 6324(a)(2) also imposes personal liability for the payment of tax on transferees of property, whether they are distributees from an estate, creditors who have received payment, or otherwise. See also IRC § 6901(h). A transferee’s personal liability for unpaid estate tax is limited by the value (at the time of the decedent’s death) of the property the transferee received from the decedent’s gross estate. Baptiste v. Commissioner, 29 F.3d 433 (8th Cir. 1994); Baptiste v. Commissioner, 29 F.3d 1533 (11th Cir. 1994). Moreover, the transferee is liable for interest on the transferee’s personal liability for the unpaid estate tax. A split of authority exists (on basically the same facts) between the Eighth and Eleventh circuits on whether IRC § 6324(a)(2) imposes a limitation on the transferee’s liability for interest. Under the Eighth Circuit’s interpretation, IRC § 6324(a)(2), which imposes a limitation on a transferee’s liability for tax, also imposes a limitation on a transferee’s liability for interest. Hence, the IRS cannot collect from the

transferee more than the value of the property received from the decedent. Baptiste. Conversely, the Eleventh Circuit held that IRC § 6324(a)(2) does not impose a limitation on the transferee’s liability for interest. Baptiste. Thus, the IRS could recover more than the value of the property received from the decedent to the extent of the interest on the tax. This liability is not limited to the transferee’s proportionate share of the tax liability. The term “transferee” is very broad and includes a beneficiary under a will or trust, a surviving joint tenant, and the beneficiary of insurance, among others. See IRC § 6324(a)(2). The personal liability of the personal representative may be discharged as early as nine months after the filing of the estate tax return upon proper application. IRC §§ 2204 (for estate taxes), 6905 (for decedent’s income taxes and gift taxes). IRS Form 5495, Request for Discharge from Personal Liability under Internal Revenue Code Section 2204 or 6905, must be used in making a discharge. No discharge is available for fiduciary income taxes payable from the estate, but prompt assessment may be requested to shorten the period of assessment to 18 months after filing the return. IRC § 6501(d). IRS Form 4810, Request For Prompt Assessment Under Internal Revenue Code Section 6501(d), must be used in making a prompt assessment request.

« Ch. 13 », « § 13.3 » 1 Practice Under Florida Probate Code § 13.3 (2022)

§ 13.3. PROCEDURE « Ch. 13 », « § 13.3 », • A » 1 Practice Under Florida Probate Code § 13.3.A (2022)

A. General Considerations The personal representative’s final accounting and petition for discharge must account for any partial distributions. Fla. Prob. R. 5.400(b)(5)(A). When it is impractical to distribute undivided interests in residuary property, the property may be sold to provide the funds necessary to make the final distribution. F.S. 733.810(3); In re Estate of Slater, 437 So. 2d 1110 (Fla. 5th DCA 1983). When joint personal representatives are appointed, the concurrence of a majority of the personal representatives controls (unless otherwise provided by will or codicil). However, when their appointment was pursuant to a will or codicil executed before October 1, 1987, or if they were appointed before October 1, 1987, to administer an intestate estate, the concurrence of all is required (unless otherwise provided by will or codicil). F.S. 733.615. « Ch. 13 », « § 13.3 », « B » 1 Practice Under Florida Probate Code § 13.3.B (2022)

B. Compulsory Partial Distribution « Ch. 13 », « § 13.3 », « B », • 1 » 1 Practice Under Florida Probate Code § 13.3.B.1 (2022)

1. In General A beneficiary may be able to compel the personal representative to make a partial distribution. See F.S. 733.802; Fla. Prob. R. 5.380. The beneficiary must file a petition alleging the facts that support the relief requested. The facts alleged must include allegations “that the property will not be required for the payment of debts, family allowance, spouse’s elective share, estate and inheritance taxes, claims, charges, and expenses of administration, or for providing funds for contribution or enforcing equalization in case of

advancements.” Rule 5.380(a). The failure to make these allegations is fatal to the pleading. In re Estate of Lieberman, 356 So. 2d 17 (Fla. 4th DCA 1978). The petition should also state the name of the petitioner and the petitioner’s interest in the property of the estate, and describe the particular property or fund being sought. A sample petition is set forth at § 13.3.B.2.a. Rules 5.040 and 5.041 require service on the personal representative and all other interested persons. Informal notice to all interested persons is permitted; if formal notice is given, it must be given to all interested persons entitled to notice. Rule 5.040(d). F.S. 733.802(3) provides that the person entitled to partial distribution may be required by the court to give a bond with sureties, conditioned to make due contribution for the payment of devises, family allowance, estate and inheritance taxes, claims, the elective share of the spouse, charges, expenses of administration, and equalization in case of advancements, plus interest. If there is any doubt as to the propriety of making a distribution, therefore, the prudent personal representative should file an answer to a petition for partial distribution brought by a beneficiary. The answer should include a request that the court require the beneficiary to give a bond. A sample answer is set forth in § 13.3.B.2.b; a form for the bond appears in § 13.3.B.2.c. If the petition is filed and the court considers it before the expiration of the five-month period under F.S. 733.801, the personal representative should insist on the bond even if the personal representative believes that the partial distribution is appropriate. It may be error in that instance for the court not to require a bond. F.S. 733.817(5) may provide some help to the personal representative who, for example, is administering a taxable estate and is asked to make a substantial partial distribution. That statute provides that a personal representative cannot be required to distribute assets that are “reasonably anticipated to be necessary” to pay any state or federal taxes. Furthermore, the personal representative is not required to transfer any property to a recipient “until the amount of the tax due from the recipient is paid by the recipient.” Id. The personal representative may request that the court require the person

receiving the partial distribution to give a receipt that contains an agreement to redeliver the assets on the request of the personal representative. See §§ 13.2.C, 13.3.C.2.b. The considerations raised in §§ 14.3.A.2.4 of this manual (concerning ademption, abatement and contribution), as well as apportionment of taxes are equally applicable to partial distributions and must be considered as well. « Ch. 13 », « § 13.3 », « B », « 2 • 1 Practice Under Florida Probate Code § 13.3.B.2 (2022)

2. Forms Relating To Compulsory Distribution « Ch. 13 », « § 13.3 », « B », « 2 •, • a » 1 Practice Under Florida Probate Code § 13.3.B.2.a (2022)

a. Sample Petition For Compulsory Partial Distribution IN THE CIRCUIT COURT FOR BLANK COUNTY, FLORIDA PROBATE DIVISION File No. 21-2345 Division 01 IN RE: ESTATE OF JOHN DOE, Deceased

BENEFICIARY’S PETITION FOR PARTIAL DISTRIBUTION Petitioner, Jane Doe, alleges: 1. The First National Bank of Baywater is the duly qualified and acting personal representative of the above estate. 2. The Last Will and Testament of John Doe, admitted to probate on January 3, 2021, contains the following devise: I devise to my wife, JANE DOE, my three-carat diamond ring with Kiwanis emblem.

3. Petitioner is the beneficiary of the above devise and desires distribution of it at this time. 4. The property sought to be distributed at this time will not be required for the payment of debts, devises, family allowance, estate and inheritance taxes, claims, elective share of the spouse, charges, expenses of administration, or equalization in case of advancements, or any interest on them. The estate contains more than ample assets to pay all of those items that may be or become due. 5. Petitioner is the principal beneficiary under the will. 6. The decedent had no known debts, and no claims have been filed against the estate, nor are any anticipated. 7. Petitioner is the widow of the decedent and specifically elects to take under the provisions of his will and waives her right to take an elective share. WHEREFORE Petitioner asks that an order be entered authorizing The First National Bank of Baywater, as personal representative, to distribute the three-carat diamond ring with Kiwanis emblem, as specifically devised under the Last Will and Testament of John Doe, deceased, to her, upon obtaining from her a proper receipt. Under penalties of perjury, I declare that I have read the foregoing, and the facts alleged are true, to the best of my knowledge and belief. /s/ Jane Doe Jane Doe Petitioner The undersigned certifies that a copy hereof has been furnished to A, B & C, P.A., by mail on April 4, 2021. X, Y & Z /s/ George W. Sharpman George W. Sharpman Attorney for Petitioner 210 Main Street

Baywater, FL 30000 813/012-3456 [email protected] Florida Bar No. 654321 « Ch. 13 », « § 13.3 », « B », « 2 •, « b » 1 Practice Under Florida Probate Code § 13.3.B.2.b (2022)

b. Sample Answer To Petition For Partial Distribution IN THE CIRCUIT COURT FOR BLANK COUNTY, FLORIDA PROBATE DIVISION File No. 21-2345 Division 01 IN RE: ESTATE OF JOHN DOE, Deceased

PERSONAL REPRESENTATIVE’S ANSWER TO PETITION FOR PARTIAL DISTRIBUTION The First National Bank of Baywater, as personal representative of the above estate, answers the petition of Jane Doe for partial distribution and alleges: 1. It admits the allegations contained in paragraphs 1, 2, 3, 5, 6, and 7 of the petition. 2. It is without sufficient information either to admit or deny the allegations contained in paragraph 4 and therefore denies them. 3. As a further defense to the petition for partial distribution, The First National Bank of Baywater alleges that five months have not elapsed since the granting of letters. WHEREFORE The First National Bank of Baywater, as personal representative of the estate of John Doe, asks that this court enter an

order concerning the petition of Jane Doe for partial distribution as it may deem proper and, should an order be entered authorizing the requested distribution, that this court require Jane Doe to give a bond with adequate sureties, to be approved by this court, conditioned to make due contribution for the payment of debts, devises or distributive interests, family allowance, estate and inheritance taxes, claims, elective share of the spouse, charges, expenses of administration, and equalization in case of advancements, plus any interest. THE FIRST NATIONAL BANK OF BAYWATER, as Personal Representative of the Estate of John Doe By: /s/ Jack Careful Jack Careful, Trust Officer The undersigned certifies that a copy hereof has been furnished to X, Y & Z by mail on April 12, 2021. A, B & C, P.A. /s/ John Read John Read Attorney for The First National Bank of Baywater 100 Main Street Baywater, FL 30000 813/654-3210 [email protected] Florida Bar No. 123456 « Ch. 13 », « § 13.3 », « B », « 2 •, « c » 1 Practice Under Florida Probate Code § 13.3.B.2.c (2022)

c. Sample Partial Distribution Bond IN THE CIRCUIT COURT FOR BLANK COUNTY, FLORIDA

PROBATE DIVISION File No. 21-2345 Division 01 IN RE: ESTATE OF JOHN DOE, Deceased

PARTIAL DISTRIBUTION BOND We, Jane Doe as principal and L, M & N Surety Company as surety, are held and firmly bound to the personal representative of the estate of John Doe, and its successors in office, in the sum of $2,000 for the payment of which we bind ourselves, our beneficiaries, personal representatives, and assigns, jointly and severally, by these presents. The condition of this bond is that if Jane Doe makes due contribution in an amount not to exceed $2,000 for the payment of devises, family allowance, estate and inheritance taxes, claims, elective share of the spouse, charges, expenses of administration, and equalization in case of advancements, plus any interest on them, should it be lawfully required as a result of partial distribution to her of the decedent’s three-carat diamond ring with Kiwanis emblem, then this bond will be void; otherwise, it shall remain in full force and effect. IN WITNESS WHEREOF, we have subscribed our names on May 1, 2021. /s/ Jane Doe Jane Doe L, M & N SURETY COMPANY By: /s/ John Graspy John Graspy, President (Seal) Approved by me on May 1, 2021 /s/____________ Ira G. Todd

Circuit Judge COMMENT: The bond set out above also could be used for a voluntary partial distribution. The practitioner should note that the court is allowed to require a bond with sureties defined by F.S. 45.011. The bond is to be conditioned on “the making of due contribution for the payment of devises, family allowance, estate and inheritance taxes, claims, elective share of the spouse, charges, expenses of administration, and equalization in case of advancements, plus any interest on them.” F.S. 733.802(3). F.S. 45.011 provides that, unless a cash deposit is furnished, two sureties having a net worth in excess of the bond are required unless one licensed surety company is used. « Ch. 13 », « § 13.3 », « B », « 2 •, « d • 1 Practice Under Florida Probate Code § 13.3.B.2.d (2022)

d. Sample Order For Partial Distribution IN THE CIRCUIT COURT FOR BLANK COUNTY, FLORIDA PROBATE DIVISION File No. 21-2345 Division 01 IN RE: ESTATE OF JOHN DOE, Deceased

ORDER AUTHORIZING PARTIAL DISTRIBUTION This cause was heard on petition of Jane Doe, widow of John Doe, for partial distribution of the ring specifically devised to her under the Last Will and Testament of the decedent, and the answer of The First National Bank of Baywater, as personal representative of the estate, and the court finding that the ring was appraised at a value of $2,000,

IT IS ADJUDGED that The First National Bank of Baywater, as personal representative of the estate of John Doe, is authorized to distribute to Jane Doe the three-carat diamond ring with Kiwanis emblem, specifically devised to her under the Last Will and Testament of John Doe, upon Jane Doe giving a $2,000 bond with adequate sureties to be approved by this court, conditioned to make due contribution, if lawfully required to do so, for the payment of devises, family allowance, estate and inheritance taxes, claims, elective share of the spouse, charges, expenses of administration, and equalization in case of advancement, plus any interest on them. ORDERED at Baywater, Blank County, Florida, on May 5, 2021. /s/ Ira G. Todd Ira G. Todd Circuit Judge Copies furnished to: A, B & C, P.A., and X, Y & Z COMMENT: The requirement of the bond set out in the above order is discretionary with the judge. F.S. 733.802(3); Fla. Prob. R. 5.380(c). The order directing the distribution must describe the property to be distributed. Rule 5.380(b). Full and complete descriptions are recommended. If the distribution is made in accordance with the order, provided the order is effective, it is considered conclusive in favor of bona fide purchasers for value. F.S. 733.802(2), 733.813. « Ch. 13 », « § 13.3 », « C » 1 Practice Under Florida Probate Code § 13.3.C (2022)

C. Voluntary Partial Distribution « Ch. 13 », « § 13.3 », « C », • 1 » 1 Practice Under Florida Probate Code § 13.3.C.1 (2022)

1. In General A personal representative must “proceed expeditiously” with the distribution of a decedent’s estate and, except as provided in the Probate Code or as ordered by the court, must do so without court order. F.S.

733.603. The personal representative, therefore, may make partial distribution if it is desirable to do so. See F.S. 733.607, 733.612(26). As noted at § 13.2.D, F.S. 733.812 provides that a distributee or claimant who was improperly paid is liable to return the property distributed and income received thereon unless the distribution or payment cannot be questioned because of adjudication, estoppel, or limitations. If the distributee or claimant disposed of the property, the amount recoverable is the property’s value at the date of disposition, the income thereon, and gain received. Because F.S. 733.812 does not provide an absolute right of recovery, the personal representative should consider requesting a bond or, at a minimum, a repayment agreement from the beneficiary for a voluntary distribution. See § 13.2.C. See also §§ 13.3.B.2.b–13.3.B.2.c. F.S. 733.607(1) provides that the personal representative may leave any real property or tangible personal property with, or surrender it to, the person presumptively entitled to it unless possession of the property by the personal representative will be necessary for purposes of administration. F.S. 733.612(26) provides that a personal representative, acting reasonably for the benefit of the interested persons, may properly make partial distribution if the property distributed is not needed to satisfy claims, expenses of administration, taxes, family allowance, exempt property, or the elective share. Notwithstanding this authority, it is not proper to make a partial distribution if the assets to be distributed may be needed to satisfy any of these items. To determine the propriety of making a voluntary distribution, the following statutory provisions should be considered: F.S. 733.109(2) provides that, “[p]ending the determination of any petition for revocation of probate, … no distribution [of property] may be made to beneficiaries in contravention of the rights of those who, but for the will, would be entitled to the property.” Thus, if a petition for revocation of probate has been filed or if there is a possibility that one might be filed, no distribution should be made. F.S. 733.602(2) provides that a “personal representative shall not be liable for any act of … distribution if the act was authorized at the time.” The statute goes on to provide that “[n]othing in this section affects the

duty of the personal representative to administer and distribute the estate in accordance with the rights of interested persons.” Notwithstanding the authority to make partial distributions, the personal representative may incur liability if the distribution was not in accordance with the rights of interested persons. F.S. 733.609(1) provides that “[a] personal representative’s fiduciary duty is the same as the fiduciary duty of a trustee of an express trust.” In actions for breach of fiduciary duty or challenging the exercise or failure of the personal representative to exercise its powers, the court “shall award” attorneys’ fees and costs “as in chancery actions.” Id. F.S. 733.805(2) provides that contribution may be required to a devisee whose devise has been sold or used. Before distribution, the court must determine the amounts of the respective contributions, and they must be paid or withheld before distribution is made. If there is any possibility of contribution being required, therefore, this prohibition against distribution should be considered. A personal representative who decides to make a voluntary partial distribution despite these statutory admonitions might find it prudent to require the partial distribution bond. A sample bond is provided in § 13.3.B.2.c. « Ch. 13 », « § 13.3 », « C », « 2 • 1 Practice Under Florida Probate Code § 13.3.C.2 (2022)

2. Forms Relating To Voluntary Distribution « Ch. 13 », « § 13.3 », « C », « 2 •, • a » 1 Practice Under Florida Probate Code § 13.3.C.2.a (2022)

a. Sample Petition For Voluntary Partial Distribution IN THE CIRCUIT COURT FOR BLANK COUNTY, FLORIDA PROBATE DIVISION File No. 21-3456 Division 01 IN RE: ESTATE OF

JOHN DOE, Deceased

PERSONAL REPRESENTATIVE’S PETITION FOR PARTIAL DISTRIBUTION Petitioner, The First National Bank of Baywater, as personal representative of the above estate, alleges: 1. The Last Will and Testament of John Doe, admitted to probate on January 3, 2021, includes the following devise: I devise to my wife, JANE DOE, my three-carat diamond ring with Kiwanis emblem. 2. Jane Doe has asked petitioner to distribute the ring to her at this time. 3. The time for filing claims against the estate has expired and all debts, claims, estate and inheritance taxes, family allowance, charges, and expenses of administration have been paid or provision has been made for their payment. WHEREFORE Petitioner asks that an order be entered authorizing it, as personal representative, to distribute the decedent’s three-carat diamond ring with Kiwanis emblem to Jane Doe [upon her executing an agreement to deliver to the personal representative any or all of the assets received from the personal representative, or their value, together with any income or gain earned thereon, upon demand, and] upon her giving a proper receipt. Under penalties of perjury, I declare that I have read the foregoing, and the facts alleged are true, to the best of my knowledge and belief. THE FIRST NATIONAL BANK OF BAYWATER, as Personal Representative of the Estate of John Doe By: /s/ Jack Careful

Jack Careful, Trust Officer The undersigned certifies that a copy hereof has been furnished to Jane Doe by mail on April 4, 2021. A, B & C, P.A. By: /s/ John Read John Read Attorney for The First National Bank of Baywater 100 Main Street Baywater, FL 30000 813/654-3210 [email protected] Florida Bar No. 123456 COMMENT: This petition may be served by informal notice. Fla. Prob. R. 5.040(b), 5.041. « Ch. 13 », « § 13.3 », « C », « 2 •, « b • 1 Practice Under Florida Probate Code § 13.3.C.2.b (2022)

b. Sample Receipt For Partial Distribution Of Assets Of Estate IN THE CIRCUIT COURT FOR BLANK COUNTY, FLORIDA PROBATE DIVISION File No. 21-3456 Division 01 IN RE: ESTATE OF JOHN DOE, Deceased

RECEIPT

The First National Bank of Baywater, the trustee of the trust created in the Last Will and Testament of John Doe, whose address is 100 Main Street, Baywater, Florida, and whose federal tax identification number is 59-1234567, acknowledges that it has received from Jane Doe, personal representative of the estate of John Doe, the sum of $50,000 cash, representing a partial distribution to it under the provisions of paragraph 4 of the decedent’s Last Will and Testament. A condition of this distribution is the agreement by the beneficiary to return to the personal representative, on demand, any property received and its income since distribution or, if the beneficiary does not have the property, to return to the personal representative the value of the property at the date of disposition and its income and gain received. The beneficiary shall have no obligation to return the property unless it was improperly distributed. Dated at Baywater, Blank County, Florida, on May 5, 2021. Witnesses: THE FIRST NATIONAL BANK OF BAYWATER, as Trustee /s/ Jean R. Bartel

By: /s/ Jack Careful

Jean R. Bartel

Jack Careful, Trust Officer

/s/ Mary S. Stone Mary Stone

COMMENT: This receipt may also be used in connection with proceedings for compulsory distribution. Witnesses are not required. « Ch. 13 », « § 13.3 », « D • 1 Practice Under Florida Probate Code § 13.3.D (2022)

D. Repayment Of Partial Distribution In the event the distribution is determined to be improper because the basis for the distribution was incorrect and the distribution can still be questioned, either the assets or their value may be recovered. F.S. 733.812 provides:

A distributee or a claimant who was paid improperly must return the assets or funds received, and the income from those assets or interest on the funds since distribution or payment, unless the distribution or payment cannot be questioned because of adjudication, estoppel, or limitations. If the distributee or claimant does not have the property, its value at the date of disposition, income thereon, and gain received by the distributee or claimant must be returned. See § 13.2.D of this manual.

« Ch. 13 », « § 13.4 » 1 Practice Under Florida Probate Code § 13.4 (2022)

§ 13.4. EFFECT OF ESTATE TAX « Ch. 13 », « § 13.4 », • A » 1 Practice Under Florida Probate Code § 13.4.A (2022)

A. In General As noted at § 13.3.B.1, F.S. 733.817(5) provides that the personal representative is not required to distribute assets that the personal representative reasonably anticipates may be necessary to pay any state or federal taxes. In addition, the personal representative is not required to transfer any property in the personal representative’s possession until the amount of any tax due from the transferee is paid or, if the apportionment of tax has not been determined, until the transferee furnishes adequate security for the payment. This applies to the tax due with respect to assets passing under or outside of the will. The personal representative would be wise to require a devisee to pay the devisee’s portion of death taxes on assets received by the devisee outside the terms of the will, before permitting distributions to the devisee. For a discussion of the apportionment of estate taxes to property included in the decedent’s gross estate, see Chapter 11 of this manual. « Ch. 13 », « § 13.4 », « B • 1 Practice Under Florida Probate Code § 13.4.B (2022)

B. Securing Partial Estate Tax Releases If no Florida estate tax is due and no return is required to be filed, the personal representative may execute an affidavit attesting that the estate is not taxable in the form prescribed by the Department of Revenue. DR-312 (Affidavit of No Florida Estate Tax Due) is to be used when no federal estate tax return will be filed, and Form DR-313 (Affidavit of No Florida Estate Tax Due When Federal Return is Required) when a federal estate tax return will be filed. If the gross estate exceeds the nontaxable amount and the personal

representative desires to obtain a federal estate tax release of assets that are the subject of partial distribution before the estate tax return is filed or full releases are obtained, the personal representative should file IRS Form 4422 (Application for Certificate Discharging Property Subject to Estate Tax Lien) in duplicate with all required attachments, including legal descriptions when appropriate. If the lien is released, the IRS will issue a certificate discharging property subject to the estate tax lien. Form 4422 and its instructions may be obtained from the IRS website at www.irs.gov. The IRS may require that estate taxes be prepaid or the funds necessary to pay the estate taxes be escrowed under the IRS escrow agreement, or that a bond be furnished or such other security provided under 31 U.S.C. § 6325. The federal release procedure should also be followed in the case of personal property. See Reg. § 20.2031-6(c) if personal property is to be distributed or sold before estate tax clearance. The IRS will not issue a release of lien on any real property jointly owned with a right of survivorship. A release is unnecessary in that case because any lien on that property is automatically divested by its sale for full consideration. Rev. Rul. 56-144, 1956-1 C.B. 563. As noted at § 13.2.H, in making partial distributions, the personal representative should be aware of his or her personal liability for the payment of federal taxes other than federal claims under 31 U.S.C. § 3713(b). 31 U.S.C. § 3713(b) does not contain an exception for payment of charges against the estate or estate administrative expenses and supersedes the priority of payment in F.S. 733.707(1). This liability is generally limited to the value of assets contained in the estate. As also noted at § 13.2.H, liability for payment of tax is also imposed on any transferees of property whether they are distributees from the estate, creditors who have received payment, or otherwise. IRC § 6324. After partial distribution, if total estate assets are less than taxes payable from the estate, either the personal representative or individual transferees may be called on to pay the difference.

« Ch. 13 », « § 13.5 • 1 Practice Under Florida Probate Code § 13.5 (2022)

§ 13.5. ELECTIVE SHARE The elective share statutes were extensively amended, effective October 1, 1999, for decedents dying on or after October 1, 2001. Ch. 99-343, Laws of Fla. Additional changes were made in 2001, also effective October 1, 2001. Ch. 2001-226, §§ 19–30, Laws of Fla. Further amendments have since been made, including, most recently, revisions to the statutes in 2017. In concept, the elective share now consists of two parts. Part 1 is property interests included in the elective estate that pass or have passed to the spouse without regard to the election as described in F.S. 732.2075(1). Part 2 is contribution from other sources. The total of the parts equals the elective share amount. F.S. 732.2075. The elective share does not reduce or eliminate what the spouse would receive if the election were not made, and the spouse is not treated as having predeceased the decedent. F.S. 732.201. Under the old elective share statute, the spouse was treated as having predeceased the decedent, so, in effect, the entire elective share amount was the contribution. Unless the will or trust provides otherwise, the Florida Uniform Principal and Income Act applies to determine the net income of an estate or trust and the distribution of that income. F.S. 738.103. The spouse is not entitled to any income of the estate or trust on the amount of contribution to the elective share, because it is a pecuniary amount not in trust and is not entitled to income under the Florida Uniform Principal and Income Act. However, interest is payable on any unsatisfied contribution to the elective share at the statutory rate provided in F.S. 55.03(1) beginning on the earlier of 90 days after the date of the order of contribution or two years after the date of the decedent’s death. F.S. 732.2145(1). The interest is a nondeductible personal expense. See Reg. § 1.663(c)-5, Ex. 7. Under the old elective share statute, interest at the statutory rate was payable after the date of the order directing the personal representative to make payment of the elective share. Price v. Florida National Bank of Miami, 419 So. 2d 389 (Fla. 3d DCA 1982). The spouse may or may not be entitled to net income of the estate or trust

with respect to the property interests passing to the spouse, depending on the nature of the property interests. See F.S. Chapter 738. The payment of the contribution to the elective share does not carry out “distributable net income” under the “separate share” rules. See Reg. § 1.663(c)-5, Ex. 7. Before the implementation of these regulations, the issue was in doubt. See Williams v. Harrington, 460 So. 2d 533 (Fla. 2d DCA 1984) (parties just assumed that elective share payments carried out DNI); Brigham v. United States, 160 F.3d 759 (1st Cir. 1998) (payment of elective share carried out DNI); Deutsch v. Commissioner, ¶ 97,470 T.C.M. (RIA), 74 T.C.M. (CCH) 935 (1997) (payment of elective share did not carry out DNI). The distribution of the property interests passing to the surviving spouse may or may not carry out “distributable net income” under the separate share rules, depending on the nature of the property interest. A detailed discussion of the elective share is provided in Chapter 7 of this manual. Footnotes — Chapter 13: *

Biographical information for Ms. Price appears on page 11-1 of this manual.

Licensed to Otis K Pitts, Otis K Pitts

« Ch. 14 » 1 Practice Under Florida Probate Code Ch. 14 (2022)

Chapter 14 FINAL DISTRIBUTION AND DISCHARGE JEFFREY S. GOETHE* Contents § 14.1. INTRODUCTION § 14.2. PROCEDURE FOR CLOSING ESTATE A. Preliminary Considerations B. Petition For Discharge 1. Full Waiver Petition 2. Notice Of Confidential Information C. Final Accounting 1. In General 2. Waiver Of Final Accounting 3. Notice Of Confidential Information 4. Receipt Of Final Accounting And Petition For Discharge D. Objections E. Order Of Distribution F. Report Of Distribution G. Order Of Final Discharge § 14.3. PROBLEMS OF DISTRIBUTION AND DISCHARGE A. Considerations Affecting Determination Of Distributive Shares 1. Elective Share 2. Advancements 3. Ademption 4. Abatement And Contribution 5. Satisfying Mortgages On Devised Property B. Tax Considerations

1. In General 2. Termination Of Estate 3. Unused Loss Carryovers And Excess Deductions On Termination 4. Distributions From Qualified Plans And Individual Retirement Accounts C. Mechanics Of Distribution 1. In General 2. Distributions In Kind 3. Distributions Pursuant To Directions In Will 4. Distribution To Trustees 5. Distribution Upon Consent Of Beneficiaries 6. Considerations Relevant To Distribution And Transfer Of Particular Assets a. Real Property (Non-Homestead) b. Protected Homestead c. Tangible Personal Property d. Securities e. United States Government Bonds f. Bank Accounts g. Interest And Income On Devises D. Other Problems And Considerations 1. Receipts From Beneficiaries a. In General b. Particularity Of Receipt c. Difficulties Encountered In Obtaining Receipts 2. Payment Of Estate Taxes As Condition Precedent To Final Discharge 3. Tax Refund Claims 4. Later-Discovered Wills 5. Contracts Affecting Distribution a. In General b. Form For Contract 6. After-Discovered Assets

« Ch. 14 », • § 14.1 » 1 Practice Under Florida Probate Code § 14.1 (2022)

§ 14.1. INTRODUCTION From the standpoint of the beneficiaries of an estate, there is no aspect of estate administration more likely to meet with approval and enthusiasm than final distribution. The procedures and substantive law within The Florida Probate Rules and the Florida Probate Code are sometimes perceived as making the estate administration process slow and costly. They should be viewed, instead, as providing essential notices, information, and protections for the beneficiaries, creditors, and personal representatives. If the required notices and information are provided in a timely manner, the use of waivers and consents can help expedite the process from the petition for administration through the petition for discharge. The first part of this chapter outlines the procedures for final distribution of estate assets and for obtaining the discharge of the personal representative. The second part highlights some of the problems generally encountered in the process of closing an estate. Accountings, which are discussed throughout this chapter, are treated more fully in Chapter 12 of this manual.

« Ch. 14 », « § 14.2 » 1 Practice Under Florida Probate Code § 14.2 (2022)

§ 14.2. PROCEDURE FOR CLOSING ESTATE « Ch. 14 », « § 14.2 », • A » 1 Practice Under Florida Probate Code § 14.2.A (2022)

A. Preliminary Considerations Before drafting closing papers, it is advisable to examine the court file. This inspection may reveal that documents, such as the proof of publication of the notice to creditors, are missing. This absence may be due to any of the following causes: perhaps the document simply has not yet processed through the Florida Courts E-filing Portal or docketed by the clerk’s office, or maybe it remains in the lawyer’s office file; or perhaps it has not been furnished by the newspaper or, if furnished, has subsequently been lost. Absence of a document may also indicate that a notice was never served or published. The latter possibility portends a delay in the distributive plan that could result in adverse tax consequences and criticism of both the personal representative and the lawyer. Even for a lawyer with a thorough task and deadline system, it is important to frequently review the guidelines and checklists required by various clerks in each circuit. The status of creditors’ claims should be determined. Satisfactions of all proper claims should have been filed or care should be exercised to ascertain that all claims objected to by the personal representative have been disposed of either by litigation or by the expiration of the statutory period for filing the action. The fact that the statutory notice period has expired, however, cannot be relied on as absolutely barring any unfiled claims. The United States Supreme Court in Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 108 S. Ct. 1340, 99 L. Ed. 2d 565 (1988), held that a creditor of an estate is not bound by the limitations of the statutory notice if the creditor was known or reasonably ascertainable by the personal representative of the estate. In such cases, the Court held, the creditor must be given actual notice of the administration of the estate and afforded an opportunity to present the claim.

The Florida Supreme Court more recently applied the United States Supreme Court’s ruling in Pope to the duties of a personal representative: A personal representative is therefore constitutionally obligated to provide actual notice to known or reasonably ascertainable creditors and if the personal representative fails to provide that notice, the creditors’ claims cannot be barred except under [F.S.] 733.710. The Fourth District’s decision in Golden properly recognizes the duty of the personal representative to provide notice to known and reasonably ascertainable creditors and the requirement of actual notice to satisfy due process as to those creditors. Jones v. Golden, 176 So. 3d 242, 249 (Fla. 2015), citing Golden v. Jones, 126 So. 3d 390 (Fla. 4th DCA 2013). Identifying and providing notice directly to known and reasonably ascertainable creditors shortens the claims period from two years to three months. F.S. 733.702, 733.710. Creditor’s claims are treated in more detail in Chapter 8 of this manual. At the very inception of the probate proceedings, beneficiaries should have been advised of such things as the anticipated tax liabilities, the duration of the period for filing claims, the right of election of the surviving spouse (F.S. 732.201 et seq.), exempt property and allowances (F.S. 732.401 et seq.), and the expected normal expenses of administration. It is advisable to let all affected persons know, at the inception, what the expected fees will be or the basis on which they will be computed, in order to minimize any difficulty at the time of closing. Some lawyers enter into a fee agreement with the personal representative that is executed with the initial estate papers, and then forward copies of it to the residuary beneficiaries for their joinder and approval when the letter forwarding the notice of administration is sent to them. The petition for discharge must include an explanation of the amount and basis for determining compensation paid or to be paid to the personal representative, attorneys, accountants, appraisers, and others employed by the personal representative. Fla. Prob. R. 5.400(b). See Chapter 15 of this manual for a more detailed discussion of fees. In addition to advising the beneficiaries of fees and anticipated liabilities, the lawyer should advise the personal representative as to procedures for discharging the personal representative’s own liability federal and state estate taxes, and the possible obligation to file tangible

tax the for tax

returns for the decedent and the estate, if any, as well as the final federal income tax return of the decedent and federal fiduciary income tax returns for the estate. « Ch. 14 », « § 14.2 », « B » 1 Practice Under Florida Probate Code § 14.2.B (2022)

B. Petition For Discharge After completing administration except for final distribution, the personal representative must file a final accounting and make application for discharge. Unless waived, the final accounting and petition for discharge must be filed and served on all interested persons within 12 months after issuance of letters for estates not required to file a federal estate tax return, or within 12 months from the date the federal estate tax return is due, “unless the time is extended by the court for cause shown after notice to interested persons.” Fla. Prob. R. 5.400(c). The interested persons may waive notice and filing with respect to the accounting and petition for discharge. F.S. 731.302; see Rule 5.180. Rule 5.400(c) does not address the circumstance in which an estate tax return (IRS Form 706) is not required to be filed, but the personal representative nevertheless elects to file the form in order to elect portability of a deceased spouse’s unused estate tax exemption amount under IRC § 2010(c)(5)(A). In 2013, Rule 5.395 was amended to account for estate tax returns filed to make the portability election. Rule 5.395 requires the filing of a Notice of Federal Estate Tax Return within 12 months of the issuance of letters of administration whenever a “federal estate tax return is filed, required to be filed, or will be filed” or when the due date is extended. The items required to be set forth in the petition for discharge are listed in Rule 5.400. Under the rule, the petitioner is required to state in the petition that objections, if any, must be in writing and must “state with particularity the item or items to which the objection is directed and the grounds on which the objection is based.” Rule 5.400(b)(7). The petition must also state “that any objections to the accounting, the compensation paid or proposed to be paid, or the proposed distribution of assets must be filed within 30 days from the date of service of the last of the petition for discharge or final accounting.” Rule 5.400(b)(6). Lastly, the petition must state “that within 90 days after filing the objection, a notice of hearing thereon must be served,”

failing which the objection is abandoned. Id. Rule 5.401 clarifies the procedure for objections to the petition for discharge or final accounting. Various forms for the petition for discharge that comply with the requirements of the statute and rules are available from Florida Lawyers Support Services, Inc.© (FLSSI), P.O. Box 195909, Winter Springs, FL 32719-5909 (407/515-1501; www.flssi.org/forms). See FLSSI Form Nos. P-5.0400, P-5.0401, P-5.0550, P-5.0551, and related forms. Rule 5.400(b)(3) requires a statement “that the personal representative has paid or made provision for taxes.” For evidence that the federal estate tax return has been filed and accepted by the IRS, the federal estate tax closing letter (IRS Form L-627) should be filed with the court. In some cases, the closing letter reflects that no taxes are due, but in other cases, it may indicate the amount of taxes owed. For estate tax returns filed after June 1, 2015, the closing letter will be sent to the personal representative by the IRS only upon written request. The request must be made no sooner than four months after the filing of the federal estate tax return (Form 706). In I.R.S. Notice 2017-12, the IRS explains this change in procedure and encourages the use of a tax return transcript in lieu of a closing letter. If the transcript shows code 421, the transcript will serve as evidence that the return has been accepted. There is no requirement in the applicable rules or statutes that the closing letter from the IRS or a transcript be filed, but it seems to be a common requirement by Florida probate judges. There is presently no estate tax due the State of Florida by reason of repeal of the federal credit for estate tax paid. F.S. 198.13(4) provides that, for decedents dying after 2004, if a state death tax credit or generationskipping transfer credit is not allowable under the Internal Revenue Code, the personal representative is not required to file an estate tax or generationskipping tax return with the State of Florida. Evidence of payment of any estate tax due the State of Florida is required before the personal representative may be discharged. F.S. 198.26. When the estate is not required to file a Florida estate tax return (Form F-706), the personal representative must file an Affidavit of No Florida Estate Tax Due (Form DR-312) or an Affidavit of No Florida Estate Tax Due When Federal Return is Required (Form DR-313). These affidavits are filed with the court, not with the Florida Department of Revenue. See § 14.3.D.2.

Although mailing a copy of the petition for discharge and the final accounting with the certificate of service should comply with the notice requirements of F.S. 731.301, the use of a notice form to which the petition and final accounting are attached is recommended. An example of an appropriate notice form is FLSSI Form No. P-5.0410. Informal notice is sufficient for mailing copies of the notice, petition, and final accounting to the interested persons. See Rule 5.040(c). Rule 5.040(d) makes service in the manner provided for formal notice optional. However, use of service in the manner provided for service of formal notice is recommended, because the procedure of forwarding the copies and notice by certified mail, return receipt requested, allows the lawyer to confirm service and the date of service. F.S. 731.301 requires notice to interested persons, so it is not necessary to provide notice to persons who are not affected by the petition for discharge, such as creditors who have been paid in full and beneficiaries who have received the full share of the estate to which they are entitled. A satisfaction and release of claim for each creditor should be filed for each creditor whose claim has been satisfied. A receipt and consent to discharge should be obtained and filed for each beneficiary receiving a cash gift or a gift of specific property. The definition of “interested person” recognizes that “[t]he term does not include a beneficiary who has received complete distribution.” F.S. 731.201(23). Service of the petition for discharge and final accounting is only required for interested persons. Rule 5.041. If no objection to the accounting and petition has been filed within 30 days from the date of service on interested persons, or if service has been waived, the personal representative may distribute the estate according to the plan of distribution without a court order. Rule 5.400(d). The applicable statutes and rules do not reference a “report of distribution,” but some probate judges include the document in their mandatory checklists or requirements. « Ch. 14 », « § 14.2 », « B », • 1 » 1 Practice Under Florida Probate Code § 14.2.B.1 (2022)

1. Full Waiver Petition If all creditor claims have been paid, and all beneficiaries agree and accept the factual information that would otherwise be provided in the petition for administration, a modified petition for discharge could be utilized. FLSSI Forms P-5.0550 and P-5.0551 state that waivers signed by

each beneficiary are being filed with the petition. FLSSI Form P-5.0570 is referred to as a “full waiver” because it shows that the beneficiary has been informed about some of the information that would normally be contained in the petition for discharge, waives certain procedures and objections, and consents to the final distribution and discharge of the personal representative. « Ch. 14 », « § 14.2 », « B », « 2 • 1 Practice Under Florida Probate Code § 14.2.B.2 (2022)

2. Notice Of Confidential Information Fla. R. Gen. Prac. & Jud. Admin. 2.420 requires that the filer of a court document identify confidential information that is exempt from the public right of access under Article I, § 24(a), of the Florida Constitution. Although Rule 2.240 does not contain a comprehensive list of confidential information to be identified, the practitioner must be familiar with the various statutes that could make the address, telephone number, date of birth, and other information relating to certain individuals, including their family members, confidential. Because the petition for discharge includes names, addresses and relationships, a Notice of Confidential Information could be required. Examples for information that might be in a petition for discharge include the home addresses of current and former state employees, including judges, firefighters, law enforcement personnel, guardians ad litem, prosecutors, Department of Children and Family Services personnel, probation officers, public defenders, tax collectors, EMT and paramedic personnel, and other state employees, and their families, who could be endangered if their names and contact information were made public. F.S. 119.071(4). « Ch. 14 », « § 14.2 », « C » 1 Practice Under Florida Probate Code § 14.2.C (2022)

C. Final Accounting « Ch. 14 », « § 14.2 », « C », • 1 » 1 Practice Under Florida Probate Code § 14.2.C.1 (2022)

1. In General The purpose of a final accounting is to account for all receipts and disbursements of estate assets up to the time of filing the final report. If the final report is preceded by an annual or interim accounting, the final accounting need only account for the period since the filing of the last

accounting. Fla. Prob. R. 5.346(a)(1). FLSSI Form P-5.0340 is an appropriate form for the accounting. Accountings are discussed in detail in Chapter 12 of this manual. In many cases the final report will be the first occasion calling for the filing of an accounting. In this situation, the final accounting should reflect the receipt and disbursement of estate assets from the date of the decedent’s death as well as any capital transactions occurring during the period of administration. The format for the final accounting is the same as that for an interim accounting. Basically, the final accounting begins with the assets on hand at the beginning of the final accounting period and adds and subtracts, respectively, the receipts and disbursements that have been made up to the time of the filing of the final report. The balance reflects the assets on hand that are available for distribution. Rule 5.346 substantially adopts the uniform fiduciary accounting principles and model formats of the American Bar Association and other organizations. The Committee Notes to the rule state that “[a]ccountings shall also comply with the Florida principal and income law, chapter 738, Florida Statutes” and “[a]ccountings that substantially conform to the model formats are acceptable. The model accounting format in Appendix A is only a suggested form.” See §§ 12.6.A et seq. of this manual. Interim accountings are not required, except when a fiduciary or curator has been appointed for a limited purpose or period of time, when there is the accounting of a curator upon appointment of a successor fiduciary (Rule 5.122(e)), when a personal representative resigns (F.S. 733.5036) or has been removed (F.S. 733.508), or when the court requires one (Rule 5.150(b)). If interim accountings are filed, all interested persons are to be served with a copy and notice of the filing. Rule 5.345(b). See FLSSI Form No. P-5.0300 for such a notice. An accounting could also be used to provide information when there are legitimate reasons for delaying final distribution, such as the filing of a federal estate tax return, protected litigation, or difficulties in liquidating estate assets. « Ch. 14 », « § 14.2 », « C », « 2 » 1 Practice Under Florida Probate Code § 14.2.C.2 (2022)

2. Waiver Of Final Accounting It is not necessary to file a final accounting when all interested persons consent in writing to a waiver. F.S. 731.302. In the absence of a conflict of interest, trustees may consent on behalf of the qualified beneficiaries of a trust, guardians may consent for their wards, personal representatives may do the same on behalf of the beneficiaries of estates, and a sole holder or coholder of a power of revocation or power of appointment may consent on behalf of persons who may take by virtue of the exercise or nonexercise of the power. Id.; F.S. 731.303. F.S. 731.303(1)(b)2 provides that, for purposes of that statute, “a conflict of interest shall be deemed to exist when each trustee of a trust that is a beneficiary of the estate is also a personal representative of the estate.” Since July 2007, the holder of a power of appointment may not bind persons who may take by virtue of the power (1) in any matter determined by the court to involve fraud or bad faith by the trustee, (2) in the case of a power to distribute property, or (3) in the case of a power of appointment held by a person while the person is the sole trustee. F.S. 731.303(1)(a). Fla. Prob. R. 5.400(b)(4) requires the disclosure in the petition for discharge of the amount and manner of determining compensation for lawyers for the personal representative, unless disclosure is properly waived. FLSSI Form Nos. P-5.0500, P-5.0501, P-5.0520, and P-5.0570 contain appropriate waiver language to meet the rule requirements. F.S. 733.617 addresses the personal representative’s commission, which is based upon 3% of the first $1 million of the “compensable value” of the estate, and lower percentages for higher values. The statute lists the factors to be considered by the court if an interested person asks the court to increase or decrease the personal representative’s compensation. Effective October 1, 2021, F.S. 733.6171 requires certain disclosures if an attorney intends to charge the percentage-based fees set forth in the statute. The disclosures include a statement that there is not a mandatory fee schedule for probate administrations, that the fee does not have to be based upon the size of the estate, that the fee is subject to negotiation, that the personal representative is not required to hire the attorney who drafted the will, and that the attorney must provide a summary of the ordinary and extraordinary services rendered or the total hours committed to the

representation. The disclosures must be given to the personal representative and acknowledged in writing. The statute lists various factors that would be considered by the court if an interested person asks that the fees be reduced or increased in a case where the statutory percentages are the basis for determining fees. Waivers are discussed in more detail in § 12.2.B of this manual. « Ch. 14 », « § 14.2 », « C », « 3 » 1 Practice Under Florida Probate Code § 14.2.C.3 (2022)

3. Notice Of Confidential Information A Notice of Confidential Information Within Court Filing should be filed with the estate accounting. Fla. R. Gen. Prac. & Jud. Admin. 2.420(d)(1)(B) (xi); F.S. 733.604(1)(b)3. Probate accountings are exempt from public records law found in F.S. 119.07(1) and Article 1, § 24(a), of the Florida Constitution. Copies should be served on interested persons only. « Ch. 14 », « § 14.2 », « C », « 4 • 1 Practice Under Florida Probate Code § 14.2.C.4 (2022)

4. Receipt Of Final Accounting And Petition For Discharge Beneficiaries may acknowledge receipt of the petition for discharge and accounting and consent to distribution of the estate before expiration of the time period for filing objections. F.S. 731.302. See FLSSI Form No. P5.0420 for such a receipt. It is recommended that no final distribution be made to any beneficiary until all beneficiaries have consented to the final accounting, or the period to object has expired for all beneficiaries. « Ch. 14 », « § 14.2 », « D » 1 Practice Under Florida Probate Code § 14.2.D (2022)

D. Objections Fla. Prob. R. 5.401 sets forth the procedure that interested persons must use when filing and serving objections to the final accounting, petition for discharge, plan of distribution, or amount of compensation to be paid. The objection must be made within 30 days of the service of the petition for discharge or final accounting, whichever comes later. Rule 5.401(a). The objector must serve copies of the objections on the personal representative

and any other interested persons. Rule 5.401(c). The objection must “state with particularity” the basis for the objection. Rule 5.401(b). If a notice of hearing is not served within 90 days of the service of the objection, then the objection is deemed abandoned and the personal representative may proceed with the distributions as set forth in the distribution plan. Rule 5.401(d). Rule 5.355 adopts the procedure in F.S. 733.6175 pertaining to the review of employment of agents and compensation of personal representatives and employees of the estate. The rule contemplates a petition by an interested person, but it would also apply to the procedure whereby an interested person objects to compensation or other items in the final accounting. For a case discussing the standing of a contingent beneficiary to object to the final accounting and petition for discharge, see Richardson v. Richardson, 524 So. 2d 1126 (Fla. 5th DCA 1988). « Ch. 14 », « § 14.2 », « E » 1 Practice Under Florida Probate Code § 14.2.E (2022)

E. Order Of Distribution In the absence of an objection to the petition or accounting, there is no statutory authority for the court’s entry of an order of distribution. « Ch. 14 », « § 14.2 », « F » 1 Practice Under Florida Probate Code § 14.2.F (2022)

F. Report Of Distribution The filing of a report of distribution seems unnecessary and superfluous, and it is seldom used in some counties. Fla. Prob. R. 5.401(f) requires only that the court receive “evidence that the estate has been distributed according to the plan determined by the court and the claims of creditors have been paid or otherwise disposed of.” That evidence typically will be in the form of satisfactions of claims and receipts of beneficiaries. In some counties the report of distribution is used much in the nature of a letter of transmittal to the court. Local procedural requirements and judicial preferences, including mandatory checklists, should be reviewed to determine if a Report of Distribution will be required as a condition for entry of the Order of Discharge. Forms for the report of distribution are FLSSI Form Nos. P5.0700 and P-5.0701.

« Ch. 14 », « § 14.2 », « G • 1 Practice Under Florida Probate Code § 14.2.G (2022)

G. Order Of Final Discharge Fla. Prob. R. 5.401(f) directs the court to enter an order of discharge on the filing of satisfactory evidence that distribution has been properly made. The order operates to release the personal representative from his or her duties and to bar any action against the personal representative in that capacity, or as an individual or corporation. A properly obtained order will also discharge a surety or sureties, and the order should contain a statement to this effect. The surety should be provided with a certified copy of the order so that it will be apprised and the bond canceled. Arrangements should be made with respect to the distribution of any unused premium on the bond. Copies of the order should be forwarded to the personal representative and each residuary beneficiary. See Rule 5.041. (Because the rule is directory only, a failure to comply with it would not affect the order of discharge or its finality.) F.S. 733.903 provides that an “order of discharge may not be revoked based on the discovery of a will or later will.” However, a petition to revoke the probate of a will after an order of final discharge had been entered in the estate was permitted in Grimes v. Estate of Stewart, 506 So. 2d 465 (Fla. 5th DCA 1987). The probate court refused to consider the merits of the petition because it was untimely filed. The appellate court reversed because the personal representative, who was also the sole beneficiary, failed to advise the court that the testator had been declared incompetent before her execution of the will. The new will revoked a prior pour-over will that provided for the appellant and other beneficiaries. The appellate court held that the petition was sufficient under Fla. R. Civ. P. 1.540(b), and stated that “adjudication of incompetency of a testator creates a prima facie case against the proponent” of a will executed after the adjudication, imposes a duty on the proponent to advise the court of this fact, and makes “all known beneficiaries under a prior will, or heirs at law, ‘interested parties’ [who are] due informal notice under the Probate Code.” Id. at 467. But see In re Estate of Clibbon, 735 So. 2d 487 (Fla. 4th DCA 1998) (refusing to apply Rule 1.540(b) in action seeking to set aside order of discharge when order not entered in adversary proceeding). Forms for an order of discharge are FLSSI Form Nos. P-5.0800 and P-

5.0810.

« Ch. 14 », « § 14.3 • 1 Practice Under Florida Probate Code § 14.3 (2022)

§ 14.3. PROBLEMS OF DISTRIBUTION AND DISCHARGE « Ch. 14 », « § 14.3 •, • A » 1 Practice Under Florida Probate Code § 14.3.A (2022)

A. Considerations Affecting Determination Of Distributive Shares « Ch. 14 », « § 14.3 •, • A », • 1 » 1 Practice Under Florida Probate Code § 14.3.A.1 (2022)

1. Elective Share In 1999, the legislature substantially amended Florida’s elective share statute, F.S. 732.201 et seq. See Ch. 99-343, Laws of Fla.). Those provisions were again substantially amended in 2001. See Ch. 2001-226, §§ 19–30, Laws of Fla. The provisions of the amended law apply only to estates of decedents dying on or after October 1, 2001. The law in effect before October 1, 1999, applies to estates of decedents dying before October 1, 2001. In 2016, F.S. 732.201 was amended to provide that “[t]he election does not reduce what the spouse receives if the election were not made and the spouse is not treated as having predeceased the decedent.”. In 2017, protected homestead titled in the decedent’s name alone became, for the first time, part of the calculation of the elective estate. F.S. 732.2035(2). See Ch. 2017-121, § 2, Laws of Fla. For in-depth discussion of Florida’s elective share statute, see Chapter 7 of this manual. « Ch. 14 », « § 14.3 •, • A », « 2 » 1 Practice Under Florida Probate Code § 14.3.A.2 (2022)

2. Advancements In a strict technical sense, the legal definition of an “advancement” is an inter vivos gift made by a parent to a child with intent that such gift represents a part or the whole of the donor’s estate that the donee would

inherit on the death of the donor. [T]he concept of an advancement rests on an ancient equitable doctrine that applies with equal force and logic to the inter vivos trust. … Whether a particular transfer is an advancement or not is one of intent and the relevant intent is that of the person making the gift and not that of the donee. [Internal citations omitted.] West v. Coogler, 427 So. 2d 813, 814 (Fla. 5th DCA 1983). Under F.S. 733.806, which only applies to intestate estates, an advancement may be established only by proof of a written “contemporaneous” declaration by the decedent or by a written acknowledgment of the recipient of the advancement. The advancement statute before 1976 allowed all relevant and otherwise admissible evidence to prove an advancement. Gifts to heirs before 1976 might remain subject to proof as advancements under the old law. See F.S. 731.011. In meeting the quantum of proof under either current or former law, evidence as to the donor’s purpose, the amount of the gift, and the financial exigencies of the donee, as well as memoranda and statements made by the donor bearing on the donor’s motives, may be submitted. Upon a petition alleging an advancement, informal notice to all interested persons is apparently sufficient, but it may be advisable to proceed under Fla. Prob. R. 5.025(b) or 5.040(d), which gives the option to use formal notice. If the court finds that the transfer was an advancement, the value at the time it was made is required to be brought into “hotchpot” (putting into a common lot for equal division) and charged against the donee’s total distributive share. A transferee who refuses to bring an advancement into hotchpot when required to do so may be excluded from participation in the division of the property of the intestate decedent under the statute of descent and distribution. See Livingston v. Crickenberger, 141 So. 2d 794 (Fla. 1st DCA 1962). Before making distribution on the basis of an order that a donee has forfeited the remainder of the donee’s intestate share, however, the personal representative should make certain that the forfeiting donee was served properly. Presumably, faulty notice to a donee in this situation could subject a personal representative to personal liability for making a distribution that excluded the donee. « Ch. 14 », « § 14.3 •, • A », « 3 » 1 Practice Under Florida Probate Code § 14.3.A.3 (2022)

3. Ademption Ademption is applicable only to testate estates. A devise is said to adeem when a testator, while living and after making a will, conveys property that was the subject of a specific devise as opposed to a general one. The conveyance or transfer may be made to the devisee expressly for the purpose of making an inter vivos, rather than testamentary, transfer to that devisee. More often, however, ademption occurs by implication, as when the testator, having devised Blackacre to John, later conveys Blackacre to James, making it impossible for the testator’s personal representative to fulfill the devise to John. A partial conveyance by the testator during his or her lifetime operates as an ademption pro tanto by abatement. See § 14.3.A.4. Although it is possible to extinguish a general devise by ademption, strictly speaking, a gift intended to operate as a reduction of a general devise is a satisfaction rather than an ademption, and the purist no doubt will choose to note the distinction. A devise of an item such as an automobile or other chattel rarely proves to be a source of dispute on the question of ademption. It seems to be common, however, for testators to devise shares of stock in a named corporation without clearly manifesting whether the devise is intended as a general or specific legacy. For example, it is not uncommon to find a devise of “100 shares of General Motors stock.” The question whether this is a general or specific devise is important not only from the standpoint of ademption, but also in determining the order of abatement, see § 14.3.A.4, and the disposition of income earned on the subject of the devise during administration. The rule applied in Florida for resolving the nature of this type of devise was aptly stated in In re Estate of Parker, 110 So. 2d 498, 502 (Fla. 1st DCA 1959): In situations involving ademption or abatement it seems to be well settled that a bequest of shares of stock in a named corporation will be treated as a general legacy unless a contrary intent appears from the will. Two reasons are given for this: to prevent ademption in case the testator parts with the stock before his death, and to secure uniformity of contribution in case of a deficiency of assets. This rule, like most rules for the construction of wills, is a device for securing uniformity of decision and for giving effect to the probable intent of the testator when the will

fails to give any sufficient indication of his actual intent. Necessarily the rule yields to the testator’s intent when that can be gathered from the will. See also In re Vail’s Estate, 67 So. 2d 665 (Fla. 1953); In re McDougald’s Estate, 149 Fla. 468, 6 So. 2d 274 (1942); In re Estate of Garrison, 156 So. 2d 18 (Fla. 1st DCA 1963). If a specific devise was the intent of the testator, see F.S. 732.605–732.606. Obviously, the drafter should strive to eliminate the risk of litigation by clearly expressing the intent of the testator. Also, a devise in terms of a percentage of the residuary estate is an effective method of protecting the devisee from the risk of ademption due to a subsequent liquidation of particular holdings by the testator. Ademption can never be applied to a gift made by a donor before the will was executed. In this situation it is conclusively presumed that the testator took all prior transfers into consideration at the time the testator made a will. If a testator wishes all prior gifts and all subsequent gifts to be credited against the ultimate distributive share of a beneficiary, the will should state this clearly. F.S. 732.609 provides that ademption by satisfaction will occur only when the will so states, or when the testator in a contemporaneous writing so states, or when the donee acknowledges in writing that the gift is in satisfaction. As with advancements (see § 14.3.A.2), the old law may have continuing viability as determined by F.S. 731.011. It appears that proof of ademption by satisfaction may not be limited by F.S. 732.609 if both execution of the will and the inter vivos transfer took place before 1976. Extrinsic evidence can prevent the ademption of a specific devise if the devised property can be traced to existing assets and if the evidence reflects that the testator did not intend by disposal of the property to alter the testamentary scheme contained in the will, but this exception to the ademption rule is not applicable when the testator sells the devised property to meet his or her living expenses and proceeds of the sale cannot be traced to existing assets. In re Estate of Budny, 815 So. 2d 781 (Fla. 2d DCA 2002), (distinguished by Brundage v. Bank of America, 996 So. 2d 877 (Fla. 4th DCA 2008), to wit: Brundage involved disposition of securities; Budny did not). In Dobson v. Lawson, 370 So. 2d 1238 (Fla. 1st DCA 1979), the testator,

in two transactions, sold all of his stock in a certain corporation, taking back promissory notes and security agreements from the purchaser. Between the first and second transaction, the testator made his will, specifically devising the stock to the purchaser. On the death of the testator, the devisee/purchaser claimed that, by virtue of F.S. 732.606(2), his purchase obligation (about $34,000) should be canceled. The personal representative argued that the devise was adeemed by F.S. 732.605, and the purchase obligation was owed to the estate. The court held for the devisee/purchaser, rejecting the personal representative’s contention that F.S. 732.606(2) was limited by F.S. 732.606(1). The court noted that had the testator sold the stock for cash, there would have been an ademption. In In re Estate of Walters, 700 So. 2d 434 (Fla. 4th DCA 1997), the testator’s will directed the satisfaction of mortgages on real property owned by the testator that the testator later deeded to his caretaker. The personal representative’s argument that the transfer extinguished the directive to satisfy the mortgage out of estate assets—an argument the appellate court labeled as “ademption … by analogy,” id. at 436 — failed because the testator’s obligation to pay the mortgage debt existed at the time of his death. For further discussion of ademption, see § 11.3.F of this manual and Chapter 7 of LITIGATION UNDER FLORIDA PROBATE CODE (Fla. Bar 13th ed. 2022). « Ch. 14 », « § 14.3 •, • A », « 4 » 1 Practice Under Florida Probate Code § 14.3.A.4 (2022)

4. Abatement And Contribution Abatement is the reduction of a legacy or devise because the assets of the estate are insufficient to pay all creditors, expenses of administration, and devises. In re Estate of Potter, 469 So. 2d 957 (Fla. 4th DCA 1985). It may occur either in whole or pro tanto. A testator can provide in the will that the burden of taxes and administration expenses is to be borne by the residuary portion of the estate or that they are to be paid out of a particular fund or in a certain order. F.S. 733.805, 733.817. Accordingly, estate taxes are to be apportioned before the application of F.S. 733.805(3). In wills with marital deduction clauses, it is not unusual to find instructions directing taxes and expenses to be paid from the residue rather than prorated between it and the portion qualifying for the

marital deduction. F.S. 733.805 provides that the testator may direct the order of abatement. In the absence of a testamentary mandate, however, property not disposed of by will abates first, residuary devises next, general devises next, and specific and demonstrative devises last. F.S. 733.805(1). Generally, the primary objects of a testator’s bounty are the residuary devisees, while specific devises usually are token gifts to friends and remote relatives. This observation, coupled with the statutory order of abatement, makes it advisable for the will drafter to consider the possibility of expressing specific devises as a percentage or fractional share of the residue in order to ensure that the more remote beneficiaries will not be paid at the expense of an exhausted residuary estate. When property that has been devised specifically is taken or sold by the personal representative, F.S. 733.805(2) requires other devisees to contribute to the devisee whose devise was used or sold. Contribution by other devisees is according to their respective interests, and the amount of contribution from each, as determined by the court, will be paid or withheld before distribution is made. Historically, real property was treated differently from personal property for purposes of abatement. F.S. 733.805(2), however, removes this distinction and provides that devises must abate without preference or priority as between real and personal property. See also § 11.3.I of this manual. « Ch. 14 », « § 14.3 •, • A », « 5 • 1 Practice Under Florida Probate Code § 14.3.A.5 (2022)

5. Satisfying Mortgages On Devised Property F.S. 733.803 provides that a specific devisee of mortgaged real property is entitled to have the mortgage satisfied out of the residuary estate only when the will shows that intent. The statute adds that a general provision in the will to pay debts fails to show the requisite intent. See also In re Estate of Woodward, 978 So. 2d 865 (Fla. 2d DCA 2008). This subject and other mortgage problems are discussed further in § 1.2.E.5 of this manual.

« Ch. 14 », « § 14.3 •, « B » 1 Practice Under Florida Probate Code § 14.3.B (2022)

B. Tax Considerations « Ch. 14 », « § 14.3 •, « B », • 1 » 1 Practice Under Florida Probate Code § 14.3.B.1 (2022)

1. In General The final distribution of estate assets involves numerous tax considerations that the personal representative must analyze. A careful study of the tax impact of final distribution often reveals possible alternatives for minimizing the total tax liability of an estate and the beneficiaries. In most cases, however, the attainment of a particular tax savings means the surrender of competing tax goals and a concomitant shift in the tax burden. In other cases, certain nontax considerations may prevail. These various alternatives demand the sophisticated and informed judgment of the personal representative and the lawyer. The separate share rule that has traditionally applied to trusts was extended to estates for decedents dying after August 5, 1997. IRC § 663(c). Generally, the separate share rule limits the amount of distributable net income (DNI) that is carried over to each beneficiary as a part of distributions made to the beneficiary to the DNI allocable to such beneficiary’s share. DNI is taxable to the beneficiary under IRC § 662(a) and deductible by the estate under IRC § 661(a). The following sections discuss tax consequences peculiar to final distribution. Tax consequences peculiar to partial distribution are discussed in Chapter 13 of this manual. « Ch. 14 », « § 14.3 •, « B », « 2 » 1 Practice Under Florida Probate Code § 14.3.B.2 (2022)

2. Termination Of Estate When the gross estate for estate tax purposes equals or exceeds the amount that requires the filing of a federal estate tax return (IRS Form 706), the personal representative is reasonably assured of a period of administration of more than one year. A Notice of Federal Estate Tax Return Due (FLSSI Form P-3.0950) should be filed to alert interested persons of the additional

time needed to administer the estate. Fla. Prob. R. 5.395, 5.400(c). The period of administration of an estate, however, cannot be prolonged unduly. For federal income tax purposes, an estate is considered terminated after the expiration of a reasonable period for the performance by the personal representative of all duties of administration. Treas. Reg. § 1.641(b)-3(a). An estate will also be considered terminated when all the assets have been distributed except for a reasonable amount set aside in good faith for the payment of unascertained or contingent liabilities and expenses. Id. Because termination of an estate ends an estate’s tax year, if the termination is not carefully planned, more than 12 months of estate income may be included in a beneficiary’s income tax return. For example, an estate’s tax year is February 1 to January 31 and a beneficiary’s tax year is a calendar year. If the estate is terminated in November of its third tax year, the beneficiary will include income from the second and third year. « Ch. 14 », « § 14.3 •, « B », « 3 » 1 Practice Under Florida Probate Code § 14.3.B.3 (2022)

3. Unused Loss Carryovers And Excess Deductions On Termination An unused capital loss carryover or an unused net operating loss carryover remaining on termination of an estate or trust is allowed to the beneficiaries succeeding to the property. IRC § 642(h)(1). The carryover is the same in the hands of the beneficiary as in the hands of the estate or trust and is deductible from gross income in computing the adjusted gross income of the beneficiary. IRC § 642(h)(2) affords a benefit to the beneficiaries of an estate when the deductions in the year of termination exceed the estate’s gross income. The loss is allowed as a deduction to the beneficiaries for the taxable year of the beneficiaries in which the estate terminates. The excess deductions are not available to the beneficiaries in any year other than the year of termination of the estate or trust. This deduction must be allocated according to the share of each beneficiary succeeding to the estate property. It is allowable only from adjusted gross income and cannot be taken unless deductions are itemized. See Treas. Reg. § 1.642(h)-3 for a definition of “beneficiaries succeeding to the property of the estate or trust.” The deductions are subject to the 2% floor on miscellaneous itemized deductions in IRC § 67. See IRC § 67(a).

With the passage of the Tax Cuts and Jobs Act, Pub. L. No. 115-97, 131 Stat. 2054, in 2017, some feared that the legislation eliminated the use of excess deductions by estate and trust beneficiaries. However, in 2018, the IRS issued I.R.S. Notice 2018-61 to confirm that the deductions taken by an estate and trust under IRC § 67(3)(1), and deductions under IRC §§ 642(b), 651, and 661, are not miscellaneous deductions, but deductions permitted under IRC § 62(a). « Ch. 14 », « § 14.3 •, « B », « 4 • 1 Practice Under Florida Probate Code § 14.3.B.4 (2022)

4. Distributions From Qualified Plans And Individual Retirement Accounts If the estate is named as beneficiary of a qualified plan, individual retirement account (IRA), or other retirement account, the provisions of IRC § 401(a)(9) will apply to the distribution. The rules applicable to the timing of the required distribution depend in part on whether the decedent had reached his or her “required beginning date.” For an IRA, the required beginning date is generally April 1 of the calendar year following the calendar year in which the decedent attained age 70½ (additional rules apply for qualified plans). See IRC § 401(a)(9)(C). Generally, if the estate is the beneficiary and the decedent had not reached the required beginning date, the entire interest in the plan or IRA must be distributed no later than the end of the calendar year that contains the fifth anniversary of the decedent’s death. IRC § 401(a)(9)(B)(ii). If the estate is the beneficiary and the decedent had reached the required beginning date, the entire interest in the plan or IRA must be distributed at least as rapidly as under the distribution method in effect at the decedent’s death. IRC §401(a)(9)(B)(i). See IRS Publication 590B for additional information regarding distributions from IRAs. « Ch. 14 », « § 14.3 •, « C » 1 Practice Under Florida Probate Code § 14.3.C (2022)

C. Mechanics Of Distribution « Ch. 14 », « § 14.3 •, « C », • 1 » 1 Practice Under Florida Probate Code § 14.3.C.1 (2022)

1. In General Generally, it is desirable for beneficiaries who are in an equal class, either

under the will or by reason of intestate succession, to be treated in exactly the same fashion. In many cases, the estate may be divided readily into equal shares and distributed in kind to the beneficiaries. In other cases, the beneficiaries may be agreeable to a liquidation of estate assets and a distribution of the cash proceeds. It is likely that a choice of the method of distribution in any particular situation will be governed by tax considerations (see § 14.3.B), the nature of the assets, and the scope of administrative powers contained in the will. As to the threshold issue of determining the identity of beneficiaries and their respective shares, see Chapter 11 of this manual. « Ch. 14 », « § 14.3 •, « C », « 2 » 1 Practice Under Florida Probate Code § 14.3.C.2 (2022)

2. Distributions In Kind Many persons are under the impression that all estate assets must be sold during the administration proceedings, and an explanation at the beginning of administration may be helpful. Frequently, residuary beneficiaries desire that estate assets be sold during administration so that cash instead of the property itself can be distributed. It often happens, however, that the estate consists of nonliquid assets such as jewelry, art collections, land, buildings, or commercial property, which may prove to be more valuable than their cash substitutes. Also, liquidation may be undesirable from a tax standpoint. Distribution in kind is often the intention of the decedent and seems to be favored by the law. F.S. 733.810. See In re Estate of Smith, 200 So. 2d 547 (Fla. 2d DCA 1967). Under former law, title to realty passed to heirs at the decedent’s death or to devisees on the entry of an order of probate, and it was only possession of the realty that the personal representative surrendered upon distribution. Both title and possession of personalty were transferred at that time. Now title to personal property and real property passes to heirs and devisees as of the decedent’s death, F.S. 732.101(2), 732.514, subject to the right of the personal representative to possess and convey the property accorded by F.S. 733.607. When problems arise concerning distribution of the assets of an estate in kind, a family corporation, limited liability company, partnership, or trust

should be considered as a means to manage jointly-owned property. « Ch. 14 », « § 14.3 •, « C », « 3 » 1 Practice Under Florida Probate Code § 14.3.C.3 (2022)

3. Distributions Pursuant To Directions In Will In some instances, the will may provide alternatives to distributing estate assets directly to the objects of the testator’s bounty. The extent to which the personal representative must honor these alternatives depends, of course, on the nature of the request (i.e., whether the will contains merely precatory language, to be followed in the discretion of the personal representative, or whether the personal representative is directed in mandatory language to pursue a stated plan). A mandatory direction in the will usually is occasioned by a desire on the part of the testator to be assured that the objects of the testator’s bounty will not be subject to the importunities of financially or morally unsound persons. A testamentary trust is a common device employed to provide the desired protection. When an estate is insufficient to employ the services of a corporate fiduciary, the testator may direct that the personal representative purchase a no-refund annuity and distribute it to the beneficiary, thus affording the beneficiary an assured income for a certain period (usually for life) and preventing the dissipation of the funds by inept or unscrupulous financial advisors. « Ch. 14 », « § 14.3 •, « C », « 4 » 1 Practice Under Florida Probate Code § 14.3.C.4 (2022)

4. Distribution To Trustees When distribution of the estate, or a portion of it, is made to a testamentary trustee, the receipt of the trustee should be obtained and filed as with individual beneficiaries. « Ch. 14 », « § 14.3 •, « C », « 5 » 1 Practice Under Florida Probate Code § 14.3.C.5 (2022)

5. Distribution Upon Consent Of Beneficiaries F.S. 731.302 and Fla. Prob. R. 5.180 contemplate that heirs and beneficiaries may waive closing formalities and consent to proposed

distributions by the personal representative. When the interest of a minor heir or beneficiary does not exceed the amount authorized by Florida law to be received by the minor’s natural guardian (i.e., $15,000; see F.S. 744.301(2)(c)), F.S. 731.302 authorizes the natural guardian to waive notice and consent to the distribution and discharge. When the written consent of the natural guardian cannot be obtained or when the devise to the minor exceeds the statutory amount of $15,000, the personal representative may make distribution only to a trustee for the minor (when the will so provides) or to the duly appointed guardian of the property of the minor. With respect to the latter, a certified copy of letters of guardianship should appear in the probate file to lay a foundation for the appearance in the file of the guardian’s written consent to the distribution by, and discharge of, the personal representative. The personal representative could also distribute to a custodian for a minor under F.S. Chapter 710, the Florida Uniform Transfers to Minors Act, under certain circumstances. See F.S. 710.106–710.107. « Ch. 14 », « § 14.3 •, « C », « 6 • 1 Practice Under Florida Probate Code § 14.3.C.6 (2022)

6. Considerations Relevant To Distribution And Transfer Of Particular Assets « Ch. 14 », « § 14.3 •, « C », « 6 •, • a » 1 Practice Under Florida Probate Code § 14.3.C.6.a (2022)

a. Real Property (Non-Homestead) It is a basic rule of law in all jurisdictions that title to real property is never held in abeyance, but vests immediately upon the owner’s death in the owner’s heirs or devisees, subject to divestiture by operation of a condition subsequent. Jones v. Federal Farm Mortg. Corp., 132 Fla. 807, 182 So. 226 (1938). See also F.S. 732.101(2), 732.514. As noted at § 14.3.C.4, this common-law rule has been altered in Florida only to the extent that the right of possession of real property (except protected homestead) and the concomitant right to income passes to the personal representative, and the property constitutes an estate asset in the fiduciary’s hands during administration. F.S. 733.607–733.608. The condition subsequent, the occurrence of which will divest the heirs or devisees, is the proven necessity

of liquidating the real property to pay expenses of administration, creditors’ claims, or taxes. Because title is vested in the heir or devisee from the date of death of the decedent, it is unnecessary for the personal representative to execute a deed conveying the property at the time of distribution. Instead, the transfer of real property to an heir or devisee is evinced by a personal representative’s release and certificate of distribution, filed in the public records of the county where the property is located, and specifically identifying the subject property. From a record-title standpoint, this certificate suffices to formally acknowledge the transfer of property from the decedent to the heir or devisee. See FLSSI Form Nos. P-5.0600, P-5.0605, and P-5.0610 for Personal Representative’s Release and Certificate of Distribution of Real Property forms. See also § 2.10.B of this manual. Although a personal representative’s deed is occasionally used to evince the transfer of the decedent’s real property, some practitioners deem it inappropriate. See, for example, Rohan Kelley’s Law Note No. 59, titled Real Property Title Considerations in Probate, contained in THE FLORIDA BAR PROBATE SYSTEM (Fla. Bar 5th ed. 2018), “[t]he personal representative never holds title to estate real property (unless purchased during administration) and the estate is not an entity holding title. Therefore, a deed to a beneficiary would be improper. Florida Uniform Title Standards 5.1 and 5.2.” « Ch. 14 », « § 14.3 •, « C », « 6 •, « b » 1 Practice Under Florida Probate Code § 14.3.C.6.b (2022)

b. Protected Homestead Real property that qualifies as protected homestead is not an asset of the estate. F.S. 733.608. The personal representative has no authority to convey interests in real property that qualify as protected homestead. Protected homestead is defined as “the property described in s. 4(a)(1), Art. X of the State Constitution on which at the death of the owner the exemption inures to the owner’s surviving spouse or heirs under s. 4(b), Art. X of the State Constitution.” F.S. 731.201(33). “Heirs” includes devisees within the class of potential intestate heirs. Snyder v. Davis, 699 So. 2d 999 (Fla. 1997). To address situations in which no one is in possession of property that appears to be protected homestead, or the protected status has not yet been determined, F.S. 733.608 provides a procedure for the personal representative to take

possession of the property, pay necessary expenses to preserve and protect the residence, and to assert and enforce a lien for estate funds expended to protect and preserve the residence. As a result, the personal representative may be asked to sign a release or satisfaction of the lien or a personal representative’s release and certificate of distribution (see § 14.3.C.6.c) to accommodate a sale of the property during the estate administration. If released to accommodate a sale, the lien can then be transferred to the proceeds of sale or to escrowed funds. For further discussion of the substantive law and procedural aspects of homestead determinations, see Chapter 19 of this manual. « Ch. 14 », « § 14.3 •, « C », « 6 •, « c » 1 Practice Under Florida Probate Code § 14.3.C.6.c (2022)

c. Tangible Personal Property Devisees of valuable items of tangible personal property may request a bill of sale from the personal representative designating the specific devises, such as jewelry and furniture, that each devisee has received. It is desirable that the bill of sale reflect its authority (e.g., under a specific article of the will, by stipulation of the beneficiaries, or per a schedule of distribution filed with the petition for discharge). When the devise consists of a titled item such as an automobile or boat, the personal representative should complete and execute the seller’s or transferor’s portion of the title certificate as personal representative of the estate, showing the devisee as the transferee as the result of an inheritance (so that no sales tax will be required), and deliver to the devisee the title certificate and registration slip, if available, together with certified copies of the decedent’s death certificate and letters of administration issued in the estate. See §§ 10.6.B.1–10.6.B.2 and 13.2.G.5 of this manual. « Ch. 14 », « § 14.3 •, « C », « 6 •, « d » 1 Practice Under Florida Probate Code § 14.3.C.6.d (2022)

d. Securities Transfers of securities are sometimes viewed with alarm by the personal representative. Transfer requirements will vary somewhat, depending on the state of incorporation and the stock transfer agent. The documents generally required to effect a transfer are not complicated, however. Certified copies of

the death certificate and letters of administration (certified to current date), together with an affidavit of domicile of the decedent and a stock power with a signature medallion stamp guarantee by a broker or qualified bank officer of the signature of the personal representative, are generally sufficient, along with the stock certificate, to effect reissue and re-registration of the stock in the name of the devisee. The stock power should set out the name, address, and social security number of the devisee/transferee. Securities transfers are discussed in more detail in § 10.6.B.3 of this manual. Re-registration of stocks and bonds can be handled through any local stockbroker. Sometimes it is preferable to tender the securities for transfer directly to the transfer agent. In either event they should be covered by letter even if hand-delivered and should be sent by registered or certified mail, return receipt requested, if mailed to the transfer agent. « Ch. 14 », « § 14.3 •, « C », « 6 •, « e » 1 Practice Under Florida Probate Code § 14.3.C.6.e (2022)

e. United States Government Bonds A savings bond in the sole name of the decedent will be redeemed and payment made only to the personal representative or, in the alternative, may be reissued to the heir or devisee. If the reissue is desired, the request should be made on Treasury Form PD F 1455. A certified copy of letters of administration and of the decedent’s death certificate should accompany the request. In certain cases, Form PD F 5394 may be used when the estate was formally administered and has been closed or when the estate was probated using a summary administration. The new owner (i.e., the heir or devisee) may desire to name a co-owner or make a “payable on death” designation. If that is the case, the new owner should execute Form PD F 4000 and forward it and the bonds to a federal reserve bank. Forms PD F 1455 and PD F 4000 may be submitted at the same time, thus eliminating the need for a two-step transaction. Treasury Forms are available online at www.treasurydirect.gov. In forwarding the documents to the federal reserve bank, it is recommended that a cover letter be included and that the documents be sent by registered or certified mail, return receipt requested.

« Ch. 14 », « § 14.3 •, « C », « 6 •, « f » 1 Practice Under Florida Probate Code § 14.3.C.6.f (2022)

f. Bank Accounts It is customary in marshaling the estate assets to close out existing accounts and deposit the proceeds into estate money market accounts that may pay greater interest on a daily basis. At the time of distribution, a withdrawal is made and delivered to the devisee in exchange for a receipt. « Ch. 14 », « § 14.3 •, « C », « 6 •, « g • 1 Practice Under Florida Probate Code § 14.3.C.6.g (2022)

g. Interest And Income On Devises Frequently, revenues derived from income-producing assets are used by the personal representative for the purpose of liquidating claims and expenses of administration. This is altogether proper under F.S. 733.608. When the decedent’s will provides for specific devises, F.S. 738.201(1) provides that the fiduciary of an estate shall determine the amount of net income and net principal receipts received from property specifically given to a beneficiary under the rules in F.S. 738.301–738.706, subject to F.S. 738.201(5), and distribute the net income and net principal receipts to the beneficiary who is to receive the specific property. In view of the distinction made between the treatment of net income from specific devises and the treatment of income from general devises, the lawyer should employ considerable care in the proper allocation of income items to obviate possible liability of the personal representative in an action brought by a specific devisee suggesting a breach of fiduciary duty or requesting a surcharge. To meet this task, the lawyer not only must be well advised on the nature of the devises with which he or she is dealing, but also must be acquainted with the Florida Uniform Principal and Income Act, F.S. Chapter 738, as well as possess a working understanding of principal and income accounting, which is covered in Chapter 12 of this manual. F.S. 738.201(5) provides that the fiduciary may not reduce principal or income receipts for property specifically given to a beneficiary for payments of fees or administrative expenses under F.S. 738.701 and 738.702, unless the will or applicable law otherwise provides.

« Ch. 14 », « § 14.3 •, « D • 1 Practice Under Florida Probate Code § 14.3.D (2022)

D. Other Problems And Considerations « Ch. 14 », « § 14.3 •, « D •, • 1 » 1 Practice Under Florida Probate Code § 14.3.D.1 (2022)

1. Receipts From Beneficiaries « Ch. 14 », « § 14.3 •, « D •, • 1 », • a » 1 Practice Under Florida Probate Code § 14.3.D.1.a (2022)

a. In General Before the discharge of the personal representative, the court must be satisfied that the beneficiaries who are entitled to the estate have received their rightful shares. Fla. Prob. R. 5.400(d)–(e). The best method of providing evidence to this effect is to obtain receipts from the beneficiaries. The Florida Uniform Disclaimer of Property Interests Act, F.S. Chapter 739, sets out who a beneficiary of a succession to an interest in property is, and how the beneficiary may disclaim the succession. « Ch. 14 », « § 14.3 •, « D •, • 1 », « b » 1 Practice Under Florida Probate Code § 14.3.D.1.b (2022)

b. Particularity Of Receipt A receipt from a beneficiary should state with particularity not only the asset being distributed but also the authority pursuant to which the distribution is made (e.g., “pursuant to Article II of the will”). Furthermore, if the distribution is the full and final share due the distributee, this fact should be acknowledged in the receipt. Forms for the receipt are FLSSI Form Nos. P-5.0510 and P-5.0511. See also Form Nos. P-5.0520, P-5.0530, and P5.0570. « Ch. 14 », « § 14.3 •, « D •, • 1 », « c • 1 Practice Under Florida Probate Code § 14.3.D.1.c (2022)

c. Difficulties Encountered In Obtaining Receipts One unacquainted with estate practice might find it difficult to believe the major effort frequently involved in obtaining receipts from distributees. The effort involved is due to the fact that distributees quickly lose interest in the

terminal phases of estate administration once they obtain all they are entitled to receive from the estate. Some lawyers have indicated that the following method has proved to be successful: A letter is written to the beneficiaries indicating that the estate is ready for distribution, and copies of the final accounting, the petition for discharge with the proposed distribution schedule, the notice of filing, and waiver and consent forms are transmitted with the letter. The beneficiaries are requested to review the distribution schedule and, if they approve it, to indicate their approval by signing and returning the papers, including the waiver and consent form. At that time, they are also asked to submit the name of a bank officer to whom both the distributive share and the receipt form can be sent. The beneficiaries, being anxious to receive their distributions, generally respond rapidly. The assets then are sent to the bank officer who generally returns the executed receipt expeditiously. In the author’s experience, it is usually sufficient to forward the papers with a cover letter explaining their contents, with the suggestion that the beneficiary contact the beneficiary’s own lawyer or the writer if the beneficiary has any questions before signing and returning the waiver. The letter also advises that if all of the beneficiaries are satisfied with the papers and sign and return the waiver and consent forms, a court hearing and order will not be required, there will be no need to wait for the 30-day objection period to expire, and distribution as per the proposed schedule of distribution can be made by the personal representative immediately. The letter indicates that copies are being forwarded to all of the residuary beneficiaries with the additional enclosure of a self-addressed stamped return envelope. Sometimes the beneficiaries contact each other and generally urge everyone to return their waivers promptly unless they object to something. After the waivers are returned, the distribution checks are forwarded with the appropriate receipt and another self-addressed stamped return envelope directly to each beneficiary. On the rare occasion that a receipt was not returned or was lost, the canceled check can be filed as evidence of receipt by the beneficiary of that beneficiary’s share of the estate. The use of an intermediary (bank officer or lawyer) to obtain receipts is more likely to be necessary when the beneficiary resides in a foreign country. If distribution is to be in cash, an international bank money order usually can be purchased to

the order of the beneficiary through a local bank. The money order and receipt can be sent to the intermediary who delivers it to the beneficiary and returns the receipt. To avoid the possibility that a beneficiary’s check is not deposited, and results in the account balance being subject to a service charge, the personal representative should consider the use of bank checks that will clear the estate account immediately. « Ch. 14 », « § 14.3 •, « D •, « 2 » 1 Practice Under Florida Probate Code § 14.3.D.2 (2022)

2. Payment Of Estate Taxes As Condition Precedent To Final Discharge Although there is presently no Florida estate tax because of the repeal of the federal credit for estate tax paid, each estate is presumed to be liable for Florida estate taxes. F.S. 198.26 and 198.32 provide that the final account of a personal representative cannot be allowed until the account shows and the court finds that the tax imposed by F.S. Chapter 198 has been paid. This indicates that there can be no discharge of the personal representative until a receipt for payment of the Florida estate tax or a nontaxable certificate or affidavit is filed with the court. See § 14.2.B for discussion of Florida estate tax return filing requirements. « Ch. 14 », « § 14.3 •, « D •, « 3 » 1 Practice Under Florida Probate Code § 14.3.D.3 (2022)

3. Tax Refund Claims If it is discovered that an overpayment of taxes has been made by either an estate or a trust, the personal representative has a duty to claim a credit or refund. In many instances, however, the overpayment is not discovered until the estate has been closed and the personal representative discharged. In these cases, the right to file the claim for a refund passes to the beneficiaries entitled to the estate. Subsequent to the termination of a trust, the trust beneficiaries are entitled to claim any refund. IRC §§ 6401 et seq. and Reg. §§ 301.6401-1 et seq. provide the authority and procedures for obtaining refunds. When a personal representative files a claim for a refund based on an overpayment of taxes made by the decedent during the decedent’s lifetime, the refund claim should be accompanied by certified copies of letters of

administration. When probate is not required, or when the entry of an order of summary administration is appropriate, the applicant for a refund should complete IRS Form 1310. When the overpayment does not exceed $2,500, F.S. 735.302 provides that the amount can be refunded directly to the surviving spouse or one of the decedent’s children. The conditions and procedure for obtaining a refund under this statute are discussed in § 18.5.A of this manual. « Ch. 14 », « § 14.3 •, « D •, « 4 » 1 Practice Under Florida Probate Code § 14.3.D.4 (2022)

4. Later-Discovered Wills Occasionally, a will is admitted to probate and subsequently a will expressly or impliedly revoking the first will is discovered. For the new will to be entitled to probate, it must be discovered and offered for probate before the estate is fully administered. F.S. 733.208, 733.903. See § 3.6.Y of this manual. In this situation, F.S. 733.208 provides that the later will may be offered for probate on the petition of any interested person. Thus, the new will should be offered as a part of a petition under F.S. 733.109 to revoke the probate of the earlier will in order that the true last will may be probated. In addition to reciting those facts normally appearing in a standard petition to probate a will, the petition should include information with respect to the status of the pending probate proceedings and the specifics of the later instrument. “A petition for revocation of probate [must set forth] the interest of the petitioner in the estate and the facts constituting the grounds on which revocation is demanded.” Fla. Prob. R. 5.270(a). When the later will does not expressly revoke earlier wills in general or the probated earlier will specifically, the petition should contain allegations concerning the dispositive provisions of the earlier will to reveal the fact that the earlier will was impliedly revoked, in whole or in part, by the later will. While the issue of revocation of the earlier will is pending determination, the personal representative is authorized to administer the estate as if the issue had not been raised, but “no distribution may be made to beneficiaries in contravention of the rights of those who, but for [that] will, would be entitled to the property” of the estate. F.S. 733.109(2); Rule 5.270(b). An interesting case in which the court reviewed the history of several

statutes, including F.S. 733.208, and decided that the Florida Legislature intended the time period for presenting a newly discovered will to end with the discharge of the personal representative, is In re Estate of Killinger, 448 So. 2d 1187 (Fla. 2d DCA 1984). Killinger’s widow received his entire estate under the Florida intestacy laws before discovery of Killinger’s will, which was found and offered for probate three months after his estate had been closed. The appellate court affirmed the trial court’s order refusing to revoke probate and reopen the estate. In Grimes v. Estate of Stewart, 506 So. 2d 465 (Fla. 5th DCA 1987), a revocation of the order of final discharge and the reopening of the estate were permitted when the testator had been declared incompetent before execution of the probated will and the proponent of the will failed to advise the probate court of the decedent’s incompetency and failed to give notice to the known beneficiaries under a prior pour-over will executed by the testator. The petition to revoke was considered sufficient and timely under Fla. R. Civ. P. 1.540(b), and the beneficiaries under the provisions of the prior will were entitled to service of notice as interested persons. See also Dean v. Bentley, 848 So. 2d 487 (Fla. 5th DCA 2003), in which the order of discharge was revoked on presentation of evidence that the personal representative committed fraud on the court by failing to disclose to the court the possibility of a subsequent will and an interested person. But see In re Estate of Clibbon, 735 So. 2d 487 (Fla. 4th DCA 1998) (refusing to apply Rule 1.540(b) in action seeking to set aside order of discharge when such order was not entered in adversary proceeding). A form for a petition for revocation of probate is provided in § 3.2.D.1.b. of LITIGATION UNDER FLORIDA PROBATE CODE (Fla. Bar 13th ed. 2022). See also § 11.2.F of this manual. « Ch. 14 », « § 14.3 •, « D •, « 5 » 1 Practice Under Florida Probate Code § 14.3.D.5 (2022)

5. Contracts Affecting Distribution « Ch. 14 », « § 14.3 •, « D •, « 5 », • a » 1 Practice Under Florida Probate Code § 14.3.D.5.a (2022)

a. In General F.S. 733.815 allows interested persons, by written contract, to alter what

each is to receive from the estate. The statute simply recognizes that the beneficiaries could rearrange among themselves their respective interests in the estate after distribution to them in accordance with the will or by intestacy. The statute provides that this may be done before rather than after distribution, thus saving a step. F.S. 733.815 refers to a “written contract” executed by all interested persons who are affected by the contract. It is suggested that the personal representative be made a party to the contract as one who is affected by the transaction. (For a decision analyzing which interested parties were actually affected by an agreement, see In re Estate of Litras, 608 So. 2d 847 (Fla. 4th DCA 1992).) The executed contract should be filed with the court and should be cited in the schedule of distribution. For an additional discussion of agreements as to succession, see § 2.7 of LITIGATION UNDER FLORIDA PROBATE CODE (Fla. Bar 13th ed. 2022). « Ch. 14 », « § 14.3 •, « D •, « 5 », « b • 1 Practice Under Florida Probate Code § 14.3.D.5.b (2022)

b. Form For Contract IN THE CIRCUIT COURT FOR _________ COUNTY, FLORIDA PROBATE DIVISION File No. ___ IN RE: ESTATE OF _________, Deceased.

AGREEMENT REGARDING DISTRIBUTION The undersigned, being beneficiaries of the estate of _________, deceased, and the personal representative of the estate, all sui juris, in consideration of the mutual promises contained herein, agree as follows: 1. This agreement is made pursuant to F.S. 733.815 and is subject to the rights of the creditors of the decedent and taxing authorities.

2. The undersigned constitute all those affected by this agreement. 3. The will of the decedent dated _________ and admitted to probate by the _________ Circuit Court on (date), as it concerns distribution of the decedent’s estate to the beneficiaries, provides that (name of beneficiary) shall receive (share of items from estate) and (name of beneficiary) shall receive (share of items from estate). COMMENT: For an intestate estate, “The Florida law of intestate succession provides that” should be substituted, where appropriate. 4. In place of the distribution described in paragraph 3, (name of beneficiary) shall receive and accept (share of items from estate) from the decedent’s estate as [his] [her] complete distribution from it and (name of beneficiary) shall receive and accept (share of items from estate) as [his] [her] complete distribution from it. 5. The personal representative shall make distribution from the decedent’s estate as described in paragraph 4. 6. This agreement is not subject to amendment or revocation without the written consent of all parties to it. The personal representative is entitled to rely absolutely on the terms of this agreement and shall be protected and held harmless by the beneficiaries to the extent of their interests in the decedent’s estate from any and all liability resulting directly or indirectly from distribution to the beneficiaries as provided in paragraph 4. Dated: ______ Witnesses: ____________

____________ Personal Representative

____________ As to Personal Representative ____________

____________ Beneficiary

____________ As to Beneficiary ____________

____________ Beneficiary

____________ As to Beneficiary

(Add acknowledgment if real property is involved.) COMMENT: If the contract is not supported by “adequate and full consideration in money or money’s worth,” a gift for federal gift tax purposes could result from the beneficiary who receives less under the contract than under the will to the beneficiary who receives more from the estate. IRC § 2512(b). If possible, the preferable way to rearrange interests in an estate, particularly if substantial amounts are involved, is by disclaimer under F.S. Chapter 739, because that will avoid gift tax consequences. IRC § 2518(a). If real property is involved, the contract should provide for appropriate transfer by the personal representative in aid of distribution. The contract should also contain an acknowledgment and be recorded in the county in which the real property is located. If the property is located in a county different from the county where the estate is being probated, a transcript of appropriate portions of the estate file should be recorded in the county where the real property is situated. This should include the death certificate, will (if any) and proof of will, petition for administration, order admitting will, letters of administration, proof of publication of notice to creditors, petition for discharge with schedule of distribution, receipts of beneficiaries, Florida nontaxable certificate or affidavit or final receipt, federal estate tax closing letter, and order of discharge. If the real property was not devised under the will to the person receiving it under the contract of the interested persons, it is recommended that, in addition to the contract, the person obtaining the real property also obtain a deed of conveyance from the other interested persons and record it to eliminate any possible future title problems concerning the chain of title out of the decedent and the estate because of the vesting of the

title in the heirs (intestate) or devisees (testate) by the event of the decedent’s death. F.S. 732.101, 732.514. It is suggested that a quitclaim deed is sufficient in this instance. « Ch. 14 », « § 14.3 •, « D •, « 6 • 1 Practice Under Florida Probate Code § 14.3.D.6 (2022)

6. After-Discovered Assets After the apparent final distribution is made and the personal representative is discharged, additional assets belonging to the decedent are occasionally discovered. This occurrence gives rise to numerous problems and complications that can be resolved only at the price of additional time and expense. The reasons for the failure to discover estate assets are rarely attributable to the lawyer. For a variety of reasons, however, and particularly when the personal representative is a member of the decedent’s family, it is frequently prudent for the lawyer representing the estate to absorb the blame when assets appear after discharge. To ensure that assets belonging to the decedent are not overlooked at the inception of the estate, the lawyer should ask the personal representative to bring in all of the decedent’s securities and other evidence of assets that might easily escape discovery. If the certificate numbers on securities are recorded from the stock certificates, the probability of error is minimized. On some occasions the personal representative will advise the lawyer that the personal representative has taken down all the information and that all of the stocks are common stocks. Thereafter, it may be discovered that some of the stocks were in fact preferred stocks, obviously having a totally different value from the common. An error such as this not only will affect any proposed schedule of distribution that has been made with reference to the common stock in a particular company but also may have an effect on any estate taxes due, as well as the computation of the fees for the personal representative and the lawyer for the estate. The discovery of assets not previously administered necessitates resort to additional procedures to have the title to the newly discovered property transferred from the decedent’s name to those entitled to it. The procedure required in this situation entails filing a petition in the estate proceeding requesting further administration of the estate. Fla. Prob. R. 5.460. Rule 5.460(b) provides that the petition must state the name, address, and interest

of the petitioner, the reason for further administration, the description, approximate value, and location of any asset not included in the prior administration, and a statement of the relief sought. Rule 5.460(c) provides that the court shall enter such orders as may be appropriate and that, unless required, “the court need not revoke the order of discharge, reissue letters, or require bond.” This indicates that the procedure may be summary in nature. If letters of administration are re-issued, counsel for the personal representative should obtain an order of discharge once the after-discovered assets have been marshaled and distributed. Footnotes — Chapter 14: *

J.D., 1990, University of Tennessee. Mr. Goethe is a member of The Florida Bar and is Florida Bar Board Certified in Wills, Trusts and Estates. He serves on the Executive Council of the Real Property, Probate and Trust Law Section of The Florida Bar and is a past member (2005–2011 and 2014–2020) and Chair (2010–2011 and 2019–2020) of the Florida Probate Rules Committee of The Florida Bar. Mr. Goethe is a Fellow of the American College of Trust and Estate Counsel. He is a partner with Barnes, Walker, Goethe, Perron & Shea, PLLC, in Bradenton.

Licensed to Otis K Pitts, Otis K Pitts

« Ch. 15 » 1 Practice Under Florida Probate Code Ch. 15 (2022)

Chapter 15 COMPENSATION OF PERSONAL REPRESENTATIVES AND LAWYERS AND OTHER EXPENSES OF ADMINISTRATION RICHARD SHERRILL* Contents § 15.1. INTRODUCTION AND SCOPE § 15.2. POWER OF PERSONAL REPRESENTATIVE TO INCUR EXPENSES A. In General B. Duty Of Personal Representative To Proceed Without Court Order C. Requirement Of Legal Representation D. Authority To Employ Appraisers E. Authority To Employ Lawyer And Others F. Professionals And Other Agents Entitled To Reasonable Compensation G. Reimbursement Or Credit For Compensation Paid And Other Expenses H. Liability Of Personal Representative For Costs And Expenses I. Evolution Of The Law 1. Introduction 2. Period Before January 1, 1976 (Pre-Code) 3. Period From January 1, 1976, To October 3, 1991, And In re Estate of Platt 4. Period From October 3, 1991, To October 1, 1993 5. Period From July 1, 1995, To Present Day § 15.3. COMPENSATION OF PERSONAL REPRESENTATIVE A. Abbreviated Forms Of Administration

B. Extraordinary Services C. Compensation Order Not Required D. Lawyer As Personal Representative E. Multiple Personal Representatives F. Provisions In Will Concerning Personal Representative’s Compensation G. Contract With Testator H. Agreements With Beneficiaries I. Proceedings For Review Of Employment Of Agents And Compensation Of Personal Representatives And Estate Employees J. Procedure, Notice, And Hearing K. Renunciation Of Compensation L. Compensation And Reimbursement For Offering Will For Probate If Not Successful § 15.4. COMPENSATION OF LAWYER A. Small Estates B. Determination Of Reasonable Fee 1. Reasonable Fee Before October 1, 1993 2. Reasonable Fee Before July 1, 1995 a. Introduction b. Reasonable Fee Under F.S. 733.6171 3. Reasonable Fee After June 30, 1995 C. Disclosure Requirement When Fees Are Based On Presumed Reasonable Statutory Schedule D. “Adjustable” Reasonable Fee Under F.S. 733.6171 1. In General 2. Factors To Be Considered Under F.S. 733.6171(5) a. Promptness, Efficiency, And Skill With Which Administration Was Handled b. Responsibilities Assumed By And Potential Liabilities Of Lawyer c. Nature And Value Of Assets Affected By Decedent’s Death d. Benefits Or Detriments Resulting To Estate Or Interested Persons From Lawyer’s Services

e. Complexity Or Simplicity Of Administration And Novelty Of Issues Presented f. Lawyer’s Participation In Tax Planning For Estate And Estate’s Beneficiaries, And Tax Return Preparation, Review, Or Approval g. Nature Of Probate, Nonprobate, And Exempt Assets; Expenses Of Administration, Liabilities Of Decedent, And Compensation Paid To Other Professionals And Fiduciaries h. Any Delay In Payment Of Compensation After Services Were Furnished i. Any Agreement Relating To Lawyer’s Compensation And Whether Required Disclosures Were Made To Personal Representative In Timely Manner j. Any Other Relevant Factors E. Extraordinary Services F. Expert Testimony G. Segregating Fiduciary Time Spent By Lawyer H. Fee Contracts 1. In General 2. Contract With Testator 3. Contract With Personal Representative 4. Consent By Beneficiaries 5. Sample Contract And Consent I. Payment Of Fee After Full Disclosure And Absent Objection J. Timing Of Payment K. Ethical Considerations In Charging Reasonable Fee L. Fees For Other Lawyers M. Procedure To Determine Fees 1. In General 2. Nature Of Proceeding 3. Rendition Of Order a. Content Requirements Of Order b. Procedure 4. Assets From Which Fees Are To Be Paid

5. Attorney Fees And Costs In Determining Fees 6. Sample Petition For Attorney Fees 7. Sample Order Granting Award Of Attorney Fees N. Reserved O. Miscellaneous Fee Issues 1. Multiple Lawyers For Joint Personal Representatives 2. Fees When Lawyer Is Also Personal Representative 3. Renunciation Of Fee 4. Attorney Fees And Costs For Unsuccessfully Offering Will For Probate, And When Personal Representative Is Removed 5. When Attorney Fees May Not Be Paid From Estate § 15.5. MISCELLANEOUS ADMINISTRATIVE EXPENSES A. Bond Premium And Other Expenses B. Continuing Business Of Decedent C. Protecting And Preserving Estate Assets And Protected Homestead D. Sale Of Assets § 15.6. FUNERAL, BURIAL, AND GRAVE MAINTENANCE EXPENSES § 15.7. POSTMORTEM PLANNING A. In General B. Renouncing Fees § 15.8. TAX CONSEQUENCES A. In General B. Funeral Expenses C. Administration Expenses D. Personal Representatives’ Commissions E. Attorney Fees F. Miscellaneous Expenses « Ch. 15 », • § 15.1 » 1 Practice Under Florida Probate Code § 15.1 (2022)

§ 15.1. INTRODUCTION AND SCOPE The administration of any estate involves certain expenses, the nature and

extent of which depend primarily on the nature of the assets and liabilities, the size and complexity of the estate, the degree of harmony between the beneficiaries, and the number of claims or disputes to be resolved with third parties. In most estates, the most significant expense of administration is compensation of the personal representative, the lawyer, appraisers, accountants, and other professionals whose services may be required during administration. Costs and expenses of administration, including attorney fees allowed under F.S. 733.106(3), are given first priority for payment from the assets of the estate. F.S. 733.707(1)(a). They are not allocated among classes of devises but are payable from specified portions of the estate—most often, the residuary to the extent it is sufficient. See F.S. 733.805. If the residuary is insufficient and there is also a revocable trust, the trustee of that trust is required to contribute trust assets to the estate sufficient to pay expenses of administration of the estate and enforceable claims of the decedent’s creditors upon the request of the personal representative. F.S. 733.607(2), 736.05053. The subject matter of this chapter involves expenses of estate administration, particularly compensation. It avoids, for the most part, matters or questions involved in probate litigation or disputes between beneficiaries and the personal representative or the lawyer. Litigation issues are covered in detail in LITIGATION UNDER FLORIDA PROBATE CODE Chapter 11 (Fla. Bar 13th ed. 2022). See also Chapter 21 of this manual.

« Ch. 15 », « § 15.2 » 1 Practice Under Florida Probate Code § 15.2 (2022)

§

15.2. POWER OF PERSONAL REPRESENTATIVE TO INCUR EXPENSES « Ch. 15 », « § 15.2 », • A »

1 Practice Under Florida Probate Code § 15.2.A (2022)

A. In General A personal representative begins to incur administrative costs and expenses that may be appropriate estate expenses before appointment. Because the powers of the personal representative relate back in time to give acts performed before appointment that are beneficial to the estate the same effect as those performed after appointment, and because acts done by others may be ratified, costs and expenses of administration for which the estate is liable may be incurred before appointment. F.S. 733.601. Richard v. Richard, 193 So. 3d 964 (Fla. 3d DCA 2016). Compare Cooper v. Ford & Sinclair, P.A., 888 So. 2d 683 (Fla. 4th DCA 2004), with Estate of Pounds v. Miller & Jacobs, P.A., 336 So. 3d 14 (Fla. 4th DCA 2022). The personal representative has authority to incur a wide variety of expenses. In all cases, however, adherence to the standards of care applicable to trustees, as described in F.S. 518.11 and 736.0804, is required, and all acts must be in the best interests of the estate and for the best interests of interested persons, including creditors. F.S. 733.602, 733.612. The practitioner should note that any of the powers conferred by F.S. 733.612 may be negated by the decedent’s will or by court order. Beck v. Beck, 383 So. 2d 268 (Fla. 3d DCA 1980). The personal representative, under limited circumstances, may take possession of property that appears to be protected homestead for purposes of protecting, preserving, maintaining, and insuring that property. F.S. 733.608. The statute provides a detailed procedure for reimbursing the estate for expenses incurred in doing so. See also Fla. Prob. R. 5.402–5.404, relating to taking possession of the protected homestead by the personal representative. For further discussion regarding possession of protected homestead, see § 15.5.C. « Ch. 15 », « § 15.2 », « B »

1 Practice Under Florida Probate Code § 15.2.B (2022)

B. Duty Of Personal Representative To Proceed Without Court Order The personal representative has the duty to “proceed expeditiously with the settlement and distribution of a decedent’s estate” and, except for limited exceptions, to do so without order or direction of the court. F.S. 733.603. The Florida Probate Code (the Code) allows the personal representative to invoke the jurisdiction of the court to resolve questions concerning administration of the estate, but generally the court will not become involved except to settle urgent questions or controversies. Consequently, the personal representative does not have the protection afforded by prior judicial approval of the necessity and reasonableness of each action or expense. The propriety of each expenditure must be judged in retrospect, normally when the administration is completed and the accounting and petition for discharge are filed. See Fla. Prob. R. 5.400–5.401. In his specially concurring opinion, Judge Villanti, in In re Estate of Wejanowski, 920 So. 2d 190, 192 (Fla. 2d DCA 2006), succinctly stated this proposition, explaining: I fully concur in the majority opinion but take this opportunity to expound on what I perceive to be an overused and overrated probate procedure—requesting and receiving court approval when it is not necessary or legally required. I suspect this superfluous procedure is used because it is viewed as a means of obtaining a harbor safe from criticism or consequence for the future actions so “authorized.” As this case demonstrates, this assumption is incorrect. Pursuant to [F.S. 733.612], the personal representative “acting reasonably for the benefit of the interested persons” may perform the “transactions authorized” “without court order.” If done, then the personal representative is entitled to the protection afforded by [F.S.] 733.602(2). Obtaining court approval for actions already authorized by statute does not insulate the personal representative from personal liability, nor does it eliminate the requirements of [F.S.] 733.612 that the personal representative act reasonably and for the benefit of the interested persons. Additionally, the unnecessary solicitation of court approval itself may arguably even be perceived as a dissipation of estate assets.

See also Bookman v. Davidson, 136 So. 3d 1276 (Fla. 1st DCA 2014) (as matter of first impression, court held that successor personal representative of estate had standing and duty to bring legal malpractice suit against lawyer who was retained by estate’s original personal representative, alleging that original representative, through lawyer’s guidance, improperly disclaimed or transferred estate’s assets). « Ch. 15 », « § 15.2 », « C » 1 Practice Under Florida Probate Code § 15.2.C (2022)

C. Requirement Of Legal Representation Every personal representative must be represented by a lawyer admitted to practice law in the State of Florida, unless the personal representative remains the sole interested person (i.e., all other devises have been distributed and all creditors have been barred or paid). A personal representative who is also a lawyer may represent himself or herself. Fla. Prob. R. 5.030(a). Authority for the personal representative to employ a lawyer is provided in F.S. 733.612(19), and the personal representative generally may act on the recommendation of the lawyer without independent investigation. See, e.g., Wohl v. Lewy, 505 So. 2d 525 (Fla. 3d DCA 1987) (applying statutory provision in context of accountant’s advice). See Laramore v. Laramore, 64 So. 2d 662 (Fla. 1963), regarding limits on the extent to which the personal representative may rely on advice of counsel. See also § 15.2.E. « Ch. 15 », « § 15.2 », « D » 1 Practice Under Florida Probate Code § 15.2.D (2022)

D. Authority To Employ Appraisers Neither the Florida Statutes nor case law impose the requirement to hire an appraiser. In 2001, the Florida Legislature deleted F.S. 733.605, which related to employment of appraisers, not because it was intended that appraisers could no longer be hired, but because F.S. 733.612(19) gives a personal representative the power to hire various persons in the estate administration, including appraisers. The right to hire implies the right to compensation. See F.S. 733.6175. The values of many of the estate’s assets, such as bank accounts and listed securities, may be easily ascertainable. In these instances, the personal representative will not need to employ an appraiser, and one may not be required at all. Any appraisals obtained must

be furnished to certain beneficiaries, upon request, and with certain limitations. F.S. 733.604(3); Fla. Prob. R. 5.340. « Ch. 15 », « § 15.2 », « E » 1 Practice Under Florida Probate Code § 15.2.E (2022)

E. Authority To Employ Lawyer And Others As previously noted, the personal representative must employ legal counsel to provide representation in the probate administration, and may employ legal counsel under F.S. 733.612(19). The personal representative may also employ accountants, auditors, investment advisors, agents, and other persons to advise or assist in the performance of the personal representative’s duties. Id. The personal representative should be prepared to justify the necessity for hiring all persons, other than legal counsel for the administration, including any special counsel. If the employment of other professionals is necessary, the personal representative is entitled to rely on their recommendations without independent investigation and may even delegate duties, “whether or not discretionary.” Id. The latter authority is contrary to the common law, which prohibited delegating fiduciary functions. This arguably would allow the employment of a professional fiduciary to perform all the duties of the personal representative. Because the law is clear that the prudent investor rule applies to investment of estate funds during administration (F.S. 733.612(4)), the hiring of an investment advisor and delegation of investment responsibility becomes more relevant and is specifically authorized by statute. F.S. 518.112. See § 15.2.F. The compensation paid to other professionals and fiduciaries is one of the factors required by statute to be considered in determining whether to increase or decrease ordinary compensation or award compensation to the personal representative for extraordinary services. F.S. 733.617(7)(g). See also F.S. 733.6171(5)(g) (relating to same consideration for lawyer). For example, if an individual personal representative hired an investment advisor and paid a fee of 1% of the value of the assets (100 basis points), the issue is whether it would be appropriate to consider some reduction in the personal representative’s presumed reasonable commission because the scope of ordinary services for which the personal representative is compensated includes investment services in its calculation. If that were the case, it would

naturally follow that, for example, a personal representative who hires a certified public accountant (CPA) to file the decedent’s or the estate’s income tax returns would suffer a reduction in presumed reasonable compensation. That may incentivize a potentially untrained personal representative to undertake tasks (preparing and filing taxes in this example) that he or she may have no business doing. The Code encourages the personal representative to retain cost-effective, appropriately-skilled professionals to handle specific tasks beyond the ordinary abilities of the personal representative. The factor expressed in F.S. 733.617(7)(g) does not penalize a personal representative who delegates certain functions, requiring specific skill and training, to those who are better suited to handle those actions. Instead, the compensation paid to other professionals and fiduciaries informs the reasonableness of the compensation paid to the personal representative. The amounts paid to other professionals and fiduciaries, if determined to be reasonable and appropriate, can help illustrate the level of complexity of an estate. As a further example, if a complex estate includes vacant land that has potential wetlands issues, the personal representative should not fear having his or her compensation reduced by hiring an environmental engineer to evaluate the land. Doing so can easily benefit the estate and there is no risk of loss of fee to the personal representative for retaining such an expert whose expertise in that field likely exceeds the base-level knowledge of the ordinary personal representative. « Ch. 15 », « § 15.2 », « F » 1 Practice Under Florida Probate Code § 15.2.F (2022)

F.

Professionals And Compensation

Other

Agents

Entitled

To

Reasonable

On January 1, 1976, when the Code finally became effective, it provided specific statutory authority (under former F.S. 733.617) to pay “reasonable compensation” to professionals and other agents employed by the personal representative. That statute required consideration of one or more factors described in the statute to determine reasonable compensation. The factors described were similar to the factors that presently appear in Rule 4-1.5(b) of the Rules Regulating The Florida Bar and Rule 1.5 of the ABA Model Rules of Professional Conduct to determine, generally, whether a fee charged by a lawyer is reasonable. These were the traditional factors most lawyers—not

just probate lawyers—used to determine a reasonable attorney fee. However, these earlier factors were not specifically applicable to circumstances usually encountered in an estate administration. Indeed, in the context in which they were to be used, reliance on these factors was a poor fit, especially for other professionals and agents. In 1993, the statute regarding attorney fees was amended to provide for probate-specific factors. Then, in 1995, the statute regarding personal representatives’ commissions was amended to provide probate-specific factors to be considered in the determination of reasonable compensation. Specifically, in 1993, the Florida Legislature amended F.S. 733.617 to delete from its coverage “attorneys, accountants, and appraisers and other agents,” and F.S. 733.6171 was created to determine attorneys’ fees. No provision was substituted to determine fees for “accountants, and appraisers and other agents.” However, leading practitioners regard the authority found in F.S. 733.612(19), which provides that any compensation paid to a “person who is the same as, associated with, or employed by, the personal representative shall be taken into consideration in determining the personal representative’s compensation,” includes implied authority to pay such persons a reasonable fee. In that instance, a “reasonable fee” would be based on the usual and customary fee paid in the locality for similar services, adjusted by any special considerations applicable to the specific service performed. See F.S. 733.6175. At least one court has held that an unqualified personal representative (in this case a not-for-profit corporation) that was appointed and served, but that also had a conflict of interest (it was the decedent’s guardian against whom a cause of action might lie in favor of the estate), was not entitled to its attorney fees, and the court ordered that no fees be awarded to the lawyers. In re Estate of Montanez, 687 So. 2d 943 (Fla. 3d DCA 1997). The compensation of trustees is governed by F.S. 736.0708. The statute provides for an award of trustees’ fees that are “reasonable under the circumstances” when the trust does not specify compensation. F.S. 736.0708(1). However, the statute does not establish the methodology for calculating “reasonable” trustee fees other otherwise explain which “circumstances” should be considered. In calculating a trustee’s reasonable compensation, Florida courts apply the factors set forth in West Coast

Hospital Ass’n v. Florida National Bank of Jacksonville, 100 So. 2d 807 (Fla. 1958). Robert Rauschenberg Foundation v. Grutman, 198 So. 3d 685 (Fla. 2d DCA 2016). These factors include: “The amount of capital and income received and disbursed by the trustee; the wages or salary customarily granted to agents or servants for performing like work in the community; the success or failure of the administration of the trustee; any unusual skill or experience which the trustee in question may have brought to his work; the fidelity or disloyalty displayed by the trustee; the amount of risk and responsibility assumed; the time consumed in carrying out the trust; the custom in the community as to allowances to trustees by settlors or courts and as to charges exacted by trust companies and banks; the character of the work done in the course of administration, whether routine or involving skill and judgment; any estimate which the trustee has given of the value of his own services; payments made by the cestuis to the trustee and intended to be applied toward his compensation.” Id. at 688, quoting West Coast, 100 So. 2d at 811. In Grutman, the court concluded that the trial court correctly refused to calculate the trustees’ fees using the lodestar method set forth in Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985), which does not apply to trustees’ fees. See also Spear v. Denmark, 306 So. 3d 224 (Fla. 3d DCA 2020). With regard to the considerations of expert testimony to establish a reasonable fee, see §§ 15.3.J, 15.4.F. « Ch. 15 », « § 15.2 », « G » 1 Practice Under Florida Probate Code § 15.2.G (2022)

G. Reimbursement Or Credit For Compensation Paid And Other Expenses The personal representative is authorized to pay expenses incident to the administration, including fees, without court order. F.S. 733.612(16). See §§ 15.3.C and 15.4.M. See also § 4.3.B.1.b of this manual. F.S. 733.612(19) specifically requires that fees paid to other persons associated with the personal representative be taken into account in determining the personal representative’s own compensation. See also F.S. 733.617(7)(g).

Furthermore, the court will consider services performed by others, regardless of whether the other person is associated with or related to the personal representative. For example, if an investment advisor is employed to manage investments (F.S. 518.112), as noted at § 15.2.E, unless otherwise provided in the will, the fees of the investment advisor should reduce the fee of the personal representative who is not personally providing these investment services. It can be argued, however, that this threat of reduction applies only to the extent that the decedent managed his or her own investments, and, further, upon a determination that the personal representative should be expected to manage the estate’s investments. In addition, the argument about the specialized professional, as previously discussed, bears repeating. If, for example, an estate includes a historic home, the personal representative should not risk a fee reduction for retaining a structural engineer to evaluate the integrity of the home to ensure it is safe. In some instances—where the function of a professional hired by the personal representative should not reasonably be undertaken by a lay fiduciary—the fees paid to any such professional should not reduce the personal representative’s compensation. Instead, such fees paid to an expert can highlight the complexity of such an estate, and potentially increase the fiduciary’s compensation based on other statutory factors. See, e.g., F.S. 733.617(7)(g) (the nature of the probate assets must be considered in determining whether to increase or decrease fiduciary pay). The Code does not specifically authorize the reimbursement of the personal representative for expenses incurred in the administration of the estate. Instead, it is contemplated that expenses will be paid directly from the estate assets, consistent with the requirements of fiduciary duty. See F.S. 733.602, 733.603, 733.608(1), 733.612, 733.619. To the extent the personal representative personally pays administrative expenses, reimbursement should be made from the estate assets and the disbursement should be shown in the personal representative’s accounting. The cost of registered mail to provide notice to creditors is allowed as a cost of administration, even though that notice is not required to be mailed by registered mail. Baumann v. Estate of Blum, 898 So. 2d 1106 (Fla. 2d DCA 2005). « Ch. 15 », « § 15.2 », « H » 1 Practice Under Florida Probate Code § 15.2.H (2022)

H. Liability Of Personal Representative For Costs And Expenses The personal representative has the obligation to act reasonably in all activities, including the incurring of expenses. Although the Code expressly authorizes the personal representative to hire lawyers, accountants, auditors, investment advisors, agents, and others without court order, the fiduciary is vulnerable to criticism regarding the persons employed. All employment decisions are subject to court review. F.S. 733.6175. See §§ 15.2.D–15.2.E. There is no requirement to file annual or other periodic accountings (unless ordered by the court under Fla. Prob. R. 5.150(b)), but the probate rules do require the filing of a final accounting and a petition for discharge when the administration has been completed except for final distribution. Rule 5.400. See Chapters 12 and 14 of this manual. Interested persons are given a period of 30 days from the date of service of copies of the final accounting and petition for discharge within which to object to the accounting or petition. Rule 5.401. Accordingly, the personal representative usually will not know until the expiration of this period whether objections will be raised to the employment of particular agents or the fees paid to them, or to any other expenses incurred. If there is reason to believe there may be some objection, the personal representative should either obtain consent of all affected, interested persons or apply for an order of court approving the hiring and expense before it is incurred. But see § 15.2.B. When the personal representative is in doubt as to whether an interested person may object to employment of a certain agent or a payment of a certain expense, an attempt should be made to reach an agreement with all interested persons in advance of the employment or of incurring the expense. When written consents are not obtained, misunderstandings and disputes may be reduced or avoided if the personal representative keeps the beneficiaries and all other interested persons currently advised of all unusual or extraordinary developments in the administration of the estate that may require the employment of agents or involve extraordinary expenses. Although interim accountings are not required, they are permitted by Rule 5.345, and, as with a final accounting, failure to object to items shown on the interim accounting within 30 days after service waives all objection. Rule 5.345(c). This provision does not apply to attorney fees shown on the interim accounting. Sheffield v. Dallas, 417 So. 2d 796 (Fla. 5th DCA 1982). See also

In re Estate of Goodwin, 511 So. 2d 609 (Fla. 4th DCA 1987). « Ch. 15 », « § 15.2 », « I • 1 Practice Under Florida Probate Code § 15.2.I (2022)

I. Evolution Of The Law « Ch. 15 », « § 15.2 », « I •, • 1 » 1 Practice Under Florida Probate Code § 15.2.I.1 (2022)

1. Introduction To understand current law regarding compensation of a personal representative or a lawyer, it is necessary to understand the prior law and its evolution. There are five significant periods. The first is the period before January 1, 1976, the effective date of the Code. During that period, the statutes addressed only personal representatives’ fees. Before enactment of the Code, the only statutory provision relating to attorney fees was F.S. 734.01(2) (1973), which authorized a petition to the court for an “allowance of attorney’s fees.” The attorney fees determination was based solely on case law, which generally used as a guide former EC 5–6 of The Florida Bar Code of Professional Responsibility. The second is the period from the effective date of the Code, January 1, 1976, to October 3, 1991, when the Florida Supreme Court’s (final) opinion in In re Estate of Platt, 586 So. 2d 328 (Fla. 1991), was issued. With the adoption of the Code, for the first time, a single statute provided for reasonable compensation of the personal representative, the lawyer for the personal representative, and other agents. The factors in the statute were nearly the same, initially, as former EC 5–6 of The Florida Bar Code of Professional Responsibility, and, as previously stated, were subsequently amended to provide for slightly more probate-specific considerations. The third is the period from October 3, 1991, the rendition date of the Platt opinion, which interpreted the existing statute to require a lodestarbased fee calculation for attorney fees and an indefinite non-percentage-based personal representation fee determination, to October 1, 1993, the effective date of Chapter 93-257, Laws of Florida (the “1993 Amendments”). These second and third periods are discussed further in § 15.4.B.2.

The fourth is the period from October 1, 1993, the effective date of the 1993 Amendments, to July 1, 1995. The 1993 Amendments entirely redesigned the approach to determine lawyers’ and personal representatives’ compensation and severed the prior combined comprehensive statute into separate statutes for the lawyer and for the personal representative. The severed attorney fees statute provided for a presumptively reasonable, bifurcated fee comprising a percentage calculation and a time-based calculation. The personal representative’s compensation statute very closely resembled its counterpart before the Code. It did not provide that it was presumptively reasonable but purported to be a set fee. This period is discussed further in § 15.4.B.2. The fifth (current) period began July 1, 1995, the effective date of most parts of Chapter 95-401, Laws of Florida (the “1995 Amendments”), and continues (with certain modifications requiring notice from the fiduciary’s lawyer who intends to charge a fee based on the statutorily presumed reasonable fee schedule, discussed below) through the date of publication of this manual. The 1995 Amendments refined the redesigned approach of 1993 Amendments by eliminating the time-based portion of the attorney fees calculation and revising the percentage-based portion of the calculation to a percentage scale similar to the percentage scale then provided for personal representatives’ compensation. Additionally, the 1995 Amendments amended F.S. 733.617, effective January 1, 1996, to provide specifically for the court, upon petition of any interested person, to increase or decrease the compensation of the personal representative. Although the statute did not specifically say so until 2001, the personal representative’s compensation, like the lawyer’s fee, was required to be “presumptively reasonable” in the amount provided by the statute. The fifth period is discussed further in § 15.4.B.3. Parts of these periods are further discussed in turn below. « Ch. 15 », « § 15.2 », « I •, « 2 » 1 Practice Under Florida Probate Code § 15.2.I.2 (2022)

2. Period Before January 1, 1976 (Pre-Code) Except for its current presumptively reasonable character, the statutory provisions relating to personal representatives’ compensation before

enactment of the Code are nearly identical to the present statute. Compare F.S. 734.01 (1973) and F.S. 733.617 (2020). Before January 1, 1976, a personal representative in Florida was allowed a statutory commission based on the value of the estate accounted for as compensation for ordinary services. The stark similarity of F.S. 734.01 to 733.617 offers a large reservoir of case law to aid in interpretation of the current statute. The amount allowed as compensation for extraordinary services (services considered exceptional or not usually performed by a personal representative in the normal administration of an estate of a given size) was within the discretion of the probate court. The logic and judicial good sense reflected in the landmark decision, In re Estate of Lieber, 103 So. 2d 192 (Fla. 1958), is again fully relevant to the current law, especially the discussion of the distinction between ordinary and extraordinary services. « Ch. 15 », « § 15.2 », « I •, « 3 » 1 Practice Under Florida Probate Code § 15.2.I.3 (2022)

3. Period From January 1, 1976, To October 3, 1991, And In re Estate of Platt In 1976, the Code eliminated the statutory percentage and provided that a personal representative was “entitled to reasonable compensation” based on the seven factors specified in the statute, which were derived from former EC 5–6 of The Florida Bar Code of Professional Responsibility. Although it was the uniform practice of corporate fiduciaries and many individual fiduciaries to charge percentage-based fees (similar to the provisions of the pre-1976 statute) during the period after 1975, the Florida Supreme Court ruled in In re Estate of Platt, 586 So. 2d 328 (Fla. 1991) (which had retroactive effect) that this practice was impermissible. In the Platt opinion, the Florida Supreme Court struck down the practice of percentage-based fees for personal representatives but offered no guidance as to how such a fee should properly be determined. The court stated: “While rate schedules are a factor that may be considered in determining a reasonable fee at the end of the service, they should not be presented as the sole factor for determining a reasonable fee absent an agreement.” Id. at 337. « Ch. 15 », « § 15.2 », « I •, « 4 » 1 Practice Under Florida Probate Code § 15.2.I.4 (2022)

4. Period From October 3, 1991, To October 1, 1993 However, the limitations on the percentage-based fees found in In re Estate of Platt, 586 So. 2d 328 (Fla. 1991), were reversed by statute (and the pre-Code practice was restored) effective for estates of decedents dying after September 30, 1993. F.S. 733.617 (1993). For the period from the decision in Platt forward until the effective date of the 1993 Amendments (October 1, 1993), the corporate fiduciary community and their legal counsel were in a quandary as to how to charge and justify fees for personal representatives. A number of innovative and less than innovative efforts were made; however, there are few reported cases from this period. The percentage-based fee for personal representatives currently found in F.S. 733.617 applies only to estates of decedents dying on or after October 1, 1993. Pre-Code case law concerning compensation for extraordinary services of personal representatives and cases passing on the reasonableness of compensation of guardians and trustees, before there was statutory guidance, are relevant. As previously noted, some of the leading cases are In re Estate of Lieber, 103 So. 2d 192 (Fla. 1958); West Coast Hospital Ass’n v. Florida National Bank of Jacksonville, 100 So. 2d 807 (Fla. 1958); and Osius v. Miami Beach First Nat. Bank, 74 So. 2d 779 (Fla. 1954). Among the statutory criteria set forth in F.S. 733.617 (1991) were: the “fee customarily charged in the locality for similar services”; the “nature and value of the assets of the estate, the amount of income earned by the estate, and the responsibilities and potential liabilities assumed by the person, … [and] [t]he results obtained”; and the “experience, reputation, diligence, and ability of the person performing the services.” As previously mentioned, these criteria were almost identical to the ethical guidelines for compensation of lawyers. As Platt indicated, not all of the factors in the statute applied to each different type of professional. The inclusion of “diligence” in the criteria served as notice on the dilatory personal representative that unjustified delay may reduce the amount of compensation.

One case that is instructive in this regard is In re Estate of Winston, 755 So. 2d 690 (Fla. 4th DCA 1999), in which the parties agreed that the pre1993 statute, as interpreted by Platt, was controlling. The case involved compensation of a corporate fiduciary agent that performed fiduciary services for the personal representative under a written agreement providing a negotiated percentage-based fee for the fiduciary agent. The court observed that the ultimate fee approved by the trial court reflected the court’s weighing of evidence addressing the factors contained in [F.S.] 733.617 including the length of the relationship between [the agent] and the [personal representative] and the results obtained by [the agent]. [See Platt]. [The agent] submitted competent substantial evidence of the activities it undertook on behalf of [the personal representative], as well as expert opinion testimony of a reasonable fee for those services. Winston, 755 So. 2d at 691. Although not reported in the appellate opinion, the fiduciary agent testified at trial that time records were not kept and it was not possible to reconstruct them because a substantial portion of the file was destroyed by fire. The trial court, affirmed on appeal, ultimately awarded a fee that was approximately equal to the agreed-upon percentage-based fee in the fee contract. « Ch. 15 », « § 15.2 », « I •, « 5 • 1 Practice Under Florida Probate Code § 15.2.I.5 (2022)

5. Period From July 1, 1995, To Present Day As previously noted, F.S. 733.617 was amended, again, effective January 1, 1996. The 1995 Amendments made clear that the percentage-based compensation for personal representatives provided in the 1993 Amendments is subject to increase or decrease upon application by any interested person. The 1995 Amendments also carried over into the personal representative’s statute the factors to be considered by the court in making such an adjustment. These factors are very similar to those found in F.S. 733.6171, the attorney fees statute. Then, effective January 1, 2002, the Florida Legislature further amended F.S. 733.617 to make it even more parallel with F.S. 733.6171 and adopted

the “presumed reasonable” approach previously found only in F.S. 733.6171. See Ch. 2001-226, § 141, Laws of Fla. (”2001 Amendments”). Most recently, F.S. 733.617 was amended in 2020 to add new subsection (8) to the statute. This legislative change to the personal representative compensation statute addresses the circumstances of a lawyer who drafts a will, or even supervises the execution of a will, naming himself or herself as personal representative. In general, the 2020 Amendment prohibits the drafting lawyer from being compensated for serving as personal representative. However, there are exceptions. If the drafting lawyer is related to the testator, the prohibition of compensation is not applicable. In addition, a drafting lawyer who is not related to the testator is entitled to compensation for serving as personal representative if the testator executes an acknowledgment stating that the testator has been made aware, before execution of the will, of the following: the right to name persons from a wide range of potential fiduciaries other than the drafting lawyer or a member of his or her firm; that a personal representative is entitled to reasonable compensation; and that a lawyer serving as personal representative is entitled to not only compensation for serving in that fiduciary role, but also that the lawyer may retain his or her own firm (or himself or herself directly) as lawyer for the personal representative and be compensated for that service as well. F.S. 733.617(8)(a)1–(8)(a)3. This written acknowledgment may be executed before or after execution of the will, but must be based on these disclosures having been made before execution of the will. F.S. 733.617(8)(b). The rebuttable statutory prohibition under F.S. 733.617(8) applies not only to the drafting lawyer who is named in the will of an unrelated testator, but also to any member of that lawyer’s firm who is also not related to the testator. The statute defines who is related to the testator for these purposes. See F.S. 733.617(8)(c). The attorney fees statute, F.S. 733.6171, was most recently amended in 2021 to add certain requirements, effective October 1, 2021, for a lawyer representing a personal representative whose legal fees are based on the

statutory schedule of presumed reasonableness. Ch. 2021-145, § 1, Laws of Fla. (“2021 Amendments”). When attorney fees are determined pursuant to F.S. 733.6171(3), the lawyer must now provide certain written disclosures to the personal representative as client, which must be signed by the personal representative acknowledging receipt of the required disclosures. The disclosure requirements, and the penalty for failing to comply, are discussed further in § 15.4.C. The 2021 Amendments have no effect on the compensation of personal representatives.

« Ch. 15 », « § 15.3 » 1 Practice Under Florida Probate Code § 15.3 (2022)

§

15.3. COMPENSATION REPRESENTATIVE

OF

PERSONAL « Ch. 15 », « § 15.3 », • A »

1 Practice Under Florida Probate Code § 15.3.A (2022)

A. Abbreviated Forms Of Administration F.S. Chapter 735 of the Code provides for summary administration and disposition without administration for certain small estates. In these abbreviated forms of administration, no personal representative is appointed and, therefore, no compensation is provided. For a discussion of these forms of administration, see Chapter 18 of this manual. « Ch. 15 », « § 15.3 », « B » 1 Practice Under Florida Probate Code § 15.3.B (2022)

B. Extraordinary Services Extraordinary services are services furnished to an estate that are not usually or ordinarily required in an estate of the size in issue and include those specific tasks that have been delineated in F.S. 733.617(3). This provision authorizes compensation for extraordinary services and provides some specific examples of those services: In addition to the previously described commission, a personal representative shall be allowed further compensation as is reasonable for any extraordinary services including, but not limited to: (a) The sale of real or personal property. (b) The conduct of litigation on behalf of or against the estate. (c) Involvement in proceedings for the adjustment or payment of any taxes. (d) The carrying on of the decedent’s business.

(e) Dealing with protected homestead. (f) Any other special services which may be necessary for the personal representative to perform. Id. F.S. 733.617(3) is virtually identical to F.S. 734.01 (1973). The provision in the earlier statute describing extraordinary services relating to taxes provided for “[t]he adjustment and payment of extensive or complicated estate or inheritance taxes” [emphasis added]. The current statute provides for the “[i]nvolvement in proceedings for the adjustment or payment of any taxes” [emphasis added]. Query: What tax proceedings are compensable as extraordinary services and what tax proceedings are included within the compensation for ordinary services? As previously noted, under prior law, tax proceedings that were extraordinary had to relate to estate or inheritance taxes and those taxes also had to be extensive or complicated. That would lead one to conclude that all tax proceedings except extensive or complicated estate or inheritance tax proceedings were within the ordinary services and included in the ordinary compensation of the personal representative. The current statute defining extraordinary services includes proceedings for the adjustment or payment of any taxes, which might include income taxes, estate or inheritance taxes, or any other kinds of taxes that might be payable from the estate, and there is no current requirement that such proceedings be extensive or complicated. Query: Does the ordinary preparation and filing of a tax return and payment of the tax constitute a “proceeding” under F.S. 733.617(3)? The personal representative is required to prepare and file: (1) the decedent’s final Form 1040 (and for the year before death if not filed by the decedent); (2) the estate’s annual income tax return, Form 1041; (3) an estate tax return if the estate exceeds the filing threshold (the basic exclusion amount then in effect as provided in IRC § 2010(c)), and, under some circumstances, an optional estate tax return to secure the portability of the deceased spouse’s unused exemption (DSUE) for the surviving spouse as provided in IRC § 2010(c)(4); and

(4) any other required returns. The issue becomes whether the preparation and filing of these returns (questions of audit aside) and payment of tax due on those returns, if any, constitute extraordinary services for which a personal representative is compensated in addition to and beyond the standard compensation. Does the failure to include the statutory language “extensive or complicated” suggest that all adjustment and payment of taxes is an extraordinary service? Ignoring, for the moment, the word “adjustment,” does F.S. 733.617 now suggest that all payments of all taxes are extraordinary services not included in the duties compensated by the basic commission? The answer to the question is probably yes if these activities are “proceedings.” Support for this position is provided by F.S. 733.6171(4)(e), which allows the lawyer for the personal representative an extraordinary fee for preparation of the estate tax return. If that service was within the compensation provided to the personal representative for ordinary services, that allowance would be inconsistent. Under F.S. 734.01 (1973), preparation of a simple or uncomplicated estate tax return constituted an ordinary service. Does the deletion of the qualifying adjectives “extensive or complicated” now mean that such a return constitutes an extraordinary service? Again, the answer to the question is probably yes. It is common practice for corporate and individual fiduciaries to charge an additional fee over and above their normal administration percentage fee for preparation of various tax returns or to charge the cost of an outside professional to the estate. They may also charge an additional fee for review of a return prepared by another professional and to compensate for their responsibility incurred in filing the return and any post-filing activity. A logical construction of F.S. 733.617 supports this practice. It suggests that a personal representative is not required, as a part of his or her base commission, to prepare or defend, on audit, the various returns required by law to be filed by the personal representative. If the preparation of various tax returns by a personal representative (e.g., the federal estate tax return) does not constitute an extraordinary service (i.e., the personal representative is compensated within the basic commission), the personal representative is not permitted to have a lawyer or an accountant prepare such returns and charge that professional’s fees to the estate. Rather,

the personal representative would compensate the professional out of the basic commission paid to the personal representative. Similar to the prior examples of the personal representative retaining an expert for investment services, wetland sciences, and structural engineering, the Code does not discourage the fiduciary from seeking professional assistance when the task is beyond the specific capabilities of the actual personal representative, or even a hypothetical “reasonable personal representative.” Query: How are extraordinary services to be compensated? The 1996 Amendment to F.S. 733.617 provided an answer to that question. The same factors to be considered by the court in determining whether to increase or decrease the ordinary compensation are to be considered in determining the amount of any compensation for extraordinary services. In Parker v. Shullman, 906 So. 2d 1236, 1237 (Fla. 4th DCA 2005), in a situation in which a trustee was authorized to “operate any business … [and] participate directly in the management of it” and the fiduciary held all the stock in a company and elected himself as CEO of the company, his compensation for that service was to be decided by reference to principles of corporate law, not principles of fiduciary compensation, and the court having jurisdiction over the trust was not the proper forum to review that compensation. The court noted that the trust beneficiary, as a beneficial shareholder, could bring a shareholder’s derivative action to determine whether the corporate compensation was reasonable. « Ch. 15 », « § 15.3 », « C » 1 Practice Under Florida Probate Code § 15.3.C (2022)

C. Compensation Order Not Required Before the 1993 Amendment, the authority to pay compensation without court order was less specific; nonetheless, no such order was required. Currently, F.S. 733.617(1) expressly provides that a personal representative is entitled to compensation without court order. If compensation is paid without order and is later found to have been paid in an amount greater than is ultimately determined to be reasonable, the excess must be refunded. F.S. 733.6175(3). See § 15.3.J. There is no provision in the Code providing for interest on the excess amount; however, it is the practice of many trial courts to award interest on excess amounts. For example, in The Florida Bar v. Carlon, 820 So. 2d 891 (Fla. 2002), the lawyer was found guilty in a

disciplinary proceeding of charging a clearly excessive fee, and was ordered, as a condition for reinstatement after suspension, to repay that amount, plus interest. In McCormick v. Cox, 118 So. 3d 980 (Fla. 3d DCA 2013), the lawyertrustee of several family trusts was surcharged for mismanagement and breach of the trust and also for excess fees paid to himself and his law firm. A judgment was entered that included disgorgement of excess fees paid. Prejudgment interest was awarded on the entire amount, including the fee disgorgement portion. Under these facts, when the excess fee amount is included as a part of a judgment entered against the fiduciary or lawyer, entitlement to postjudgment interest under F.S. 55.03 is automatic. In addition, if prejudgment interest is awarded, it would also bear interest from the date of the judgment. « Ch. 15 », « § 15.3 », « D » 1 Practice Under Florida Probate Code § 15.3.D (2022)

D. Lawyer As Personal Representative Under the Code, a personal representative who is also a lawyer may receive a fee for legal services in addition to the lawyer’s compensation as personal representative. F.S. 733.617(6). However, as previously discussed, under F.S. 733.617(8), a lawyer serving as a personal representative is not entitled to compensation for serving in that fiduciary role if the lawyer prepared or supervised the execution of a will that nominates the lawyer as personal representative, unless the lawyer is related to the testator, or the lawyer makes the disclosures outlined in F.S. 733.617(8) to the testator before the will is executed, receipt of which the testator acknowledges in writing. This applies not only to the drafting lawyer or lawyer supervising the execution of such a will, but also to any lawyer employed by his or her firm. For an extensive discussion of whether a lawyer may ethically or legally be entitled to receive two fees for such services, see § 15.4.O.1. « Ch. 15 », « § 15.3 », « E » 1 Practice Under Florida Probate Code § 15.3.E (2022)

E. Multiple Personal Representatives

The pre-1976 statute permitted the payment of up to two full percentagebased commissions in the case of multiple personal representatives. The statutory fee schedule set forth in F.S. 734.01(1)(d) (1973) provided: If there be more than one personal representative, each shall be allowed such compensation for his services as the court shall determine to be just and reasonable; provided, however, that the compensation allowed … such multiple personal representatives for ordinary services … shall not [be] … more than the sum of two such commissions. That statute was, however, repealed by the Code when it became effective in 1976. The corresponding part of the post-October 1, 1993, statute (F.S. 733.617) provides: (5) If the probate estate’s compensable value is $100,000 or more, and there are two representatives, each personal representative is entitled to the full commission allowed to a sole personal representative. If there are more than two personal representatives and the probate estate’s compensable value is $100,000 or more, the compensation to which two would be entitled must be apportioned among the personal representatives. The basis for apportionment shall be one full commission allowed to the personal representative who has possession of and primary responsibility for administration of the assets and one full commission among the remaining personal representatives according to the services rendered by each of them respectively. If the probate estate’s compensable value is less than $100,000 and there is more than one personal representative, then one full commission must be apportioned among the personal representatives according to the services rendered by each of them respectively. Thus, two full commissions are currently permitted only if the value of the probate estate exceeds $100,000. F.S. 733.617 has withstood constitutional attack on due process and equal protection grounds. Marvin & Kay Lichtman Foundation v. Estate of Lichtman, 773 So. 2d 1232 (Fla. 3d DCA 2000). The statute also provides a mechanism to allocate the two commissions if

there are more than two personal representatives. In that instance, it might be assumed that the personal representative to receive the one full commission would be the corporate joint personal representative (if there is one); however, that may not be the case. The requirements to receive one full commission are conjunctive: “possession of and primary responsibility for administration of the assets.” F.S. 733.617(5). It could be argued that all joint personal representatives have possession of all estate assets. This is especially true when, under today’s methods of handling security certificates, they are kept in a central repository and none of the fiduciaries has physical possession. Primary responsibility for administration is also an indefinite concept, especially if more than one of the fiduciaries is actively involved in the administration. Finally, if this provision applies only to corporate fiduciaries, it may be unconstitutional as a violation of the equal protection requirements. The practitioner should note that although the language of F.S. 733.617(5) provides that “each personal representative is entitled to the full commission allowed to a sole personal representative” [emphasis added], this may not be the case. See § 15.3.J. « Ch. 15 », « § 15.3 », « F » 1 Practice Under Florida Probate Code § 15.3.F (2022)

F.

Provisions In Compensation

Will

Concerning

Personal

Representative’s

If the will prescribes the compensation, the personal representative may renounce the provision and be entitled to receive reasonable compensation, unless there is a contract with the decedent. F.S. 733.617(4); University of Florida Foundation, Inc. v. Miller, 478 So. 2d 482 (Fla. 1st DCA 1985). If renunciation of the commission provided in the will is intended, prompt notice at the beginning of the estate administration may be required. The renunciation should be filed with the court and copies should be mailed to all interested persons. A limitation in F.S. 733.617(4) prohibits renunciation if the will provides that the personal representative’s compensation must be determined with reference to the personal representative’s regularly published schedule of fees. This provision normally applies to corporate personal representatives.

Renunciation of compensation is discussed further in §§ 15.3.K and 15.4.O.3. « Ch. 15 », « § 15.3 », « G » 1 Practice Under Florida Probate Code § 15.3.G (2022)

G. Contract With Testator The language of F.S. 733.617(4) suggests that there may be a contract between the decedent and the personal representative regarding compensation. A personal representative may elect to enter into a contract with the testator when the commission provided in the statute is not to be charged. This happens most often when the statutory commission is being negotiated downward at the behest of the testator. In University of Florida Foundation, Inc. v. Miller, 478 So. 2d 482 (Fla. 1st DCA 1985), the court refused to allow a joint personal representative, who was also the lawyer who drafted the will (and four previous wills for the decedent), to renounce the compensation provision in the will and seek “statutory” compensation. The court ruled that the language of former F.S. 733.617(2), which is similar to current F.S. 733.617(4), did not require a separate contract outside the will between the testator and the personal representative when the designated fiduciary also drafted a provision in the will fixing compensation in a specified amount. The court concluded: “Under the circumstances before us, we consider that the instruments themselves are evidence of a contractual agreement between the testator and the representative establishing compensation.” Miller, 478 So. 2d at 483. See also Lowy v. Kessler, 522 So. 2d 917 (Fla. 3d DCA 1988). Both the prior version and the current version of the statute refer to contracts with the decedent in the context of determining the commission. It is unlikely that such a contract would be enforceable either against the estate of a decedent if the person was not designated as personal representative in the will, or against the personal representative who declines to serve. The only value in such a contract would be to bind the nominated personal representative who accepts the appointment to receive the amount agreed on in the contract to be paid as a commission. « Ch. 15 », « § 15.3 », « H » 1 Practice Under Florida Probate Code § 15.3.H (2022)

H. Agreements With Beneficiaries After the Florida Supreme Court’s decision in In re Estate of Platt, 586 So. 2d 328 (Fla. 1991), but before the 1993 Amendment to F.S. 733.617, which authorized the percentage-based personal representative’s commission, it was a frequent practice of personal representatives at the outset of administration to seek a fee agreement with the beneficiaries or their consent to the fees. See § 15.4.B. Following the 1993 Amendments, the statute is now clear that the commission provided in F.S. 733.617 is not a “set fee” but merely a presumed reasonable fee, and fee agreements with beneficiaries has become more commonplace. See § 15.3.I. « Ch. 15 », « § 15.3 », « I » 1 Practice Under Florida Probate Code § 15.3.I (2022)

I.

Proceedings For Review Of Employment Of Agents And Compensation Of Personal Representatives And Estate Employees

Before the 1995 Amendment to F.S. 733.617, which specifically added subsection (7) to the statute, and even subsequently (at least until January 1, 2002), there was the mistaken belief widely held among lawyers and fiduciaries, especially corporate fiduciaries, that the compensation provided in the schedule of compensation set forth in F.S. 733.617(2) was mandatory and not subject to question or adjustment. F.S. 733.6175 grants to courts the authority to “review the propriety of the employment of any person employed by the personal representative and the reasonableness of any compensation paid to that person or to the personal representative.” F.S. 733.6175(1). The statute has been a part of the Code since July 1, 1976. The initial version of F.S. 733.617 (1976) provided that no compensation could be paid to the personal representative unless, before payment, a court order or consent of all interested persons was obtained. The trade-off for revocation of that provision in the 1976 legislation was the passage of F.S. 733.6175, allowing objection to the fees by any interested person and providing that the burden of proof of the reasonableness of the compensation is on the personal representative. That procedure (and safeguard of beneficiaries’ rights) has formed part of a logical mosaic of the system of Florida estate administration since July 1, 1976. Although it was substantially amended, effective January 1, 2002, F.S. 733.6175 remains in effect.

Fla. Prob. R. 5.400(b)(4) requires that the petition for discharge indicate “the amount of compensation paid or to be paid to the personal representative … and the manner of determining that compensation” and Rule 5.401 provides the procedure for objection to those fees to implement F.S. 733.6175. See § 15.3.J. The statutory fee schedule for personal representatives under F.S. 733.617 (like the provisions for attorney fees found in F.S. 733.6171) provides only a rebuttable presumption of reasonableness, not an absolute entitlement. This presumption is a rebuttable presumption, however, affecting the burden of producing evidence. F.S. 90.302(1), 90.303. Professor Ehrhardt has described this type of presumption as a “bursting bubble” presumption. See Ehrhardt, FLORIDA EVIDENCE § 302.1 (Thomson/West 2019). After the presumption is raised, the burden shifts to the objector to offer some credible evidence that the fiduciary’s commission is not reasonable, which, if done, allows the trial court to decide the issue (of the reasonableness of the fee) on the greater weight of the evidence without the presumption. Tactically, the proponent of the fee would have initially offered affirmative evidence of the reasonableness of the fee beyond simply raising the presumption because, otherwise, if the “bubble bursts,” the court would be left with no evidence of reasonableness. See § 15.4.M.1. The prudent fiduciary may avoid the possibility of a later objection to statutory commissions through the use of a fee agreement with the consent of all interested persons. « Ch. 15 », « § 15.3 », « J » 1 Practice Under Florida Probate Code § 15.3.J (2022)

J. Procedure, Notice, And Hearing The procedure for objection to commissions reflected in the petition for discharge or the final accounting based on Fla. Prob. R. 5.401 has always been technically awkward at best. In contested matters, the proponent of a position (i.e., the fiduciary) is usually limited in proof to the matters alleged in the complaint or petition. In this instance, however, there is no petition or complaint. Therefore, there is no limitation on the proof that may be offered, and the opponent is not advised by a pleading of the allegations. An objector may attempt to compel the personal representative, after objection to commissions, to file a petition for award of commissions that may be

answered by the objector. In this manner, the issues and their proof may be better defined. For further discussion of attorney fees objection procedures, see § 15.4.M. The petition contemplated by F.S. 733.6171(5) and Rule 5.355 to determine (and presumably increase over the presumed reasonable amount) the personal representative’s compensation is not a per se adversary proceeding, nor is the objection to fees disclosed in the petition for discharge or final accounting. Rule 5.025(a). No answer or response to the petition is required, although it is certainly better practice to file one. If a hearing is held on the issue of compensation, regardless of the underlying procedure, informal notice of the hearing must be given to all interested persons. Rule 5.041. Normally, the interested persons would be only the residuary beneficiary or beneficiaries, but if there are insufficient residuary assets from which to pay the compensation or it is contemplated that a certain amount of compensation should be allocated to assets passing to other beneficiaries, notice should be given to the persons affected as well as the trustee of the decedent’s revocable trust, as interested persons. F.S. 731.201(23), 733.707(3). See Duff-Esformes v. Mukamal, 332 So. 3d 17 (Fla. 3d DCA 2021) (decedent’s wife, as lifetime income beneficiary of trust that was residuary beneficiary of decedent’s estate, was “interested person” with standing to object to petition). Because compensation to the personal representative (and attorney fees) have the highest priority, if the claims of creditors render the estate insolvent, the creditors whose claims might be affected must be given notice. The appellant has the burden to provide the appellate court with a record of the proceedings that demonstrates error. A court reporter should transcribe the hearing if there is reason to believe an appeal might be taken. See Harris v. Estate of Harris, 307 So. 3d 821, 824 (Fla. 3d DCA 2020) (“An order of a probate court setting fees for the attorney for the estate is clothed with the presumption of correctness and will be disturbed on appeal only on a clear showing that it is contrary to the manifest weight of the evidence.”). A mistake frequently made by nonlitigation lawyers is simply to argue the facts rather than present competent, substantial evidence. In Faerber v. D.G., 928 So. 2d 517 (Fla. 2d DCA 2006), a creditor who did not file a claim within three months after the first publication of notice to creditors moved for

an extension of time to file a claim, alleging he was a known creditor and should have received actual notice of the claims period. Counsel for the creditor argued his grounds to show he was a known creditor, but presented no evidence for the record. The trial court ruled on the argument of counsel that the creditor was known and should have received actual notice, and extended the time to file the claim. The appellate court reversed, holding that because there was no evidence in the record, it could not determine whether the trial court’s ruling was correct. The case was remanded to the trial court for an evidentiary hearing. Expert testimony is required to prove reasonable fees for a lawyer. See, e.g., In re Estate of Lieber, 103 So. 2d 192 (Fla. 1958); Schwartz, Gold & Cohen, P.A. v. Streicher, 549 So. 2d 1044 (Fla. 4th DCA 1989); In re Estate of Cordiner, 497 So. 2d 920 (Fla. 2d DCA 1986); Clark v. Squire, Sanders & Dempsey, 495 So. 2d 264 (Fla. 3d DCA 1986). Expert testimony is also required for curators, administrators, and attorneys ad litem, and persons employed by them, including lawyers. Thus, the general rule is that expert testimony must be offered to prove a reasonable fee. However, as discussed below, there are statutory exceptions to the general rule. The court may, however, disregard the testimony of an expert witness, Korman v. Pond Apple Maintenance Ass’n, Inc., 607 So. 2d 489 (Fla. 4th DCA 1992); In re Estate of Harrell, 426 So. 2d 63 (Fla. 5th DCA 1983); In re Estate of Simon, 402 So. 2d 26 (Fla. 3d DCA 1981), or award a fee less than the amount reflected by the testimony of an expert witness, In re Estate of Ryecheck, 323 So. 2d 51 (Fla. 3d DCA 1975). Fla. R. Civ. P. 1.390(a) permits the use of a deposition instead of live testimony at trial if the witness is “a person duly and regularly engaged in the practice of a profession who holds a professional degree from a university or college and has had special professional training and experience, or one possessed of special knowledge or skill about the subject upon which called to testify.” This civil rule applies in nonadversary probate proceedings through Rule 5.080. The 1993 Amendments eliminated the requirement of expert testimony to determine a reasonable fee for the lawyer for the personal representative who furnished legal services relating to the administration of the estate. F.S. 733.6171(5) (1993). Additionally, effective January 1, 2002, the requirement of expert testimony in the process of determination of reasonable fees was

also eliminated for the personal representative or any person employed by the personal representative. F.S. 733.6175(4) now provides: The court may determine reasonable compensation for the personal representative or any person employed by the personal representative without receiving expert testimony. Any party may offer expert testimony after notice to interested persons. If expert testimony is offered, a reasonable expert witness fee shall be awarded by the court and paid from the assets of the estate. The court shall direct from what part of the estate the fee shall be paid. See also Baumann v. Estate of Blum, 898 So. 2d 1106 (Fla. 2d DCA 2005). Further discussion of expert testimony, see § 15.4.F. This same statutory exemption from the requirement of expert testimony on fees also applies to trustees and any person employed by a trustee (including lawyers), and the same option exists to offer the expert testimony; however, if expert testimony is offered, the award of an expert witness fee is permissive, not mandatory, unless the court finds that the expert testimony did not assist the court, in which case the court will not award an expert witness fee. F.S. 736.0206(5). In Brake v. Swan, 767 So. 2d 500 (Fla. 3d DCA 2000), a lawyer for beneficiaries, who was not employed by the personal representative, brought a surcharge action against a personal representative. Fees in the amount of $221,876 were awarded by the trial court under F.S. 733.106 because the beneficiaries’ lawyers benefited the estate by recovering a large surcharge amount for the estate. These fees would have been reversed on appeal because the beneficiaries’ lawyers failed to provide expert testimony regarding reasonableness; however, because the personal representative did not object to that failure at trial, that matter was not preserved for appeal. If there are two personal representatives, the value of the services performed by each representative should be proved unless they have agreed to a division of their fees. But see F.S. 733.617(5). As previously discussed, the percentage commission provided in F.S. 733.617(2) is only a rebuttable presumption and applies to the apparent mandate of the statute, which provides for payment of two full commissions if there are two or more personal representatives. That statute is not imperative, however, and F.S.

733.6175 requires that the second or multiple, as well as the first, personal representative justify their commissions or have them reduced. Notably, subsection (7) of F.S. 733.617, added by the 1995 Amendments, applies only to subsections (2) and (3), while the provision for multiple commissions is found in subsection (5). Nonetheless, it is the consensus among leading practitioners that the payment and charge of multiple commissions is not an absolute entitlement. See §§ 15.3.E and 15.3.I. If the compensation previously paid to the personal representative exceeds the amount of reasonable compensation determined by the court, a refund in the amount of the excess may be ordered. F.S. 733.6175(3); Beck v. Beck, 383 So. 2d 268 (Fla. 3d DCA 1980). In certain instances, a refund of the entire amount may be ordered. In re Estate of Radon, 338 So. 2d 256 (Fla. 4th DCA 1976). See also In re Estate of Baker, 339 So. 2d 240 (Fla. 3d DCA 1976). See § 15.3.C. The issue of reasonableness of fees paid in probate remains open until a final accounting is filed, even if fees have been approved or paid on an interim basis. In fact, the estate cannot be closed if objections to fees have not been ruled on. Gaines v. Dewitt, 41 So. 3d 951 (Fla. 2d DCA 2010). For further discussion of the procedures to determine attorney fees, which also apply to personal representative compensation, see § 15.4.M. « Ch. 15 », « § 15.3 », « K » 1 Practice Under Florida Probate Code § 15.3.K (2022)

K. Renunciation Of Compensation A personal representative may renounce the right to all or any part of the personal representative’s compensation. However, if the will contains a reference to “the personal representative’s regularly published schedule of fees in effect at the decedent’s date of death, or words of similar import,” the personal representative may not renounce such a provision and then be entitled to compensation as provided in the statute (assuming the personal representative publishes such a schedule). F.S. 733.617(4). A significant difference between the prior version and the current version of the statute is the omission of the language “[a] renunciation may be filed with the court.” Currently, under F.S. 733.617(4), there is no formality required for a renunciation to be effective. A personal representative who

does not intend to charge a fee, however, should file the renunciation and serve a copy on interested persons at an early date to avoid the entitlement to the compensation being imputed as taxable income. See Tax Note 6.2, Kelley & Bronner, THE FLORIDA BAR PROBATE SYSTEM (Fla. Bar 5th ed. 2018). Statutory fees or commissions are not included in the gross income of a personal representative when the right to receive fees has been waived within a reasonable time after the personal representative has begun to serve. Rev. Rul. 66-167, 1966-1 C.B. 20. Additionally, the requisite intention to serve on a gratuitous basis will be inferred if a formal waiver is supplied within six months after the personal representative is appointed. Id. A personal representative who intends to waive the fee is urged to review Rev. Rul. 66167 to avoid the possibility that both income and gift tax may be incurred upon failure to collect a reasonable commission. The possible impact of IRC § 2518 should also be considered. Although it purports to deal with disclaimers by persons who otherwise would receive property from a decedent, it could be interpreted to apply to a renunciation of a fee by a personal representative. Because it requires that a disclaimer be in writing and be received by the legal representative not later than nine months after “the day on which the transfer creating the interest in such person is made,” IRC § 2518(b)(2)(A), conservative practice would be to file a written waiver of compensation in the probate proceeding and furnish all interested persons with copies within six months after the personal representative is appointed. See Kelley & Bronner, THE FLORIDA BAR PROBATE SYSTEM, supra., Practice Form 111. « Ch. 15 », « § 15.3 », « L • 1 Practice Under Florida Probate Code § 15.3.L (2022)

L. Compensation And Reimbursement For Offering Will For Probate If Not Successful F.S. 733.106(2) provides for attorney fees and costs to a person nominated as personal representative of a will for offering that will for probate, provided it is in due form and is offered in good faith, even if it is not admitted to probate or probate is revoked. The practitioner should note, however, that fees under this statute is an entitlement of the person offering the will, not of the lawyer. To be reimbursed for the fees paid or incurred, the petitioner must be the person offering the will. The lawyer cannot petition in

his or her own right. However, F.S. 733.106 is silent as to whether a person (or corporate fiduciary) offering the will is personally entitled to compensation. For example, if a corporate fiduciary, nominated in a last known will as personal representative, offers the will for probate and intestate beneficiaries or beneficiaries under a prior will (or both) oppose the admission of the last known will and are ultimately successful, assuming there is no issue of the good faith of the nominated personal representative, the nominated personal representative would be entitled to reasonable compensation for its efforts. The legislature has determined that the public policy of the state, as expressed in F.S. 733.106, is to encourage the offering of a last known will, even if it is not ultimately admitted to probate. Many persons, especially corporate fiduciaries, would be unwilling to expend substantial time and expense in that process if reimbursement or compensation was not available. To implement that strong public policy, the statute should be interpreted to allow the award of reasonable compensation to the proponent of the will. For further discussion of F.S. 733.106 as it relates to attorney fees, see § 15.4.L.

« Ch. 15 », « § 15.4 » 1 Practice Under Florida Probate Code § 15.4 (2022)

§ 15.4. COMPENSATION OF LAWYER « Ch. 15 », « § 15.4 », • A » 1 Practice Under Florida Probate Code § 15.4.A (2022)

A. Small Estates Although personal representatives usually are not involved in estates utilizing the summary administration or disposition without administration procedures authorized by the Code, lawyers often are involved in summary administration procedures. The practical result is that the lawyer serves as a de facto personal representative. The liability of the distributees taking property under the summary administration procedures is considerably increased compared to distributees from a formal administration. The lawyer has the responsibility to advise the distributees of the extent of the liabilities they incur in taking property through the abbreviated procedures. « Ch. 15 », « § 15.4 », « B » 1 Practice Under Florida Probate Code § 15.4.B (2022)

B. Determination Of Reasonable Fee « Ch. 15 », « § 15.4 », « B », • 1 » 1 Practice Under Florida Probate Code § 15.4.B.1 (2022)

1. Reasonable Fee Before October 1, 1993 As previously discussed, before October 1, 1993, the effective date of the 1993 Amendments, determination of a reasonable attorney’s fee (and personal representative’s fee) was governed by F.S. 733.617(1). The former statute set forth nine separate factors to be considered in determining a reasonable fee. These factors for determining the reasonableness of professional fees were drawn almost verbatim from Rule 4-1.5 of the Rules Regulating The Florida Bar and Rule 1.5 of the ABA Model Rules of Professional Conduct. These factors were: (a) The time and labor required. (b) The novelty and difficulty of the questions involved, and the skill

requisite to perform the service properly. (c) The likelihood that the acceptance of the particular employment will preclude other employment by the person. (d) The fee customarily charged in the locality for similar services. (e) The nature and value of the assets of the estate, the amount of income earned by the estate, and the responsibilities and potential liabilities assumed by the person. (f) The results obtained. (g) The time limitations imposed by the circumstances. (h) The nature and length of the professional relationship with the decedent. (i) The experience, reputation, diligence, and ability of the person performing the services. This statute, which was in effect since January 1, 1976, with little change, was dramatically interpreted by the Florida Supreme Court on October 3, 1991, in In re Estate of Platt, 586 So. 2d 328 (Fla. 1991), in which the court construed the statute as follows: Reasonable compensation provided under F.S. 733.617 to a lawyer or to a personal representative, if determined by the court, may not “be computed solely on the basis of a fixed percentage of the amount of the probate estate.” Platt, 586 So. 2d at 331. Reasonable compensation provided under F.S. 733.617 to a lawyer, if determined by the court, must be computed based on the lodestar formula (i.e., reasonable hours multiplied by a reasonable hourly rate) as set forth in Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985). Time expended by a lawyer in the process of determining or collecting a fee from the estate is not compensable. Paralegal work may be charged as a separate factor in the fee calculation.

No multiplier is allowed under the lodestar approach to determine attorney fees in an estate administration context when the risk of nonpayment (meaning the availability of funds from which to make payment) is not present. A lawyer who is also a co-personal representative of the estate may not have his or her fee determined by the court based on a fraction or percentage of the fee awarded to the other co-personal representative. F.S. 733.617(1) (1975) applies, by its terms, to “[p]ersonal representatives, attorneys, accountants, and appraisers and other agents employed by the personal representative,” Platt, 586 So. 2d at 331, and describes nine factors to be considered in determining a reasonable fee. However, “the factors that would apply to each category [of professional] are not the same.” Id. at 336. After Platt (until October 1, 1993), attorney fees, other than agreed fees, were solely time-based and the order determining the fees was required to incorporate findings regarding the number of hours reasonably required in the administration and a reasonable hourly rate. Rowe. The prior, widespread practice of courts awarding a percentage-based fee in probate stopped. For an in-depth discussion of the Platt opinion, see LITIGATION UNDER FLORIDA PROBATE CODE § 11.6 (Fla. Bar 13th ed. 2022). « Ch. 15 », « § 15.4 », « B », « 2 » 1 Practice Under Florida Probate Code § 15.4.B.2 (2022)

2. Reasonable Fee Before July 1, 1995 « Ch. 15 », « § 15.4 », « B », « 2 », • a » 1 Practice Under Florida Probate Code § 15.4.B.2.a (2022)

a. Introduction In response to the Florida Supreme Court’s opinion in In re Estate of Platt, 586 So. 2d 328 (Fla. 1991), the Real Property, Probate and Trust Law (RPPTL) Section of The Florida Bar appointed a special study committee, chaired by the late William S. Belcher (the “Belcher committee”), to study that opinion and its effect on the practice of probate law and to recommend any appropriate legislation. The Belcher committee proposed a new statute intended to provide a

more equitable method of determining attorney fees than either a straight hourly fee or a straight percentage fee. One goal was to include a clear and easy procedure by which the fee initially determined by the statute could be tested and adjusted. The committee used the version of F.S. 440.34 (governing attorney fees in workers’ compensation cases) then in effect as a template because it provided both a percentage fee approach and a methodology to test and then adjust the initial fee. F.S. 733.6171(4) provided that “the court may increase or decrease the ordinary compensation of the attorney or award compensation for extraordinary services if the facts and circumstances of the particular administration warrant.” In determining reasonable compensation, the court was required to consider a list of factors provided in the statute “giving such weight to each as it may determine to be appropriate.” Id. An important case that explains how the adjustment to an initial statutory determination is accomplished is What an Idea, Inc. v. Sitko, 505 So. 2d 497 (Fla. 1st DCA 1987), a workers’ compensation case. For further discussion of this case, see § 15.4.M.3.b. The underlying philosophy that guided the Belcher committee in drafting what later became F.S. 733.6171 is found in two Florida Supreme Court cases. In Florida Silica Sand Co. v. Parker, 118 So. 2d 2, 4 (Fla. 1960), the court held: In principle, especially in this type of matter[,] fees should be carefully considered so that on the one hand they will not be so low as to lack attraction for capable and experienced lawyers to represent workmen’s compensation claimants. On the other hand, they should not be so high as to reflect adversely on the profession or in actuality to enter disproportionately into the cost of maintaining the workmen’s compensation program. In Lee Engineering & Construction Co. v. Fellows, 209 So. 2d 454, 457 (Fla. 1968), the court observed, “it is obvious that fees should not be so low that capable attorneys will not be attracted, nor so high as to impair the compensation program.” « Ch. 15 », « § 15.4 », « B », « 2 », « b • 1 Practice Under Florida Probate Code § 15.4.B.2.b (2022)

b. Reasonable Fee Under F.S. 733.6171 AUTHOR’S NOTE: This section of the chapter applies only to the determination of a fees in estates of decedents dying between October 1, 1993, and June 30, 1995. Some of the discussion in this section is no longer applicable. See § 15.4.B.3. The 1993 Amendments created F.S. 733.6171, titled “Compensation of attorney for the personal representative,” providing in part: (3) Ordinary compensation consisting of the sum of the following two parts is presumed to be reasonable compensation for attorneys in estate administration: (a) The first part compensates the attorney’s responsibility and is an amount equal to 2[%] of the inventory value of the estate assets and the income earned by the estate during the administration and, if the estate is required to file an estate tax return, an additional 1 [%] on the balance of the gross estate as finally determined for federal estate tax purposes. (b) The second part compensates the professional time expended and is an amount equal to the product of the number of hours reasonably expended, and a reasonable hourly rate for the attorney and for persons with special education, training, or experience, who are employed by and work under the supervision of the attorney and have furnished services in the estate administration. Subsection (3) of the statute begins with a rebuttable presumption (see § 15.3.I) that a bifurcated fee (as defined in that subsection) for probate administration constitutes a reasonable fee. The first part of the bifurcated fee compensates for responsibility and liability of the lawyer and is percentagebased. The second part compensates for effort and is time-based. The first part of the base, set out in F.S. 733.6171(3)(a), is “the inventory value of the estate assets and the income earned by the estate during the administration.” This is relatively straightforward and easily determinable. But a number of “estate” assets do not have an impact on this base, such as protected homestead, assets in a revocable living trust, joint and survivorship assets, property held in a tenancy by the entireties, Totten trust assets,

insurance, pension proceeds, and other beneficiary-designated assets with a named beneficiary other than the estate, as well as the income from all these assets. The base for this calculation is the “inventory value,” not the estate tax value. The second part of the base, set out in F.S. 733.6171(3)(b), is relevant only if the gross estate for federal estate tax purposes is more than the basic exclusion amount (currently $11.7 million) (assuming no adjusted taxable gifts had been made before death). This second part is widely misinterpreted. For example, if the decedent, a U.S. citizen, has $200,000 in assets subject to probate and $10 million of entireties property, the estate is not required to file an estate tax return because the gross estate does not exceed $11.7 million (the entireties property is counted at only 50% of its value for tax purposes). (Note that the estate tax return is required to be filed to elect portability of the deceased spouse’s unused estate tax exemption. That is beyond the scope of this chapter.) However, if the estate is required to file an estate tax return, the second part of the “base” is relevant. That is “the balance of the gross estate” beyond “the inventory value of the estate assets.” The practitioner should note that this second base does not include income earned on the balance of the assets. The responsibility fee component of the first part sets the applicable percentages at 2% of “the inventory value of the estate assets and the income earned by the estate during the administration” and 1% on “the balance of the gross estate” if the estate is “required to file an estate tax return.” Some lawyers incorrectly read the statute to provide for a 3% responsibility fee on the entire estate if an estate tax return is required to be filed. The “extra” 1% on “the balance of the gross estate” does not require preparation or review responsibility for the estate tax return. The professional time component of the second part of the bifurcated fee is added to the responsibility fee component of the first part to determine a fee presumed to be reasonable. The lawyer’s hourly rate is reduced by that part of the hourly rate intended to compensate the lawyer for responsibility, because responsibility is compensated for by the percentage set forth in the statute. To the extent services of a paralegal are included in the calculation, the

lawyer has the burden to prove the “special education, training, or experience” of the paralegal. F.S. 733.6171(3)(b). Furthermore, the rate to be charged for a paralegal’s time is not the lawyer’s rate, nor can a “blended” rate be charged. No multiplier is applicable. Platt. See LITIGATION UNDER FLORIDA PROBATE CODE § 11.6 (Fla. Bar 13th ed. 2022). The “reasonable hourly rate” referred to in F.S. 733.6171(3)(b) is a rate lower than the lawyer’s hourly rate charged in other matters. This is because the “reasonable hourly rate” referred to in the statute excludes compensation for responsibility from what would otherwise be a reasonable hourly rate for delivery of legal services. As previously explained, compensation for responsibility, which is a component of the lawyer’s usual hourly rate, is compensated separately under F.S. 733.6171(3)(a) by awarding a percentage of the value of the estate. To leave compensation for that factor in the hourly rate would be to award double compensation for responsibility. Once that adjustment is made, factors that normally would be considered by the court to determine a reasonable hourly rate are relevant to this determination. For example, if a lawyer’s practice is organized to include trained paralegals in the process of estate administration and includes systems designed to reduce the time required to be charged to the file or increase the quality of the representation, the reasonable hourly rate of the lawyer should be increased. In contrast, if a lawyer has not chosen to use such persons to furnish services at less than lawyer rates or to implement systems to improve “efficiency,” the hourly rate of the lawyer should be less. In any event, the total dollar amount charged should be the same in either instance because the same task is accomplished. Another factor that affects the reasonable hourly rate is the expertise and skill of the lawyer. Although years in practice has some influence on a reasonable hourly rate, probate-specific experience is the relevant issue. An efficient lawyer is permitted a greater hourly rate, regardless of the number of years the lawyer has practiced law. Five years’ experience of lawyer who is Florida Bar Board Certified in Wills, Trusts and Estates may produce greater efficiency in estate administration than 40 years’ experience as a general practitioner or trial lawyer.

Reasonable hourly rates allowed by the court in determining the basic lodestar is applied with substantial flexibility. For example, it may be appropriate to fix a rate for one lawyer who is particularly efficient, thorough, and skillful at twice the rate of another lawyer who is not knowledgeable, efficient, or skillful in the estate administration. It is axiomatic that no more hours than were actually expended can be compensated. An argument may be made, for example, that the estate’s lawyer was so skillful that a task was accomplished in 10 hours that would have taken a general practitioner 20 hours to accomplish, and that, because the statute allows compensation for “the number of hours reasonably expended,” the lawyer should be compensated for a total of 20 hours, not the 10 actually expended. However, it is against public policy to compensate a lawyer on an hourly basis for more hours than are actually expended. City of Orlando v. Kensington, Ltd., 580 So. 2d 830 (Fla. 5th DCA 1991). This is one reason that the determination of the reasonable rate must be applied with substantial flexibility. It is equally clear that the highly-efficient lawyer should be compensated more generously than the generalist or the inefficient lawyer, but that compensation must come from a higher rate or a percentagebased fee, not from credit for nonexistent hours. The bifurcated fee determination process under F.S. 733.6171 proved to be very unpopular with those persons paying it and those courts awarding it. One reason was that the applicable percentages were set too high (at a level twice that recommended by the Belcher committee) and, in practice, it tended to substantially increase probate legal fees over the levels that were generally charged before the Florida Supreme Court’s decision in In re Estate of Platt, 586 So. 2d 328 (Fla. 1991). This was never the intention of the sponsors of the 1993 Amendments. The RPPTL Section therefore initiated legislation to eliminate the bifurcated fee and substitute a scaled percentage fee that was nearly identical to, but somewhat lower than, the fee provided in the personal representative compensation statute, F.S. 733.617 (1993). That latter statute has not been met with the opposition directed toward F.S. 733.6171(3) (1993). « Ch. 15 », « § 15.4 », « B », « 3 • 1 Practice Under Florida Probate Code § 15.4.B.3 (2022)

3. Reasonable Fee After June 30, 1995

The 1995 Amendments substantially amended the probate lawyer’s fee statute, F.S. 733.6171, and although the structure previously discussed was left intact, there were significant changes. With the 1995 Amendments to F.S. 733.6171, the “billable hour” in probate is only a historical vestige. As previously discussed, the bifurcated fee, which added an hourly component to a percentage, proved to be unacceptable and unworkable. The 1995 Amendments deleted the hourly component from the statute. The post-1995 statute does not include the word “time” or “hour.” This removal indicates that, except perhaps as one component to measure effort, time and hours are no longer factors to be considered when determining reasonable fee. The 1995 Amendments retained the “presumed reasonable” structure as the mechanism for testing the reasonable fee; only the methodology for determining the amount of the reasonable fee for ordinary services was changed by replacing the bifurcated formula with the scaled percentage formula. Historical precedent for the statute is found in In re Estate of Lieber, 103 So. 2d 192 (Fla. 1958), in which the Florida Supreme Court, speaking through Mr. Justice O’Connell, stated: It seems logical that in allowing an award of attorneys’ fees the court could well award a sum for ordinary legal services, which sum should be calculated on the value of the estate involved, and, where proper, award an additional sum of necessary extraordinary legal services based essentially on the value of the specific extraordinary legal services rendered. This method would surely relieve the attorneys and the court from the burdensome problem of keeping, proving and determining the value of each of the many items of legal work which are reasonably and usually required to be performed in an estate, leaving the attorneys the much simpler problem of proving and the court the much easier problem of determining whether any services were actually extraordinary in such a case and if so the reasonable value thereof to the estate, and the customary charge for such services in the community. We do not say that the County Judge must follow the above procedure, but rather only that such a procedure would be acceptable and proper.

Id. at 201. A summary of the changes as a result of the 1995 Amendments to F.S. 733.6171 is as follows: The bifurcated fee for ordinary legal services that provided for a fixed percentage, plus an hourly charge, was eliminated in favor of a sliding scale percentage with no hourly component. Extraordinary legal services were to be compensated beyond the percentage, and those services were specifically defined. Allowance of attorney fees for the proceeding to determine attorney fees was allowed, but was not permitted if the requested fee amount is determined to be substantially unreasonable. See § 15.4.M.5. Certain specific disclosures and acknowledgments had to be made if the final accounting did not disclose the amount and manner of determining compensation. (The statute was confusing because it is not the final accounting but rather the petition for discharge that must disclose matters involving the fees. This was addressed in a subsequent change to Fla. Prob. R. 5.180 and 5.400.) See § 15.4.I. The practitioner should note that another significant change made by 1995 Amendments was the adoption of F.S. 737.2041 (now renumbered as F.S. 736.1007), which created a parallel reasonable attorney fees statute for the lawyer for a trustee of a revocable trust for the initial administration of the trust. Also, the predecessor to F.S. 736.0206 was amended to permit disputes regarding trust compensation (of the lawyer, the trustee, or other employees or agents) to be determined in the parallel probate proceeding. Further discussion of these trust-related topics is beyond the scope of this chapter. « Ch. 15 », « § 15.4 », « C » 1 Practice Under Florida Probate Code § 15.4.C (2022)

C. Disclosure Requirement When Fees Are Based On Presumed Reasonable Statutory Schedule When fees are determined pursuant to F.S. 733.6171(3), effective October 1, 2021, certain disclosures must be made. If the lawyer for the personal representative charges a fee based on the statutorily presumed reasonable compensation schedule, the lawyer must provide certain

disclosures with regard to his or her fee. F.S. 733.6171(2)(b). Although compensation of the lawyer for the personal representative may be provided without court order, when the lawyer intends to charge a fee based on the statutory schedule, the lawyer must timely provide the personal representative written disclosure setting out the following: 1. There is no mandatory statutory attorney fee in estate administration 2. The attorney fee is not required to be based on the value of the estate being administered, and the “statutory fee” under F.S. 733.6171(3) may not be appropriate in all estate administrations; 3. The fee may be negotiated between the personal representative and the lawyer; 4. The personal representative may select his or her own lawyer, regardless of who may have drafted the decedent’s will; 5. The personal representative is entitled to a summary of ordinary and extraordinary services, including the time involved in administering the estate or a detailed summary of the lawyer’s efforts in administering the estate. Id. The lawyer must obtain the personal representative’s timely signature acknowledging these written disclosures. F.S. 733.6171(2)(c). F.S. 733.6171(2)(d) provides for a penalty provision for a lawyer who charges a fee based on the statutorily presumed reasonable compensation schedule under F.S. 733.6171(3), but fails to provide the required disclosures. In that instance, the lawyer may not be paid for legal services without court order, or written consent of all interested parties. The 2021 Amendments maintain the ability of the court to increase or decrease compensation for ordinary legal services or toward extraordinary services if the circumstances warrant. F.S. 733.6171(5). See § 15.4.D. In determining reasonable compensation, one of the factors that the court must consider is “[a]ny agreement relating to the attorney’s compensation and whether written disclosures were made to the personal representative in a timely manner under the circumstances pursuant to [F.S. 733.6171(2)].” See § 15.4.D.i.

The practitioner should note that the 2021 Amendments also contain a parallel fee provision for the lawyer representing a trustee in the initial administration of a decedent’s revocable trust. See F.S. 736.1007(1)(b). However, a discussion of the compensation of a lawyer for a trustee is beyond the scope of this chapter. « Ch. 15 », « § 15.4 », « D » 1 Practice Under Florida Probate Code § 15.4.D (2022)

D. “Adjustable” Reasonable Fee Under F.S. 733.6171 « Ch. 15 », « § 15.4 », « D », • 1 » 1 Practice Under Florida Probate Code § 15.4.D.1 (2022)

1. In General One of the substantial strengths of F.S. 733.6171 is its definition of a “presumed reasonable” fee and the inclusion of a mechanism to adjust the fee either upward or downward so that it is appropriate for the particular estate involved. Some lawyers have misread the statute to provide a “required” fee and have even incorrectly advised their clients that such a fee is “required by the statute.” Stating such a position is not only incorrect, but probably unethical. The statute does not require or even set a fee. As previously discusses, it merely defines a presumed reasonable fee and establishes a mechanism to test and adjust that fee. Specifically, F.S. 733.6171 currently provides, in relevant part: (5) Upon petition of any interested person, the court may increase or decrease the compensation for ordinary services of the attorney or award compensation for extraordinary services if the facts and circumstances of the particular administration warrant. In determining reasonable compensation, the court shall consider all of the following factors, giving weight to each as it determines to be appropriate: (a) The promptness, efficiency, and skill with which the administration was handled by the attorney. (b) The responsibilities assumed by and the potential liabilities of the attorney. (c) The nature and value of the assets that are affected by the decedent’s death.

(d) The benefits or detriments resulting to the estate or interested persons from the attorney’s services. (e) The complexity or simplicity of the administration and the novelty of issues presented. (f) The attorney’s participation in tax planning for the estate and the estate’s beneficiaries and tax return preparation, review, or approval. (g) The nature of the probate, nonprobate, and exempt assets, the expenses of administration, the liabilities of the decedent, and the compensation paid to other professionals and fiduciaries. (h) Any delay in payment of the compensation after the services were furnished. (i) Any agreement relating to the attorney’s compensation and whether written disclosures were made to the personal representative in a timely manner under the circumstances pursuant to subsection (2). (j) Any other relevant factors. In determining reasonable compensation, the court must consider all of these factors. The factors are ranked in order of importance. The factors currently outlined in F.S. 733.6171(5) are specific to the administration of an estate and differ substantially from the factors applicable to lawyers generally under the pre-1993 versions of the statute. The current statutory factors are discussed in turn below. « Ch. 15 », « § 15.4 », « D », « 2 • 1 Practice Under Florida Probate Code § 15.4.D.2 (2022)

2. Factors To Be Considered Under F.S. 733.6171(5) « Ch. 15 », « § 15.4 », « D », « 2 •, • a » 1 Practice Under Florida Probate Code § 15.4.D.2.a (2022)

a. Promptness, Efficiency, And Skill With Which Administration Was Handled In determining reasonable compensation under F.S. 733.6171(5), the first

factor that the court must consider is the “promptness, efficiency, and skill with which the administration was handled by the attorney.” F.S. 733.6171(5) (a). As previously stated, the factors under F.S. 733.6171(5) are ranked in order of importance. As the first factor, the lawyer is well advised to pay close attention to this factor. Indeed, in addition to this statutory factor, the lawyer as an ethical duty to provide “reasonable diligence and promptness in representing a client.” Rule Reg. Fla. Bar 4-1.3, Thus, it is likely that lawyers who do not diligently administer and close an estate promptly will be penalized by having their fee reduced. For example, the court may simply go directly to the bottom line and reduce the fee requested by a percentage or a dollar amount if the lawyer has unnecessarily and substantially delayed the estate closing. In each instance, the lawyer, the beneficiary, and the court should not lose sight of the potential for increase or decrease. If the lawyer is particularly prompt in administration, this may serve as a basis to increase a fee in comparison to another lawyer who takes a longer time to effect the closing of an estate. The same potential for adjustment of the fee either upward or downward relates equally to efficiency and skill. Efficiency and skill are key considerations. It has been said that charging for probate administration advice based on time, alone, rewards the inefficient and unskilled lawyer. The statute contemplates a norm: Those lawyers with superior efficiency or skill will receive larger fees, whereas those demonstrating less than average efficiency or skill is subject to having their fees reduced. Under the prior statute, reputation was an important consideration. The prior statute read, “(i) [t]he experience, reputation, diligence, and ability of the person performing the services.” The prior statute assumed that a senior lawyer with a substantial reputation (albeit in trial or corporate work) was entitled to enhancement of the fee awarded in probate as compared to a less senior lawyer. However, the statute no longer contains the word “reputation.” The level of efficiency and skill actually applied to the probate administration by a lawyer who is Florida Bar Board Certified in Wills, Trusts and Estates and has practiced law, but has only practiced law for five years, is likely greater than a general practitioner or trial attorney with 40 years’ experience.

« Ch. 15 », « § 15.4 », « D », « 2 •, « b » 1 Practice Under Florida Probate Code § 15.4.D.2.b (2022)

b. Responsibilities Assumed By And Potential Liabilities Of Lawyer Under F.S. 733.6171(5)(b), the second factor that the court must consider when determining reasonable compensation is the “responsibilities assumed by and the potential liabilities of the attorney.” Although the first factor under F.S. 733.6171(5)(a) is of most concern to the client, the second factor under F.S. 733.6171(5)(b) is of most concern to the lawyer. It is the second factor that is most equitably compensated by a percentage of the value of the assets being administered. There are certain matters that may subject the lawyer to an increased of liability, such as: (1) certain tax elections; (2)

an aggressive valuation for a closely held business, which, if disallowed, might give rise to imposition of an undervaluation penalty by the Internal Revenue Service (IRS); or

(3) the consequences of missing the filing deadline for the federal estate tax return, thereby incurring penalties and interest and losing opportunities such as the ability to elect the alternate valuation for assets or secure a deceased spouse’s unused exemption (DSUE) through portability to the surviving spouse’s estate. The lawyer may file a petition with the court under F.S. 733.6171, asking the court to determine a fee greater than the statutory presumption. See § 15.4.M. This factor, under the proper circumstances, may help in that endeavor. « Ch. 15 », « § 15.4 », « D », « 2 •, « c » 1 Practice Under Florida Probate Code § 15.4.D.2.c (2022)

c. Nature And Value Of Assets Affected By Decedent’s Death In determining reasonable compensation under F.S. 733.6171(5), the third factor that the court must consider is the “nature and value of the assets that are affected by the decedent’s death.” F.S. 733.6171(5)(c). The language contained in the former statute read, “[t]he nature and value of the assets of the estate” [emphasis added]. The Belcher committee (see § 15.4.B)

contemplated that the lawyer for the personal representative could suggest a course that might affect assets beyond those of the estate itself and recommended the language, “assets … affected by the decedent’s death.” Unusual simplicity in estate assets may form the basis for a reduction in the fee, just as unusual complexity in estate assets may form the basis for an increase in the fee. « Ch. 15 », « § 15.4 », « D », « 2 •, « d » 1 Practice Under Florida Probate Code § 15.4.D.2.d (2022)

d. Benefits Or Detriments Resulting To Estate Or Interested Persons From Lawyer’s Services The fourth factor that the court must consider in determining reasonable compensation under F.S. 733.6171(5) is the “benefits or detriments resulting to the estate or interested persons from the attorney’s services.” F.S. 733.6171(5)(d). There are many instances in which the lawyer’s efforts will have benefited the estate. The opposite is true for advised action (or inaction) to the detriment of the estate, or when the lawyer overlooks something that would benefit the estate. The presence of this factor, as with most others, may provide for an increase or a decrease in the fee. In Tillman v. Smith, 560 So. 2d 344, 345 (Fla. 5th DCA 1990), the lawyer who represented an electing spouse gave the estate’s accountant “unsolicited but admittedly valuable tax advice” regarding a tax matter that resulted in a savings to the estate of $70,000. In reversing the lower court’s determination that $20,000 was a reasonable fee, the appellate court determined that “the total time involved was 15 to 20 minutes” and awarded a fee at the rate of $375 per hour, or $125 for the one third of an hour actually expended. The court reasoned that in the lawyer’s representation of the electing spouse, the manner of determining the fees had been determined (for other matters) and not appealed. This “manner” (hourly) of determining fees became the “law of the case.” This case was decided under the pre-1993 version of the statute when lodestar (i.e., time spent multiplied by a reasonable rate) was the primary consideration. Under such circumstances, it would be difficult to increase the hourly rate sufficiently to produce a fair fee. The lawyer’s advice in Tillman probably did

not expose him to any liability. Also, unless the court awarded a fee of $60,000 per hour (times one third of an hour), the reasonable fee amount determined by the trial court, $20,000, could not be attained. That is why this factor, like the factor set out in subsection (5)(h) (see § 15.4.D.2.h), should affect only the bottom line. (To be fair, however, because the lawyer in Tillman did not represent the personal representative, F.S. 733.6171 would not be applicable anyway.) « Ch. 15 », « § 15.4 », « D », « 2 •, « e » 1 Practice Under Florida Probate Code § 15.4.D.2.e (2022)

e. Complexity Or Simplicity Of Administration And Novelty Of Issues Presented In determining reasonable compensation under F.S. 733.6171(5), the fifth factor that the court must consider is the “complexity or simplicity of the administration and the novelty of issues presented.” F.S. 733.6171(5)(e). There are many novel or complex issues that may appear in estate administration. For example, if a testator makes a general devise of $100,000 to a friend and the residuary devise to a child, the only assets of the estate are $100,000 in cash and a $500,000 homestead, and the estate has creditors’ claims of $200,000 and administration expenses of $15,000, will the general devise abate to pay creditors’ claims and administrative expenses while the residuary devise is fully funded with the protected homestead? This novel issue was presented in McKean v. Warburton, 919 So. 2d 341 (Fla. 2006), in which the Florida Supreme Court held that homestead property of the decedent, who was not survived by a spouse or minor children, passed to the residuary beneficiaries, not the specific beneficiary. What if the residuary was devised one half to a child and the other half to the former spouse? Is the homestead partitioned into exempt and nonexempt halves, and the nonexempt share sold to fund the creditors’ claims and administration expenses while the general devise remains intact? What if the child dies in a common disaster with the former spouse and it is impossible to determine the order of survival? What if the nondevisable homestead is “upside down” and the spouse disclaims the life interest, and then the remainder beneficiaries disclaim the remainder? Often there are novel or complex issues, and finding a solution is difficult, just as there are estates that fully lack complexity. The presence of

complex issues, and their proper handling, may provide for an increase in the presumed reasonable fee, and their absence may provide for a decrease in the fee. « Ch. 15 », « § 15.4 », « D », « 2 •, « f » 1 Practice Under Florida Probate Code § 15.4.D.2.f (2022)

f. Lawyer’s Participation In Tax Planning For Estate And Estate’s Beneficiaries, And Tax Return Preparation, Review, Or Approval The sixth factor that the court must consider in determining reasonable compensation under F.S. 733.6171(5) is the “attorney’s participation in tax planning for the estate and the estate’s beneficiaries and tax return preparation, review, or approval.” F.S. 733.6171(5)(f). Normal duties of a lawyer contemplate that the lawyer will either perform, contribute to, or participate in, the postmortem tax planning for the estate and will thereby assume responsibility for that undertaking and provide these services. Tax planning might include issues such as: Should the distributable net income (DNI) be distributed to the beneficiaries (or partially distributed and partially retained) during the period of administration to minimize overall income tax rates or utilize excess deductions trapped in the estate? What impact will other distributions generally have on taxation and particularly on the tax returns of the beneficiaries? Should administrative expense deductions be taken on the estate tax return or on the estate’s income tax return? Should the income from the decedent’s revocable living trust be combined and reported with the income from the probate estate pursuant to IRC § 645? When the controlling document permits, should consideration be given to charging administration expenses against the income account? See Commissioner v. Estate of Hubert, 520 U.S. 93, 117 S. Ct. 1124, 137 L. Ed. 2d 235 (1997).

Will there be excess deductions and, if so, how should they be handled? Should municipal bonds be distributed or sold early in the administration to reduce the allocation (loss) of deductible administrative expense to tax-free income? If all beneficiaries are charitable and income-tax-exempt, how does this affect distribution decisions? If only some of the beneficiaries are tax exempt, does the result change? The presumed reasonable fee is subject to reduction if the lawyer is not competent by training or experience to perform or participate in this planning, or agrees with the client that the lawyer is to have no responsibility in this area. Ordinary legal duties contemplated during estate administration do not require the lawyer to prepare or review tax returns prepared after the death of the decedent. However, as a part of extraordinary services, the lawyer may (or may not) prepare or review various of the estate’s tax returns, such as the Form 706 federal estate tax return, the decedent’s final Form 1040 income tax return, and the estate’s Form 1041 income tax return. The lawyer’s responsibility or liability is not greater, and is no less, if the lawyer prepares or “merely” reviews the return. « Ch. 15 », « § 15.4 », « D », « 2 •, « g » 1 Practice Under Florida Probate Code § 15.4.D.2.g (2022)

g. Nature Of Probate, Nonprobate, And Exempt Assets; Expenses Of Administration, Liabilities Of Decedent, And Compensation Paid To Other Professionals And Fiduciaries The seventh factor that the court must consider in determining reasonable compensation under F.S. 733.6171(5) is the “nature of the probate, nonprobate, and exempt assets, the expenses of administration, the liabilities of the decedent, and the compensation paid to other professionals and fiduciaries.” F.S. 733.6171(5)(g). The nature of the decedent’s assets and liabilities have an impact both on the lawyer’s responsibility and on the amount of professional effort (and expertise) required to administer the estate. An obvious example is when the decedent, at the time of death, is involved in complex litigation, which

litigation is then carried forward or supervised by the estate lawyer after the decedent’s death. A going business is an example of a probate asset that would affect the amount of the fee. Assets not subject to probate may also be relevant. For example, when a decedent created a large private foundation, naming himself or herself as trustee, and that foundation is the beneficiary of the will or of a revocable living trust, considerable attention and action by the lawyer will be required. There are many other examples of nonprobate assets that may have an impact on the lawyer’s fee. The second part of F.S. 733.6171(5)(g) refers to “compensation paid to other professionals and fiduciaries.” This language suggests that the lawyer’s compensation may be adjusted if, for example, the tax planning for the estate is performed by a CPA or another lawyer or other tax professional. Also, as previously discussed, if the lawyer serves as a joint (or the sole) personal representative, and collects a full fee for that service, the lawyer’s fee may be adjusted. F.S. 733.6171(5)(g) for attorney fees is identical to F.S. 733.617(7) (g) for personal representatives and, in that context, may apply to an individual personal representative who retains and pays an investment advisor. F.S. 733.612(19). See § 15.2.E. For further discussion of fees when a lawyer also serves as personal representative, see § 15.4.O.2. « Ch. 15 », « § 15.4 », « D », « 2 •, « h » 1 Practice Under Florida Probate Code § 15.4.D.2.h (2022)

h. Any Delay In Payment Of Compensation After Services Were Furnished The eighth factor that the court must consider in determining reasonable compensation under F.S. 733.6171(5) is whether there was “[a]ny delay in payment of the compensation after the services were furnished.” F.S. 733.6171(5)(h). The general rule is that in probate matters, a lawyer’s fee, even after determined by the court, does not bear interest like a judgment. Thus, even when there is an order determining an award of attorney fees, no interest is generally payable if payment of the fee is delayed. In re Estate of Lunga, 360 So. 2d 109 (Fla. 3d DCA 1978). But see Shuck v. Smalls, 101 So. 3d 924 (Fla. 4th DCA 2012) (prejudgment interest was allowed on attorney fees incurred at trial under F.S. 57.105 and 733.106). Thus, the lawyer may be at a disadvantage if payment of his or her fee is delayed.

For example, consider the following scenario: The estate of the decedent is only partially liquid and the liquid assets are used to pay taxes and make distributions to family members. The remaining asset of the estate is comprised of a family business or vacant real property that significantly appreciates over the period of administration. By keeping the asset intact, the family is substantially benefited, but at the expense of the lawyer who must wait for payment of fees and whose patience has financed the beneficiaries’ gain. Under other circumstances, simply by maintaining the estate investments, the estate will earn interest, dividends, or appreciation that it would not have earned if it had paid the lawyer as the services were rendered. F.S. 733.6171(5)(h) would allow the court to increase the fee to compensate for the delay in payment. Conversely, if the lawyer is paid all or a significant part of the fee shortly after the personal representative is qualified, this might serve as a factor to reduce the total fee otherwise payable. « Ch. 15 », « § 15.4 », « D », « 2 •, « i » 1 Practice Under Florida Probate Code § 15.4.D.2.i (2022)

i. Any Agreement Relating To Lawyer’s Compensation And Whether Required Disclosures Were Made To Personal Representative In Timely Manner Aa previously noted, the 2021 Amendments created a new factor that the court must consider in adjusting the statutory fee under F.S. 733.6171(5), which is whether there exists “[a]ny agreement relating to the attorney’s compensation and whether written disclosures were made to the personal representative in a timely manner under the circumstances.” If the court determines that a different fee agreement exists, or that the lawyer failed to timely provide written disclosures of the statutory fee to the personal representative, the court may reduce the legal fees of the lawyer for the personal representative if a statutory fee is sought. « Ch. 15 », « § 15.4 », « D », « 2 •, « j • 1 Practice Under Florida Probate Code § 15.4.D.2.j (2022)

j. Any Other Relevant Factors The final factor that the court must consider in determining reasonable compensation under F.S. 733.6171(5) is a catch-all provision. F.S. 733.6171(5)(i) provides for “[a]ny other relevant factors” to be considered

when making adjustments to the presumed reasonable fee. The Belcher committee (see § 15.4.B) considered the possibility that there might be other significant factors in a particular estate that would affect the fee by reduction or enhancement that could not be anticipated. This catchall provision was included to make clear that the factors listed F.S. 733.6171(5)(a)–(5)(i) are not exclusive. « Ch. 15 », « § 15.4 », « E » 1 Practice Under Florida Probate Code § 15.4.E (2022)

E. Extraordinary Services When a scaled percentage was used to define the presumed reasonable fee for ordinary legal services, it was necessary to define with more particularity exactly what was an “extraordinary” legal service. See § 15.4.E. F.S. 733.6171(4) currently provides that what constitutes “extraordinary” services “may vary depending on many factors, including the size and complexity of the estate.” F.S. 733.6171(4). The statute provides that “extraordinary” services include, but are not limited to, the following: (a) Involvement in a will contest, will construction, a proceeding for determination of beneficiaries, a contested claim, elective share proceeding, apportionment of estate taxes, or any adversarial proceeding or litigation by or against the estate. (b) Representation of the personal representative in audit or any proceeding for adjustment, determination, or collection of any taxes. (c) Tax advice on postmortem tax planning, including, but not limited to, disclaimer, renunciation of fiduciary commission, alternate valuation date, allocation of administrative expenses between tax returns, the QTIP or reverse QTIP election, allocation of GST exemption, qualification for Internal Revenue Code [§§ ] 6166 and 303 privileges, deduction of last illness expenses, fiscal year planning, distribution planning, asset basis considerations, handling income or deductions in respect of a decedent, valuation discounts, special use and other valuation, handling employee benefit or retirement proceeds, prompt assessment request, or request for release of personal liability for payment of tax. (d) Review of estate tax return and preparation or review of other tax

returns required to be filed by the personal representative. (e) Preparation of the estate’s federal estate tax return. If this return is prepared by the attorney, a fee of one-half of 1[%] up to a value of $10 million and one-fourth of 1[%] on the value in excess of $10 million of the gross estate as finally determined for federal estate tax purposes, is presumed to be reasonable compensation for the attorney for this service. These fees shall include services for routine audit of the return, not beyond the examining agent level, if required. (f) Purchase, sale, lease, or encumbrance of real property by the personal representative or involvement in zoning, land use, environmental, or other similar matters. (g) Legal advice regarding carrying on of the decedent’s business or conducting other commercial activity by the personal representative. (h) Legal advice regarding claims for damage to the environment or related procedures. (i) Legal advice regarding homestead status of real property or proceedings involving that status and services related to protected homestead. (j) Involvement in fiduciary, employee, or attorney compensation disputes. (k) Proceedings involving ancillary administration of assets not subject to administration in this state. Id. The only extraordinary legal service that includes a specified presumed reasonable fee is preparation of the federal estate tax return by the lawyer. F.S. 733.6171(4)(e) provides for a presumed reasonable fee of ½% of the value of the gross estate up to a value of $10 million and ¼% of the value in excess of $10 million. The fee for all other extraordinary services is, absent an agreement, determined by the court after consideration of all the factors in F.S. 733.6171(5), or by agreement of all persons bearing the impact of the fee. See § 15.4.H. Compensation

of

extraordinary

services,

as

distinguished

from

compensation for ordinary services, is mandatory under F.S. 733.6171(4). “[T]he trial court [has no] discretion to decline an award of fees for extraordinary services upon proper proof.” Baumann v. Estate of Blum, 898 So. 2d 1106, 1108 (Fla. 2d DCA 2005). However, as previously stated, “[w]hat is an extraordinary service may vary depending on many factors, including the size and complexity of the estate.” F.S. 733.6171(4). In Venis v. Greenspan, 833 So. 2d 208, 209 (Fla. 4th DCA 2002), after awarding a fee for ordinary services based on the presumed reasonable percentage amount in an estate having a value of $8.3 million, the court found that services satisfying a claim against the estate, having the responsibility for the securities, obtaining appraisals of decedent’s assets, resolving a claim of the estate in a bankruptcy proceeding, satisfying the mortgage and transferring title of decedent’s residence, selling decedent’s horses, managing and leasing two warehouses, and carrying out a charitable pledge … were not extraordinary, considering the size of this estate. The Venis court declined to allow the presumed reasonable statutory compensation of “one-half of one percent” for the preparation of the estate’s federal estate tax return when the return was not “prepared by the attorney” as required by the statute. F.S. 733.6171(4)(e). The preparation of the estate’s federal estate tax return was done jointly by the personal representative, who was a CPA, and by the lawyer, and they planned to divide the fee between them for this extraordinary service. « Ch. 15 », « § 15.4 », « F » 1 Practice Under Florida Probate Code § 15.4.F (2022)

F. Expert Testimony Reasonable compensation and expert testimony is addressed in F.S. 733.6175(4), which provides: The court may determine reasonable compensation for the personal representative or any person employed by the personal representative without receiving expert testimony. Any party may offer expert testimony after notice to interested persons. If expert testimony is offered, a reasonable expert witness fee shall be awarded by the court and paid from the assets of the estate. The court shall direct from what part of the estate

the fee shall be paid. Historically, an expert was required to provide testimony of a reasonable fee. In re Estate of Lieber, 103 So. 2d 192 (Fla. 1958). However, the court was not bound by the expert testimony. See § 15.3.J. In practice, there was a great deal of expensive “expert” testimony that was ignored by trial judges in determining fees. As a sensible alternative, the Belcher committee (see § 15.4.B) proposed eliminating that requirement only as it relates to determination of fees for the lawyer representing the personal representative and this was later extended to include determination of personal representatives’ and other agents’ and employees’ compensation. Expert testimony is now optional in an attorney fees proceeding as well as proceedings to determine compensation of a personal representative or fees payable to other employees or agents of the personal representative. However, the statutory exemption from the requirement of expert testimony does not extend to determination of fees for curators, administrators, and attorneys ad litem, and persons employed by them, including lawyers. In Brake v. Swan, 767 So. 2d 500 (Fla. 3d DCA 2000), a lawyer for beneficiaries brought a successful surcharge action against a personal representative and was awarded fees from the estate. Although these fees would have been reversed on appeal due to the lawyer failure to provide expert testimony regarding reasonableness of the fees, the personal representative did not object to that failure at trial and the matter was not preserved for appeal. See § 15.3.J. If expert testimony is given, “a reasonable expert witness fee shall be awarded by the court and paid from the assets of the estate.” F.S. 733.6175(4). Baumann v. Estate of Blum, 898 So. 2d 1106 (Fla. 2d DCA 2005). The court is required to direct from what portion of the estate the fee must be paid. F.S. 733.6175(4). See § 15.4.M. In contrast to this award, after July 1, 2010, in a proceeding to determine reasonable compensation of a personal representative or any person employed by the personal representative, compensation of an expert in litigation to determine a reasonable fee for a trustee or any person employed by a trustee is permissive, but is not permitted if the court finds that the expert testimony did not assist the court. F.S. 736.0206(5). « Ch. 15 », « § 15.4 », « G »

1 Practice Under Florida Probate Code § 15.4.G (2022)

G. Segregating Fiduciary Time Spent By Lawyer If the lawyer performs administrative functions for the personal representative, the performance of the duties of the personal representative must be accounted for and compensated separately because it cannot be compensated under F.S. 733.6171 as lawyer services. As previously discussed, the personal representative is entitled to and will receive a fee for performing these tasks. In a rare view of the “real world” from the bench, Judge Sturgis noted: It is a matter of common knowledge, however, that in the administration of many estates the hired attorney not only renders all the legal services entailed but also performs the major details of the work and functions properly belonging to the executor or administrator and for which the latter is usually compensated without question to the hilt of the amount allowable by law, and which he usually insists upon and accepts as if he had hoed every weed and turned every row. And all too often the attorney is unwittingly confronted with an unctuous attitude on the part of professional administrators and executors who make a great pretense of service to the estate by taking exception to the amount of the fee allowable as reasonable compensation for the services of the attorney while being careful to insist on the last ounce of flesh so far as their own fees are concerned. In re Estate of DuVal, 174 So. 2d 580, 587 (Fla. 2d DCA 1965). A problem therefore arises if the lawyer claims entitlement to fees for ordinary services that should have been performed by the personal representative. In this instance, if the lawyer justifies the fees by including, in services furnished, those that the personal representative should have performed, the estate stands to be charged twice for those services: once by the lawyer who actually performed the services under F.S. 733.6171; and again by the personal representative, who did not but was obligated to, perform the services. If the lawyer performs the services, the lawyer must either be paid by the personal representative from the fee awarded to the personal representative under F.S. 733.617, or the fee awarded to the personal representative must be reduced by the amount of the fee for the services

awarded to the lawyer. In re Estate of Lieber, 103 So. 2d 192 (Fla. 1958). « Ch. 15 », « § 15.4 », « H » 1 Practice Under Florida Probate Code § 15.4.H (2022)

H. Fee Contracts « Ch. 15 », « § 15.4 », « H », • 1 » 1 Practice Under Florida Probate Code § 15.4.H.1 (2022)

1. In General If there is a contract between the lawyer and either the decedent or the personal representative (with or without the consent of the beneficiaries), the relationship of the parties when the contract was executed must be considered. If the contract was entered into before the employment of the lawyer by the personal representative commenced, it may be governed by the ordinary rules relating to contracts between competent parties. However, a fee contract created while the lawyer represented the client must be measured against the standard of “fairness.” Halstead v. Florence Citrus Growers’ Ass’n, 104 Fla. 21, 139 So. 132 (1932); In re Estate of Kindy, 310 So. 2d 349 (Fla. 3d DCA 1975). The lawyer has the burden to show “fairness” by clear and convincing evidence. If the compensation contract is not objected to by the personal representative, but rather by the beneficiaries, who were presented with its terms after the lawyer commenced representation of the client (the personal representative), the issue then becomes whether that same standard of “fairness” extends to the estate beneficiaries (who are not the lawyer’s clients). In this instance, the most likely answer to this issue is yes. See In re Estate of Gory, 570 So. 2d 1381 (Fla. 4th DCA 1990). In any event, it is clear that the contract is not binding on beneficiaries who do not consent to the contract, and the burden of proof of the reasonableness of the agreement and the fee to be charged is on the personal representative or the lawyer. F.S. 733.6175(3); Fla. Prob. R. 5.355. Lawyers should also consider the ethical limitations of Rule of Professional Conduct 4-1.8, titled “Conflict of Interest; Prohibited and Other Transactions,” which provides, in relevant part: (a) Business Transactions With or Acquiring Interest Adverse to Client. A lawyer is prohibited from entering into a business transaction with a client or knowingly acquire an ownership, possessory, security, or

other pecuniary interest adverse to a client, except a lien granted by law to secure a lawyer’s fee or expenses, unless: (1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner that can be reasonably understood by the client; (2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and (3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction. The practical result of these limitations is that if a contract is to be used, it should be agreed to (and consented to by all interested persons) before commencement of the representation. This may not be possible, however, with regard to a contract with a testator who is an existing client. « Ch. 15 », « § 15.4 », « H », « 2 » 1 Practice Under Florida Probate Code § 15.4.H.2 (2022)

2. Contract With Testator F.S. 733.6171(6) provides the statutory authority for a contract between the lawyer and the testator: If a separate written agreement regarding compensation exists between the attorney and the decedent, the attorney shall furnish a copy to the personal representative prior to commencement of employment, and, if employed, shall promptly file and serve a copy on all interested persons. Neither a separate agreement nor a provision in the will suggesting or directing that the personal representative retain a specific attorney will obligate the personal representative to employ the attorney or obligate the attorney to accept the representation, but if the attorney who is a party to the agreement or who drafted the will is employed, the compensation paid shall not exceed the compensation provided in the agreement or in the will. [Emphasis added.]

The probate lawyer must examine closely this statutory provision to determine whether this type of contract is practically useful. Close examination reveals that the amount provided in such an agreement will not fix the fee, but merely places a ceiling on the fee. The statute also requires the lawyer to promptly furnish a copy to all interested persons. Significantly, it does not include any right to renounce the provisions of the contract and claim either the statutory fee or a fee based on quantum meruit. The reason this differs from F.S. 733.617(4), which permits a personal representative whose compensation is fixed in the will to renounce that compensation under certain circumstances, is that normally the personal representative is not a party to the production of the will and may therefore be unaware of the limitation, whereas the drafting lawyer necessarily is aware of the limitation. An interesting issue is the extent to which the contract is enforceable if the lawyer decides not to accept the offered employment by the personal representative. The personal representative is entitled to freedom in the choice of a lawyer, and may elect not to hire the lawyer with whom the testator has contracted. In re Estate of Marks, 83 So. 2d 853 (Fla. 1955). Query: If employment is offered and declined by the lawyer (perhaps because in hindsight, the lawyer realizes the scope of the services is greater than initially assumed), what remedies, if any, does the estate have? For example, if another lawyer is retained and a greater fee than the contract fee is incurred, is the contracting lawyer liable in damages for breach of contract? The answer is no. There arguably is no consideration for the contract, and there certainly is a lack of mutuality in that the personal representative was not bound to retain the contracting lawyer. There are other problems as well. For example, one problem is the likelihood that such a contract is a claim arising before the death of the testator. If so, the lawyer would have to file a claim in the estate during the creditors’ claim period. Furthermore, if an objection is filed, the contract becomes subject to court review and a different lawyer would have to be retained to represent the personal representative in this proceeding. Although such a contract is at least a window into the decedent’s thoughts on lawyer compensation, lawyers may find that this contract has less usefulness than might be assumed. After all, it is not the decedent’s thoughts on compensation that are important; rather, it is the fiduciary’s and

beneficiaries’ thoughts. « Ch. 15 », « § 15.4 », « H », « 3 » 1 Practice Under Florida Probate Code § 15.4.H.3 (2022)

3. Contract With Personal Representative The lawyer may enter into a contract with the personal representative providing for the amount of or the method of computing the lawyer’s fee. This agreement may be binding on the lawyer but does not bind the court or the beneficiaries. Consequently, unless the lawyer chooses to enforce the contract against the personal representative in the personal representative’s individual capacity, or unless consent of the interested persons is obtained, the agreement is of much less effect. See F.S. 733.619(1), (3). Probate lawyers often place unwarranted confidence in F.S. 733.619 as it relates to the personal liability of the personal representative for attorney fees. It is commonly believed that if the probate court awards a fee less than the contract amount, the “undercompensated” lawyer can enforce the excess against the client—the personal representative—personally. Although F.S. 733.619(1) provides that “[u]nless otherwise provided in the contract, a personal representative is not individually liable on a contract, except a contract for attorney’s fee” [emphasis added], a brief analysis will reveal the logical flaw in such an argument. For example, in the most common situation, if the jurisdiction of the probate court is invoked in the case of an objection to the fee by a beneficiary (or the lawyer’s client—the personal representative), and the court determines that a reasonable fee is less than the amount charged by the lawyer (and contracted for), that determination may be barred by res judicata in any separate action brought by the lawyer against the personal representative, individually, on the personal liability suggested by the statute. In this instance, the court has determined that the amount claimed by the lawyer exceeds a reasonable charge. On the other hand, if the court determines that a portion of the fees incurred was for work that was not performed for the estate, but rather was performed for the personal representative (or even was in performance of the duties of the personal representative), that might leave the door open to collect the disallowed amounts personally from the personal representative. See Geary v. Butzel Long, P.C., 13 So. 3d 149 (Fla. 4th DCA 2009). However, such an agreement would be enforceable against the lawyer

and should be carefully drawn. See In re Estate of Buchman, 270 So. 2d 384 (Fla. 3d DCA 1972). Indeed, lawyers have been held to the terms of an express employment contract, notwithstanding the occurrence of unexpected problems. See, e.g., In re Estate of Lonstein, 433 So. 2d 672 (Fla. 4th DCA 1983) (award of attorneys’ fees was proper, with exception of award to lawyer for estate in excess of that for which he had agreed to handle probate, because in view of quoted fee, estate lawyer could not, even under quantum meruit theory, recover greater amount); Buchman (when law firm entered into letter agreement with coexecutors of estate whereby fee of $3,000 was established to represent “total sum that would be charged for the completion of the estate,” firm was bound by terms of agreement even though firm might otherwise have been entitled to larger award, and despite contention that agreement related only to ordinary and reasonable services and not to extraordinary services). Although it did not involve a contract with the personal representative, Brooks v. Degler, 712 So. 2d 419 (Fla. 5th DCA 1998), is illustrative of the concept that a contract for fees will be interpreted most strongly against the lawyer who drew it. In Brooks, the client hired the lawyers in a “standard” contingent fee contract to assert “a claim for damages against [the intestate beneficiaries].” Id. at 420. The lawyers successfully challenged the appointment of the decedent’s nieces as personal representatives and successfully admitted a will to probate that devised most of the estate to the client and that appointed the client as personal representative. The client, in the “Authority to Represent,” agreed to pay a fee of “33-1/3% of the appraised value of any … asset[s] … contested by any third party and returned to the possession of [client].” Id. The client eventually received approximately $1 million from the estate, after taxes. This was clearly the result contemplated by both the lawyer and the client. The appellate court determined that although the lawyers “succeeded in getting the will admitted to probate and [the client] appointed as personal representative[,] no ‘claim for damages’ ever materialized” and therefore no recovery was available under the fee contract. Id. at 421. However, the lawyers were allowed a quantum meruit fee under F.S. 733.106 for having benefited the estate. Because an agreement may not be practically enforceable against the personal representative and does not bind the beneficiaries or the court, but only the lawyer, such an agreement (without the consent or joinder of the

persons bearing the impact of the fee) is generally discouraged. An argument may be made that it is unenforceable against the lawyer for lack of mutuality; however, as of the date of publication of this manual, there are no case law reported on this defense. The practitioner should note, however, that Rule 4-1.5(e) of the Rules of Professional Conduct provides for a duty to communicate as it relates to contracting with the personal representative for a statutory fee, and the lawyer must advise the beneficiaries of the provisions of the default rules of F.S. 733.6171. See §§ 15.4.I, 15.4.K. Indeed, as previously discussed, the 2021 Amendments to F.S. 733.6171(5) require certain disclosures to the beneficiaries if the lawyer intends to charge a fee based on the presumed reasonable compensation schedule. See § 15.4.D.2.i. In the absence of consent of the beneficiaries, it is the usual practice for the personal representative and the lawyer to reach an understanding on an amount they consider to be a reasonable fee, but without the intent that the understanding be enforceable against the personal representative individually. That amount then is shown in the petition for discharge, along with the fees of the personal representative and fees of others employed by the personal representative. Interested persons have 30 days after notice within which to object. In the absence of any objection, the personal representative is protected in making payment; if an objection is filed, the court determines the fees at a hearing after notice. Fla. Prob. R. 5.400, 5.401. See §§ 15.4.I, 15.4.M. For a case in which the personal representative was surcharged for paying excessive attorney fees without consent or notice, see Beck v. Beck, 383 So. 2d 268 (Fla. 3d DCA 1980). « Ch. 15 », « § 15.4 », « H », « 4 » 1 Practice Under Florida Probate Code § 15.4.H.4 (2022)

4. Consent By Beneficiaries The most satisfactory practice for a lawyer representing a personal representative is to obtain the consent to the fee contract with the personal representative from those persons who ultimately will bear the impact of the lawyer’s fee. In this instance, the contract is with the personal representative, who is bound to pay the fee (from estate assets). The beneficiaries, not being the client, merely provide their consent to the provisions of the contract; the beneficiaries are not bound personally to pay the fee.

An early understanding between the personal representative, the lawyer, and the beneficiaries as to the amount of the lawyer’s fee or the manner in which that fee will be computed should have a salutary effect on the continued goodwill and relationships between all involved. « Ch. 15 », « § 15.4 », « H », « 5 • 1 Practice Under Florida Probate Code § 15.4.H.5 (2022)

5. Sample Contract And Consent COMMENT: The following form provides for a fee structure similar to that provided in F.S. 733.6171. It is not the intention of The Florida Bar, this publication, its author, or its publisher to suggest that the percentage or hourly rates or installment payment provisions in the contract (or the fee requested in the sample petition in § 15.4.M.6) are appropriate, usual, average, normal, proper, or ethical. Such rates depend on many factors that are unique to the law firm and the particular probate estate. Nor is it required that the agreed fee be percentage-based. Any appropriate and ethical fee arrangement can be substituted. It is intended that F.S. 733.6171(5) and the lawyer’s ethical obligation under Rule 4-1.5(e) of the Rules of Professional Conduct to communicate in writing the basis or rate of the fee to the client, and to those bearing the impact of the fee, will be satisfied by the following contract and the attached disclosures. This form contemplates that the lawyer will prepare the United States Estate (and Generation-Skipping Transfer) Tax Return, IRS Form 706, if one is required, but no other tax returns. As with any sample form, it must be carefully reviewed (and modified) to ensure that the provisions fit the specific details of the lawyer’s practice and the facts of the estate in question. The following form of employment and fee agreement (and the compensation provisions contained in the form) has not been approved by or is recommended by The Florida Bar. The Practice Resource Center of The Florida Bar (PRC) has a sample form for a Contract for Legal Services, as well as a sample form for a Fee Agreement (available at www.legalfuel.com/document-library/client-fee-agreements-and-letters-ofrepresentation/), which may be modified for probate engagements. Unlike the form provided herein, The PRC's sample agreements are two separate

documents: (1) Contract for Legal Services; and a (2) Fee Agreement. For additional, optional, or alternative language for the form provided herein, see Kelley & Bronner, THE FLORIDA BAR PROBATE SYSTEM (Fla. Bar 5th ed. 2018), Office Form 9. EMPLOYMENT AND FEE AGREEMENT This Agreement is between Attorney and Client who will petition for appointment as Personal Representative of the estate of the Decedent, deceased [and the serving trustee of the Decedent’s Revocable Trust under agreement dated _________], whose address is listed below. This Agreement shall be effective on the date the last of the foregoing parties signs it. In consideration of the services to be performed by the Attorney and the prompt payment of fees by the Client, the parties agree as follows: 1. Retainer. The Client retains the Attorney to provide legal advice and counsel to the Personal Representative in the probate of this estate [and to render legal services in connection with the initial administration of the trust and generally to advise the trustee concerning the trustee’s duties in the initial trust administration]. [The Client shall pay to the Attorney a retainer in the amount of $______ and the sum of $______ as a deposit toward costs of this proceeding. The retainer amount remains the Client’s funds until earned by the Attorney pursuant to this Agreement. The Attorney will refund any unearned amount after payment of all charges due the Attorney. The Client shall receive credit for the retainer against the total fee to be paid, as described below; however, the retainer shall be applied against the last amounts due the Attorney at the conclusion of the administration. These funds shall be deposited in the Attorney’s trust account and may be withdrawn to reimburse the Attorney for costs incurred or expended in representing the Client, or, at the option of the Attorney, may be applied at any time against any amount due from the Client that is then due.] 2. Scope of Employment. The Attorney will provide all ordinary legal services required. The Attorney will provide any extraordinary legal services in this regard as the Attorney and the Client may subsequently

agree. The scope of ordinary legal services and extraordinary legal services are defined in the Attachment to this Agreement. 3. Acceptance of Employment. The Attorney accepts employment and agrees to perform the agreed legal services. These services will be performed by the Attorney through individual attorneys licensed to practice in the State of Florida, and may be performed, in part, by legal assistants (nonlawyers) with special training or experience in estate administration, working under the supervision and control of attorneys. Selection of the individual attorney or attorneys and legal assistant who will be assigned to perform the services for the Client will be within the discretion of the Attorney. 4. Fee for Ordinary Legal Services. The amount of the fee for ordinary legal services shall be based on a percentage of the probate inventory value of the estate assets and the income earned on them during the probate administration. The applicable percentage is cumulatively scaled depending upon the total value based on the following schedule: 3% up to a value of $1 million an additional 2½% of the next $2 million an additional 2% of the next $2 million an additional 1½% of the next $5 million an additional 1% on all in excess of $10 million If this estate includes assets held in a revocable living trust, the fee for ordinary legal services to the trustee during the initial administration of that trust is charged at the rate of 75% of the foregoing schedule applied against the value of the assets in the trust immediately following decedent’s death, and the income earned by the trust during administration, to be paid from the trust. Assets that pour over into the trust from the probate estate shall not be counted twice. The minimum fee for formal probate administration [and initial trust administration] is $______, and the minimum fee for initial trust administration is $______.

The Attorney provides the following disclosures as required by F.S. 733.6171(2)(b): 1. There is not a mandatory statutory attorney fee for estate administration. 2. The attorney fee is not required to be based on the size of the estate, and the presumed reasonable fee described herein may not be appropriate in all estate administrations. 3. The fee is subject to negotiation between the personal representative and the attorney. 4. The selection of the attorney is made at the discretion of the personal representative, who is not required to select the attorney who prepared the will. 5. The personal representative shall be entitled to a summary of ordinary and extraordinary services rendered for the fees agreed upon at the conclusion of the representation. The summary shall be provided by counsel and shall consist of the total hours devoted to the representation or a detailed summary of the services performed during the representation The fee for ordinary legal services will not include in its calculation the value of various types of survivorship real estate or accounts, insurance proceeds or pension or profit sharing accounts paid to a beneficiary other than the estate or trust, homestead real property that passes to a spouse or an heir at law, or other assets that do not require probate or trust administration. (Generally these assets, except homestead, would not require legal services by the Attorney and are not, therefore, included in the fee base. If services are required for any of these assets, the services are charged on an extraordinary fees basis, see below.) Assets are valued at their gross value for purposes of the calculation required by this paragraph and are not reduced for mortgages or liens. 5. Fee for Extraordinary Legal Services. If it is determined that certain extraordinary legal services are required in this estate and the parties agree that the Attorney will perform these services, if no other

arrangement is reached, the following compensation arrangements shall apply: If the service is preparation of the federal estate tax return, the Attorney shall be compensated for this service in the amount of ½ of 1% of the value of the gross estate up to a value of $10 million and ¼ of 1% of the excess value. (The “gross estate” is a federal tax concept defined in § 2031 of the Internal Revenue Code that includes assets that are not a part of the “probate estate” as described in paragraph 4 above.) This fee also includes representation of the Client in routine audit of the return, not beyond the examining agent level, if required. Other tax returns required to be filed by the personal representative will not be prepared by the Attorney, but rather by an accountant who will be retained for that purpose and separately compensated. For other extraordinary legal services, the Attorney shall be compensated at its standard time charges for professional time spent by an attorney or legal assistant for estate or trust administration. The standard time rates for the various professionals who may furnish services are listed in the attached schedule. These standard time charges for legal services in estate or trust administration may be changed from time to time by the Attorney in a nondiscriminatory manner if they are changed for similar services for all or nearly all of the Attorney’s clients for whom professional time expended is a component of the fee. Rates for other professionals or paraprofessionals who furnish services on this matter will be set based on their experience and abilities relative to the persons specified above. The Attorney will furnish the Client with a statement of the time expended in these extraordinary services. If the Attorney performs services that are the responsibility of the Client as personal representative or trustee to perform, and if the Client would be entitled to receive payment of a commission from the estate or fee from the trust for performance of these services (whether or not actually charged), the parties agree that the amount of the commission shall be divided between the Attorney and the Client in proportion to the fiduciary services rendered by each. This shall be in addition to any other fees agreed to be paid to the Attorney for legal services.

6. Interim Billing. For ordinary services: the Attorney will bill the Client for attorney’s fees in approximately equal installments during the administration. As the administration progresses, the Attorney can better project the total attorney’s fee and the appropriate installments, and will adjust or readjust the installment amount from time to time based on those projections. The amount of the first monthly installment, which will continue until adjusted, will be $______. For preparation of the United States Estate (and GenerationSkipping Transfer) Tax Return, IRS Form 706 (if applicable): the Attorney will separately bill the Client the amount agreed to be paid for preparation of this return, to be paid in full before the projected completion date of the return. For other extraordinary services (if applicable): the Attorney will separately bill the Client monthly for the value of the time expended by the Attorney in performing the extraordinary services. 7. Costs and Certain Attorney Fee Charges. In addition to the Attorney’s fees agreed to be paid above, the Client also agrees to pay to the Attorney, upon request, either by an advance that shall be retained by the Attorney in its Trust Account, or promptly upon invoice, all costs expended by the Attorney. 8. Interest on Delinquent Charges. All charges shall be paid within 10 days of invoice by the Attorney. Any fees or costs not paid within 25 days from invoice will bear interest at the rate of 12% per annum simple interest, from date of invoice until date of payment. This does not apply to deferred charges, until those deferred charges are due and billed. 9. Objection to Fees. Upon submission to the Client of an invoice, the Client agrees to promptly review the statement submitted and to advise the Attorney immediately of any question or disagreement with any of the Attorney’s charges in order that any disagreement can be quickly and timely resolved. If the Client fails to advise the Attorney in writing within 45 days after the postmark or email date of the invoice that the Client questions, the Attorney is entitled to and will assume that the Client has no question and agrees that the billing is accurate and proper. If there is any objection by the Client or any beneficiary to any fee

charged that requires that the fee be determined by the court, standard time charges described above will be charged for the Attorney’s professional time expended relating to a determination by the court of the reasonable amount of the attorney’s fee, personal representative’s commission, trustee’s fee, or in defending the amount of the deductible part of the fee or commission before the Internal Revenue Service. This charge is not dependent on the outcome. 10. Termination of Employment. If the Attorney does not represent the Client through the conclusion of the administration for any reason (including for the reason that the Client chooses to select other counsel or the Attorney chooses not to continue the representation), the Attorney’s total fee will be that portion of the total agreed fee that the value of the time expended by the Attorney bears to the value of the time expended by successor counsel in the estate administration, but not less than the total of fee installments paid to the date of termination of employment. If the Attorney has prepared the estate tax return, the fee of the Attorney shall be increased by the agreed fee for that service. All papers produced by the Attorney and all research and other work done by the Attorney is the property of the Attorney. After payment of all fees, the Attorney will provide copies of its files, except the attorney’s notes and billing and administrative records, to substitute counsel at the expense of the Client. 11. Handling of Original Documents. Upon written request by the Client delivered to the Attorney no later than 30 days after the order of discharge becomes final, all papers, records, documents, exhibits, or other items delivered to the Attorney by or on behalf of the Client shall be returned to the Client following the full payment of the fee and costs agreed to be paid but may be retained by the Attorney under a retaining lien, which the Client hereby grants, until full payment of those amounts. If the Client does not so request return of the delivered papers, records, documents, exhibits, or other items, the Client designates the Attorney as the Client’s agent to dispose of these items 30 days after the order of discharge becomes final without notice to the Client. The parties also agree that the Attorney may, without notice to the Client, dispose of its office file together with its contents at the same time. All papers produced by the Attorney and all research and other work done by the

Attorney remains the property of the Attorney. Original pleadings and papers filed with the court are retained in original or on electronic or photographic recording by the court clerk. Subsequently, if the Client requests any information in the Attorney’s file, the Attorney may charge a reasonable fee for retrieving that information, if it has not previously been destroyed. 12. Precondition. THIS AGREEMENT SHALL NOT BE EFFECTIVE TO DETERMINE OR LIMIT THE AMOUNT OF ATTORNEY’S FEES OR THE METHOD BY WHICH THOSE FEES SHALL BE DETERMINED UNTIL ALL PERSONS WHO ULTIMATELY BEAR THE IMPACT OF THESE FEES HAVE CONSENTED TO THIS AGREEMENT. (THESE ARE GENERALLY THE RESIDUARY BENEFICIARIES.) IF LESS THAN UNANIMOUS CONSENT IS OBTAINED, THE ATTORNEY MAY CHARGE A REASONABLE FEE FOR LEGAL SERVICES WITHOUT ANY PROVISION OF THIS AGREEMENT LIMITING THAT AMOUNT. 13. Trust Account Funds. If we hold a deposit under this Agreement in our trust checking account, the following provisions shall apply. Rule 5-1.1 of Rules Regulating The Florida Bar requires lawyers to deposit “nominal or short term” funds of a client that “cannot earn income for the client … in excess of the costs to secure the income” into this firm’s trust account, which is an interest bearing checking account. The interest on this checking account, pursuant to the rule, is paid to The Florida Bar Foundation, Inc., and is used, among other purposes, to provide legal aid to the poor. No part of the interest paid accrues to this law firm or any of its lawyers. Some of the factors to be considered to determine whether a client’s funds are “nominal or short term” are: the amount of the funds, the period of time that the funds are expected to be held, and the cost of establishing and maintaining an interest-bearing account or other appropriate investment for the benefit of the client. We have determined that the trust account deposits, if any, provided in this Agreement are “nominal or short term” funds and we have further determined, pursuant to the rule mentioned, that they will be deposited in our trust account pursuant to Rule 5-1.1. 14. Laws of Florida. This Agreement is made and shall be construed

under the laws of the state of Florida. The parties agree that any action arising under this Agreement between its parties shall be brought in _________ County, Florida. 15. Counterparts and Signatures. This Agreement may be executed in counterparts and the counterpart signatures then assembled into one or more duplicate originals with each separately being considered an original. A photocopy, facsimile, or other electronic copy of this Agreement showing the reproduction of an original signature or initial shall be considered the same as an original document with an original signature or initial for all purposes, and delivery of such a copy by facsimile or electronically shall be considered the same as physical delivery. 16. Commencement of Attorney’s Obligations. Notwithstanding any provision of this Agreement or any oral representation or agreement to the contrary, the Attorney shall have no obligations to represent or advise the Client, or to meet any pleading deadline or statutory bar date, or to advise the Client in any manner, or to take any action, until a fully executed original of this Agreement has been returned to the Attorney together with any amounts provided by this Agreement to be paid initially or to be deposited with the Attorney. In Witness Whereof, the parties have set their hands and seals on the day and year as indicated. /s/ Attorney (date) THIS AGREEMENT IS A LEGAL CONTRACT. IF YOU DO NOT UNDERSTAND ANY PART OF IT OR WANT INDEPENDENT LEGAL ADVICE, YOU SHOULD CONSULT A SEPARATE LAWYER FOR ADVICE REGARDING THIS AGREEMENT. /s/ Client (date) BENEFICIARY CONSENT The person(s) signing below, each being a beneficiary of this estate or trust or a person otherwise interested in the estate or trust, has received

and reviewed the “Information About Fees” attached below and understands the matters discussed there. I/We understand that I/we may obtain independent legal advice about this consent. I/We each consent to the foregoing Agreement, to the employment of the Attorney, and specifically to the fee stated therein, but do not assume any personal liability for the payment of the fee. The Personal Representative or Trustee is authorized to pay the fee from estate or trust assets, upon invoice from the Attorney. I/We understand that the Attorney represents the Personal Representative of the estate and the trustee of any trust and is not the attorney for the undersigned beneficiary. /s/ Beneficiary (date) CLIENT INFORMATION ABOUT ATTORNEY’S FEES A question on the minds of most clients is “How much will this cost?” However, many clients are hesitant to raise the subject or initiate the discussion. Knowing that to be the case, we believe that the lawyer should put this matter right out in front and advise the persons who will ultimately bear the impact of that fee how it will be charged and paid. So, to do just that, we would like to furnish you with the following information. The law requires that an estate have both a personal representative and an attorney during the estate settlement. The law also has provisions relating to settlement of trusts that may, or may not, be relevant to this estate. The law permits, but does not require, a trustee to be represented in a trust settlement. We believe that, in most instances, it is unwise for a trustee to attempt this complicated procedure without experienced and competent legal advice. The trustee may retain an attorney to answer only specific legal questions or deal with defined legal tasks (limited representation), or to represent the trustee to provide all legal advice and services required in the trust administration (general representation). The attorney for a personal representative in the probate of an estate and the attorney for a trustee of a revocable living trust are entitled to be paid a reasonable fee from the assets of the estate or the trust, even absent any specific agreement. F.S. 733.6171 is the controlling statute for an attorney’s compensation in probate estates, F.S. 736.1007 controls

legal compensation in a trust administration, and F.S. 733.617 controls compensation of a personal representative. If you would like a complete copy of these statutes, we would be happy to provide you with one. Also, they are available online at www.leg.state.fl.us/statutes/. The attorney and the client may find it mutually beneficial to determine the fee, at least for ordinary legal services, by agreement at the outset. This removes any uncertainty for both parties. The client and the beneficiaries know up front what their costs will be, and the attorney knows that the fee amount is agreed and set. Regardless of how much unanticipated effort is required of the attorney, the fee for ordinary legal services will not be increased. The other side of that is if less effort than anticipated is required, the fee will not be reduced. Neither party can change the agreement. Some provisions of the statute relating to determination of the attorney’s and personal representative’s compensation are: The law permits an attorney and a client to agree to any fee amount or method of determining the fee amount, even if different from the method provided in the statute, as long as the client and the beneficiaries who will ultimately bear the burden of the fee all concur. If less than all concur, no agreement is possible. The statute provides a formula for determining a fee that is presumed by law to be reasonable. In the absence of an agreement, the client may request that the court determine a smaller fee, and the attorney or the personal representative may request that the court determine a higher fee, than that presumed to be reasonable. Stated otherwise, the fee is not “set” or “fixed” by the statute; rather, the statute provides a fee that is in the nature of a “guideline” and initially presumed to be a reasonable fee, but is subject to any person’s request that the court increase or decrease that fee. Services relating to estate or trust administration are divided by law into “ordinary services” and “extraordinary services.” The “presumed reasonable fee” is for ordinary services of either the attorney or the personal representative. If only ordinary services

are required, only a fee for ordinary services is allowed. If some extraordinary services are required, additional fees for those extraordinary services are allowed. An example of an extraordinary legal service is involvement in a contest of the will. There is no statutory formula supplied to determine fees for extraordinary services, but the factors to be considered in setting that fee are stated in the statute. Simple estates may require no extraordinary services; in more complex estates some extraordinary services may be required. Of course, there are exceptions to every rule. In the absence of an agreement, if there is disagreement regarding the fee, the court will set the fee at the conclusion of the administration, considering the statutory formula for determining the presumed reasonable fee, and if there is a good reason presented, will then either increase or decrease that amount. In a fee dispute, the court will generally award additional fees to the attorney for professional time expended in the fee dispute unless the original fee request by the attorney is found to be substantially unreasonable. If you would like, we would be pleased to furnish you additional information on our qualifications and experience in estate settlement matters. Ordinary Legal Services: Ordinary legal services, those typically included in the base fee, are those shown on the following list, to the extent applicable to this estate: Review, analysis, and interpretation of testamentary documents and explanation of the dispositive provisions and procedures. Preparation of pleadings and papers to be filed with the probate court. Appointment of the Client by the court as personal representative of this estate. Service of legal notices on persons required to be served in the manner provided by law.

Advice regarding obligations to account to the court and interested persons, and procedures. Counsel regarding the duty to locate, assemble, protect, insure, and manage estate assets. Counsel regarding the duty to make assets productive of income and limitations imposed by the prudent investor rule. Counsel regarding inter-relationships of any trust created by decedent with the probate estate and duties and obligations of, and to, the trustee. Counsel regarding the duty to locate and notify estate creditors, duty owed by the Client to creditors, and procedures and priorities in payment or compromise of claims and payment of expenses of administration. Advice on elective share, family allowance, and exempt property entitlements. Advice on the requirements to inform and account to interested persons. Advice on filing requirements for various tax returns required to be prepared and filed by the Client, including the decedent’s final income tax return, income tax and intangible tax returns for the estate, and an estate tax return. Clearance of tax liens from estate property and advice on matters of clear title to real property. Advice on abatement or ademption of devises and obtaining of court order if applicable. Interim and final distribution of cash, specific and other devises, and estate residuary including preparation and recording of certificate of distribution of real property. Advice on avoidance of self-dealing, conflicts of interest, duty of impartiality, and obligations to creditors and beneficiaries. Extraordinary Legal Services:

Extraordinary legal services are all other legal services required in the administration of this estate, including but not necessarily limited to the following: Involvement in a will contest, a will construction, a proceeding for determination of beneficiaries, a contested claim, an elective share proceeding, apportionment of estate taxes, a proceeding for substitution or removal of a personal representative, an objection to accounting or other acts of the personal representative, or any other adversarial proceeding or litigation by or against the estate or the personal representative. Representation of the Client in an audit or any proceeding for adjustment, determination, or collection of any taxes. Tax advice on postmortem tax planning, such as disclaimer, renunciation of fiduciary commission, alternate valuation date, allocation of administrative expenses between tax returns, the QTIP or reverse QTIP election, allocation of GST exemption, qualification for Internal Revenue Code §§ 6166 and 303 privileges, deduction of last illness expenses, fiscal year planning, distribution planning, asset basis considerations, handling income or deductions in respect of a decedent, valuation discounts, special use and other valuation, handling employee benefit or retirement proceeds, prompt assessment request, or request for release of personal liability for payment of tax. Preparation or review of estate tax return or other tax returns required to be filed by the Client. Purchase, sale, lease, or encumbrance of real property by the Client or involvement in zoning, land use, environmental, or other similar matters. Legal advice regarding carrying on of the decedent’s business or conducting other commercial activity by the Client. Legal advice regarding claims for damage to the environment or related procedures. Legal advice regarding homestead status of real property or

proceedings involving that status. Involvement in fiduciary, employee, or attorney compensation disputes. Proceedings involving ancillary administration of assets not subject to administration in this state. Because an agreement on fees is a legal contract, if you do not understand any part of the Agreement or wish independent legal advice, you should consult a separate lawyer for advice regarding this Agreement. Similar distinctions exist between a personal representative’s ordinary and extraordinary services, and compensation for them. « Ch. 15 », « § 15.4 », « I » 1 Practice Under Florida Probate Code § 15.4.I (2022)

I. Payment Of Fee After Full Disclosure And Absent Objection In some instances, the lawyer’s fee is not required to be determined by an agreement or even calculated under the formula provided in F.S. 733.6171. F.S. 733.6171(2) provides, in relevant part: “Compensation may also be determined in a different manner than provided in this section if the manner is disclosed to the parties bearing the impact of the compensation and if no objection is made as provided for in the Florida Probate Rules.” Of course, neither consent nor lack of objection authorizes a fee agreement that provides for a clearly excessive fee in violation of Rule 4-1.5(a) of the Rules of Professional Conduct, even if provided by contract. Fla. Prob. R. 5.400(b)(4) requires the petition for discharge to contain a statement “showing the amount of compensation paid or to be paid to the … attorneys … employed by the personal representative and the manner of determining that compensation.” Rule 5.180(b) permits those persons bearing the impact of the fees to waive that disclosure as long as the waiver contains “language declaring that the waiving party has actual knowledge of the amount and manner of determining the compensation” and has agreed to the amount and the manner of determining the compensation and waives any objection to payment, or that the party has the right to petition the court to determine the compensation and waives that right. Absent waiver, Rule 5.401

permits interested persons to object to the petition, the final accounting, or any of their items within 30 days after service of the later of those two documents. The most common method of fixing the fees to be paid to the lawyer (or to the personal representative or other agents) is for that compensation to be shown in the petition for discharge. (Any amount previously paid would also be shown in the final accounting.) The petition is then served, and if no objection is served within 30 days, the fee is allowed at the amount shown in the petition. « Ch. 15 », « § 15.4 », « J » 1 Practice Under Florida Probate Code § 15.4.J (2022)

J. Timing Of Payment As previously noted, F.S. 733.603 directs the personal representative to “proceed expeditiously with the settlement and distribution of a decedent’s estate and, except as otherwise specified by [the Code] or ordered by the court, [to] do so without adjudication, order, or direction of the court.” The Comment to § 3-721 of the Uniform Probate Code (UPC) (a distant ancestor of F.S. 733.6175) indicates “the Code’s theory that personal representatives may fix their own fees and those of estate attorneys marks an important departure from much existing practice under which fees are determined by the court in the first instance.” This relates to timing of payment in that making such payments is not dependent on an order of the court. Expeditious administration also contemplates timely payment of fees as they accrue. That is to say, the lawyer (and the personal representative and other agents) is entitled to payment without court order as the services are furnished. See F.S. 733.617(1), 733.6171(1). For the convenience of the estate or of the lawyer, the parties may agree to early advance payment or deferred payment until the end of the administration. This is something about which the lawyer and the personal representative should reach an understanding at the beginning of the representation. Unless there are tax or other benefits to the estate, substantial prepayment of attorney fees may carry adverse ethical implications. See § 15.4.K. Consideration of the timing of payment of fees should include consideration not only of available liquidity and other demands, but also of

the tax effects on the estate. If compensation is to be fully deducted on an estate tax return (Form 706), the timing of payment is generally not tax significant to the estate. On the other hand, if any portion of the fees is to be deducted on the estate’s fiduciary income tax return (IRS Form 1041) or the beneficiary’s personal income tax return (IRS Form 1040), timing, in the case of the Form 1040 deduction, may become critical, and mistimed payment may result in partial or total loss of the available deduction. If fees exceed income (and are an excess deduction under IRC § 642(h)(2)), the excess deduction may be passed from the estate to the estate beneficiaries, but only if paid in the last fiscal year of the estate. Otherwise, excess deductions are lost. The court has jurisdiction to consider an award of partial or interim fees. F.S. 733.6175. The procedure for such fees is set forth in Fla. Prob. R. 5.355. The award of partial or interim fees, even if after proper notice, is not a final determination of fees, nor does it become the law of the case. The court in In re Estate of Cordiner, 497 So. 2d 920, 921 (Fla. 2d DCA 1986), concluded that “if at the final hearing on fees it is determined that the partial award was either excessive or deficient, the final award may be adjusted accordingly.” Expert testimony would not be required for the award. See § 15.4.F. Generally, in the absence of serious opposition to the payment of interim fees, the personal representative should simply make reasonable interim payments of the attorney fees. Because the personal representative has the authority to pay those fees without court order and because an order would not affect the final fee determination, some courts refuse to entertain a petition for interim fees. See In re Estate of Wejanowski, 920 So. 2d 190 (Fla. 2d DCA 2006). « Ch. 15 », « § 15.4 », « K » 1 Practice Under Florida Probate Code § 15.4.K (2022)

K. Ethical Considerations In Charging Reasonable Fee There are several ethical considerations that the probate lawyer must take into account as it relates to lawyer compensation and charging a reasonable fee. The first ethical consideration in charging a reasonable fee is the requirement that the basis of the fee be promptly communicated to the client. This is a mandatory requirement that is frequently overlooked by probate lawyers and one that offers substantial potential for embarrassment of the

lawyer when testifying in any subsequent hearing to determine the amount of reasonable fees. Rule 4-1.5(e) of the Rules of Professional Conduct provides, in relevant part:

Duty to Communicate Basis or Rate of Fee or Costs to Client and Definitions. (1) Duty to Communicate. When the lawyer has not regularly represented the client, the basis or rate of the fee and costs must be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation. When the lawyer does not advise the personal representative of the fee to be charged, or at least the basis for the fee until the conclusion of the probate, the following two questions may be asked of the lawyer at the hearing on the fee objection: “When did you first advise the personal representative of the fee or the basis of the fee you have charged?” “Can you reconcile that with the requirements of Rule 4-1.5(e) of the Rules of Professional Conduct?” Query: In the context of a probate proceeding, which is, at least to an extent, supervised by the court, how applicable is Rule 4-1.5(e)? Another question is “who is the ‘client’ ” referred to in the rule? Is it simply the personal representative, the traditional client of the probate lawyer, or does it include the estate beneficiaries who bear the impact of the fee? No doubt one purpose of Rule 4-1.5(e) is that the client may choose not to proceed with the matter for which the lawyer is retained if a reasonable fee is greater than the amount contemplated by the client, and the client should have that option. That possibility is probably not realistic in the probate context. An argument against application of the disciplinary rule in a probate context is that a probate proceeding is inherently under judicial supervision. For example, the petition for discharge filed with the court is required to

show “the amount of compensation paid or to be paid to the … attorneys … and the manner of determining that compensation.” Fla. Prob. R. 5.400(b)(4). Although that disclosure may be waived (see Rule 5.180), the lawyer must first determine, and the waiving party must declare to the court, that he or she has actual knowledge of the amount and manner of determining the compensation and, in addition, either: (A) that the [client] has agreed to the amount and manner of determining that compensation and waives any objection to payment; or (B) that the [client] has the right to petition the court to determine the compensation and waives that right. Rule 5.180(b)(4). These requirements are safeguards that are not present in the usual nonprobate context. They may provide sufficient protection for the public so that application of Rule 4-1.5(e) to probate may be unnecessary. This is not to suggest that Rule 4-1.5(e) does not apply—after all, it does not contain an exception for the probate context—or that it does not represent the better approach, but rather questions whether a lawyer charging a reasonable fee in probate should be disciplined or sanctioned for failure to comply with it. The next ethical matter involves the interaction of the presumed reasonable fee and the ethical limitations on charging a clearly excessive fee. See Rule 4-1.5. Some probate lawyers may believe that a fee that is presumed reasonable under F.S. 733.6171 (especially the 1993 version (see § 15.4.B.2)) may still be clearly excessive under Rule 4-1.5. However, that does not seem to be the case. In The Florida Bar v. Garland, 651 So. 2d 1182 (Fla. 1995), the referee’s report recommended a finding of guilt for the charging of a clearly excessive fee by the lawyer. The Florida Supreme Court concluded: We agree with [the lawyer] that in light of [F.S.] 733.617 and 733.6171 … , which provide the manner by which reasonable fees to the personal representative and attorney of an estate are to be determined, the referee’s recommendation as to this violation must be rejected. Although [F.S.] 733.617 and 733.6171 did not [become] effective until after the … estate

was closed, if the fee charged in this case were charged today it likely would be considered reasonable. Garland, 651 So. 2d at 1184. Compare The Florida Bar v. Carlon, 820 So. 2d 891 (Fla. 2002) (violation of Rule 4-1.5 when fee was considered unreasonable). « Ch. 15 », « § 15.4 », « L » 1 Practice Under Florida Probate Code § 15.4.L (2022)

L. Fees For Other Lawyers In addition to an award of fees under F.S. 733.6171, the probate court may award fees to “[a]ny attorney who has rendered services to an estate.” F.S. 733.106(3). Courts have interpreted F.S. 733.106(3) to permit an award of attorney fees when the estate has benefited from the services of counsel. Courts have also awarded attorney fees to third parties when the acts of the third parties changed the manner of distribution of the estate or otherwise benefited the estate. In re Estate of Griffis, 366 So. 2d 80 (Fla. 4th DCA 1978); In re Estate of Jones, 352 So. 2d 1182 (Fla. 2d DCA 1977); In re Estate of Freedman, 340 So. 2d 1275 (Fla. 3d DCA 1977); In re Estate of Weinstein, 339 So. 2d 700 (Fla. 3d DCA 1976); In re Estate of Radon, 338 So. 2d 256 (Fla. 4th DCA 1976). “Benefit” may refer to services “effectuating the testamentary intention set forth in the will,” In re Estate of Lewis, 442 So. 2d 290, 292 (Fla. 4th DCA 1984), or to services that enhance or increase the value of the estate, Dew v. Nerreter, 664 So. 2d 1179 (Fla. 5th DCA 1995). See Hampton v. Estate of Allen, 198 So. 3d 954 (Fla. 5th DCA 2016). In Duncombe v. Adderly, 991 So. 2d 1013 (Fla. 4th DCA 2008), the petitioner successfully prevented the admission of a will to probate and prevented appointment of a prospective personal representative on the grounds of a conflict of interest with the estate. As explained by one court, “[w]here the services tend to break down, subtract from[,] or dissipate the estate (i.e., prolonged litigation and delay in administration), there can be no compensation.” Dew, 664 So. 2d at 1180. The practitioner should note that F.S. 733.6171 and the factors enumerated in subsection (5) of that statute do not apply to the award of fees under F.S. 733.106. Rather, the lodestar basis for a fee, as described in In re

Estate of Platt, 586 So. 2d 328 (Fla. 1991), applies. In addition, expert witness testimony is required to support the fee determination; F.S. 733.6175(4) does not apply. Brake v. Swan, 767 So. 2d 500 (Fla. 3d DCA 2000). See § 15.4.F. The practitioner should also note that fees awarded under F.S. 733.106(3) are considered Class 1 expenses. F.S. 733.707(1)(a). See Teague v. Estate of Hoskins, 709 So. 2d 1373 (Fla. 1998) (fees and costs awarded to defendant who was sued by estate were deemed expense of administration, entitled to Class 1 status under F.S. 733.707). Thus, if the estate is insufficient to pay the expenses of administration and obligations of the estate, the issue of the priority of any fees awarded must be examined. « Ch. 15 », « § 15.4 », « M » 1 Practice Under Florida Probate Code § 15.4.M (2022)

M. Procedure To Determine Fees « Ch. 15 », « § 15.4 », « M », • 1 » 1 Practice Under Florida Probate Code § 15.4.M.1 (2022)

1. In General The jurisdiction of the court may be invoked to determine the amount of reasonable fees. This proceeding may be commenced by the lawyer, a beneficiary who bears the impact of the fee, or the personal representative. The proceeding may be commenced under either of the statutory provisions relating to attorney fees, F.S. 733.6171(5), 733.6175, or pursuant to objection to the final accounting or petition for discharge under Fla. Prob. R. 5.401. F.S. 733.6175 and Rule 5.355 control the process of the award of attorneys’ fees under F.S. 733.6171 as well as personal representatives’ compensation under F.S. 733.617. The lawyer must testify in support of the fee. Clark v. Squire, Sanders & Dempsey, 495 So. 2d 264 (Fla. 3d DCA 1986); In re One 1972 Volvo Vehicle I.D. # 1426363290699 Florida Tag #NUE848, 489 So. 2d 1240 (Fla. 4th DCA 1986). However, expert testimony is not required. See § 15.4.F. In each instance, the burden of proof of the reasonableness of the lawyer’s (or personal representative’s) fee is on the proponent, although the proponent may use the statutory presumption of reasonableness to assist in

carrying this burden. This presumption is a rebuttable presumption affecting the burden of producing evidence. F.S. 90.302(1), 90.303. See Ehrhardt, FLORIDA EVIDENCE § 302.1 (Thomson/West 2019). Professor Ehrhardt describes this type of presumption as a “bursting bubble” presumption. To raise the presumption that a fee charged within the guidelines of the statute is reasonable, the proponent must initially prove the following: the employment; the scope of ordinary services furnished; the probate estate’s compensable value, which is the inventory value of the probate estate, including income earned during the period of administration; grounds for increasing the presumed reasonable fee, if an increase is being sought; (if the lawyer is involved in preparation of the federal estate tax return) the value of the gross estate as finally determined for federal estate tax purposes; and any extraordinary services furnished and a reasonable fee for those services. Once the presumption has been raised, the burden shifts to the objector to introduce credible evidence that the fee was not reasonable under the facts applicable to the case, which, if done, would allow the court to decide the issue (of the reasonableness of the lawyer’s fee) on the greater weight of the evidence. Tactically, the proponent of the fee would not rely solely on the statutory presumption and would offer affirmative evidence of the reasonableness of the fee because, otherwise, if the “bubble bursts,” the court would be left with insufficient evidence of reasonableness. As previously noted, the process of fee review may also be commenced under Rule 5.401 by an objection to the fees as shown in the petition for discharge or the final accounting. If fee review is sought by objection under Rule 5.401, a notice of hearing must be served (but need not be held) within 90 days after filing the objection or the objection is deemed abandoned. Service of the notice must be in accordance with Fla. R. Gen. Prac. & Jud.

Admin. 2.516. Rule 5.041. The failure to object to fees shown in an interim accounting does not waive the right to object subsequently to that same compensation for a subsequent period shown in a final accounting or a petition for discharge. Sheffield v. Dallas, 417 So. 2d 796 (Fla. 5th DCA 1982). See also In re Estate of Goodwin, 511 So. 2d 609 (Fla. 4th DCA 1987). The practitioner should note, in appropriate instances, a personal representative may file a joint petition for the determination of both the personal representative’s compensation and the lawyer’s fee. In those instances, only a single notice, hearing, and order are required. In the absence of disagreement between the personal representative and lawyer, this should be the practice generally followed if fee review is sought by objection to both the lawyer’s fee and the personal representative’s compensation. If a matter commences and proceeds by the filing of an objection to the final accounting and petition for discharge, the parties may be at somewhat of a pleading disadvantage because the only parts of the pleadings relevant to the proceeding may be the statement of the amount of the fees in the petition for discharge or the fee items in the final accounting, the specific objection, and the grounds for the objection. Rule 5.401(b). Conversely, if the proceeding is commenced by petition under F.S. 733.6171(5) or Rule 5.355, there are allegations in the petition to which an answer (with affirmative defenses, if any) would normally be filed, and the issue is then joined. This is a more orderly way to determine the issues. In fact, the lawyer should consider filing a petition for fees even after an objection to fees has been filed, so that the matter can proceed on the allegations of the petition and the denials and affirmative defenses of the answer. This of course presumes the filing of an answer to the petition. However, the practitioner should note that no answer to the petition is required to be filed unless the petition is served with formal notice, Rules 5.040(a)(2), (d), assuming the matter has not been declared to be adversary under Rule 5.025(b). Of course, no petition for approval of fees is required if there is no objection to the fees charged or proposed to be charged. F.S. 733.6171.

If there is an objection to fees paid or proposed to be paid, that objection must be disposed of before an order of discharge may be entered. Gaines v. DeWitt, 41 So. 3d 951 (Fla. 2d DCA 2010). See §§ 15.4.M.6 and 15.4.M.7 for a sample petition and order, respectively. « Ch. 15 », « § 15.4 », « M », « 2 » 1 Practice Under Florida Probate Code § 15.4.M.2 (2022)

2. Nature Of Proceeding A proceeding objecting to compensation paid or to be paid, whether initiated under Fla. Prob. R. 5.355, F.S. 733.6171, or 733.6175 with a petition, or arising from an objection to a petition for discharge or to a final accounting under Rule 5.401, is not an adversary proceeding under Rule 5.025(a). It may, however, be declared adversary under the procedure in Rule 5.025(b), if desired. In any event, it is not necessary to declare a proceeding an adversary proceeding because even under nonadversary proceedings, all of the relevant civil discovery rules apply to probate proceedings under Rule 5.080, and the rules of evidence that apply in civil actions, including the Florida Evidence Code, also apply to nonadversary probate proceedings. Rule 5.170. Furthermore, an order determining or approving attorney fees constitutes a final order from which there is a right of appeal. Rule 5.100; Fla. R. App. P. 9.110(a)(2). However, one potential problem is that such a proceeding, not being an adversary proceeding unless so declared under Rule 5.025(b), requires only informal notice of the petition. A petition served by informal notice is not required to be answered, and, in the absence of any response, the petitioner cannot proceed ex parte. Service of notice of hearing and a hearing would be required to obtain an order. This problem may be cured by serving the petition by optional formal notice, which then requires an answer to be filed, or the matter can proceed ex parte. This prevents ambush at the final hearing, because, if an answer is filed, the petitioner knows opposition exists and can obtain discovery under Rule 5.080, if desired. As previously stated, declaring the matter adversary under Rule 5.025(b) is not necessary to accomplish this result. « Ch. 15 », « § 15.4 », « M », « 3 » 1 Practice Under Florida Probate Code § 15.4.M.3 (2022)

3. Rendition Of Order « Ch. 15 », « § 15.4 », « M », « 3 », • a » 1 Practice Under Florida Probate Code § 15.4.M.3.a (2022)

a. Content Requirements Of Order There are certain requirements as it relates to the court’s order determining a reasonable fee in a contested compensation proceeding. The trial court’s order should contain findings of fact, including, at a minimum: the employment of the lawyer by the personal representative; the general scope of ordinary services furnished; the probate estate’s value as determined finally for probate inventory purposes and as accounted for by the personal representative, including income earned during the period of administration; (if the lawyer is involved in preparation of the federal estate tax return) the value of the gross estate as finally determined for federal estate tax purposes; the amount of the presumptively reasonable fee under the statute; those factors, ranked from most to least important, under F.S. 733.6171(5) that would cause an increase in the presumed reasonable fee and those factors that would cause a decrease, and the net cumulative effect; and a description of any extraordinary services furnished and a reasonable fee for those services considering the factors mentioned in F.S. 733.6171(5). As previously discussed, proof of the foregoing must be submitted by the litigants. Faerber v. D.G., 928 So. 2d 517 (Fla. 2d DCA 2006). For a sample order granting an award of attorney fees, see § 15.4.M.7. « Ch. 15 », « § 15.4 », « M », « 3 », « b • 1 Practice Under Florida Probate Code § 15.4.M.3.b (2022)

b. Procedure As previously noted, the derivation of F.S. 733.6171 (compensation of

attorney for the personal representative) is from F.S. 440.34 (workers’ compensation attorney fees) and the methodology of both statutes was very similar before the 2003 Amendments to the latter statute. Before the 2003 Amendments, F.S. 440.34(1), after setting a percentage-based formula, provided for certain factors that were required to be considered and allowed the judge in each case to increase or decrease the fee if such an adjustment was warranted. An important case that explains how this adjustment is done (and illustrates how the trial order should be drawn) under F.S. 440.34 is What an Idea, Inc. v. Sitko, 505 So. 2d 497 (Fla. 1st DCA 1987), quoted by the Florida Supreme Court in Standard Guaranty Insurance Co. v. Quanstrom, 555 So. 2d 828 (Fla. 1990). In What an Idea, Inc., a workers’ compensation case, the deputy commissioner’s order, practically all of which is quoted in the opinion, addressed each of the statutory factors under F.S. 440.34 and recited whether consideration of each factor caused an increase, a decrease, or no change to the statutorily presumed reasonable fee. Probate lawyers representing estates of decedents dying between October 1, 1993, and June 30, 1995, should review What an Idea, Inc. for the proper determination of fees. This provides the appropriate opportunity for court’s adjustment to the presumed reasonable probate fee or to determine that no adjustment is required. Furthermore, this provides the opportunity for the court to address those statutory factors it considers most significant to the instant probate first and the least important factors last. The methodology for determining fees for probate estates of decedents dying after June 30, 1995, is set forth in F.S. 733.6171, which provides for a percentage-based fee for ordinary services and a fee for extraordinary services that “may vary depending on many factors.” The factors under F.S. 733.6171(5) must be considered to accomplish any adjustment, whether to the presumed reasonable fee or in the award of fees for extraordinary services. However, the weight given to each factor depends on the specific facts and circumstances of each individual probate estate. The determination of the fees in a probate proceeding under F.S. 733.6171 involves two or three steps. First, the court must determine the fee presumed reasonable under the statute for ordinary services. Second, the court must consider all of the statutory factors that relate to adjustments and

adjust the initially determined fee as appropriate, either up or down. The third and final step involves a determination and award of fees for extraordinary services, if applicable. The fee ultimately determined must be stated in the order. The court should also state in the order how the statutory factors weighed in the adjustment and how each factor was applied to the adjustment. This does not require exact precision such that each factor is quantified as supplying a stated dollar positive amount or a stated dollar negative amount to the presumed reasonable fee, but each factor should be ranked in order of importance and the court should specify whether that factor augmented or reduced the presumed reasonable fee. Then, although the parties may disagree, at least the method used to adjust the fee is clear to the parties, to the public, to the reviewing court, and eventually to other trial courts. « Ch. 15 », « § 15.4 », « M », « 4 » 1 Practice Under Florida Probate Code § 15.4.M.4 (2022)

4. Assets From Which Fees Are To Be Paid F.S. 733.106(4) permits the probate court to determine the part of the estate from which costs and attorneys’ fees awarded under F.S. 733.6171(4) (for extraordinary services), or under F.S. 736.1005 and 736.1006 (for attorney’s fees and costs incurred for services to a trust) are to be paid. See Dayton v. Conger, 448 So. 2d 609 (Fla. 3d DCA 1984); In re Estate of Lonstein, 433 So. 2d 672 (Fla. 4th DCA 1983). The statute authorizes the court to assess a person’s share of the estate and also provides that if the will pours over into a revocable trust, the trust share of the person may be charged with any shortfall if the person’s share of the probate estate is insufficient to satisfy the lawyer’s fee. Various nonexclusive factors are set forth for the court to consider if assessing attorney’s fees against a person’s share of the estate or pour-over revocable trust. The statute permits the apportioned fees to be paid only from a person’s share of the estate or a related pour-over trust. If those sources are insufficient to satisfy the amount of attorneys’ fees apportioned against a litigant pursuant to the statute, the balance remains unpaid and is not a personal judgment against that person. Anderson v. McDonough, 189 So. 3d 266 (Fla. 2d DCA 2016).

In In re Estate of Lane, 562 So. 2d 352 (Fla. 4th DCA 1990), the District Court of Appeal, Fourth District, held that fees could not be assessed proportionately against the individual beneficiaries’ shares in the estate due to the fact that the position taken by the beneficiaries in the will contest was taken in good faith. The court concluded that before a trial court may assess attorneys’ fees in connection with a will contest against a beneficiary’s share of an estate, there must be a finding of bad faith or wrongdoing by the beneficiary or other circumstances that would warrant such an assessment. However, in 2015, the Florida Legislature amended F.S. 733.106 to add subsection (4)(d). That subsection provides that “[t]he court may assess a person’s part of the estate without finding that the person engaged in bad faith, wrongdoing, or frivolousness.” As of the date of publication of this manual, no Florida court has addressed this new provision. « Ch. 15 », « § 15.4 », « M », « 5 » 1 Practice Under Florida Probate Code § 15.4.M.5 (2022)

5. Attorney Fees And Costs In Determining Fees F.S. 733.6175(2) provides: Court proceedings to determine reasonable compensation of the personal representative or any person employed by the personal representative, if required, are a part of the estate administration process, and the costs, including attorneys’ fees, of the person assuming the burden of proof of propriety of the employment and reasonableness of the compensation shall be determined by the court and paid from the assets of the estate unless the court finds the requested compensation to be substantially unreasonable. The court shall direct from which part of the estate the compensation shall be paid. The practitioner should note that the language contained in F.S. 733.6175(2) that refers to “[c]ourt proceedings to determine reasonable compensation” indicates that in any proceedings to determine the lawyer’s compensation and also any proceeding to determine the personal representative’s fees, or an agent’s fees, the personal representative’s lawyer may similarly be compensated. The practitioner should further note that F.S. 733.6175(2) allows fees to “the person assuming the burden of proof of propriety of the employment and

reasonableness of the compensation,” not, as under former F.S. 440.34, only to “the personal representative’s attorney.” Thus, the class of persons to whom fees may be awarded has been expanded. See In re Estate of Good, 696 So. 2d 876 (Fla. 4th DCA 1997) (construing prior statute to limit persons to whom attorney fees may be awarded). The lawyer to be compensated may be the administration attorney for the personal representative, special counsel retained by the personal representative for a specific part of the proceedings, or counsel for the person assuming the burden of proof. However, F.S. 733.6175(2) contains a specific limitation against the award of fees if the fee request is substantially unreasonable. The degree to which the lawyer prevails in the fee claim may also be considered. The award of litigation fees should not be denied to the lawyer who, in good faith, advocates a fee for legal services in the estate administration that is reduced at the conclusion of the trial by the court, although not substantially. If the fee claimed is substantially excessive, however, the court should reduce it to a reasonable level and decline to award a fee in the determination proceeding. « Ch. 15 », « § 15.4 », « M », « 6 » 1 Practice Under Florida Probate Code § 15.4.M.6 (2022)

6. Sample Petition For Attorney Fees IN THE CIRCUIT COURT FOR _________ COUNTY, FLORIDA PROBATE DIVISION File Number ___ IN RE: ESTATE OF _________ deceased.

PETITION TO DETERMINE REASONABLE ATTORNEY FEES Petitioner, _________, attorney for the personal representative, alleges: 1. Petitioner is an attorney engaged in the practice of law in _________, County, and elsewhere in the State of Florida, and is the attorney for the personal representative of this estate.

2. The decedent, _________, a resident of _________ County, Florida, died on _________, owning an estate subject to probate in this state having a total inventory value of $575,000, and the income earned on those assets during the period of administration was $10,000. The value of the decedent’s gross estate as finally determined for federal estate tax purposes was $1,380,000. This estate was required to and has filed a federal estate tax return for purposes of electing portability of the decedent’s unused estate tax exemption, which return was prepared by Petitioner. 3. Petitioner has represented the personal representative of this estate in timely and properly addressing all of Decedent’s tax obligations, creditors’ claims, and distribution of all assets to the beneficiaries. The estate has been fully administered except for allowance and payment of fees for the personal representative and the personal representative’s lawyer, and final distribution of remaining estate asset to the beneficiaries. 4. Petitioner was employed by and rendered ordinary and usual services to the personal representative, _________, in the administration of this estate. 5. In accordance with Rule 4-1.5(e) of the Rules of Professional Conduct, before or within a reasonable time after commencing the representation, Petitioner communicated to the personal representative, and to _________, _________, the beneficiaries of the estate, in writing, its intention to charge a fee in an amount presumed reasonable by F.S. 733.6171, and explained to each of them the basis and rate of the fee described by that statute. 6. Petitioner believes a reasonable fee for ordinary services rendered to this estate is the amount presumed to be reasonable by F.S. 733.6171 totaling $17,550, calculated as follows: $1,500 on the first $40,000 of value $750 on the next $30,000 of value $750 on the next $30,000 of value $14,550 on that part exceeding $100,000 (equal to 3% of $485,000) $17,550 Total fee for ordinary services

7. Petitioner has also provided extraordinary services to this estate in the preparation and filing of the federal estate tax return, Form 706, and in the proceeding to determine homestead status of the decedent’s real property. 8. Petitioner believes a reasonable fee for the preparation of the United States Estate (and Generation-Skipping Transfer) Tax Return, Form 706, is $6,900, the amount presumed to be reasonable by F.S. 733.6171(4)(e), calculated as ½% of the value of the gross estate of $1,380,000. 9. Petitioner believes a reasonable fee for determining the homestead status of the decedent’s real property is $2,512 based on the reasonable time expended and the usual hourly rates for nonadversary matters for the attorneys and persons with special education, training, and experience who are employed by and work under the supervision of the attorneys, all of whom have furnished services in that matter. These rates are as follows: Attorney 1, 3.0 hours at $350/hour =

$1,050

Attorney 2, 4.6 hours at $250/hour =

$1,150

Registered Paralegal, 2.6 hours at $120/hour =

$312 $2,512

10. Petitioner timely provided the disclosures required under F.S. 733.6171(2)(b) to the personal representative and all persons bearing the impact of the fee, receipt of which the personal representative and all such interested persons acknowledged in writing. 11. All of the services were necessary to the proper administration of this estate. 12. Petitioner has advised all persons bearing the impact of the fees of the amount Petitioner intended to charge for services, and the residuary beneficiary, _________, has indicated that [he] [she] will not agree with the amount intended to be charged and will object to the amount and its payment. After a good faith effort, Petitioner has been unable to resolve this matter with that beneficiary before filing this petition. The written consent of the residuary beneficiary, _________, to the fees Petitioner

intends to charge, as reflected by this petition, is attached. 13. Petitioner is the person who will assume the burden of proof of the propriety of the employment and reasonableness of the attorney’s compensation, and has expended and will expend additional professional time in that undertaking. Petitioner will be entitled to further compensation for this additional professional time. 14. The total fee petitioner believes to be reasonable for its ordinary and extraordinary legal services, as described above, is $26,962. 15. Petitioner has expended professional time for the preparation and filing of this petition and will expend further professional time and costs in this proceeding. 16. The only persons other than Petitioner having an interest in this proceeding, and their respective addresses, are: The personal representative:

(address)

The residuary beneficiaries:

(address(es))

Petitioner requests that an order be entered: A. Determining the amount of a reasonable fee for Petitioner for its services as attorney for the personal representative in the administration of this estate; B.

Awarding Petitioner reasonable fees for and costs of this proceeding to determine fees and directing from what portion of the estate those fees and costs shall be paid;

C. Determining that the reasonable fees and costs of this proceeding be charged against that portion of this estate due to the residuary beneficiaries pursuant to F.S. 733.106(4); and D. Authorizing and directing the personal representative forthwith to pay the fee so determined from the assets of the estate. Under penalties of perjury, I declare that I have read the foregoing, and the facts alleged are true, to the best of my knowledge and belief. Signed on

(date).

(Certificate of Service) /s/ Attorney (name of attorney) Attorney for Petitioner (address and phone number) (e-mail address(es)) Florida Bar No. ___ COMMENT: Proof of service should be added to this form unless it is served by optional formal notice. Fla. Prob. R. 5.040(d). A notice of the hearing on the petition must be served on all interested persons. For additional optional or alternative language for this petition, see Practice Form 148 (Petition for Attorney’s Fee) in Kelley & Bronner, THE FLORIDA BAR PROBATE SYSTEM (Fla. Bar 5th ed. 2018). « Ch. 15 », « § 15.4 », « M », « 7 • 1 Practice Under Florida Probate Code § 15.4.M.7 (2022)

7. Sample Order Granting Award Of Attorney Fees IN THE CIRCUIT COURT FOR _________ COUNTY, FLORIDA PROBATE DIVISION File Number _________ IN RE: ESTATE OF _________, deceased.

ORDER GRANTING PETITIONER’S MOTION FOR ATTORNEY FEES This action was heard on the petition of _________, attorney for the personal representative, for an order for an attorney fees in this estate. The court heard the testimony of _________, on behalf of Petitioner, in support of the petition and the testimony of _________, a residuary beneficiary of this estate, in opposition to the award requested in the

petition. No expert witnesses were presented by either side. Upon the testimony and the petition and answer, and having heard the argument of counsel and considered all of the factors described in F.S. 733.6171(5), THE COURT FINDS: 1. This court has jurisdiction over Petitioner, each person bearing the impact of the fee, and the subject matter of the petition. 2. All interested persons have been served proper notice of this hearing, or have waived notice of it. 3. The decedent, _________, a resident of _________ County, Florida, died on ______, owning an estate subject to probate in this state having a total inventory value of $575,000. The income earned on those assets during the period of administration was $10,000. The decedent’s gross estate as finally determined for federal estate tax purposes was $1,380,000. 4. Petitioner was employed by and rendered both ordinary and extraordinary legal services to the personal representative, _________, in the administration of this estate. 5. The ordinary services in this estate were those common to many estates with no unique aspects. After hearing and considering evidence and argument relating to each of the factors described in F.S. 733.6171(5), the court finds no basis that would compel adjustment to the presumed reasonable fee provided in F.S. 733.6171(3). That reasonable fee for ordinary services is $17,550 calculated as follows: $1,500 on the first $40,000 of value $750 on the next $30,000 of value $750 on the next $30,000 of value $14,550 on that part exceeding $100,000 (equal to 3% of $485,000) $17,550 Total fee for ordinary services

6. One of the extraordinary services provided to this estate by Petitioner was preparation of the United States Estate (and GenerationSkipping Transfer) Tax Return, Form 706, and its filing with the Internal Revenue Service. This return was neither especially complicated

nor especially simple and required an average level of skill and knowledge. The court finds no basis that would compel adjustment to the presumed reasonable fee for this extraordinary service as provided in F.S. 733.6171(4)(e). That reasonable fee for that extraordinary service is $6,900. 7. The additional extraordinary service performed by Petitioner was legal advice, preparation of a pleading and court documents, and preparation for and appearance at a hearing regarding determination of homestead status of real property. These services are best compensated by the award of fees based on a reasonable hourly rate and a reasonable amount of professional and paraprofessional time expended. The professional and paraprofessional time expended in this matter and reasonable rates for that time are: Attorney 1, 3.0 hours at $350/hour =

$1,050

Attorney 2, 4.6 hours at $250/hour =

$1,150

Registered Paralegal, 2.6 hours at $120/hour =

$312 $2,512

On the issues made by the pleadings and the evidence heard and considered by the court, the court determines that a fee of $2,512 is a reasonable fee for these services. 8. Petitioner, as attorney for the personal representative, timely provided written disclosures required under F.S. 733.7171(2)(b) to the personal representative and all interested persons bearing the impact of the attorney fees. 9. Beneficiary, _________, consented to the amount of the fee requested by Petitioner, but the other beneficiary, _________, answered and objected to the fee requested as permitted by law. Equity requires that the fees awarded to the attorneys for this proceeding to determine reasonable fees not be charged against the share of the beneficiary who consented to these fees, but rather that they be awarded against the share of this estate to which the objecting beneficiary is entitled. F.S. 733.106(4) authorizes this court to make this allocation. In doing so, the court considered the following factors:

A. The relative impact of an assessment on the estimated value of each person’s part of the estate. B. The amount of costs and attorney fees to be assessed against a person’s part of the estate. C. The extent to which a person whose part of the estate is to be assessed, individually or through counsel, actively participated in the proceeding. D. The potential benefit or detriment to a person’s part of the estate expected from the outcome of the proceeding. E. The relative strength or weakness of the merits of the claims, defenses, or objections, if any, asserted by a person whose part of the estate is to be assessed. F. Whether a person whose part of the estate is to be assessed was a prevailing party with respect to one or more claims, defenses, or objections. G. Whether a person whose part of the estate is to be assessed unjustly caused an increase in the amount of costs and attorney fees incurred by the personal representative or another interested person in connection with the proceeding. 10. The attorney fees requested in the petition by Petitioner were not substantially unreasonable and Petitioner is therefore entitled to a reasonable fee for services rendered in this proceeding to determine a reasonable fee. F.S. 733.6175(2). 11. The law firm, _________, which represents the personal representative, _________, has assumed the burden of proof of the propriety of the employment and reasonableness of the compensation of the attorneys. 12. The testimony indicates that _________ has expended 15 hours in this proceeding to determine a reasonable fee and this number of hours is reasonable. A reasonable hourly rate for these services is $350. IT IS ADJUDGED:

1. The sum of $26,962 is a reasonable fee for the services of the law firm, _________, as attorneys for the personal representative of the estate, in administering this estate. 2. The sum of $5,250 is a reasonable fee for services in this proceeding to determine a reasonable fee, and 3. The personal representative is ordered to pay forthwith the sum of $32,212 from the assets of this estate to the law firm, _________, representing the personal representative. 4. A total of $5,250 of the fee shall be apportioned by the personal representative against the share of this estate due to the beneficiary, _________. 5. The court reserves jurisdiction over the parties and, upon further motion, this court will determine and assess costs of this proceeding. ORDERED at _________, Florida, on

(date).

/s/____________ Circuit Judge Copies furnished to: _________ COMMENT: For additional optional or alternative language for this order, see Practice Form 149 (Order Allowing Attorney’s Fee) in Kelley & Bronner, THE FLORIDA BAR PROBATE SYSTEM (Fla. Bar 5th ed. 2018). « Ch. 15 », « § 15.4 », « N »

N. Reserved « Ch. 15 », « § 15.4 », « O • 1 Practice Under Florida Probate Code § 15.4.O (2022)

O. Miscellaneous Fee Issues « Ch. 15 », « § 15.4 », « O •, • 1 » 1 Practice Under Florida Probate Code § 15.4.O.1 (2022)

1. Multiple Lawyers For Joint Personal Representatives The issue of attorney fees for multiple lawyers for joint personal representatives was addressed in In re Estate of Maxcy, 240 So. 2d 93, 95

(Fla. 2d DCA 1970), in which the District Court of Appeal, Second District, held unequivocally: While Florida law seems to permit of multiple executors of a decedent’s estate, it is questionable as to a multiplicity of attorneys representing a personal representative, particularly separate attorneys to represent each of a plurality of personal representatives. * * * [W]e do hold that the two or more lawyers for the co-executors may not receive, in the aggregate, more in fees than what one attorney would have received for performing the requisite legal services. This case suggests that personal representatives are not entitled to separate legal representation without a court order and, in any case, separate lawyers for multiple personal representatives are not permitted separate fees from the estate that, in the aggregate, exceed the fees that a single lawyer would have received for performing the same legal services. However, in instances in which a specialist, such as a tax or litigation specialist, is retained to handle a particular item of controversy or litigation, the payment of two separate fees may be permitted. In In re Estate of Griffis, 399 So. 2d 1048 (Fla. 4th DCA 1981), although a widow had two law firms representing her in a will construction action, one firm was principally responsible for the appeal. The court awarded reasonable attorney fees based on the totality of the representation, which was then shared between the two firms. The limitation on the number of lawyers is intended to prevent overlap and duplication of services. When one lawyer is responsible for separate litigation and another is responsible for regular administration, this should not present a problem. Less clear, however, is a situation in which a lawyers who practice in different areas of the law “team up” to handle contested matters in the administration of an estate. In this instance, the Maxcy doctrine would limit the fee paid to the reasonable value of the probate lawyer’s services, because the probate lawyer would have the required knowledge and skill in handling the administration. If this was not the testator’s intention, the probate lawyer is well advised to include a specific instruction in the document permitting multiple representation.

The Maxcy doctrine probably has become even more relevant since the enactment of F.S. 733.6171 (compensation of attorney for the personal representative), because the statute does not address the issue of multiple lawyers. However, F.S. 733.617 (compensation of personal representative) does addresses the issue of two or more personal representatives and how multiple fees are handled. It is nearly a certainty that the testator assumed that the multiple fiduciaries could obtain legal advice from a single lawyer. The court should be frugal when awarding fees to multiple lawyers for representing multiple fiduciaries. The practitioner should note, however, as previously discussed, one of the factors that the probate court must consider in determining an increase or decrease in the compensation for ordinary services or an award of compensation for extraordinary services of the lawyer (F.S. 733.6171(5)(g)) or of the personal representative (F.S. 733.617(7)(g)) is “the compensation paid to other professionals and fiduciaries.” This language may be interpreted as relating to the compensation of multiple lawyers for other professionals and fiduciaries. « Ch. 15 », « § 15.4 », « O •, « 2 » 1 Practice Under Florida Probate Code § 15.4.O.2 (2022)

2. Fees When Lawyer Is Also Personal Representative Under F.S. 733.612(19), “[a]ny fees and compensation paid to a person who is the same as, associated with, or employed by, the personal representative shall be taken into consideration in determining the personal representative’s compensation.” F.S. 733.612(19) should be read in conjunction with F.S. 733.6171(5)(g), which, as previously discussed, provides that one of the factors to be considered in determining whether to increase or decrease the presumed reasonable fee for ordinary services is “the compensation paid to other professionals and fiduciaries.” This identical language is found among the factors that must be considered regarding the compensation of the personal representative. F.S. 733.617(7)(g). F.S. 733.617(6) provides: If the personal representative is a member of The Florida Bar and has rendered legal services in connection with the administration of the

estate, then in addition to a fee as personal representative, there also shall be allowed a fee for the legal services rendered. A lawyer who also serves as personal representative has additional responsibility, effort, and duties in administering the estate, and those additional responsibilities, effort, and duties should be compensated. But, in many situations, the award of a full lawyer’s fee and a full personal representative’s fee may be excessive. Indeed, the issue of double compensation was addressed by the Florida Supreme Court in In re Estate of Lieber, 103 So. 2d 192 (Fla. 1958), in which the court concluded that a lawyer may not be compensated from the estate for performing services that are within the normal duties of the personal representative. This was a greater conceptual problem when a percentage-based fee was awarded to a personal representative but a time-based fee was awarded to the lawyer. The present form of the compensation statutes goes a long way toward avoiding this problem, provided the lawyer does not apply for compensation for extraordinary services identified as those services the personal representative should have performed, but did not. However, if, in the process of justifying a fee (whether less than, equal to, or greater than the presumed reasonable fee), the lawyer includes services performed that were the obligation of the personal representative (and for which the personal representative has been compensated by payment of a full fee), the problem mentioned in Lieber of double compensation for the same service becomes relevant. See also In re Estate of DuVal, 174 So. 2d 580 (Fla. 2d DCA 1965) (see § 15.4.G). The practitioner should note that certain ethical issues may arise as it relates to whether a lawyer should also serve as personal representative. The practice of naming the drafting lawyer as a personal representative or a joint personal representative (unless fees are waived) may be an abuse of the attorney-client relationship, in the absence of special circumstances. See Rules Reg. Fla. Bar 4-1.7, 4-1.8. The Comment to Rule 4-1.8, as it relates to gifts, provides: [Rule 4-1.8] does not prohibit a lawyer or a partner or associate of the lawyer from serving as personal representative of the client’s estate or in another potentially lucrative fiduciary position in connection with a client’s estate planning. A lawyer may prepare a document that appoints the lawyer or a person related to the lawyer to a fiduciary office if the

client is properly informed, the appointment does not violate [Rule] 4-1.7, the appointment is not the product of undue influence or improper solicitation by the lawyer, and the client gives informed consent, confirmed in writing. In obtaining the client’s informed consent to the conflict, the lawyer should advise the client in writing concerning who is eligible to serve as a fiduciary, that a person who serves as a fiduciary is entitled to compensation, and that the lawyer may be eligible to receive compensation for serving as a fiduciary in addition to any attorneys’ fees that the lawyer or the lawyer’s firm may earn for serving as a lawyer for the fiduciary. At a minimum, a lawyer who applies for a fee under both F.S. 733.617 and 733.6171 should be prepared to justify to the court why the lawyer was designated as fiduciary or joint fiduciary, whether there were equally viable alternatives, and whether the financial implications of this appointment were explained to the client. There are many proper reasons for such an appointment, but compounding fees is not one. In the proper instance, the drafting lawyer should fully inform the client of the alternatives, if any, and, if not, of the reasons why there are no reasonable alternatives, together with a reasonable projection of the fees to be incurred, and a clear explanation of who will receive those fees. « Ch. 15 », « § 15.4 », « O •, « 3 » 1 Practice Under Florida Probate Code § 15.4.O.3 (2022)

3. Renunciation Of Fee There are situations in which the lawyer may wish to renounce the fee, such as when the will provides for a fee that is unacceptable to the lawyer. (This presumes the probate lawyer is not also the drafting lawyer.) See University of Florida Foundation, Inc. v. Miller, 478 So. 2d 482 (Fla. 1st DCA 1985) (discussed in §§ 15.3.F. and 15.3.G). Although the Code does not specifically provide for this contingency, there are analogous provisions in F.S. 733.617(4) allowing the personal representative to renounce a fee established by a will if there is no contract with the decedent regarding compensation. See § 15.3.G. As of the date of publication of this manual, there are no reported cases in Florida, and the cases in other jurisdictions are less than clear on the point of whether a restriction on attorney fees contained in a will is enforceable. It is recommended that a lawyer who wishes to avoid

a fee restriction should act promptly to renounce the will provision and either obtain a satisfactory written agreement with all persons bearing the impact of the payment of the fee or seek a court order determining whether the will restriction is enforceable. If the lawyer does not intend to charge for services rendered to the estate, a written renunciation should be filed in the probate proceedings at an early stage and a copy served on the personal representative and on all other interested persons. See § 15.3.K. « Ch. 15 », « § 15.4 », « O •, « 4 » 1 Practice Under Florida Probate Code § 15.4.O.4 (2022)

4. Attorney Fees And Costs For Unsuccessfully Offering Will For Probate, And When Personal Representative Is Removed F.S. 733.106(2) is generally used to obtain payment of attorney fees and costs when the personal representative has been removed because the will under which the personal representative served or the will the personal representative offered has been determined to be invalid. See also § 15.3.L. The key language in the statute is “in good faith.” Id. If the person seeking appointment or serving as personal representative has acted in bad faith in offering a will for probate, neither the personal representative nor the personal representative’s lawyer are entitled to fees from the assets of the estate, even if the lawyer is not aware of the bad faith of the personal representative. This is because the good faith required is the good faith of the person offering the will, not of the lawyer. See In re Graham’s Estate, 156 Fla. 421, 23 So. 2d 485 (1945) (will was forgery and creature of fraud); In re Estate of Hand, 475 So. 2d 1337 (Fla. 3d DCA 1985) (will procured through undue influence). Under F.S. 733.106(2), the lawyer has no right to individually petition for fees. It is the “person nominated as personal representative [who] … shall receive costs and attorney fees from the estate even though probate is denied or revoked.” Id. The lawyer has a personal right to compensation under F.S. 733.106(3), but, to enforce that right, the lawyer must show that the services rendered have benefited the estate. That may be difficult or impossible if the will being offered is not admitted to probate or if the order admitting the will is revoked.

The practitioner should note, however, that under F.S. 733.106(2), no benefit to the estate is required, and the award of fees to the (good faith) proponent is mandatory. Previously, benefit to the estate was required, and the award of fees to the unsuccessful proponent was discretionary. The leading case cited in this area of the law is In re Estate of Hand, 475 So. 2d 1337 (Fla. 3d DCA 1985). The lawyers who represented the unsuccessful proponent of a will that was rejected because the proponent obtained it through the exercise of undue influence, argued that they were, themselves, innocent of any bad faith and should be awarded legal fees. The interplay of subsections (2) and (3) of F.S. 733.106 is important and was discussed: [A]s a matter of law, a proponent of a will who has been found to have procured it through undue influence is not entitled to be awarded attorneys’ fees and costs from the decedent’s estate. * * * [T]he proponent’s entitlement to fees is dependent on the proponent’s good faith, not, as he and his attorneys here urge, on the attorneys’ good faith. The attorneys, who are not moving parties under subsection two, are not “themselves [entitled] to be paid under said section anything if the executor was acting in bad faith no matter how ignorant the attorneys were of his bad faith.” * * * Likewise, subsection three of [F.S.] 733.106 cannot support the award of fees in the present case. Although here the proponent’s conduct is not per se relevant to the recovery of fees, for an attorney to recover under subsection three, the services rendered “must have benefited the estate.” … [T]he exposure of an estate to the offer of spurious wills and the attendant claims of personal representatives and beneficiaries named therein is of no more benefit “than exposure to contagious disease.” In re Estate of Hand, 475 So. 2d at 1338–1340, quoting In re Graham’s Estate, 23 So. 2d at 487–488. Although facially this seems to be a harsh result when the lawyers, themselves, were innocent of any wrongdoing and did not know of their

client’s wrongdoing, the court observed: The attorneys’ good faith in undertaking the representation of a proponent of a will who is later found to have wrongfully procured the will surely does not outweigh the rights of the beneficiaries of the decedent’s estate to see to it that the estate is not “consumed by the payment of fees for supposed benefits of the services of the attorneys for the several proponents.” … We do not think it an unduly harsh rule of law that the attorney who represents the wrongdoer look to the wrongdoer for compensation. Where, as between two innocent parties—the attorney and the estate—only one—the attorney—is in a position to protect himself from being victimized by the wrongdoer-proponent, the attorney should bear the loss if the wrongdoer does not pay. Id. at 1340, quoting In re Graham’s Estate, 23 So. 2d at 490. In In re Estate of Rayhill, 489 So. 2d 87 (Fla. 3d DCA 1986), another lawyer tried a new approach. The lawyer unsuccessfully defended a will that an undue influencer offered for probate, but also represented an innocent corporate co-fiduciary in its administration of the estate during the period the will was in litigation. The lawyer claimed fees, apparently under former F.S. 733.617, for representing the corporate co-personal representative of the estate in its regular administration. There was also some discussion regarding whether the lawyer would be entitled to fees because he successfully defended against charges that the will was improperly executed and that the testatrix lacked testamentary capacity, although losing on the issue of undue influence. The court was clear and emphatic that there was no benefit to the estate by prevailing on two of the three challenges and no fees would be awarded. The case was remanded for the trial court to make a specific finding of the services rendered to the corporate co-personal representative and to award reasonable fees for those services. The case of Cushing v. Estate of Reynolds, 489 So. 2d 1204 (Fla. 3d DCA 1986), was decided less than two months after Rayhill. A will was refused probate on the ground that the decedent lacked testamentary capacity when it was executed. The trial court made no finding of bad faith on the part of the proponents and even awarded them attorney fees, while, at the same time, assessing costs against them personally on the theory that they were the losing side. The district court reversed the costs judgment, holding that the

trial court implicitly found that the proponents acted in good faith because it awarded them fees, and, having determined their good faith, must also award to them their costs. In a consolidated matter, the prior counsel (who had been replaced) for the unsuccessful proponents applied for fees on their own behalf under F.S. 733.106(3). The court denied these fees on the ground that there had been no benefit shown to the estate from the efforts of the lawyers because probate of the will had been denied. See also In re Estate of Weinstein, 339 So. 2d 700 (Fla. 3d DCA 1976). In Onofrio v. Johnston & Sasser, P.A., 782 So. 2d 1019, 1022 (Fla. 5th DCA 2001), although the lawyer for the personal representative, who was found to have unduly influenced the testator, was not awarded fees for offering the will or defending it, the lawyer was entitled to fees for “services to the estate such as publishing notice to the creditors, and perhaps protecting assets, and considering and dealing with tax issues.” In addition to good faith, under F.S. 733.106(2), the will must be “in due form.” In In re Estate of Sangenito, 631 So. 2d 1125 (Fla. 4th DCA 1994), when a copy of a will was offered together with a petition for administration of a lost or destroyed will, and the petition was unsuccessful, even though good faith was not an issue, the petitioner was denied attorney fees because a copy of a will is not “in due form.” Compensation of a lawyer for a personal representative who is removed for reasons other than having procured an invalid will or whose letters were canceled nunc pro tunc should be awarded, under F.S. 733.6171, at least for those services involving administration of the estate as opposed to defending the personal representative, unsuccessfully, against removal. See F.S. 733.508(2). However, F.S. 733.3101 requires a personal representative to resign immediately if the personal representative knows that he or she was not qualified when appointed, and the statute requires a personal representative who was initially qualified but has become unqualified to provide notice accordingly to the estate beneficiaries. A personal representative who fails in either of these duties is personally liable for attorney fees and costs in removal proceedings. In Bookman v. Davidson, 136 So. 3d 1276 (Fla. 1st DCA 2014), the successor personal representative brought an action for disgorgement of the attorney fees awarded to the prior, removed personal representative. The

court held that the successor personal representative had both standing and a duty to pursue the legal malpractice action to reclaim assets for the estate. For additional discussion of this topic, see Wallace, The Recovery of Attorneys’ Fees and Costs for the Unsuccessful Offer of a Will for Probate, 76 Fla. Bar J. 36 (Jan. 2002). « Ch. 15 », « § 15.4 », « O •, « 5 • 1 Practice Under Florida Probate Code § 15.4.O.5 (2022)

5. When Attorney Fees May Not Be Paid From Estate Attorney fees may be recoverable in actions against the estate by statute or contract. However, F.S. 733.705(1) provides, in relevant part: “If any person brings an action against a personal representative within … 5 months on any claim to which the personal representative has not filed an objection, the plaintiff shall not receive any costs or attorneys’ fees.” In Snyder v. Bell, 746 So. 2d 1100 (Fla. 2d DCA 1999), the court held that when a claimant brought an action against an estate and recovered on a civil theft claim, and the statute provided for allowance of attorney fees and costs to the plaintiff, because the plaintiff initiated the action before the personal representative objected to the claim and before five months after publication, the probate statute prevailed to deny recovery of attorney fees and costs that the civil theft statute allowed against the estate by the successful plaintiff.

« Ch. 15 », « § 15.5 » 1 Practice Under Florida Probate Code § 15.5 (2022)

§ 15.5. MISCELLANEOUS ADMINISTRATIVE EXPENSES « Ch. 15 », « § 15.5 », • A » 1 Practice Under Florida Probate Code § 15.5.A (2022)

A. Bond Premium And Other Expenses The personal representative has authority to expend assets of the estate in payment of court costs, filing fees, and other incidental and necessary expenditures required in the administration of an estate. F.S. 733.608(1). An administrative expense that should not be overlooked is the premium on any bond required of the personal representative as a condition of appointment. F.S. 733.402. Regarding payment of a bond premium, in large estates in which the personal representative is an individual, consideration should be given to designation of a financial institution as depository for assets under F.S. 69.031, so as to reduce or eliminate the bond premium. For further discussion of this procedure, see Chapter 9 of this manual. « Ch. 15 », « § 15.5 », « B » 1 Practice Under Florida Probate Code § 15.5.B (2022)

B. Continuing Business Of Decedent The personal representative is specifically authorized by the Code to continue any unincorporated business or venture in which the decedent was engaged at the time of death, without court order, for four months from the date of the personal representative’s appointment. F.S. 733.612(22). The business may be continued beyond the initial four months only with a court order. See Beck v. Beck, 383 So. 2d 268 (Fla. 3d DCA 1980), regarding surcharging a personal representative for losses incurred when continuing a business without court order. In any event, necessary costs and expenses for this and similar activities, such as carrying out the decedent’s contracts for the sale of property, is chargeable as administrative expenses. F.S. 733.612(22). The practitioner should note, however, that “debts acquired” by

the continuation of the decedent’s business do not constitute a Class 1 priority of ordinary administrative expenses but are given Class 7 priority to the extent of the particular business and last priority to the extent they exceed the assets of the business. F.S. 733.707(1)(g). Continuation of a business is one of the most hazardous activities that can be undertaken by a personal representative because it potentially exposes all of the assets of the estate to business losses. Usually, every effort should be made to liquidate, dispose of, or distribute the business at the earliest possible date, or if all else fails, to incorporate it or otherwise change its form to avoid the liability pass-through to the general assets of the estate. « Ch. 15 », « § 15.5 », « C » 1 Practice Under Florida Probate Code § 15.5.C (2022)

C. Protecting And Preserving Estate Assets And Protected Homestead Sums reasonably and necessarily expended by the personal representative in protecting and preserving estate assets (e.g., the payment of insurance premiums, expenses of maintenance and upkeep, and taxes) constitute administrative expenses that the personal representative is authorized to incur and pay without court order in the ordinary course of administration. F.S. 733.612(6), (13), (16). Under certain, limited circumstances, the personal representative may, but is not required, to preserve and protect the decedent’s protected homestead. Expenses of this endeavor may be collected either from the revenues from that protected homestead, or by a lien on that property. F.S. 733.608(3)–(4). Some thought should be given before undertaking this action by the personal representative. For example, if the homestead property is “under water” and there is no equity from which to reimburse the expenses paid by the estate, those expenses will fall on other estate beneficiaries who may be critical of the personal representative for undertaking this action initially. There are other examples of how this action may increase the personal liability of the personal representative. For further discussion, see Chapters 10 and 19 of this manual. « Ch. 15 », « § 15.5 », « D • 1 Practice Under Florida Probate Code § 15.5.D (2022)

D. Sale Of Assets

With the exception of real property, the personal representative has broad powers of sale by statute. These powers are discussed in Chapter 10 of this manual. Necessary and reasonable expenses incurred in the sale of estate assets are administrative expenses of the estate. To the extent these expenses are incurred for the benefit of the beneficiaries and not for the benefit of the estate to properly administer it, the tax deduction for such expenses may be disallowed.

« Ch. 15 », « § 15.6 » 1 Practice Under Florida Probate Code § 15.6 (2022)

§ 15.6. FUNERAL, BURIAL, AND GRAVE MAINTENANCE EXPENSES Although normally incurred after the death of the decedent, funeral and burial expenses traditionally have been considered as “claims” that would be barred if not filed within the statutory period after the notice to creditors was served. See Twomey v. Clausohm, 234 So. 2d 338 (Fla. 1970). Funeral expenses are included in the Code’s definition of “claim,” F.S. 731.201(4), and these expenses are subject to the three-month limitation provision of F.S. 733.702(1). Funeral, interment, and grave marker expenses up to $6,000 have a higher priority in the order of payment than other “claims” but have a lower priority than “expenses of administration.” F.S. 733.707(1)(b). Funeral expenses exceeding $6,000 have a Class 8 priority. F.S. 733.707(1)(h). It is unclear whether the separate expense of perpetual care for a grave site is included within the statutory term “funeral and burial expense.” F.S. 733.707(1)(b). In Florida, the cost of perpetual care be included in the cost of purchase of the lot. Because this expense normally is incurred after the funeral, it would be prudent to obtain the consent of interested persons before such an item is paid.

« Ch. 15 », « § 15.7 » 1 Practice Under Florida Probate Code § 15.7 (2022)

§ 15.7. POSTMORTEM PLANNING « Ch. 15 », « § 15.7 », • A » 1 Practice Under Florida Probate Code § 15.7.A (2022)

A. In General Postmortem tax planning is an extraordinary service of the estate’s lawyer. F.S. 733.6171(4)(c). See also F.S. 733.6171(5)(f) (discussed at § 15.4.E). Significant tax advantages may be obtained or preserved for the benefit of the ultimate beneficiaries, depending on the timing of payment of the costs and expenses of the probate administration. These costs and expenses include the large expenses such as personal representatives’ commissions and attorneys’ fees. Expenses of administration, if not deducted on the estate tax return, may be deductions against taxable income of the estate and would appear on the estate’s income tax return, IRS Form 1041. Excess deductions (deductions exceeding income) paid in the final year of the estate flow out to the beneficiaries and can then be deducted by them, subject to the miscellaneous deduction limitation, on their personal income tax returns. If the estate has tax-free income such as income from a municipal bond portfolio, the administrative expenses deducted on the estate’s income tax return must be apportioned between the taxable and tax-free income. For example, if 90% of the estate’s income is tax free, 90% of the deductible administrative expense must be apportioned to that income and is thereby lost as an income tax deduction. This result can be embarrassing for the lawyer who has responsibility for tax planning. One possible alternative is to deduct all administrative expenses on the Estate Tax Return, IRS Form 706. However, many estates pay no estate tax, for the reason that the gross value is below the taxable threshold, or the estate has a full marital or charitable deduction, and a deduction against the gross estate has no value. Another alternative is to distribute the assets generating the tax free income as early as possible. In an estate that will pay no estate tax (for example, one with a full

marital deduction or one under the filing threshold) and that will have substantial administrative expense, early consideration should be given to converting all tax-free investments to taxable investments, or to distribution of tax-free investments to avoid this loss of deduction. « Ch. 15 », « § 15.7 », « B • 1 Practice Under Florida Probate Code § 15.7.B (2022)

B. Renouncing Fees Another situation in which tax advantages may be obtained involves estates for which the applicable credit amount equals or exceeds the tentative estate tax. In those cases, if the personal representative (or the lawyer) is the residuary beneficiary under the will, a renunciation of compensation should be promptly filed to avoid income tax liability on that amount, which otherwise would have passed to the lawyer or the personal representative as a part of the residue of the estate, free of tax. See §§ 15.3.K, 15.4.O.3. See also Tax Note 6.2, Kelley & Bronner, THE FLORIDA BAR PROBATE SYSTEM (Fla. Bar 5th ed. 2018). In larger estates, the same principle applies, especially when the personal representative/residuary beneficiary is the surviving spouse and the marital deduction is available to the estate. In estates in which there will be estate tax liability, certain deductions, attorney fees, or personal representative’s compensation, may be deducted on either return, but not on both. Thus, the relative income tax bracket must be compared with the estate tax bracket to determine where the deduction will be more beneficial to the beneficiary. If the estate must pay estate tax, the estate tax deduction is usually more valuable. In a zero tax estate (because of the marital deduction and other available deductions), whether a deduction is taken on the estate tax return or on the fiduciary income tax return, the marital formula will have the effect of changing the amount passing to the spouse or to a marital trust for his or her benefit inversely and equal to the change in the other deductions taken on the estate tax return.

« Ch. 15 », « § 15.8 • 1 Practice Under Florida Probate Code § 15.8 (2022)

§ 15.8. TAX CONSEQUENCES « Ch. 15 », « § 15.8 •, • A » 1 Practice Under Florida Probate Code § 15.8.A (2022)

A. In General IRC § 2053 permits the value of the gross estate to be reduced by certain deductions for purposes of determining the estate tax due. These deductions fall into two categories. The first category allows deductions for funeral expenses, administration expenses, claims against the estate, and certain taxes and charitable pledges to a limited extent. Those expenses must be payable out of property subject to claims during the administration of the estate and must be allowable by local law. In Florida, the assets in a revocable living trust are available to pay expenses of administration and obligations of the probate estate if the probate estate assets are insufficient. F.S. 733.607(2), 736.05053. Unpaid mortgages or secured debts are also permitted as deductions if the value of the asset that is the subject of the debt has been included in the gross estate without a reduction for the amount of the mortgage or the security interest. This first category also includes a limited deduction for amounts paid out of property not subject to claims against the decedent’s estate, if actually paid within nine months of the decedent’s death (or within any extension granted under IRC § 6061). Treas. Reg. § 20.20531(c). For this deduction the claim must be “allowable” by local law. The second category allows deductions for expenses incurred in administering property that is not subject to claims and that is included in the gross estate. Deductions are allowed for those expenses to the same extent that they would have been permitted if the property administered was subject to claims but only if the expenses were paid before the expiration of the period of limitation for assessment provided in IRC § 6501. Reg. §§ 20.2053l(a)(1)–1(a)(2), 1(c)(2). See also Reg. § 20.2053-8. The fact that expenses are authorized for payment by local law does not necessarily qualify them as deductible. For example, payment of real property taxes on property of the estate that became a lien on the property after the

date of death is not deductible, even though the payment may be allowed under local law. IRC § 2053(c)(1)(B). If local law contains a limitation for the amounts that may be expended, that limitation also applies to the amount of the permitted deduction for estate tax purposes. Reg. § 20.2053-1(b)(1). Some expenses may be permitted as deductions either for estate tax purposes or for income tax purposes. Generally, they cannot be deducted for both purposes, and care should be taken to prevent the possibility of double deductions for income tax and estate tax purposes. Reg. § 20.2053-1(d). Exceptions under IRC §§ 642(g), 691(b), and 2053(a) for which double deductions may be taken are taxes, interest, business expenses, and other items accrued at the date of the decedent’s death. Although deductibility for income or estate tax purposes should always be considered at the time the expense is incurred, it should not be the sole factor in determining whether the expense is necessary. If those expenses are required, however, certain rules must be observed to ensure their deductibility. « Ch. 15 », « § 15.8 •, « B » 1 Practice Under Florida Probate Code § 15.8.B (2022)

B. Funeral Expenses A deduction will be permitted for those funeral expenses paid by the personal representative as are actually expended, that would be allowed under local law, and that satisfy the requirements of Reg. § 20.2053-1(c). Local law would likely disallow a funeral expense if no claim were timely filed, and in that instance, the deduction against estate tax may thereby be lost. Reasonable expenses may include the cost of a tombstone or monument and the cost of a burial lot as well as the cost of perpetual care for the cemetery lot if charged separately. Included in deductible funeral expense is the cost of transportation of the body and of the person accompanying the body to the place of burial. Reg. § 20.2053-2. « Ch. 15 », « § 15.8 •, « C » 1 Practice Under Florida Probate Code § 15.8.C (2022)

C. Administration Expenses When considering whether administration expenses are deductible, it

must first be established that they are actual expenses necessarily incurred in the administration of the estate. Normal administration expenses include the personal representative’s commission, the lawyer’s fee, and some miscellaneous expenses. Reg. § 20.2053-3(a). Expenses incurred for the benefit of the beneficiaries are not deductible. An example would be commissions on the sale of stock or real estate commissions on sale of real property to facilitate distribution when the proceeds were not required to pay taxes, claims, or expenses of administration and the assets could have been distributed to the beneficiaries, even if in undivided interests. « Ch. 15 », « § 15.8 •, « D » 1 Practice Under Florida Probate Code § 15.8.D (2022)

D. Personal Representatives’ Commissions Deductions for personal representatives’ commissions are limited to commissions paid, or reasonably expected to be paid, at the time the estate tax return is filed. The deduction may be permitted at the final audit of the return if the IRS is satisfied that the commissions will be paid, are permitted under local law, and conform with amounts allowed for estates of similar size and character in the jurisdiction under consideration. Reg. § 20.2053-3(b)(1). A devise to the personal representative in lieu of compensation is not permitted as a deduction. However, a specific commission provided in the will is permitted as a deduction if it is paid or will be paid and it does not exceed the compensation normally allowable under local law. Reg. § 20.2053-3(b)(2). Trustees’ expenses incurred for services normally performed by the personal representative may constitute deductible expenses of administration, subject to certain limitations. Reg. §§ 20.2053-3(b)(3), 20.2053-8. « Ch. 15 », « § 15.8 •, « E » 1 Practice Under Florida Probate Code § 15.8.E (2022)

E. Attorney Fees

Attorney fees are deductible as an expense of administration of the estate. The IRS permits a deduction for fees actually paid as well as for those fees reasonably expected to be paid so long as they are reasonable in amount. The deduction is allowed without regard to whether an award of attorney fees has been made by the court. See § 4.2.C.1 of this manual. The IRS has promulgated IRS Form 4421 for establishing that an agreed-upon fee will be paid. The deductibility of attorney fees is limited to those situations in which the estate derives a direct benefit. Fees are not deductible when the expenses have been incurred by beneficiaries in litigation over their own interests. Extra expenses incurred for attorney fees for contesting tax deficiencies or establishing the validity of tax refunds may be claimed at the time that the refund claim or deficiency is prosecuted, regardless of whether the extra expenses were claimed as a deduction on the estate tax return or refund claim. Reg. § 20.2053-3(c). The fact that a lower state court has determined the fee to be reasonable does not preclude the IRS from investigating or questioning the deductibility of attorney fees under state law. United States v. White, 853 F.2d 107 (2d Cir. 1988). See also Commissioner v. Estate of Bosch, 387 U.S. 456, 87 S. Ct. 1776, 18 L. Ed. 2d 886 (1967). « Ch. 15 », « § 15.8 •, « F • 1 Practice Under Florida Probate Code § 15.8.F (2022)

F. Miscellaneous Expenses The Internal Revenue Code allows a deduction for miscellaneous expenses such as court costs, publication costs, accountants’ fees, appraisers’ fees, and the clerk’s fees. Expenses incurred for protecting estate property, such as storage or maintenance costs, are deductible if it is impossible to make an immediate distribution to the beneficiaries. See F.S. 733.801(1). Expenses incurred in selling estate property, such as brokerage fees or auctioneers’ fees, are also deductible. but only if the sale of the property was required to pay taxes, debts, or expenses or to preserve or distribute the estate. Reg. § 20.2053-3(d). Within certain limitations, claims enforced against the decedent’s estate are permitted as deductions. See Reg. § 20.2053-4. For a general discussion

of this subject, see Chapter 8 of this manual. Similarly, the Code permits a deduction from the gross estate for certain taxes. See Reg. § 20.2053-6(e). Footnotes — Chapter 15: *

J.D.1999, University of Florida. Mr. Sherrill is a member of The Florida Bar, Florida Bar Board Certified in Wills, Trusts and Estates, and is a Fellow of the American College of Trusts and Estate Counsel. He serves as Chair to the Real Property, Probate and Trust Law Section of the of The Florida Bar. Mr. Sherrill is a shareholder with Clark, Partington, Hart, Larry, Bond & Stackhouse, in Pensacola.

Licensed to Otis K Pitts, Otis K Pitts

« Ch. 16 » 1 Practice Under Florida Probate Code Ch. 16 (2022)

Chapter 16 CURATORS ROBERT F. ISELEY, JR.* Contents § 16.1. INTRODUCTION § 16.2. AUTHORITY FOR AND DEFINITION OF CURATOR § 16.3. APPOINTMENT OF CURATORS A. Occasions For Appointment B. Procedure For Appointment 1. Venue 2. Petition For Appointment a. In General b. Form For Petition 3. Notice And Hearing On Application 4. Order Appointing Curator a. In General b. Form For Order 5. Oath a. In General b. Form For Oath 6. Bond a. In General b. Form For Bond 7. Designation Of Resident Agent 8. Letters Of Curatorship a. In General b. Form For Letters

§ 16.4. POWERS AND DUTIES OF CURATOR A. In General B. Special Court Authority Required C. Completing Administration § 16.5. LIABILITIES OF CURATOR § 16.6. COMPENSATION OF CURATOR « Ch. 16 », • § 16.1 » 1 Practice Under Florida Probate Code § 16.1 (2022)

§ 16.1. INTRODUCTION This chapter discusses the appointment, qualification, duties, compensation, and discharge of a curator appointed by the circuit court when a curator is needed for the administration of a decedent’s estate. The office of curator is created by F.S. 733.501, and Fla. Prob. R. 5.122 was adopted in 1988, implementing the procedure found in F.S. 733.501. This chapter addresses the statute, rule, and case law regarding curators. The circuit court has jurisdiction over matters concerning curators as discussed in § 16.2.

« Ch. 16 », « § 16.2 » 1 Practice Under Florida Probate Code § 16.2 (2022)

§ 16.2. AUTHORITY FOR AND DEFINITION OF CURATOR F.S. 733.501 authorizes the appointment of a curator as follows: (1) When it is necessary, the court may appoint a curator after formal notice to the person apparently entitled to letters of administration. The curator may be authorized to perform any duty or function of a personal representative. If there is great danger that any of the decedent’s property is likely to be wasted, destroyed, or removed beyond the jurisdiction of the court and if the appointment of a curator would be delayed by giving notice, the court may appoint a curator without giving notice. (2) Bond shall be required of the curator as the court deems necessary. No bond shall be required of banks and trust companies as curators. (3) Curators shall be allowed reasonable compensation for their services, and the court may consider the provisions of s. 733.617. (4) Curators shall be subject to removal and surcharge. F.S. 731.201(8) defines a curator as “a person appointed by the court to take charge of the estate of a decedent until letters are issued.” The court in this context is “the circuit court. F.S. 731.201(7). Fla. Prob. R. 5.122(d) specifically provides that the court may authorize the curator to publish notice to creditors or, if a will has been admitted, to serve notice of administration. However, the specification was not intended to limit the authorized acts to those two specified in the rule. See Committee Notes to Rule 5.122. Communications between a lawyer and a client acting as a fiduciary, including a curator, are privileged and protected from disclosure. F.S. 90.5021.

« Ch. 16 », « § 16.3 » 1 Practice Under Florida Probate Code § 16.3 (2022)

§ 16.3. APPOINTMENT OF CURATORS « Ch. 16 », « § 16.3 », • A » 1 Practice Under Florida Probate Code § 16.3.A (2022)

A. Occasions For Appointment Curators can be appointed only for a decedent’s estate. It is appropriate to seek the appointment of a curator when there is a protracted delay in the appointment of a personal representative and it is necessary to appoint a fiduciary to take charge of the assets of the estate. See F.S. 733.501(1); In re Guardianship of Jensen, 834 So. 2d 376 (Fla. 2d DCA 2003). For example, when a caveat has been filed before the filing of a petition to probate a will, no personal representative can be appointed until the hearing on the petition has been concluded. Notice must be served on the caveator and the caveator must be given an opportunity to answer. It may take several months, or years, before the issues are ultimately determined in a will contest. In an intestate estate, there may be a dispute among heirs of the same degree as to which of them will serve as the personal representative. Considerable time might be required before this dispute is finally resolved by the court. In any of these or other situations in which it appears that there may be a lengthy delay before a personal representative will be qualified, it very often is desirable in the overall interest of expediting normal administrative steps to seek the appointment of a curator to protect the estate assets and obtain specific authority to perform administrative steps that normally would be performed by the personal representative. The appointment of a curator may be necessary or desirable under the following circumstances: To continue a business when, if operations ceased, the business might lose its customers, employees, or goodwill. See F.S. 733.501(1), 733.612(22). To publish notice to creditors and pay, object to, or litigate the validity of claims.

To pay delinquent taxes or other liens when a delay in doing so would result in foreclosure and ultimate loss of the estate asset. To file timely income tax returns to avoid penalties and interest. To cause assets of the estate to be appraised and to prepare and file an estate tax return. To make necessary funeral arrangements when the decedent has no known family and there is no knowledge of the existence of a will. To enable a creditor to file a claim against a decedent’s estate. To gather, protect, or sell estate assets, as may be required or desirable under the circumstances. To recover a decedent’s jointly held accounts as assets of the decedent’s estate, see Brown v. Brown, 149 So. 3d 108 (Fla. 1st DCA 2014), or to pursue a claim on behalf of a decedent’s estate, see Golden v. Jones, 194 So. 3d 1060 (Fla. 4th DCA 2016). To bring suit to recover assets subject to a qualified domestic relations order. See id. To bring a malpractice action on behalf of a decedent’s estate. See Klein v. Estate of Klein, 295 So. 3d 793 (Fla. 4th DCA 2020). To defend and initiate lawsuits involving a motor vehicle negligence action on behalf of the estate. See De La Riva v. Chavez, 303 So. 3d 955 (Fla. 4th DCA 2020). To take control of an estate where the personal representative fails to comply with court orders. See Nestor v. Estate of Posner, 260 So. 3d 417 (Fla. 3d DCA 2018). Any other reasons for which a court may deem it in the best interests of an estate to appoint a curator. (For example, an appellate court affirmed the appointment of a curator for the sole purpose of burying the decedent in Florida. Leadingham v. Wallace, 691 So. 2d 1162 (Fla. 5th DCA 1997). This opinion is worth reading for its subtle wit and practical justice.) There is scant discussion in reported cases on the uses and limitations of

curators. However, curators are used frequently in practice, usually when there is controversy involving the appointment of the designated personal representative or person having preference of appointment. The signal that a curator may be beneficial in an estate is any controversy in which entitlement to appointment as personal representative is an issue. The critical characteristic for a curator is impartiality. To avoid appointing a party to a controversy to the office of personal representative, the court is justified in appointing a curator. The curator can be authorized to administer the estate until the controversy is resolved, at which time the proper personal representative can be appointed, free from any cloud of controversy. Whether the court chooses to appoint a curator, such as a lawyer or bank trust department (even the bank designated as personal representative under a challenged will), is within the discretion of the court. It is submitted that if the court can assure itself of the impartiality of the bank named as personal representative under a challenged will, it is appropriate and even advantageous to the continuity of the administration of the estate for that bank to be named curator and to administer the estate until the controversy is resolved. The deciding factors in such a case are always the impartiality of the curator and the best interests of the estate. A variation of this theme arises in situations in which a decedent’s estate is not being administered and a creditor wishes to protect its claim from being barred by the two-year limitations period described in F.S. 733.710. One option is for the creditor to seek the appointment of a curator (including its own appointment) to marshal assets and cause publication of the notice to creditors. The creditor can then file a claim in the estate, thereby preserving its claim. The process may prove cost effective and efficient for the creditor while limiting the many responsibilities and potential liability associated with a full probate administration. It may also prompt the person with preference for appointment as personal representative to initiate the administration of the estate. A curator may be appointed to marshal assets, including assets claimed by one beneficiary as nonprobate assets, pending determination of the status of those assets, when the beneficiary claiming ownership of the assets adverse to interests of other beneficiaries is also making distributions of those assets. In re Estate of Katz, 501 So. 2d 68 (Fla. 3d DCA 1987); see also

Brown. In a will contest, the District Court of Appeal, Fourth District, implicitly recognized that the appointment of an administrator ad litem was appropriate pending a court determination of whether the decedent died testate or intestate. In re Estate of Bierman, 587 So. 2d 1163 (Fla. 4th DCA 1991). In this situation, the appointment of a curator would likewise have been proper. In American Red Cross v. Estate of Haynsworth, 708 So. 2d 602 (Fla. 3d DCA 1998), after initially admitting a will to probate, the court vacated its order admitting the will and appointed a curator in the face of a will contest when other wills were offered for probate. See Sinnes v. Pereno, 629 So. 2d 995 (Fla. 3d DCA 1993). On the other hand, the First District found that a trial court abused its discretion by appointing a curator when the plaintiff alleged, without offering proof, that the nominated personal representative did not intend to include a joint bank account as a probate asset, and there was likewise no evidence presented to show estate assets were being improperly distributed. In re Estate of Miller, 568 So. 2d 487 (Fla. 1st DCA 1990). The court suggested that the personal representative be required to post a bond even though the testator specifically waived that requirement. The practitioner should note that the Bierman and Miller decisions apparently conflict in that the court in Bierman found that the appointment of the administrator ad litem was not an appealable final order. The appointment of, or failure to appoint, a curator or administrator ad litem is not identified as an appealable final order in Fla. R. App. P. 9.170(b). However, this list is not exclusive, and Rule 9.170(b)(6) (concerning removal or refusal to remove a fiduciary) and Rule 9.170(b)(7) (concerning refusal to appoint a personal representative or guardian) should be considered by any contestant seeking appellate review. Once a personal representative is appointed, a curator may be appointed only if the personal representative’s letter of administration is temporarily or permanently revoked. Gordin v. Estate of Maisel, 179 So. 3d 518 (Fla. 4th DCA 2015). In short, any time it can be shown that there will be a delay in the appointment of the personal representative and that the delay may result in a

loss or waste of estate assets or that administrative steps are necessary in the interim, the appointment of a curator is justified. « Ch. 16 », « § 16.3 », « B • 1 Practice Under Florida Probate Code § 16.3.B (2022)

B. Procedure For Appointment « Ch. 16 », « § 16.3 », « B •, • 1 » 1 Practice Under Florida Probate Code § 16.3.B.1 (2022)

1. Venue Presumably, venue for a curatorship proceeding is governed by the same law that governs the probate of wills and the granting of letters of administration. See Chapter 3 of this manual. Under F.S. 733.101(1)(a)–(1) (c) venue must be in the county where the decedent was domiciled; or if the decedent had no domicile in Florida, in any county where the decedent’s property is located; or if the decedent had no domicile in Florida and possessed no property in Florida, in the county where any debtor of the decedent resides. For the purpose of the venue statute, “a married woman whose husband is an alien or a nonresident of Florida may establish or designate a separate domicile in [Florida].” F.S. 733.101(2). « Ch. 16 », « § 16.3 », « B •, « 2 » 1 Practice Under Florida Probate Code § 16.3.B.2 (2022)

2. Petition For Appointment « Ch. 16 », « § 16.3 », « B •, « 2 », • a » 1 Practice Under Florida Probate Code § 16.3.B.2.a (2022)

a. In General The court, either sua sponte or on the application of any person, may appoint a curator to take charge of the estate of any deceased person until letters of administration are granted. See F.S. 733.501(1). The petition must be verified and must set forth specific allegations of fact, as outlined in Fla. Prob. R. 5.122(a), showing the necessity for the appointment of a curator. See

§ 16.3.A. Because a bond may be required of the curator (unless the applicant is a bank or trust company), F.S. 733.501(2), the petition should contain an estimate of the value of the real and personal property to assist the circuit judge in determining the amount of bond required. « Ch. 16 », « § 16.3 », « B •, « 2 », « b • 1 Practice Under Florida Probate Code § 16.3.B.2.b (2022)

b. Form For Petition IN THE CIRCUIT COURT FOR _________ COUNTY, FLORIDA PROBATE DIVISION File Number ___ IN RE: ESTATE OF _________, Deceased.

PETITION FOR APPOINTMENT OF CURATOR Petitioner, _________, to the best of belief, alleges:

[his] [her] information and

1. Petitioner resides at _________ and [his] [her] address is _________ . Petitioner’s interest, if any, in the estate is _________. 2. _________ died at (place of death), on (date), and at the time of death resided at _________ and was domiciled in _________ County, Florida. 3. At the time of death, decedent was _________ years of age and owned an estate consisting of (set out nature and approximate value of real and personal property in order that adequate bond may be fixed) 4. As far as is known to Petitioner, the persons having an interest in the estate of the decedent and their ages and respective relationships to the decedent are: Age (Birth

Name

Address

Relationship

date, if Minor)

____________ ____________ ____________ ____________ ____________ ____________ ____________ ____________ ____________ ____________ ____________ ____________

5. _________, a resident of _________ County, Florida, is entitled to preference in appointment as personal representative because _________. The issuance of letters of administration, however, will be delayed for an uncertain length of time because (allege reasons). 6. A curator should be appointed to take charge of the estate and preserve it for the benefit of those interested in it until letters are granted, and (allege why curator should be appointed). [7. Notice should not be required to be given to the person entitled to letters of administration because there is great danger that the decedent’s property or a part of it will be wasted, destroyed, or removed beyond the jurisdiction of this court if the appointment of a curator is delayed by giving notice otherwise required.] [7.][8.] The name and address of the proposed curator is _________. WHEREFORE Petitioner asks for an order [dispensing with notice to the prospective personal representative and] appointing _________ to act as curator in accordance with the laws of the State of Florida and orders of this court until letters of administration are granted in the estate. Under penalties of perjury, I declare that I have read the foregoing, and the facts alleged are true, to the best of my knowledge and belief. /s/____________ Petitioner /s/____________ (name of attorney) Attorney for Petitioner (address and phone number) (e-mail address(es))

Florida Bar No. ___ COMMENT: The purpose of paragraph 5 is to inform the court of the person entitled to notice as the prospective personal representative of the estate. If the decedent died intestate, the preference or basis for appointment should be stated. If the petitioner is named as personal representative in a will but would not be entitled to preference if there were no will, notice may be required to the person who would have preference if the will is not admitted to probate. See F.S. 733.501(1); Fla. Prob. R. 5.122(c). Although not presently required in the petition for appointment of a curator, the practitioner should note that a new subdivision (k) has been added to Rule 5.200 requiring a statement, in the petition for administration, that the personal representative is qualified to serve under the laws of Florida as a business entity under F.S. 733.305 or as an individual under F.S. 733.303 and 733.304. « Ch. 16 », « § 16.3 », « B •, « 3 » 1 Practice Under Florida Probate Code § 16.3.B.3 (2022)

3. Notice And Hearing On Application No curator can be appointed until formal notice is given to the person apparently entitled to letters of administration. Fla. Prob. R. 5.122(c); F.S. 733.501(1). This is accomplished by serving a copy of the petition for appointment of a curator by formal notice on that person. Rule 5.122(c); see F.S. 731.301. If it is shown, however, that there is great danger that the property or any portion of it is likely to be wasted, destroyed, or removed beyond the jurisdiction of the court, and the appointment of a curator would be delayed by giving the required notice, the court may appoint a curator without notice. Rule 5.122(c); F.S. 733.501(1). See paragraph 7 of the form in § 16.3.B.2.b. An ex parte hearing may be held if no answer to the petition is made within 20 days after service of formal notice. Rules 5.040(a)(1)–(a)(2). An adversary hearing after reasonable notice must be held if an answer is made. In either type of hearing, the applicant should be prepared to prove by competent substantial evidence the need for the appointment of a curator.

If a curator is appointed without notice, however, any interested persons who did not receive notice may, at any time, petition the court to reconsider the appointment of the curator. Rule 5.122(f). Because the appointment of a curator without notice is tantamount to a temporary injunction, due process considerations suggest an expedited hearing to reconsider the appointment. See Committee Notes to Rule 5.122. « Ch. 16 », « § 16.3 », « B •, « 4 » 1 Practice Under Florida Probate Code § 16.3.B.4 (2022)

4. Order Appointing Curator « Ch. 16 », « § 16.3 », « B •, « 4 », • a » 1 Practice Under Florida Probate Code § 16.3.B.4.a (2022)

a. In General The order appointing a curator should contain a statement that the circuit judge considers the appointment necessary to preserve and protect the assets of the decedent. If notice to the person entitled to letters of administration is dispensed with, the order should so provide. See § 16.3.B.3. The order must also recite the conditions that must be fulfilled by the person appointed before letters of curatorship will be granted. In Florida, state and national banks authorized and qualified to exercise fiduciary powers in this state, and trust companies incorporated under the laws of this state, are entitled to act as curators. F.S. 733.305(1). Presumably, any person qualified to act as personal representative under F.S. 733.302, 733.303, and 733.304 can also be appointed curator. However, banks and trust companies are uniquely well-suited for appointment as curators because of their impartiality. Although the statute authorizing the appointment of a curator does not specify who is entitled to preference in appointment, it seems logical that the court would grant letters of curatorship to the person entitled to preference for appointment as personal representative under F.S. 733.301, unless it is inappropriate under the circumstances. For instance, in the case of controversy among heirs or a will contest, the court may desire to preserve impartiality and also expedite administration by appointing a disinterested person or corporate fiduciary as curator. This is particularly true if the person entitled to the letters will be a participant in adversary proceedings or is

involved in a conflict of interest. « Ch. 16 », « § 16.3 », « B •, « 4 », « b • 1 Practice Under Florida Probate Code § 16.3.B.4.b (2022)

b. Form For Order (Title of Estate)

(Title of Court)

ORDER APPOINTING CURATOR This action was heard on petition of _________ for letters of curatorship in the estate of the above decedent _________, late of this county, and it appears from the evidence submitted that formal notice of the petition for appointment of a curator was served on _________, who is apparently entitled to letters of administration, and THE COURT FINDS: 1. (Set out court’s findings as to the necessity for curatorship and lack of necessity for notice, if applicable.) IT IS ADJUDGED: 1. [Notice of this hearing is dispensed with.] [________ is appointed curator of the above estate.] 2. Upon filing a designation of resident agent and acceptance, taking an oath, and posting a bond to be approved by this court in the sum of $___, letters of curatorship in the estate will be granted to [him] [her]. ORDERED at _________, Florida, on (date). /s/____________ Circuit Judge Copies furnished to: « Ch. 16 », « § 16.3 », « B •, « 5 » 1 Practice Under Florida Probate Code § 16.3.B.5 (2022)

5. Oath « Ch. 16 », « § 16.3 », « B •, « 5 », • a » 1 Practice Under Florida Probate Code § 16.3.B.5.a (2022)

a. In General Fla. Prob. R. 5.122(b) requires an oath for the curator, together with a designation of resident agent and acceptance. Because the duties of a curator are much more limited than those conferred by law on a personal representative, the contents of a curator’s oath should be tailored accordingly. « Ch. 16 », « § 16.3 », « B •, « 5 », « b • 1 Practice Under Florida Probate Code § 16.3.B.5.b (2022)

b. Form For Oath (Title of Estate)

(Title of Court)

OATH OF CURATOR STATE OF FLORIDA COUNTY OF _________ Before me, the undersigned authority, personally appeared _________, who being duly sworn by me says: 1. [He] [She] is the person who has been appointed curator of the estate of _________, deceased. 2. [He] [She] will protect according to law all of the property of the decedent until a personal representative of the estate is appointed; will make a true inventory of that property and file it with the circuit judge; will account for and deliver the property to the personal representative when appointed; and will in all respects faithfully administer the estate and perform the duties as are by law and order of this court required of [him] [her] in this capacity. /s/ (printed name) Sworn to or affirmed and subscribed before me by means of ☐ physical presence or ☐ online notarization on (date), by (name). /s/

Notary Public—State of Florida (Print, type, or stamp commissioned name of notary public) Personally Known _________ OR Produced Identification _________ Type of Identification Produced _________ (Seal) COMMENT: The designation of a resident agent may be made in the oath. See § 16.3.B.7. Effective January 1, 2020, the jurat or certificate of acknowledgment must state whether the signer physically or through audio-visual technology personally appeared before the notary. F.S. 117.05. The above notarial certification is deemed sufficient and does not preclude other forms if the certificate is completed with the required information. « Ch. 16 », « § 16.3 », « B •, « 6 » 1 Practice Under Florida Probate Code § 16.3.B.6 (2022)

6. Bond « Ch. 16 », « § 16.3 », « B •, « 6 », • a » 1 Practice Under Florida Probate Code § 16.3.B.6.a (2022)

a. In General Except for banks and trust companies, curators are required to furnish a bond in an amount that the court deems necessary. F.S. 733.501(2). The bond “shall be in the penal sum that the court deems sufficient after consideration of the gross value of the estate, the relationship of the personal representative to the beneficiaries, exempt property and any family allowance, the type and nature of assets, known creditors, and liens and encumbrances on the assets.” F.S. 733.403. However, “[o]n petition by any interested person or on the court’s own motion, the court may waive the requirement of filing a bond.” F.S. 733.402(4). F.S. 733.402 and 45.011 require that the bond for a curator be with two or more sufficient individual sureties or an authorized surety company licensed to engage in the suretyship business in the state of Florida.

The sureties should be approved by the circuit judge and the judge’s approval should be indorsed on the face of the bond. The bond must be payable to the Governor and the Governor’s successors in office, and the liability of the curator and the sureties must be joint and several. F.S. 733.402(1). To reduce bond premiums, a curator should not overlook F.S. 69.031. Under that statute, personal assets of the estate may be placed with a designated financial institution for safekeeping. Withdrawals must be made pursuant to a special court order. See §§ 9.3.J.1–9.3.J.2.b of this manual. The form of the bond is modified slightly from that required of a personal representative to include, as one of the conditions, the faithful performance of those duties specifically authorized by the circuit judge from time to time. « Ch. 16 », « § 16.3 », « B •, « 6 », « b • 1 Practice Under Florida Probate Code § 16.3.B.6.b (2022)

b. Form For Bond (Title of Estate)

(Title of Court)

BOND OF CURATOR We, _________, as principal, and _________ and _________, as sureties, are bound to the Governor of the State of Florida, and [his] [her] successors in office, in the sum of $______, for the payment of which we bind ourselves, our heirs, personal representatives, and assigns, jointly and severally, by these presents. THE CONDITION OF THIS BOND IS that if _________, as curator of the estate of _________, deceased, makes or causes to be made a true inventory of all property of the deceased that shall come into [his] [her] hands or possession and shall keep and preserve it and deliver and pay it to the duly appointed and qualified personal representative of the estate of the deceased, when appointed, and shall in all respects do and perform all the duties as are by law and order of this court required of _________ as curator, then this bond will be void, and otherwise it shall remain in full force and effect. IN WITNESS WHEREOF, we have subscribed our names on (date).

/s/____________ Principal /s/____________ Sureties Approved by me on /s/____________

(date).

[Circuit Judge] [Clerk] [Deputy Clerk] COMMENT: A surety company licensed to do business in Florida could serve as the surety in lieu of the two individuals. See § 16.3.B.6.a. For a form for a personal representative’s bond, see Form No. P-3.0520, available from Florida Lawyers Support Services, Inc. © (FLSSI), P.O. Box 195909, Winter Springs, FL 32719-5909 (407/515-1501; www.flssi.org/forms). « Ch. 16 », « § 16.3 », « B •, « 7 » 1 Practice Under Florida Probate Code § 16.3.B.7 (2022)

7. Designation Of Resident Agent Fla. Prob. R. 5.122(b) requires a curator to designate a resident agent for service of process. The designation may be included in the petition or in the oath. It must be made before issuance of letters. A member of The Florida Bar residing in Florida may be designated as the agent whether or not the member is a resident of the county where the proceedings are pending. See Rule 5.110(c), regarding resident agents for personal representatives. « Ch. 16 », « § 16.3 », « B •, « 8 • 1 Practice Under Florida Probate Code § 16.3.B.8 (2022)

8. Letters Of Curatorship « Ch. 16 », « § 16.3 », « B •, « 8 •, • a » 1 Practice Under Florida Probate Code § 16.3.B.8.a (2022)

a. In General After fulfilling all the conditions imposed in the order of appointment, the

person appointed as curator is entitled to have letters of curatorship issued in his or her favor. These letters represent and define the curator’s authority to manage, preserve, and administer the estate. « Ch. 16 », « § 16.3 », « B •, « 8 •, « b • 1 Practice Under Florida Probate Code § 16.3.B.8.b (2022)

b. Form For Letters (Title of Estate)

(Title of Court)

LETTERS OF CURATORSHIP WHEREAS, _________, a resident of _________ County, Florida, died on (date), owning assets in the State of Florida; and, WHEREAS, it appears to the undersigned circuit judge that a curator is necessary to take charge of the assets of the decedent in order that they may be well preserved, kept, and administered, in accordance with orders of this court, until a personal representative is appointed; and, WHEREAS, _________, the curator appointed by an order of this court, has performed all acts prerequisite to the issuance of letters of curatorship as the legally qualified curator of the estate of _________. NOW, THEREFORE, I _________, the undersigned circuit judge, do grant to _________ the curatorship of the estate, until a personal representative can be appointed, with full power to collect and preserve the assets that belonged to the decedent in [his] [her] lifetime and at the time of [his] [her] death, and to ask, demand, sue for, recover, and receive these assets for the purpose of turning over and delivering them to the legally appointed and qualified personal representative of the estate of _________; and all persons in possession of assets of the decedent are ordered and directed to deliver them to _________ as curator. IN WITNESS WHEREOF I have set my hand and seal of office at _________, Florida, on (date). /s/____________ Circuit Judge

(Seal)

« Ch. 16 », « § 16.4 » 1 Practice Under Florida Probate Code § 16.4 (2022)

§ 16.4. POWERS AND DUTIES OF CURATOR « Ch. 16 », « § 16.4 », • A » 1 Practice Under Florida Probate Code § 16.4.A (2022)

A. In General The only general grants of power conferred on a curator by F.S. 733.501, as implemented by Fla. Prob. R. 5.122, are in connection with the following duties: The curator must file an inventory of the property within 30 days of appointment. Rule 5.122(e). In this regard it should be noted that the curator does not have the usual 60-day period after appointment to file the inventory, as does a personal representative. It should also be noted that the curator is not required to have the assets appraised, but is required only to file an inventory. The absence of the requirement of an appraisal should facilitate a timely filing of the inventory. However, the curator may seek authority to obtain appraisals of estate assets to advance the administration of the estate during the curator’s period of administration. The curator should take possession or control of all the assets of the decedent. This is the primary duty of a curator, and in connection with this responsibility, the curator should properly maintain and preserve the estate assets during the period of possession or control. To this end, the letters of curatorship should direct all persons in possession of any of the assets of the deceased to deliver them to the curator. This is not only specifically authorized by Rule 5.122(b), but the rule further provides that if any person in possession of the effects of the deceased fails to obey the order promptly, it may be enforced by contempt proceedings. The curator must be diligent in ascertaining the nature and extent of the assets and in taking possession of them. If any person interested in the estate has requested notice of pleadings and documents filed in the proceedings, the curator must send that person copies in compliance with Rule 5.060, as long as that person

remains an “interested person.” Service of every petition and motion generally is required to be given to all interested persons. Rule 5.041; Fla. R. Gen. Prac. & Jud. Admin. 2.516. When the personal representative qualifies, the curator must immediately account and, within 30 days, deliver assets of the estate in the possession of the curator to the personal representative. Rule 5.122(e). As an incident to this duty, the curator should obtain a receipt for the property surrendered and then should file an accounting of the administration with the court, with a copy to the personal representative. This accounting should follow the same format as that discussed in Chapter 12 of this manual for personal representatives. The curator’s final accounting should be accompanied by a petition for its approval, for the determination and award of the compensation to be paid to the curator, and for the final discharge of the curator and the sureties on the bond. See In re Estate of Douglas, 622 So. 2d 1146 (Fla. 2d DCA 1993), dealing with a curator’s final accounting, objections, and court approval. Rule 5.330 requires that the personal representative sign specifically listed documents, including the inventory, accountings, petition for sale or encumbrance of real or personal property, petition to continue a business, petition to compromise or settle a claim, petition to purchase on credit, petition for distribution and discharge, and resignation of personal representative. Although F.S. 731.201(28) does not include a curator in the definition of “personal representative,” the curator should nevertheless be guided by Rule 5.330. « Ch. 16 », « § 16.4 », « B » 1 Practice Under Florida Probate Code § 16.4.B (2022)

B. Special Court Authority Required As noted in § 16.4.A, the authority of a curator, in the absence of a court order, is limited to marshaling and preserving assets of the decedent, filing an inventory, and surrendering the assets to the personal representative on the latter’s qualification and appointment. It cannot be overemphasized that these are the only inherent powers of curators. Although the curator may be authorized to perform any duty or function of a personal representative, anything a curator wishes to do beyond the scope of these functions must be

authorized by special order of the court. F.S. 733.501(1); Fla. Prob. R. 5.122(d). The curator does not possess the power or authority to have the assets appraised, publish a notice to creditors, or perform any other duty of a personal representative unless the court first specifically authorizes the curator to do so. A curator has no general authority to pay debts of the decedent even when it may be necessary to pay items such as mortgage payments, property taxes, or income taxes. If a curator publishes a notice to creditors without special court authority, the publication is void. In re Estate of Tanner, 288 So. 2d 578 (Fla. 2d DCA 1974), 70 A.L.R. 3d 778, superseded by statute 771 So. 2d 1143. On the other hand, if a curator publishes and serves a notice to creditors after being authorized specifically to do so by the court, the better view is that the limitations period for filing a claim against the estate is commenced against all creditors of the estate and it is not necessary for a subsequently appointed personal representative to republish the notice. See Rule 5.122(d). Although there is no decision dealing specifically with the finality to be accorded an authorized publication of notice to creditors made by a curator, a view supporting finality in this situation is consistent with the public policy in this state favoring the early and final settlement of decedents’ estates. See In re Estate of Williamson, 95 So. 2d 244 (Fla. 1957), 65 A.L.R. 2d 1195; Deigaard v. Baya, 163 So. 2d 27 (Fla. 3d DCA 1964). See also F.S. 733.601. The Tanner case adopts this view by dictum. Furthermore, Rule 5.122(d) expressly provides that the court may authorize the curator to “perform any duty or function of a personal representative,” including publishing and serving notice to creditors and serving notice of administration. If it appears that there will be some time lapse between the appointment of a curator and the appointment and qualification of a personal representative, the curator should seek and obtain specific authority to handle as many administrative steps as possible to expedite the administration of the estate. A diligent and competent curator should seek specific court authority to perform the following administrative acts when appropriate: Continue a business when it is in the best interest of the estate. Pay property taxes or income taxes, make mortgage payments, or pay any other debts or obligations of the decedent.

Prepare and file income tax returns for the decedent and the estate. Prepare an affidavit (Form DR-312) attesting that the estate is not taxable and file it with the clerk of court. Make funeral arrangements, including purchase of a cemetery lot, if necessary. Publish and serve notice to creditors. If a will has been admitted, serve notice of administration. Sell items of personalty that are perishable, are expensive to maintain or protect, or that suffer from rapid depreciation. Obtain adequate insurance coverage to protect the estate assets. Take the necessary steps to locate beneficiaries. Attempt to locate the original of the decedent’s will, if one is believed to exist. Sell certain securities if the “prudent trustee” rule indicates that this should be done. Defend any lawsuit filed against the estate and retain counsel for this purpose. Although it might be argued successfully that no court authority is required to defend a lawsuit against the estate on the ground that this is merely a part of the curator’s duties in maintaining and preserving estate assets, prudence and good practice indicate that the curator should obtain special authority. The time and effort involved in getting specific court authority would be considerably less than the time and effort involved in researching the law and defending against a motion to dismiss the curator’s answer on the ground of his or her lack of capacity. Certainly, a curator should not incur any additional extraordinary expense for legal fees in defending an action without first having specific court authority to do so. Obtain an appraisal of all estate assets. Prepare and file estate tax returns. « Ch. 16 », « § 16.4 », « C • 1 Practice Under Florida Probate Code § 16.4.C (2022)

C. Completing Administration When the estate is rather small or there is a long delay in the appointment of the personal representative and the court has specifically authorized the curator to perform many of the administrative steps, there may be instances when very little remains to be done to close out the estate. In these situations, it is expedient and in the best interest of the estate to authorize the curator to take the final steps necessary to close out the estate, rather than incurring the added expense and time of first closing out the curatorship and then qualifying a personal representative merely to make distribution and close out the estate. It must be remembered, however, that this administrative act must be specifically authorized by the court.

« Ch. 16 », « § 16.5 » 1 Practice Under Florida Probate Code § 16.5 (2022)

§ 16.5. LIABILITIES OF CURATOR The liabilities of any fiduciary, of necessity, are as broad and as specific as the duties imposed on the fiduciary. Because the inherent powers of a curator are limited, see § 16.4.A, it follows that the liabilities of a curator are similarly limited, in that the curator will be held liable only for the improper performance or nonperformance of the duties imposed. It is fundamental, of course, that a curator is personally liable for violating fiduciary duties. See F.S. 733.501(4) (“Curators shall be subject to removal and surcharge.”); Fla. Prob. R. 5.122(g) (“Curators shall be subject to the provisions of these rules and other applicable law concerning personal representatives.”). Thus, a curator and any surety on the curator’s bond may be liable personally if the curator is negligent in ascertaining and taking possession of estate assets; the curator is negligent in taking the proper steps to maintain and preserve estate assets (although a curator may not take out and pay for insurance coverage to protect the estate assets without specific authority, a failure to obtain special authority might constitute a violation of the curator’s general duty to maintain and preserve the estate assets); or having obtained special authority from the court to perform certain administrative duties, the curator fails to perform them or is negligent in their performance. Similarly, by properly performing their duties, curators may be entitled to the same protection afforded personal representatives. See Rule 5.122(g). For instance, in In re Estate of Douglas, 622 So. 2d 1146 (Fla. 2d DCA 1993), the court found that an interested person was estopped to object to a curator’s final accounting that had been approved by the court. As a general rule, it is safe to conclude that a curator, although limited in the duties that can be performed without court authority, may be liable for a failure to secure court authorization for the performance of those functions

that are necessary to the proper preservation and maintenance of the estate. A curator should assume the same responsibilities as a personal representative, and then should obtain court authority to discharge those responsibilities, because a curator does not have the inherent power to do so. As previously stated, communications between a lawyer and a client acting as a fiduciary, including a curator, are privileged and protected from disclosure. F.S. 90.5021.

« Ch. 16 », « § 16.6 • 1 Practice Under Florida Probate Code § 16.6 (2022)

§ 16.6. COMPENSATION OF CURATOR Under F.S. 733.501(3), curators are entitled to “reasonable compensation for their services, and the court may consider the provisions of [F.S.] 733.617.” The curator’s compensation, like that of a personal representative, should be determined according to the factors set forth in F.S. 733.617 or by an express agreement with the beneficiaries. When the curator’s compensation is determined on a percentage basis as set forth in F.S. 733.617, it seems appropriate to adjust the compensation either upward or downward based on the extent to which the curator brings the administration of the estate to completion, and any extraordinary services rendered. In situations in which the curator completes or nearly completes the administration, reasonable compensation may be in excess of the percentage ordinarily awarded under F.S. 733.617 because of the requirement that the curator seek express authority to perform each act, the circumstances that required a curator, and the enhanced court supervision. The curator’s petition for the approval of the final accounting and for discharge should incorporate an application for compensation. This is not an ex parte proceeding, and notice should be given as required by F.S. 731.301 and the rules. The subject of compensation is discussed in more detail in Chapter 15 of this manual. Footnotes — Chapter 16: *

J.D., 1989, University of Florida. Mr. Iseley is a member of The Florida Bar and the Jacksonville Bar Association. He is a specialist in Wills, Trusts and Estates. Mr. Iseley is an adjunct professor at the Florida Coastal School of Law where he teaches estate planning and is a partner/shareholder of Grimsley Marker & Iseley, P.A., in Jacksonville.

Licensed to Otis K Pitts, Otis K Pitts

« Ch. 17 » 1 Practice Under Florida Probate Code Ch. 17 (2022)

Chapter 17 ANCILLARY ADMINISTRATION ROBERT A. DAWKINS* KATEENA E. MANNERS** Contents § 17.1. INTRODUCTION § 17.2. WHEN NEEDED AND WHEN NOT A. In General B. Nonresident Decedent With Florida Debtor Or Florida Tangible Personal Property C. Nonresident Decedent With Realty In Florida 1. In General 2. Shorter Forms Of Ancillary Administration 3. Notice To Creditors D. Nonresident Decedent With Personalty In Florida E. Resident Decedent Whose Will Is Probated In Another State § 17.3. PROCEDURE FOR ISSUANCE OF ANCILLARY LETTERS A. Who May Serve B. Venue C. Petition For Ancillary Administration § 17.4. POWERS AND DUTIES OF ANCILLARY PERSONAL REPRESENTATIVE A. Management Of Decedent’s Property B. Tax Filing Requirements § 17.5. CONCLUSION OF PROCEEDINGS § 17.6. ORIGINAL FLORIDA ADMINISTRATION OF NONRESIDENT’S ESTATE

« Ch. 17 », • § 17.1 » 1 Practice Under Florida Probate Code § 17.1 (2022)

§ 17.1. INTRODUCTION When a nonresident of Florida dies and leaves any Florida assets, including real property, credits due from Florida residents, liens on Florida property, or intangibles in Florida, ancillary administration may be needed. F.S. 734.102(1). Administration of a decedent’s estate in the decedent’s state of domicile is the principal or primary administration; ordinarily it is termed the “domiciliary administration.” Administration in a state other than the domicile, but in which the decedent left property, is usually termed an “ancillary administration.” Florida real property owned by a nonresident is clearly subject to ancillary administration. Former Florida law was rather ambiguous in specifying what other assets “located” in Florida at death were subject to ancillary administration. F.S. 731.106(1) now provides: A debt in favor of a nondomiciliary, other than one evidenced by investment or commercial paper or other instrument, is located in the county where the debtor resides or, if the debtor is not an individual, at the place where the debtor has its principal office. Commercial paper, investment paper, and other instruments are located where the instrument is at the time of death. Thus, both real and personal property in Florida may be the subject of ancillary administration. Ancillary administration rests on the foundation of sovereignty; no court in one state may determine the ownership of real estate inside another state. See Brown v. Brown, 169 So. 3d 286 (Fla. 4th DCA 2015). As a result, proceedings to probate a will do not fall within the Full Faith and Credit Clause of the United States Constitution. The proceedings are conclusive within the state, but they establish nothing beyond the limit of the state in which the probate took place. Trotter v. Van Pelt, 144 Fla. 517, 198 So. 215 (1940), 131 A.L.R. 1018. Instead, it is clear that contesting a will in an

ancillary administration is permitted, even if that will has already been admitted to probate in the domiciliary state or country. In re Estate of Barteau, 736 So. 2d 57 (Fla. 2d DCA 1999); In re Estate of Roberg, 396 So. 2d 235 (Fla. 2d DCA 1981). In fact, a will can be contested in Florida even if that will has been contested and upheld in another jurisdiction. Id. F.S. Chapter 734, however, recognizes the domiciliary state’s orders admitting the will to probate, at least in the absence of a contest here, and the domiciliary state’s granting of letters, assuming that the domiciliary personal representative can qualify in Florida. Nevertheless, for most purposes, it is as if the decedent executed separate wills in the domiciliary jurisdiction and in the ancillary jurisdiction. In keeping with this, a nonresident’s will (other than a holographic or nuncupative will), executed in compliance with Florida law or with the laws of the state or country in which it was executed, may be probated in Florida. F.S. 732.502(2). It will be effective to pass title to real and personal property in Florida even if it was not executed according to the laws of the domiciliary state and was therefore ineffective to transfer title to property in the domiciliary state. See Trotter. On the other hand, as noted above, a holographic will, even if valid under the laws of the state of the decedent’s domicile, will not be admitted to probate in Florida. Lee v. Estate of Payne, 148 So. 3d 776 (Fla. 2d DCA 2013). Somewhat surprisingly, considering the above, prior Florida case law held that the law of a nonresident decedent’s domicile governed the validity and effect of dispositions of the decedent’s Florida property when the decedent’s will did not specifically provide that Florida law would control. Saunders v. Saunders, 796 So. 2d 1253 (Fla. 1st DCA 2001). In 2016, however, F.S. 731.106(2) was amended and new F.S. 731.1055 was added, which legislatively overturned Saunders. F.S. 731.1055 provides: “The validity and effect of a disposition, whether intestate or testate, of real property in this state shall be determined by Florida law.” Accordingly, it is now clear that Florida law governs the validity and effect of dispositions of a nonresident decedent’s real property whether by intestacy or by will. On the other hand, F.S. 731.106(2) still provides that when a nonresident decedent provides by will that the testamentary disposition of tangible or intangible

personal property having a Florida situs is required to be construed and regulated by the laws of Florida, the validity and effect of the disposition must be determined by Florida law. In the absence of such a direction in the decedent’s will, Saunders would presumably still apply, and the law of the decedent’s domicile would govern the disposition of tangible and intangible personal property. A foreign personal representative who produces “authenticated copies of probated wills or letters of administration duly obtained in any state or territory of the United States may maintain actions in the courts of this state.” F.S. 734.101(1); Barfield v. Schmon, 537 So. 2d 1056 (Fla. 4th DCA 1989). This is true whether the foreign personal representative is a corporation or an individual. Acorn Wood Realty v. Old Colony Trust Co., 113 Fla. 320, 151 So. 533 (1933). Also, foreign personal representatives “appointed in any state or country may be sued in this state concerning property in this state and may defend actions or proceedings brought in this state.” F.S. 734.101(2).

« Ch. 17 », « § 17.2 » 1 Practice Under Florida Probate Code § 17.2 (2022)

§ 17.2. WHEN NEEDED AND WHEN NOT « Ch. 17 », « § 17.2 », • A » 1 Practice Under Florida Probate Code § 17.2.A (2022)

A. In General Ancillary proceedings of some sort are a necessity for the disposition of real property in Florida. Ancillary proceedings may become necessary, or at least be useful, when dealing with personal property or credits due from a Florida resident (assuming unavailability of a long-arm statute). « Ch. 17 », « § 17.2 », « B » 1 Practice Under Florida Probate Code § 17.2.B (2022)

B. Nonresident Decedent With Florida Debtor Or Florida Tangible Personal Property F.S. 734.101(3) provides in part: Debtors who have not received a written demand for payment from a personal representative or curator appointed in this state within 90 days after appointment of a personal representative in any other state or country, and whose property in Florida is subject to a mortgage or other lien securing the debt held by the foreign personal representative, may pay the foreign personal representative after the expiration of 90 days from the date of appointment of the foreign personal representative. Thus, an ancillary representative would not be required merely to receive payments of a debt secured by Florida property. A satisfaction of a mortgage or lien executed by a foreign personal representative and accompanied by an authenticated copy of the foreign personal representative’s letters or other evidence of authority attached to the satisfaction may be recorded in the public records. This satisfaction is an effective discharge of the mortgage or lien, regardless of whether the debtor making payment received a written demand before paying the debt. Id. Similarly, F.S. 734.101(4) further provides that all persons indebted to

the estate of a nonresident decedent, or having possession of personal property belonging to the estate, who receive no written demand from a personal representative or curator appointed in Florida for payment of the debt or delivery of the property, are authorized to pay the debt or deliver the personal property to the foreign personal representative after the expiration of 90 days from the date of appointment of the foreign personal representative. As a result of the provisions of F.S. 734.101, in many cases, the opening of an ancillary administration for personal property can easily be avoided, unless the 90-day waiting period poses a problem. « Ch. 17 », « § 17.2 », « C » 1 Practice Under Florida Probate Code § 17.2.C (2022)

C. Nonresident Decedent With Realty In Florida « Ch. 17 », « § 17.2 », « C », • 1 » 1 Practice Under Florida Probate Code § 17.2.C.1 (2022)

1. In General If the nonresident decedent owned Florida real property, the appointment of an ancillary personal representative may be necessary to dispose of that realty. When a decedent’s will confers specific power to sell or mortgage real property or a general power to sell any asset of the estate, authorization or confirmation of a court to exercise the power is not required. F.S. 733.613(2), 734.102(7). Ancillary administration would still be necessary, however, to admit that will to probate, appoint the ancillary personal representative, and eliminate claims of creditors as potential liens on the property. F.S. 733.613(1) provides: When a personal representative of an intestate estate, or whose testator has not conferred a power of sale or whose testator has granted a power of sale but the power is so limited by the will or by operation of law that it cannot be conveniently exercised, shall consider that it is for the best interest of the estate and of those interested in it that real property be sold, the personal representative may sell it at public or private sale. No title shall pass until the court authorizes or confirms the sale. No bona fide purchaser shall be required to examine any proceedings before the order of sale.

Because title cannot pass under the above circumstances until the court authorizes or confirms the sale, ancillary administration would always be necessary in this state before the sale could be validated. After the payment of all expenses of administration and claims, the court may order distribution to the beneficiaries or transfer the remaining property to the domiciliary estate. F.S. 734.102(6). « Ch. 17 », « § 17.2 », « C », « 2 » 1 Practice Under Florida Probate Code § 17.2.C.2 (2022)

2. Shorter Forms Of Ancillary Administration Florida law contains two specific shorter forms of ancillary administration: F.S. 734.1025, which is available in testate estates with property in Florida worth $50,000 or less, and F.S. 734.104, which permits the will to be admitted to record. The $50,000 or under administration under F.S. 734.1025 is something of a hybrid. Under this statute, a testate nonresident decedent’s estate may file in the circuit court of the county where any property is located an authenticated transcript of so much of the foreign proceedings as will show the will and beneficiaries of the estate. Initially, under this procedure, no personal representative is appointed, but the foreign personal representative must publish notice to creditors and serve creditors. If a claim is actually filed, a Florida personal representative must then be appointed. In effect, it is a summary procedure unless claims are filed, in which case it converts to a formal ancillary administration. This procedure is not available to intestate estates. In the alternative, proceedings may be undertaken under F.S. 734.104 when a nonresident testator dies owning real estate in Florida and no ancillary administration takes place under F.S. 734.102. A petition to admit the foreign will to record in Florida may be filed by any person “at any time after 2 years from the death of the decedent or at any time after the domiciliary personal representative has been discharged.” F.S. 734.104(1). When admitted to record in compliance with F.S. 734.104(1)–(2), the will is deemed “valid and effectual to pass title to real property” in this state. F.S. 734.104(4). This procedure is useful when the domiciliary personal representative has been discharged and no sale is anticipated in the near

future or when the death of the decedent was more than two years ago. The petition must allege that the will was executed as required by F.S. Chapter 732. F.S. 734.104(1)(a). Authenticated copies of the will, the foreign petition for probate, and the foreign order admitting the will to probate must be filed with the petition. F.S. 734.104(2). Other evidence, including an affidavit of the petitioner, may be used to establish necessary information that cannot be established by the domiciliary record. Form No. P-2.0800 is a form for a petition to admit a foreign probated will to record. A form for an order admitting the probated foreign will to record is Form No. P-2.0810. These forms are available from Florida Lawyers Support Services, Inc.© (FLSSI), P.O. Box 195909, Winter Springs, FL 32719-5909 (407/515-1501; [email protected]; www.flssi.org/forms). « Ch. 17 », « § 17.2 », « C », « 3 • 1 Practice Under Florida Probate Code § 17.2.C.3 (2022)

3. Notice To Creditors To convey good title to Florida realty, the claims of creditors must be satisfied or barred. Proper notice and the expiration of the pertinent statutory filing period are required. When the claims are settled, the property will be subject only to enforceable mortgages, security interests, or other liens against the property. F.S. 733.702(4). It is also important to note that creditors’ rights in Florida ancillary estates are also governed by Florida law, not the law of the decedent’s domicile. F.S. 734.102(7) prohibits the sale, lease, or mortgage of Florida property to pay a debt that is barred under Florida law. Oddly, notwithstanding the fact that a creditor’s debt is barred by the Florida nonclaim statute, that creditor is still an interested person in the Florida ancillary probate. Staum v. Rubano, 120 So. 3d 109 (Fla. 4th DCA 2013). F.S. 734.102(4) provides that “proceedings for appointment and administration of the estate shall be as similar to those in original administrations as possible.” The procedures for handling creditors’ claims set forth in F.S. Chapter 733, and specifically in F.S. 733.2121 and 733.701– 733.710, should be followed. See Chapter 8 of this manual. Finally, the summary administration provisions of F.S. 735.201– 735.2063, which are limited to estates of a value of $75,000 or less and to

estates of decedents dead more than two years, are available to nonresidents’ estates. Summary administration is discussed in §§ 18.2.B–18.2.O of this manual. « Ch. 17 », « § 17.2 », « D » 1 Practice Under Florida Probate Code § 17.2.D (2022)

D. Nonresident Decedent With Personalty In Florida As noted at § 17.2.B, F.S. 734.101(4) provides: Except as provided in [F.S.] 655.936, all persons indebted to the estate of a decedent, or having possession of personal property belonging to the estate, who have received no written demand from a personal representative or curator appointed in this state for payment of the debt or the delivery of the property are authorized to pay the debt or to deliver the personal property to the foreign personal representative after the expiration of 90 days from the date of appointment of the foreign personal representative. A special rule applies to contents of a safe-deposit box. Under F.S. 655.936(2), a safe-deposit lessor may, at its discretion, deliver to a foreign personal representative all contents of the decedent’s safe-deposit box if the foreign personal representative has been appointed for at least three months, and if the lessor has not received written notice of the appointment of an ancillary personal representative in Florida. Under this provision, the foreign personal representative is required to furnish the safe-deposit lessor with an affidavit setting forth the facts showing the decedent’s domicile to be other than Florida and stating that there are no unpaid creditors in Florida of the deceased lessee. The personal representative is also required to furnish a certified copy of his or her letters of authority. Finally, the safe-deposit lessor who makes delivery under this law is required to maintain in its file a receipt executed by the foreign personal representative that itemizes in detail the property delivered to the foreign personal representative. An ancillary personal representative, therefore, is not needed to ensure that the decedent’s personal property in this state will be delivered to the foreign personal representative. If ancillary letters are obtained, however, the Florida ancillary personal representative is entitled to possession of personalty in Florida at the time of appointment. F.S. 733.607(1), 734.102(7).

« Ch. 17 », « § 17.2 », « E • 1 Practice Under Florida Probate Code § 17.2.E (2022)

E. Resident Decedent Whose Will Is Probated In Another State F.S. 733.206 provides: (1) If a will of any person who dies a resident of this state is admitted to probate in any other state or country through inadvertence, error, or omission before probate in this state, the will may be admitted to probate in this state if the original could have been admitted to probate in this state. (2) An authenticated copy of the will, foreign proof of the will, the foreign order of probate, and any letters issued shall be filed instead of the original will and shall be prima facie evidence of its execution and admission to foreign probate. (3) Any interested person may oppose the probate of the will or may petition for revocation of the probate of the will, as in the original probate of a will in this state. See also Fla. Prob. R. 5.210. It is obvious that the estate of a Florida resident must have domiciliary rather than ancillary administration, even when the will was first admitted to probate in another state. A petition for ancillary letters in Florida may be opposed on the ground that the decedent was a resident of Florida. Loewenthal v. Mandell, 125 Fla. 685, 170 So. 169 (1936). See § 5.6.D of this manual for a discussion of this procedure and for forms for a petition and an order.

« Ch. 17 », « § 17.3 » 1 Practice Under Florida Probate Code § 17.3 (2022)

§ 17.3. PROCEDURE FOR ISSUANCE OF ANCILLARY LETTERS « Ch. 17 », « § 17.3 », • A » 1 Practice Under Florida Probate Code § 17.3.A (2022)

A. Who May Serve F.S. 734.102(1) provides in part: If a nonresident of this state dies leaving assets in this state, credits due from residents in this state, or liens on property in this state, a personal representative specifically designated in the decedent’s will to administer the Florida property shall be entitled to have ancillary letters issued, if qualified to act in Florida. Otherwise, the foreign personal representative of the decedent’s estate shall be entitled to have letters issued, if qualified to act in Florida. A nonresident who owns property subject to administration in Florida should consider nominating a special personal representative to administer the Florida property, if the nonresident is aware that the foreign personal representative may not be qualified to serve in Florida. In a testate situation, if no special Florida personal representative is named by the will, and the foreign personal representative and all named successors by the will are not qualified to serve in Florida, then a majority in interest of the estate beneficiaries are entitled to select the Florida ancillary personal representative. Id. If a decedent dies intestate and the foreign domiciliary personal representative is not qualified to act in Florida, or there is no foreign personal representative, the order of preference provided in F.S. 733.301(1)(b) and (3) is to be followed. F.S. 734.102(1); Piloto v. Lauria, 45 So. 3d 565 (Fla. 4th DCA 2010). See §§ 1.2.D.7–1.2.D.8 and 5.2.B of this manual. If someone other than the domiciliary personal representative applies for ancillary letters, prior notice must be given to the domiciliary personal representative. F.S. 734.102(1). See § 17.3.C for other requirements.

« Ch. 17 », « § 17.3 », « B » 1 Practice Under Florida Probate Code § 17.3.B (2022)

B. Venue Because ancillary proceedings are not proper for estates of resident decedents, venue is “in any county where the decedent’s property is located.” F.S. 733.101(1)(b). If the nonresident decedent was only a creditor of certain Florida residents, venue is proper in the county where any of the decedent’s debtors reside. F.S. 733.101(1)(c). F.S. 733.101(3) provides that if the proceeding is filed in an improper county, the court may transfer the action to the proper county. “Any action taken by the court or the parties before the transfer is not affected by the improper venue.” Id. « Ch. 17 », « § 17.3 », « C • 1 Practice Under Florida Probate Code § 17.3.C (2022)

C. Petition For Ancillary Administration The contents of a petition for ancillary letters are those set forth in Fla. Prob. R. 5.200. The petition must be verified and must include: (1) for a testate estate, an authenticated copy of so much of the domiciliary proceedings as will show the will, petition for probate, order admitting the will to probate, and authority of the personal representative; (2) for an intestate estate, an authenticated copy of so much of the domiciliary proceedings as will show the petition for administration, and authority of the personal representative to act; or (3) if appointment of someone other than the domiciliary personal representative is requested, a statement of the facts constituting grounds on which appointment is sought. Fla. Prob. R. 5.470(a). Formal notice must be given to (1) all known persons qualified to act as ancillary personal representative and whose entitlement to preference of appointment is equal to or greater than petitioner’s and who have not waived notice or joined in the petition; and

(2) all domiciliary personal representatives who have not waived notice or joined in the petition. Rule 5.470(b). FLSSI Form Nos. P-3.0140, P-3.0150, and P-3.0151 are forms for a petition for ancillary administration of a testate nonresident; Form Nos. P-3.0160, P-3.0170, and P-3.0171 are forms for a petition for ancillary administration of an intestate nonresident. Form Nos. P-3.0480 and P-3.0481 are forms for an order admitting a will of a nonresident to probate and appointing a personal representative; Form Nos. P-3.0490 and P-3.0491 are forms for orders appointing a personal representative of an intestate nonresident’s estate. For a form of ancillary letters of administration, see Form No. P-3.0720. Upon the filing of the authenticated copy of a will, the court must determine first if the will was properly executed in accordance with Florida law. If so, the court admits it to probate here. Rule 5.470(c). The former requirement that the will be a “probated” will was removed from Rule 5.470(c) effective January 1, 1997. See the “1996 Revision” in the Committee Notes to that rule. The ancillary personal representative must give bond as required in F.S. 733.402. The procedures for Florida domiciliary administration are to be followed to the extent possible. F.S. 734.102(4).

« Ch. 17 », « § 17.4 » 1 Practice Under Florida Probate Code § 17.4 (2022)

§ 17.4. POWERS AND DUTIES OF ANCILLARY PERSONAL REPRESENTATIVE « Ch. 17 », « § 17.4 », • A » 1 Practice Under Florida Probate Code § 17.4.A (2022)

A. Management Of Decedent’s Property The ancillary personal representative has the same authority as domiciliary personal representatives in Florida to manage and settle estates. F.S. 734.102(7). Chapter 4 of this manual discusses the authority of the personal representative. An ancillary personal representative may sell Florida property to pay local debts regardless of the existence of sufficient assets in the domiciliary estate to pay these debts. In re Wilson’s Estate, 143 Fla. 812, 197 So. 557 (1940). See § 10.3.D.4 of this manual. However, as noted in § 17.2.C.3, property may not be sold to pay a claim that is barred by any statute of limitations or any nonclaim statute of Florida. F.S. 734.102(7). Similarly, a Florida ancillary personal representative is subject to surcharge if, because of transfers of assets to the domiciliary estate, insufficient assets remain in the Florida ancillary estate to satisfy all expenses of the Florida estate and claims against the Florida estate. Lehman v. Lucom, 78 So. 3d 592 (Fla. 4th DCA 2011), as modified on denial of rehearing. This is in keeping with the overall theory that the ancillary administration is a separate probate estate, not simply an extension of the domiciliary probate estate. « Ch. 17 », « § 17.4 », « B • 1 Practice Under Florida Probate Code § 17.4.B (2022)

B. Tax Filing Requirements For a nonresident, Florida law imposes an estate tax on the transfer of real property located in Florida, on tangible personal property with a Florida situs, on intangible personal property with a Florida business situs, and on securities and obligations of corporations organized under Florida law. F.S. 198.03. The amount of estate tax due to Florida is equal to that proportion of

the state death tax credit under federal law as the value of taxable Florida property bears to the value of the decedent’s entire gross estate. F.S. 198.03. However, under the Economic Growth and Tax Relief Reconciliation Act of 2001, Pub. L. No. 107-16, 115 Stat. 38, the state death tax credit was gradually reduced until it disappeared for years after 2004; instead, it has been replaced with a deduction for death taxes paid to any state. As a result, estates of decedents dying after 2004 will not be assessed Florida estate tax unless and until the Florida Legislature acts, or unless the state death tax credit allowable under prior federal law returns. Under prior law, if the nonresident’s estate was required to file a federal estate tax return (Form 706), the personal representative was required to file a signed copy of that return, plus any attachments, with the Florida Department of Revenue (department) before the time period for filing the return with the IRS had expired. F.S. 198.13(1); see IRC § 6075(a). See also §§ 5.7.A–5.7.C of this manual. If the personal representative requested an extension of time to file with the IRS, the personal representative was required to file a copy of this request with the department within 30 days after filing it with the IRS. F.S. 198.14. Now, however, F.S. 198.13(4) provides that with respect to decedents dying after December 31, 2004, no return is required to be filed as long as there is no state death tax credit or generation-skipping transfer credit available under federal law. Thus, no return currently needs to be filed. If the decedent owned any property outside of both Florida and the domiciliary state, the personal representative should determine the estate tax filing requirements for that state and what, if any, tax is due. If the decedent’s estate is not required to file a federal estate tax return, the ancillary personal representative of a decedent dying on or after January 1, 2000, may sign and file with the court an affidavit (Form DR-312) attesting that the estate is not taxable; the affidavit “shall be subject to record and admissible in evidence to show nonliability for tax.” F.S. 198.32(2). On the other hand, if a federal estate tax return is required, the appropriate form for the ancillary personal representative to file with the court is Form DR313. In addition, the ancillary personal representative must file an informational income tax return (Form 1041) with the IRS and furnish a copy to the domiciliary personal representative. See Treas. Reg. § 1.6012-3(a)(3).

« Ch. 17 », « § 17.5 » 1 Practice Under Florida Probate Code § 17.5 (2022)

§ 17.5. CONCLUSION OF PROCEEDINGS F.S. 734.102(6) provides: “After the payment of all expenses of administration and claims against the estate, the court may order the remaining property held by the ancillary personal representative transferred to the foreign personal representative or distributed to the beneficiaries.” A final accounting and petition for discharge should be made by the ancillary personal representative in the same manner as for domiciliary probate. See Fla. Prob. R. 5.400. See also Chapters 12 and 14 of this manual.

« Ch. 17 », « § 17.6 • 1 Practice Under Florida Probate Code § 17.6 (2022)

§

17.6. ORIGINAL FLORIDA ADMINISTRATION OF NONRESIDENT’S ESTATE

Ordinarily, the administration of a nonresident’s Florida estate will be ancillary to proceedings in the domiciliary state. However, interested persons may procure the administration in Florida of a nonresident’s Florida estate when no administration proceedings are pending in the domiciliary state. See F.S. 733.202. Forms for petitions for administration in this circumstance are FLSSI Form Nos. P-3.0140 through P-3.0171. One troublesome situation occurs when no estate proceedings have been initiated in the nonresident decedent’s home state but administration has begun in another nondomiciliary state. Because the Florida statutes and rules do not provide specifically for the procedure in a case of that kind, it appears that any Florida administration proceedings must be in the form of original proceedings. The initial steps are similar to those involved when a Florida resident’s will has first been probated in another state. See § 17.2.E. Footnotes — Chapter 17: *

J.D., 1980, University of North Carolina. Mr. Dawkins is a member of The Florida Bar and the American and Jacksonville bar associations. He is Florida Bar Board Certified in Wills, Trusts and Estates. Mr. Dawkins is a shareholder in Fisher, Tousey, Leas & Ball, in Jacksonville and Ponte Vedra Beach. **

J.D., 2005; L.L.M, in Taxation, 2006, University of Florida. Ms. Manners is a member of The Florida Bar and the American and Jacksonville bar associations. She is a shareholder in Fisher, Tousey, Leas & Ball, in Jacksonville and Ponte Vedra Beach.

Licensed to Otis K Pitts, Otis K Pitts

« Ch. 18 » 1 Practice Under Florida Probate Code Ch. 18 (2022)

Chapter 18 SMALL ESTATES AND SUMMARY ADMINISTRATION FRANK T. PILOTTE* Contents § 18.1. INTRODUCTION § 18.2. SUMMARY ADMINISTRATION A. In General B. When Available C. Persons Required To Join In Petition D. Plan Of Distribution E. Converting From Ordinary Administration F. Exclusion Of Non-Estate Property G. Exclusion Of Exempt Property H. Gross As Opposed To Net Value I. Decedent Dead For More Than Two Years J. Indebtedness K. Procedures For Obtaining Order Of Summary Administration 1. Petition 2. Hearing And Order L. Effect Of Order Of Summary Administration M. Rights Of Creditors N. Rights Of Beneficiaries O. Elimination Of Claims Of Creditors Against Florida Real Property Of Nonresident Decedents § 18.3. DISPOSITION WITHOUT ADMINISTRATION § 18.4. TRANSFERRING TITLE TO DECEDENT’S MOTOR VEHICLE

A. In General B. Form For Application For Certificate Of Title Upon Death Of Owner Of Motor Vehicle § 18.5. TAX CONSIDERATIONS A. Income Tax Refunds B. Filing Income Tax Returns C. Estate Tax « Ch. 18 », • § 18.1 » 1 Practice Under Florida Probate Code § 18.1 (2022)

§ 18.1. INTRODUCTION This chapter is intended to present a practical approach to the procedures available for the administration of estates containing assets of limited value. F.S. Chapter 735 sets out proceedings for “summary administration” and “disposition of personal property without administration.” These proceedings, and some related matters, are discussed below.

« Ch. 18 », « § 18.2 » 1 Practice Under Florida Probate Code § 18.2 (2022)

§ 18.2. SUMMARY ADMINISTRATION « Ch. 18 », « § 18.2 », • A » 1 Practice Under Florida Probate Code § 18.2.A (2022)

A. In General Summary administration, F.S. 735.201–735.2063, is available for the administration of estates not exceeding $75,000 or when the decedent has been dead for more than two years. It avoids the necessity of the appointment of a personal representative. Fla. Prob. R. 5.530 sets out the procedure that complements the statutes. See §§ 18.2.K.1–18.2.N. F.S. 735.2063 provides for a notice to creditors. See § 18.2.M. « Ch. 18 », « § 18.2 », « B » 1 Practice Under Florida Probate Code § 18.2.B (2022)

B. When Available F.S. 735.201(2) provides that summary administration may be used for either a resident or nonresident decedent’s estate if the value of the decedent’s entire estate subject to administration in this state exclusive of property exempt from the claims of creditors does not exceed $75,000 (see §§ 18.2.F–18.2.H), or the decedent has been dead for more than two years (see § 18.2.I). The first category requires that “[p]rior to entry of the order of summary administration, the petitioner shall make a diligent search and reasonable inquiry for any known or reasonably ascertainable creditors, serve a copy of the petition on those creditors, and make provision for payment for those creditors to the extent that assets are available.” F.S. 735.206(2). The second category basically is intended for estates of any size that no longer are subject to liability for the decedent’s debts because of the two-year nonclaim provision, F.S. 733.710. Summary administration is not available when the will requires administration under F.S. Chapter 733. F.S. 735.201(1). « Ch. 18 », « § 18.2 », « C »

1 Practice Under Florida Probate Code § 18.2.C (2022)

C. Persons Required To Join In Petition A petition for summary administration may be filed by the personal representative designated in the decedent’s will or by a beneficiary. The petition also “must be signed and verified by the surviving spouse, if any, and any beneficiaries,” except that a beneficiary who is to receive a full distributive share need not sign the petition. F.S. 735.203(1). Nonetheless, a beneficiary who is to receive a full distributive share must receive formal notice of the petition. Id.; Fla. Prob. R. 5.530(b). F.S. 735.203(2)(a) provides that if the person designated as a required signer of the petition is dead, the personal representative, or the surviving spouse, if any, and beneficiaries may sign instead. If an incapacitated person or minor is required to sign, the guardian may sign. F.S. 735.203(2)(b). If the person required to sign has transferred or conveyed that person’s interest in the estate, the transferee or grantee of the interest may sign the petition instead of the transferor. F.S. 735.203(2)(c). Each other beneficiary who does not sign or join in the petition must be given formal notice. F.S. 735.203(1). See Wolf v. Doll, 229 So. 3d 1280 (Fla. 4th DCA 2017), concerning the failure to provide formal notice. « Ch. 18 », « § 18.2 », « D » 1 Practice Under Florida Probate Code § 18.2.D (2022)

D. Plan Of Distribution F.S. 735.206(1) provides that an order of summary administration in a testate estate may be entered only after the will has been proved and admitted to probate. This does not mean, however, that the devisees under the probated will are bound by the distributive terms of the will. Interested persons in a testate or intestate estate can agree among themselves as to the distribution to be made. See F.S. 733.815. It must be remembered, however, that an interest in real property vests in the beneficiaries immediately upon the death of the decedent, and, in the event distribution of the real property varies from the vested interest, a deed effecting the intent of the beneficiaries should be executed and recorded. Perhaps the best procedure is to avoid summary administration when the estate includes real property, because most title examiners require or at least prefer the recording of a personal

representative’s release and certificate of distribution of real property. See § 2.10.B of this manual. As to personal property, the petition and order are sufficient to pass title because a beneficiary can waive or assign rights without the formalities required in the transfer of real property. « Ch. 18 », « § 18.2 », « E » 1 Practice Under Florida Probate Code § 18.2.E (2022)

E. Converting From Ordinary Administration When ordinary administrative steps have been followed and it appears subsequently that the estate meets the conditions for an order of summary administration, the court may enter an order declaring that the estate is entitled to summary administration. F.S. 735.2055. If the petition is filed after notice to creditors has been published or notice of administration has been served, the court may be justified in refusing to enter an order declaring the estate entitled to summary administration until the expiration of the time for filing claims or contesting the decedent’s will. Consequently, if a notice to creditors has been published or a notice of administration served, the petition should state whether the time for filing claims or contesting the decedent’s will has expired. The petition should also request the discharge of the personal representative and the representative’s surety. « Ch. 18 », « § 18.2 », « F » 1 Practice Under Florida Probate Code § 18.2.F (2022)

F. Exclusion Of Non-Estate Property In determining whether a decedent’s estate qualifies under the $75,000 limitation, nonprobatable assets are excluded from the computation. F.S. 731.201(14), 735.201(2); see In re Estate of Mosley, 402 So. 2d 594 (Fla. 5th DCA 1981). Discussions concerning particular assets that may or may not be subject to probate proceedings are presented in § 6.5 of this manual. See also § 1.2.E. The following summary is intended only to highlight some of the common and recurring problems: Estate by the entireties and joint tenancies with right of survivorship. The decedent’s probate estate does not include property held as an estate by the entireties or in joint tenancy with the right of survivorship when

the cotenant survives the decedent. See §§ 1.2.E.3 and 6.5.S of this manual. See also Buzby-Walt, Are Florida Laws on Tenancy by the Entireties as Clear as We Think? 85 Fla. Bar J. 52 (Sept./Oct. 2011). Survivorship bank accounts. When a joint bank account with right of survivorship is established, it is presumed that the funds remaining in the account pass to the survivor by gift and are not a part of the deceased cotenant’s probate estate. F.S. 655.79. Whether a particular survivorship bank account creates an effective gift is thoroughly discussed in Smith, Joint Accounts in Financial Institutions or the Case of “Surviving Party vs. Personal Representative” (Part One), 66 Fla. Bar J. 39 (March 1992), (Part Two), 66 Fla. Bar J. 50 (April 1992). See also Sorenson & Martino, Marital Bank Accounts as Entireties Property: What Is the Current State of Florida Law? 73 Fla. Bar J. 60 (April 1999); Rodriguez, Joint Ownership of Bank Accounts in Florida by Husband and Wife: When Does a Spouse’s Interest in Account Funds Survive Their Withdrawal by the Other Spouse? 71 Fla. Bar J. 24 (Jan. 1997). Life insurance proceeds. Life insurance in favor of a named beneficiary is payable directly to the beneficiary. It is not an asset subject to administration in the estate of the insured. See § 1.2.E.4.b.i of this manual. Life insurance proceeds payable to the estate of the insured are not exempt from the claims of creditors. See § 1.2.E.4.b.ii. Wages, traveling expenses, and unemployment compensation due a deceased employee. F.S. 222.16 provides that wages, traveling expenses up to $300, reemployment assistance and unemployment compensation payments are not assets of the estate if paid as authorized by F.S. 222.15. See § 6.5.P of this manual. Liability insurance. Automobile liability insurance is an asset of the estate and must be considered in determining whether the value of the estate exceeds the monetary limitation. In re Estate of Bernard, 183 So. 2d 715 (Fla. 1st DCA 1966). In reaching this conclusion, the court in Bernard was careful to point out that the allegation that the policy under consideration had a probable value of more than the monetary limitation was not refuted. The court took the position that it therefore was free to proceed on the basis that the estate exceeded the limitation (then $5,000). The Bernard decision does not mean, however, that a summary

administration will be precluded simply because the decedent owned liability insurance with a face value of more than $75,000. The insurance coverage should be listed as a valuable asset of the estate only when liability of the decedent and the insurer has been or might be established. Protected homestead. See § 6.5.U and Chapter 19 of this manual. Although the petition for summary administration is not required to contain a list of the non-estate property, it is recommended that homestead property be listed if there is any doubt regarding its protected status. This might avoid a later “void ab initio” argument. See Mosley; Bernard. « Ch. 18 », « § 18.2 », « G » 1 Practice Under Florida Probate Code § 18.2.G (2022)

G. Exclusion Of Exempt Property Exempt property (i.e., property exempt from creditors’ claims) is excluded in determining whether a particular estate qualifies under F.S. 735.201(2). Exempt property consists only of household furniture, furnishings, and appliances in the decedent’s home up to a net value of $20,000—F.S. 731.201(15), 732.402(2)(a); two motor vehicles, as defined in F.S. 316.003(43), which do not, individually, exceed a gross vehicle weight of 15,000 pounds, and which are held in the decedent’s name and regularly used by the decedent or members of the decedent’s immediate family as their personal motor vehicles—F.S. 731.201(15), 732.402(2)(b); all qualified tuition programs authorized by IRC § 529 including the Florida Prepaid College Trust Fund advance payment contracts and participation agreements under F.S. 1009.98 and 1009.981, respectively —F.S. 731.201(15), 732.402(2)(c); all benefits paid under F.S. 112.1915—F.S. 732.402(2)(d); and personal property valued at up to $1,000—Art. X, § 4(a)(2), Fla. Const. Either a spouse or a child must survive the decedent for the property to be exempt property. See F.S. 732.402(1). See also §§ 1.2.E.1 and 1.2.E.10.b of

this manual. « Ch. 18 », « § 18.2 », « H » 1 Practice Under Florida Probate Code § 18.2.H (2022)

H. Gross As Opposed To Net Value “Value” as used in F.S. 735.201(2) refers to the gross as opposed to the net value of the estate. This point is often overlooked by lawyers. « Ch. 18 », « § 18.2 », « I » 1 Practice Under Florida Probate Code § 18.2.I (2022)

I. Decedent Dead For More Than Two Years Regardless of the size of the decedent’s estate, the procedure of summary administration is available if the decedent has been dead for more than two years. F.S. 735.201(2). The procedure is available to estates of both resident and nonresident decedents, and it does not matter whether the decedent died testate or intestate. The obvious purpose of the two-year provision is to provide a simple method for disposing of a decedent’s estate when the claims of creditors are barred. The petition, therefore, should recite the facts that operate to extinguish the claims of creditors under F.S. 733.702 and 733.710. Similarly, the order should contain findings that establish a bar to the claims of creditors. Besides effecting disposition, the order also serves as a record of the transfer of title from the decedent to the beneficiaries. « Ch. 18 », « § 18.2 », « J » 1 Practice Under Florida Probate Code § 18.2.J (2022)

J. Indebtedness Provisions for payment of creditors who are known or reasonably ascertainable are to be made in the order of summary administration in accordance with F.S. 735.206(2), which requires the petitioner to serve a copy of the petition on known or reasonably ascertainable creditors. Any known or reasonably ascertainable creditor who does not join in or consent to the petition must receive formal notice. Fla. Prob. R. 5.530(b). As a precautionary measure, the court may require a receipt for payment of the decedent’s funeral expenses before entertaining further consideration of the

petition. If a mortgage exists at the time of the decedent’s death that was either executed or assumed by the decedent, it constitutes an indebtedness of the estate. The same conclusion generally follows even though the mortgaged property is not a part of the estate. See § 1.2.E.5 of this manual, which also contains a discussion of a contrasting rule concerning purchase money mortgages executed by both spouses on an estate by the entireties. When the decedent has executed or assumed a mortgage and it is not satisfied at the time of the decedent’s death, it may be possible to obtain summary administration by providing evidence in writing that the mortgagee does not consider the estate of the decedent indebted to the mortgagee by reason of the note and mortgage, but instead agrees to look to the real property for payment. Filing of a regular administration, however, is more practical in this situation. Rule 5.530(a)(9) requires that the petition state that the estate is not indebted or that all creditors’ claims are barred, or must state the name of each creditor, the nature of the debt, the amount of the debt whether estimated or exact, and when the debt is due. “If provision for payment of the debt has been made other than for full payment in the proposed order of distribution,” the petition must include the (a) name of the person who will pay the debt; (b) creditor’s written consent for substitution or assumption of the debt by another person; (c) amount to be paid if the debt has been compromised; and (d) terms for payment and any limitations on the liability of the person paying the debt. Rule 5.530(a)(9)(B)(ii). F.S. 735.2063 provides that any person who has obtained an order of summary administration may publish a notice to creditors pursuant to F.S. 733.2121, setting out the total value of the estate and the names and addresses of those to whom it has been assigned under the court order. The notice to creditors must be published once a week for two consecutive weeks, F.S.

733.2121(2), and proof of publication should be filed with the court, see F.S. 735.2063(2). If notice to creditors is published, the claims of creditors who are served or are not reasonably ascertainable are cut off three months after the first publication. « Ch. 18 », « § 18.2 », « K » 1 Practice Under Florida Probate Code § 18.2.K (2022)

K. Procedures For Obtaining Order Of Summary Administration « Ch. 18 », « § 18.2 », « K », • 1 » 1 Practice Under Florida Probate Code § 18.2.K.1 (2022)

1. Petition F.S. 735.203 and Fla. Prob. R. 5.530 detail the requirements of a petition for summary administration. The petition must contain “a statement of the interest of each petitioner, each petitioner’s name and address, and the name and office address of each petitioner’s attorney.” Rule 5.530(a)(1). The decedent’s name, last known address, last 4 digits of the decedent’s social security number, date and place of death, and state and county of domicile must be included in the petition. Rule 5.530(a)(2). The petition must contain “the names and addresses of the surviving spouse, if any, and the beneficiaries and their relationship to the decedent and the year of birth of any who are minors.” Rule 5.530(a)(3). The petition must state “whether domiciliary or principal proceedings are pending in another state or country … and the name and address of the foreign personal representative and the court issuing letters.” Rule 5.530(a)(5). The petitioners must include a description of the assets in the estate and the estimated value of each as well as “a separate description of any protected homestead and exempt property.” Rule 5.530(a)(8). In an intestate estate, the petition must include a statement that after the exercise of reasonable diligence, each petitioner is unaware of any unrevoked wills or codicils. Rule 5.530(a)(10). In a testate estate, the petition must identify all unrevoked wills and codicils being presented for probate and must include “a statement that each petitioner is unaware of any other unrevoked will or codicil.” Rule 5.530(a)(11). The petition must specify facts showing that the petitioners are entitled to summary administration. A statement showing venue must be included, Rule

5.530(a)(4), as well as a statement that the decedent’s will, if any, does not direct administration under F.S. Chapter 733, Rule 5.530(a)(6). The petitioners must include a statement that the value of the entire estate subject to administration in this state, less the value of property exempt from the claims of creditors, does not exceed $75,000, or that the decedent has been dead for more than two years. Rule 5.530(a)(7). As to creditors, the petition must state either that all creditors’ claims are barred or that a diligent search and reasonable inquiry for any known or reasonably ascertainable creditors has been made. Rule 5.530(a)(9). As noted at § 18.2.B, if the latter is stated, the petition must also include a statement that the estate is not indebted, or if the estate is indebted, the name and address of each creditor, the nature and amount of the debt and “whether the amount is estimated or exact, and when the debt is due.” Id. If the proposed order of distribution does not include a provision for full payment of the debt, the petition must include the name of the person who will pay the debt, the written consent by the creditor for substitution or assumption of the debt by another person, and the amount to be paid if the debt has been compromised. Rule 5.530(a)(9)(B). The petition must include “a schedule of proposed distribution of all probate assets and the person to whom each asset is to be distributed.” Rule 5.530(a)(12). A certified copy of the death certificate should accompany the petition. Rule 5.205(a)(3). For persons who must join in the petition, see § 18.2.C. Forms for the petition are available from Florida Lawyers Support Services, Inc.© (FLSSI), P.O. Box 195909, Winter Springs, FL 32719-5909 (407/515-1501; [email protected]; www.flssi.org/forms). The forms for resident decedents are FLSSI Form Nos. P-2.0204 and P-2.0205 (testatesingle petitioner and testate-multiple petitioners, respectively) and P-2.0214 and P-2.0215 (intestate-single petitioner and intestate-multiple petitioners, respectively). FLSSI petition forms are also available for nonresident decedents. The forms contain statements that are recommended in addition to the above. As previously noted, any beneficiary who does not join in the petition or consent to it must be given formal notice of the petition. Rule 5.530(b); F.S. 735.203(1). « Ch. 18 », « § 18.2 », « K », « 2 •

1 Practice Under Florida Probate Code § 18.2.K.2 (2022)

2. Hearing And Order After formal notice to any beneficiary not joining in or consenting to the petition (see § 18.2.K.1), a hearing on the petition may be held. The court is given the discretion to determine the type of hearing needed. A hearing may not be necessary if all interested persons sign the petition. The order in an intestate estate should set forth the names and residences of the decedent’s beneficiaries and surviving spouse who are entitled to receive distribution and also designate the particular properties that are to be distributed to each. In a testate estate the order should set forth the names and residences of the beneficiaries and any surviving spouse and also designate the particular properties that are to be distributed to each. If any property is being given to creditors of the estate, those distributions also should be set forth. Forms for orders for resident decedents are FLSSI Form Nos. P-2.0300 (testate), and P-2.0310 (intestate). Forms for orders for ancillary proceedings are also available from FLSSI. « Ch. 18 », « § 18.2 », « L » 1 Practice Under Florida Probate Code § 18.2.L (2022)

L. Effect Of Order Of Summary Administration Under F.S. 735.206(4), those persons assigned portions of the decedent’s estate by the order are entitled to have the property transferred to them. Actions may be instituted to enforce this right when necessary. To facilitate the transfer of property to the persons designated in the order, F.S. 735.206(4)(b) authorizes debtors of the decedent, those holding property of the decedent, and those with whom securities and other property of the decedent are registered to comply with the summary administration order. Ordinarily, those persons who deliver or transfer the property as authorized cannot be held accountable thereafter to anyone else for the property. Id. If they had knowledge of facts that deprive the court of jurisdiction to enter the order, however, they may be held accountable to the true heirs after transfer of assets to the person named as sole heir in a void order. Laramore v. Laramore, 49 So. 2d 517 (Fla. 1951). See also Mudarri v.

Gillespie, 226 So. 2d 808 (Fla. 1969). After property has been transferred according to the order and later sold to bona fide purchasers for value, the purchasers receive the property free and clear from any claims or demands of the decedent’s creditors, surviving spouse, or beneficiaries. F.S. 735.206(4)(c). « Ch. 18 », « § 18.2 », « M » 1 Practice Under Florida Probate Code § 18.2.M (2022)

M. Rights Of Creditors When an order of summary administration is granted, the recipients become personally liable, pro rata, for all lawful claims and demands against the estate of the decedent. This liability cannot exceed the gross value of the nonexempt estate property actually received by the recipients. F.S. 735.206(4)(e); see Correa v. Christensen, 780 So. 2d 220 (Fla. 5th DCA 2001). Two years after the death of the decedent, neither the estate nor persons who were assigned property belonging to the estate are liable for any obligation or liability of the decedent unless there are pending proceedings to enforce that claim. F.S. 735.206(4)(f); Moreno v. Thompson, 456 So. 2d 976 (Fla. 3d DCA 1984). Any creditor may institute an action to impress a trust on all nonexempt property of the decedent that has been turned over to distributees of the estate. This proceeding must be instituted to comply with the two-year limitation period. See Mudarri v. Gillespie, 226 So. 2d 808 (Fla. 1969), for suggested procedure. As noted at § 18.2.B.2, F.S. 735.2063(1) provides that any person who has received an order of summary administration may publish a notice to creditors according to the requirements of F.S. 733.2121, specifying the value of the estate and the names and addresses of those to whom it has been assigned. If proof of publication is filed with the court, all claims and demands of creditors who were served with a notice to creditors or who are not known or reasonably ascertainable are forever barred unless their claims are filed within three months from the first publication of the notice. F.S. 735.2063(2). The Committee Note to Fla. Prob. R. 5.530 provides:

Verification and service of a petition for summary administration are governed by rules 5.020, 5.040, and 5.041. Section 735.206(2), Florida Statutes, relating to diligent search for, and service of the petition for summary administration on, reasonably ascertainable creditors is substantive. Nothing in this rule is intended to change the effect of the statutory amendments. « Ch. 18 », « § 18.2 », « N » 1 Practice Under Florida Probate Code § 18.2.N (2022)

N. Rights Of Beneficiaries F.S. 735.206(4)(g) provides a remedy, including attorneys’ fees, for heirs or devisees who were entitled to share in the estate of the decedent but were excluded from the order of summary administration and disposition. That remedy is not authorized for F.S. Chapter 733 proceedings. See Yellen v. Long, 387 So. 2d 384 (Fla. 4th DCA 1980). Presumably, Sokol v. Moses, 545 So. 2d 950 (Fla. 3d DCA 1989), would control in summary administrations and a separate proceeding would have to be filed in the general jurisdiction division of the circuit court to enforce this remedy. « Ch. 18 », « § 18.2 », « O • 1 Practice Under Florida Probate Code § 18.2.O (2022)

O. Elimination Of Claims Of Creditors Against Florida Real Property Of Nonresident Decedents F.S. 734.1025 provides for the handling of the estate of a nonresident decedent who leaves property in Florida valued at $50,000 or less. F.S. 734.1025(2) provides for publication and service of a notice to creditors pursuant to the requirements of F.S. Chapter 733. For discussion of ancillary proceedings, see Chapter 17 of this manual.

« Ch. 18 », « § 18.3 » 1 Practice Under Florida Probate Code § 18.3 (2022)

§

18.3. DISPOSITION ADMINISTRATION

WITHOUT

F.S. 735.301(1) briefly describes one set of circumstances under which no administration is required. The qualifications that must be met are succinctly set forth in the statute: No administration shall be required or formal proceedings instituted upon the estate of a decedent leaving only personal property exempt under the provisions of s. 732.402, personal property exempt from the claims of creditors under the Constitution of Florida, and nonexempt personal property the value of which does not exceed the sum of the amount of preferred funeral expenses and reasonable and necessary medical and hospital expenses of the last 60 days of the last illness. Disposition without administration is initiated upon an informal application by affidavit, letter, or otherwise by any interested person. F.S. 735.301(2); Fla. Prob. R. 5.420(a). A form for a verified statement for disposition without administration is FLSSI Form No. P-2.0100. An application for disposition without administration must be signed by the applicant and must contain a description and value of the exempt property, a description and value of the nonexempt property, the amount of the preferred funeral expenses and necessary medical and hospital expenses for the last 60 days of the last illness together with statements or payment receipts, and a description of the requested payments or distributions. Rule 5.420(a). If the assets include exempt property, the application must also be signed by all persons entitled to exempt property. Rule 5.420(b). Disposition without administration is intended to eliminate the need for the assistance of a lawyer. As a matter of fact, the lawyer can suggest that the interested party or parties in an appropriate situation can directly contact the probate division of the circuit court. Rule 5.420(c) requires the clerk, upon request, to assist the applicant in the preparation of the application. In the interest of conserving time and money for both the lawyer and the estate, the

activity of the lawyer should end with these instructions. F.S. 735.303 provides an alternative method for a family member to collect small amounts—$1,000 or less—in funds held by a financial institution in an account or accounts solely in the name of the decedent without any pay on death or other survivor designation. This procedure may only be utilized if more than six months have passed since the death of the decedent and the decedent died intestate. A “family member” is defined by the statute as: 1. The surviving spouse of the decedent; 2. An adult child of the decedent if the decedent left no surviving spouse; 3. An adult descendant of the decedent left no surviving spouse and no surviving adult child; or 4. A parent of the decedent if the decedent left no surviving spouse, no surviving adult child, and no surviving adult descendant. F.S. 735.303(1)(a). To collect the funds, the individual attempting to collect the funds must provide the financial institution involved with a sworn affidavit together with a certified copy of the decedent’s death certificate. F.S. 735.303(3). The affidavit must contain: (a) A statement attesting that the affiant is the surviving spouse, adult child, adult descendant, or parent of the decedent. 1. If the affiant is an adult child of the decedent, the affidavit must attest that the decedent left no surviving spouse. 2. If the affiant is an adult descendant of the decedent, the affidavit must attest that the decedent left no surviving spouse and no surviving adult child. 3. If the affiant is a parent of the decedent, the affidavit must attest that the decedent left no surviving spouse, no surviving adult child, and no surviving adult descendant. (b) The date of death and the address of the decedent’s last residence.

(c) A statement attesting that the total amount in all qualified accounts held by the decedent in all financial institutions known to the affiant does not exceed an aggregate total of $1,000. (d) A statement acknowledging that a personal representative has not been appointed to administer the decedent’s estate and attesting that no probate proceeding or summary administration procedure has been commenced with respect to the estate. (e) A statement acknowledging that the affiant has no knowledge of the existence of any last will and testament or other document or agreement relating to the distribution of the decedent’s estate. (f) A statement acknowledging that the payment of the funds constitutes a full release and discharge of the financial institution’s obligation regarding the amount paid. (g) A statement acknowledging that the affiant understands that he or she is personally liable to the creditors of the decedent and other persons rightfully entitled to the funds under the Florida Probate Code, to the extent the amount paid exceeds the amount properly attributable to the affiant’s share. (h) A statement acknowledging that the affiant understands that making a false statement in the affidavit may be punishable as a criminal offense. F.S. 735.303(3). A form of affidavit is provided in F.S. 735.303(4). The person using this method to withdraw the funds remains liable to the decedent’s creditors and to other persons rightfully entitled to the funds under the Florida Probate Code to the extent that the amount paid exceeds the amount properly attributable to that person’s share. A person who delivers a false statement in the affidavit commits the crime of theft, which is punishable as provided in F.S. 812.014. There is a third option available. This option is available to any heir at law of the decedent if the decedent has been deceased for more than one year, died intestate, and no administration of the decedent’s estate is pending in Florida. This method is only available if the decedent had personal property exempt from the claims of creditors under the provisions of F.S. 732.402;

personal property exempt from the claims of creditors under the Constitution; and nonexempt personal property valued at up to $10,000, plus “the amount of preferred funeral expenses and reasonable and necessary medical and hospital expenses of the last 60 days of the [decedent’s] last illness. F.S. 735.304(1). The request is made by affidavit. “The affidavit must be signed and verified by the surviving spouse, if any, and any heirs at law,” except those whose joinder in the affidavit is not required as they will be receiving their full intestate share under the proposed distribution of the personal property. F.S. 735.304(2). The contents of the affidavit are specified both in F.S. 735.304 and the applicable Rule 5.425. “The affidavit must be served in the manner of formal notice upon all heirs at law who have not joined in the affidavit; upon all known or reasonably ascertainable creditors of the decedent; and, if the decedent at the time of death was over the age of 55 years of age, upon the Agency for Health Care Administration.” Id. A few words of caution. Note that if there is a known or reasonably ascertainable creditor who did not consent to the proposed distribution and for whom provision for payment was not made, then that creditor may enforce their claim and, if successful, will be entitled to an award of costs, including reasonable attorneys’ fees, against those who have joined in the affidavit. F.S. 735.304(3)(c). The recipients of the personal property received under this section will remain personally liable for their pro rata share of any lawful claims against the estate, “but only to the extent of the value on the date of distribution of the personal property actually received by each recipient,” exclusive of exempt property. F.S. 735.304(3)(d). The liability of the recipients generally will terminate two years after the death of the decedent pursuant to F.S. 733.710, unless a proceeding to enforce the claim has been commenced within that time. F.S. 735.304(3)(e). Furthermore, if there is an heir or devisee who was lawfully entitled to a share of the estate but who was not provided for in the distribution pursuant to this section, then that person, if successful in enforcing their rights, will also be awarded costs, including reasonable attorneys’ fees. F.S. 735.304(3)(f). Although the lawyer need not and should not take an active part in proceedings under F.S. 735.301, 735.303, or 735.304, the lawyer should be in a position to answer questions that may be raised by a party or parties

referred by the lawyer to the probate division or financial institution.

« Ch. 18 », « § 18.4 » 1 Practice Under Florida Probate Code § 18.4 (2022)

§

18.4. TRANSFERRING TITLE DECEDENT’S MOTOR VEHICLE

TO

« Ch. 18 », « § 18.4 », • A » 1 Practice Under Florida Probate Code § 18.4.A (2022)

A. In General As noted in §§ 10.6.B.2 and 13.2.G.5 of this manual, when the decedent’s estate consists of a motor vehicle, title may be transferred without the necessity of instituting formal proceedings. Under F.S. 319.28(1)(b), if the owner died intestate, an heir’s application for transfer of the title need not be accompanied by an order of the probate court. The applicant for the certificate, however, must file an affidavit that the estate is not indebted and that the spouse and heirs have agreed on a division of the estate. See § 18.4.B for a suggested form for the application. If the owner of the automobile died testate and the will has not been admitted to probate, a sworn copy of the will and an affidavit stating that the estate is not indebted must accompany the application. (If the will has been admitted to probate, a certified copy must be provided.) Id. F.S. 319.28 imposes no limitation on the value of the automobile. F.S. 319.28(1)(c) provides that a decedent’s spouse may transfer an automobile to a third party without titling the automobile in the surviving spouse’s name; however, as to any beneficiary other than a spouse, the automobile must first be titled in that beneficiary’s name prior to a transfer to a third party. The practitioner should note that an automobile may be exempt property under F.S. 732.402. « Ch. 18 », « § 18.4 », « B • 1 Practice Under Florida Probate Code § 18.4.B (2022)

B. Form For Application For Certificate Of Title Upon Death Of Owner Of Motor Vehicle

CERTIFICATE OF TITLE APPLICATION

UPON DEATH OF OWNER OF MOTOR VEHICLE TO: Director, Florida Department of Highway Safety and Motor Vehicles Florida Department of Highway Safety and Motor Vehicles State of Florida: The undersigned persons state upon oath as follows: 1. of County, Florida, died [intestate] [testate] on (date), and left surviving [him] [her] the following-named [beneficiaries] [surviving spouse]:

(set forth name, age, relationship, and address of each one.) 2. At the time of death the decedent was the owner of a certain motor vehicle described as (make, year, model, identification number). 3. The assets of the estate of the decedent, excluding the motor vehicle, are sufficient to pay all just claims and no probate proceedings have been instituted upon the estate. 4. The undersigned persons severally release and assign to _________ all their right, title, interest, and claim as beneficiaries or otherwise to the motor vehicle described above. /s/____________ As assignee named above, I apply for issuance of a certificate of title on the motor vehicle described above and if the certificate is issued, I guarantee title against all claims. /s/____________ COMMENT: Separate releases should be prepared if it is impracticable for the interested persons to execute the title application. If the previous owner died testate, a certified copy of the

will should be attached. If the will is not probated, a certified copy can be obtained upon filing the will with the court. Application forms can also be obtained on the website of the Florida Highway Safety and Motor Vehicles (available at www.flhsmv.gov).

« Ch. 18 », « § 18.5 • 1 Practice Under Florida Probate Code § 18.5 (2022)

§ 18.5. TAX CONSIDERATIONS « Ch. 18 », « § 18.5 •, • A » 1 Practice Under Florida Probate Code § 18.5.A (2022)

A. Income Tax Refunds F.S. 735.302(1) provides that an income tax refund up to $2,500 may be given to the surviving spouse. A sworn application must be submitted alleging that the decedent was not indebted, that provision has been made for payment of the debts, or that the entire estate is exempt from the claims of creditors. The application also must show that no administration has been initiated and that none is planned. If there is no surviving spouse, the sworn application may be executed by all of the decedent’s children over 14 years of age, designating one of them to receive the refund. Id. If a refund is made under these circumstances, the United States is released from any claim or demand by heirs, distributees, creditors, or any person interested in the decedent’s estate. F.S. 735.302(2). United States Treasury Form 1310 must be used for this type of refund. « Ch. 18 », « § 18.5 •, « B » 1 Practice Under Florida Probate Code § 18.5.B (2022)

B. Filing Income Tax Returns In handling small estates, the lawyer should not overlook the necessity of filing income tax returns. An individual return or a joint return with the surviving spouse should be filed for the part of the year during which the decedent was alive. If the income of the estate exceeds $600, a fiduciary income tax return must be filed. When distribution is made within the year, the decedent’s beneficiaries may show on their return all income received from the date of the decedent’s death to the date of distribution. « Ch. 18 », « § 18.5 •, « C • 1 Practice Under Florida Probate Code § 18.5.C (2022)

C. Estate Tax

The estate of a decedent who resides or owns property in Florida is presumed to be liable for Florida estate taxes. F.S. 198.32. Whenever a decedent’s estate is not subject to Florida estate taxes, the personal representative is required to file an affidavit attesting that the estate is not taxable. Such an affidavit may then be considered by the probate court as evidence that no tax is due. F.S. 198.32(2). The affidavit form is Form DR312. If the estate is required to file a federal estate tax return, F.S. 198.13(1) provides that a copy of the federal estate tax return (Form 706) must be filed with the Florida Department of Revenue (department), together with the Florida estate tax return (Form F-706). However, for decedents dying on or after December 31, 2004, there is no Florida estate tax due because the credit upon which the tax is based has been phased out. See Pub. L. No. 107-16, §§ 531, 901, 115 Stat. 38 (2001). If a state death tax credit is not allowable pursuant to the Internal Revenue Code of 1986, as amended, the personal representative is not required to file an estate tax return with the department. F.S. 198.13(4). See also §§ 6.3.E–6.3.F of this manual. Footnotes — Chapter 18: *

Biographical information for Mr. Pilotte appears on page 8-1 of this manual.

Licensed to Otis K Pitts, Otis K Pitts

« Ch. 19 » 1 Practice Under Florida Probate Code Ch. 19 (2022)

Chapter 19 HOMESTEAD AND EXEMPT PERSONAL PROPERTY TAE KELLEY BRONNER* ROHAN KELLEY** Contents § 19.1. INTRODUCTION AND SCOPE § 19.2. HOMESTEAD A. The Many Faces Of Homestead B. Real Property Homestead Described 1. In General 2. Restraint On Testamentary Disposition 3. Exemption From Forced Sale And Qualification As Protected Homestead 4. Quality And Quantity Of Ownership a. In General b. Leasehold Interests c. Equitable Interests d. Tenancy By Entireties And Joint Tenancy With Rights Of Survivorship e. Funds From Voluntary Sales Or From Involuntary Conversion 5. Amount Of Property 6. Unimproved Property C. Exempt Personal Property § 19.3. HISTORICAL EVOLUTION A. 1868 Constitution And 1885 Constitution B. 1968 And 1978 Constitutional Amendments

C. 1984 Constitutional Amendment § 19.4. HOMESTEAD AS ASSET SUBJECT TO PROBATE A. Real Property 1. In General 2. When Homestead Real Property Is Devised To Heirs 3. When Homestead Real Property Is Devised To Persons Who Are Not Heirs B. Personal Property § 19.5. DESCENT AND DEVISE OF HOMESTEAD AND EXEMPTION FROM CLAIMS A. Personal Property B. Real Property 1. In General 2. When Neither Spouse Nor Minor Child Survive 3. Effect Of Devise To Spouse 4. Contrasting Permitted Devise To Spouse And Devise To Others 5. Effect Of Valid Nuptial Agreement, Waiver, Or Disclaimer 6. Homestead Paradigm 7. Distinction Between Devise And Descent Regarding Exemption From Claims 8. Effect Of Survival Of Minor Child 9. Title Held By Entireties Or As Joint Tenants With Right Of Survivorship § 19.6. HOMESTEAD AND TRUSTS A. Revocable Living Trusts 1. In General 2. When Decedent Is Survived By Spouse Or Minor Child 3. When Decedent Is Not Survived By Spouse Or Minor Child 4. Does Exemption Inure When Homestead Is Devised To Trust? B. Irrevocable Trusts C. Constructive Trusts § 19.7. LIENS THAT DEFEAT HOMESTEAD § 19.8. ABANDONMENT OF HOMESTEAD

§ 19.9. PROCEDURE TO DETERMINE HOMESTEAD STATUS A. In General B. Subject Matter Jurisdiction C. Determination In Nonprobate Proceeding D. Determination In Probate Proceeding E. Guardian Ad Litem F. Curative Acts And Statutes Of Limitations As Remedy To Defective Homestead Determination G. Notice By Formal Notice H. Procedural Conclusions I. Forms For Petition To Determine Homestead Status In Probate Proceeding 1. Petition To Determine Homestead Status Of Real Property— Testate 2. Petition To Determine Homestead Status Of Real Property— Intestate J. Forms For Order Determining Homestead Status 1. Order Determining Homestead Status Of Real Property — Testate 2. Order Determining Homestead Status Of Real Property — Intestate K. Application Of Servicemembers Civil Relief Act To Determination Of Homestead « Ch. 19 », • § 19.1 » 1 Practice Under Florida Probate Code § 19.1 (2022)

§ 19.1. INTRODUCTION AND SCOPE This chapter provides a starting point for the lawyer when homestead questions arise during the administration of an estate. A complementary chapter is Chapter 8 of LITIGATION UNDER FLORIDA PROBATE CODE (Fla. Bar 13th ed. 2022). Also discussed is the constitutional exemption of personal property. As noted by the court in Snyder v. Davis, 699 So. 2d 999 (Fla. 1997), there are three contexts in which the homestead has significance in Florida law: (1) taxation, (2) exemption from forced sale, and (3) descent and devise.

This chapter focuses on the second and third of these. The first of these contexts, that is, the homestead ad valorem tax exemption under Article VII, § 6, of the Florida Constitution and the “Save our Homes” limit on assessment increases under Article VII, § 4, is not within the scope of this manual. Nor is transfer of the homestead under Article X, § 4(c), addressed to the extent it proscribes certain inter vivos alienation. However, a personal representative’s lawyer should be familiar with the limitation on inter vivos alienation because there may be a duty to attack such a conveyance or mortgage. See Nordman v. McCormick, 715 So. 2d 310 (Fla. 5th DCA 1998); Marsh v. Hartley, 109 So. 2d 34 (Fla. 2d DCA 1959). But see In re Estate of Morrow, 611 So. 2d 80 (Fla. 2d DCA 1992), in which the personal representative brought an action to set aside an inter vivos transfer of the decedent’s homestead to the decedent’s revocable living trust. The court ruled, under facts specific to that case, that the personal representative had no standing to question the transfer. See also REAL PROPERTY TITLE EXAMINATION AND INSURANCE IN FLORIDA § 3.6 (Fla. Bar 10th ed. 2021); Buchwald, Florida Homestead: A Restraint on Alienation by Judicial Accretion, 19 U. Miami L. Rev. 114 (1964). If the alienation occurred after the effective date of the 1968 Amendment to Article X of the Florida Constitution, the restraints are very different because that amendment appears to have removed all restraints except the requirement of joinder of the spouse, provided the conveyance is to a third party. Also, after that date, no spousal joinder is necessary to create an estate by the entireties. F.S. 689.11; Jameson v. Jameson, 387 So. 2d 351 (Fla. 1980). For an in-depth treatment that provides both a history and an analysis of homestead, see Maines & Maines, Our Legal Chameleon Revisited: Florida’s Homestead Exemption, 30 U. Fla. L. Rev. 227 (1978). That article is based on an earlier article by Crosby & Miller titled Our Legal Chameleon, 2 U. Fla. L. Rev. 12 (1949). See also Kelley, Homestead Made Easy, Part I: Understanding the Basics, 65 Fla. Bar J. 3 (March 1991); Part II, 65 Fla. Bar J. 4 (April 1991); and Part III 69 Fla. Bar J. 6 & 7 (June 1995) (July/Aug. 1995). Another analysis of the decisions on homestead law appears in Shapo, Restraints on Alienation and Devise of Homestead, 19 U. Miami L. Rev. 72 (1964). Of course, the 1968, 1972, and 1984 Amendments to Article X of the

Florida Constitution, and the amendments to the Florida Probate Code (hereafter “Code”), and especially prior probate statutes, must be considered when studying prior writings. For additional reading on the subject of homestead, see 28A FLA. JUR. 2d Homesteads.

« Ch. 19 », « § 19.2 » 1 Practice Under Florida Probate Code § 19.2 (2022)

§ 19.2. HOMESTEAD « Ch. 19 », « § 19.2 », • A » 1 Practice Under Florida Probate Code § 19.2.A (2022)

A. The Many Faces Of Homestead The reptile called homestead has many faces. Even after its genus is defined as real property, a reference to “homestead real property” is still not adequate to describe its legal status. Its stealthy nature is often perpetuated through inexact definition of its specific character, frequently by the courts, which write opinions intending to illuminate the subject. As noted in § 19.1, homestead has significance in different contexts. Under Article X, § 4, of the Florida Constitution and the statutory provisions of the Code, real property may be a homestead for one or more, but not necessarily all, of the following purposes: Exemption from forced sale (except for certain types of debts) while the homesteader is living. Exemption from forced sale (except for certain types of debts) after death of the homesteader. Limitation on inter vivos alienation. Limitation on testamentary disposition. Limitation on disposition by inter vivos trust as a will substitute. Conspicuously absent from the foregoing list is whether the property receives a special ad valorem tax valuation. See Art. VII, §§ 4, 6, Fla. Const. Although the qualifications for this ad valorem homestead tax exemption are similar but not identical to qualifications required in order for real property to be exempt from execution and sale by creditors (see Phillips v. Hirshon, 958 So. 2d 425, 427 n.3 (Fla. 3d DCA 2007); Southern Walls, Inc. v. Stilwell Corp., 810 So. 2d 566 (Fla. 5th DCA 2002); Bowers v. Mozingo, 399 So. 2d 492 (Fla. 3d DCA 1981); Crain v. Putnam, 687 So. 2d 1325 (Fla. 4th DCA 1997)), this aspect of homestead is not the subject of discussion in this

chapter. Previously, the fact that a home could be described properly but loosely as “homestead” did not necessarily mean that it would be exempt from claims of creditors upon the owner’s death, or that it could not be devised, or that descendants would receive an interest in it upon the owner’s death. The Florida Legislature’s 2001 Amendment to F.S. 731.201(29) (later renumbered to 731.201(33)) served to clarify the confusion associated with homestead real property and the exemption from forced sale after the death of the homesteader. The amendment created a definition of “protected homestead” as “the property described in [§] 4(a)(1), Art. X of the State Constitution on which at the death of the owner the exemption inures to the owner’s surviving spouse or heirs under [§] 4(b), Art. X of the State Constitution.” F.S. 731.201(33). (The practitioner should note that expressly excluded from this definition is “real property owned in tenancy by the entireties or in joint tenancy with rights of survivorship.” See § 19.2.B.4.d.) « Ch. 19 », « § 19.2 », « B » 1 Practice Under Florida Probate Code § 19.2.B (2022)

B. Real Property Homestead Described « Ch. 19 », « § 19.2 », « B », • 1 » 1 Practice Under Florida Probate Code § 19.2.B.1 (2022)

1. In General Unless otherwise noted, the reference in this chapter to “homestead” is to real property to the extent of no more than 160 contiguous acres outside a municipality, or no more than one half of an acre of contiguous land in a municipality, owned by a natural person, and the improvements on it. Art. X, § 4(a), Fla. Const. “Improvements” on rural homestead includes barns, fences, crops, and other structures, even if those structures are used for a business or other nonresidential purpose. Armour & Co. v. Hulvey, 73 Fla. 294, 74 So. 212 (1917); Davis v. Davis, 864 So. 2d 458 (Fla. 1st DCA 2004). In a municipality, improvements or buildings are limited to “the residence of the owner or the owner’s family,” but improvements or buildings may include a swimming pool, screened enclosures, and other improvements that are deemed conventional residential appurtenances. White v. Posick, 150 So. 2d 263 (Fla. 2d DCA 1963).

As previously noted, the constitutional definition of homestead for lifetime exemption from forced sale (Art. X, § 4(a), Fla. Const.) is the definition of homestead at the moment of the decedent’s death for the purpose of determining whether restrictions on devise apply (Art. X, § 4(c), Fla. Const.), and is also the definition of homestead to determine whether the exemption from creditors’ claims inures to the decedent’s heirs (Art. X, § 4(b), Fla. Const.), thereby making the property “protected homestead” under the Code. F.S. 731.201(33); Holden v. Estate of Gardner, 420 So. 2d 1082 (Fla. 1982); Engel v. Engel, 97 So. 2d 140 (Fla. 2d DCA 1957). Stated differently, unless the real property homestead was qualified as exempt from forced sale during the decedent’s lifetime, it cannot after the decedent’s death be considered protected homestead or homestead for any of the purposes discussed in this chapter. This is because homestead is defined in Article X, § 4(a), of the Florida Constitution, which relates to the lifetime exemption, and that definition then becomes applicable to §§ 4(b) and 4(c) relating to the limitation on devise and whether the exemption inures. Many of the homestead definitional cases are found in the creditors’ rights substantive law area but that same definition also uniformly applies in the context of limitation on devise and alienation. In the context of an estate, it is necessary to determine if the real property was the decedent’s homestead before any other consideration is necessary. See Kelley’s Homestead Paradigm at § 19.5.B.6. Homestead status is self-executing. It need not be “claimed” either in the exemption from creditor’s claims, Osborne v. Dumoulin, 55 So. 3d 577 (Fla. 2011), or in other contexts such as limitation on devise. Art. X, § 4(c), Fla. Const. Delay in claiming homestead status is not prejudicial; although not claimed at trial, it may be first claimed as a defense on appeal. Barton v. Oculina Bank, 26 So. 3d 640 (Fla. 4th DCA 2010). One of the requirements to qualify as homestead under Article X is that “the owner must have made, or intend to make the real property his or her permanent residence or that of his family.” Aronson v. Aronson, 81 So. 3d 515, 519 n.2 (Fla. 3d DCA 2012). Beltran v. Kalb, 63 So. 3d 783 (Fla. 3d DCA 2011), illustrates the nature of this exemption as it relates to the owner’s family. In Beltran, the husband and wife owned the property they occupied as their residence with their daughter. Upon dissolution, they

became tenants in common, and the former husband moved out while the former wife and daughter continued to live on the property until the former wife’s death some years later. The former husband’s judgment creditor levied on the former husband’s interest in the property and it was sold at a sheriff’s sale. The former husband and daughter moved to set aside the sale on the grounds that it was always exempt homestead because of the daughter’s presence on the property (as the former husband’s family). The court agreed and set aside the sale. See also Friscia v. Friscia, 161 So. 3d 513 (Fla. 2d DCA 2014). A residence owned and occupied by a nonresident alien is not exempt homestead under Article X, § 4, because a nonresident alien cannot legally remain indefinitely in the United States and cannot legally form the intention to make the property his or her permanent residence. Matter of Cooke, 412 So. 2d 340 (Fla. 1982). However, if the residence is also occupied by at least one family member who has legal status as a permanent resident (such as a DACA applicant) and there is an intent to live in the home permanently, the residence owned by an illegal alien may qualify as exempt homestead under Article X, § 4, of the Florida Constitution. In Re Grisolia, 77 So. 3d 732 (Fla. 3d DCA 2011). See also In Re De Bauer, 628 B.R. 355 (Bankr. M.D. Fla. 2021); In Re Oyola, 571 B.R. 874 (Bankr. M.D. Fla. 2017). « Ch. 19 », « § 19.2 », « B », « 2 » 1 Practice Under Florida Probate Code § 19.2.B.2 (2022)

2. Restraint On Testamentary Disposition Before the 1968 Amendment to Article X, § 4, of the Florida Constitution, that document prohibited a devise if the decedent was survived by “children.” Before the 1968 Amendment, if the homesteader was a woman, survived only by her husband, there was no limitation on devise. As a result of the 1968 Amendments, Article X, § 4, of the Florida Constitution now forbids a devise “if the owner is survived by spouse or minor child” (unless the devise is to the spouse when there is no minor child). The husband now has the same protection as the wife, except that, if the wife died before January 1, 1976, and was survived by a husband and a descendant, the husband inherited the same portion as a child under former F.S. 731.27, instead of a life estate. If the wife died on or after that date and was survived by one or more descendants and if the property was not devised to the

husband in fee simple (in the absence of a minor child), the husband takes a life estate. F.S. 732.401. Under the 2010 Amendment to F.S. 732.401(2), the surviving spouse may make an election to take an undivided one-half interest in the homestead property in lieu of the life estate. This amendment became effective on October 1, 2010. Article X, § 4(b), of the Florida Constitution makes clear that the exemption from forced sale inures to a widower as well as to a widow. Furthermore, it is not necessary that the decedent reside on the property at the time of his or her death for the restrictions on devise to apply. If the property is owned by the decedent and is the residence of the owner or the owner’s family, the restrictions in Article X, § 4(c), of the Florida Constitution will apply. Bayview Loan Servicing, LLC v. Giblin, 9 So. 3d 1276 (Fla. 4th DCA 2009). Under former F.S. 731.05 and 731.27, for the limitation on devise to apply, if death occurred before the effective date of the 1968 Amendment to Article X, the owner must have been survived by either a widow or a descendant of any age. As amended in 1968, Article X, § 4, required survivorship by either a spouse or a minor child, but F.S. 731.05 was not concurrently amended. (It now appears in its amended form as F.S. 732.401.) It still purported to prohibit the devise if the owner was a Florida resident survived by a descendant regardless of age. The Florida Supreme Court later held, however, that the 1968 constitutional amendment repealed the inconsistent provision of the statute and also held that the existence of adult children when there is no surviving spouse does not prevent the devise of homestead. In re Estate of McGinty, 258 So. 2d 450 (Fla. 1972). This has been clarified by F.S. 732.4015. For further discussion of homestead real property as an asset subject to probate, see §§ 19.4.A.1–19.4.A.3. Limitations on transfer of homestead property to, or upon death by, a revocable inter vivos trust are discussed in §§ 19.6.A.1–19.6.A.4. « Ch. 19 », « § 19.2 », « B », « 3 » 1 Practice Under Florida Probate Code § 19.2.B.3 (2022)

3. Exemption From Forced Sale And Qualification As Protected Homestead

To qualify the property for exemption from forced sale under Article X, § 4(a), of the Florida Constitution after January 8, 1985, it is not necessary that the owner have either a spouse or other family. Because the definition of homestead (for purposes of exemption from forced sale) is also the controlling definition of homestead for purposes of limitation on devise and determination of whether the exemption inures and the property qualifies as protected homestead, the homestead umbrella in the probate context was substantially (and probably unintentionally) enlarged by the 1984 Amendment to Article X. With this expansion, it is also possible, under limited circumstances, for spouses to have separate homesteads. Law v. Law, 738 So. 2d 522 (Fla. 4th DCA 1999). « Ch. 19 », « § 19.2 », « B », « 4 » 1 Practice Under Florida Probate Code § 19.2.B.4 (2022)

4. Quality And Quantity Of Ownership « Ch. 19 », « § 19.2 », « B », « 4 », • a » 1 Practice Under Florida Probate Code § 19.2.B.4.a (2022)

a. In General Three requirements must be satisfied for real property to be impressed with the characteristics of homestead property under article X, [§] 4 of the Florida Constitution: (1) the property must be owned by a “natural person”; (2) the owner must have made, or intend to make the real property his or her permanent residence or that of his family; and (3) the property must meet the size and contiguity requirements of article X, [§] 4(a)(1) of the Florida Constitution. Aronson v. Aronson, 81 So. 3d 515, 519 n.2 (Fla. 3d DCA 2012), citing Cutler v. Cutler, 994 So. 2d 341 (Fla. 3d DCA 2008). Real property ownership need not be in fee simple for the interest to qualify for homestead status; it may be an undivided interest, a beneficial interest, an equitable interest, or a life estate. However, the interest must include the present right of possession. See Bessemer Properties v. Gamble, 158 Fla. 38, 27 So. 2d 832 (1946); Engelke v. Estate of Engelke, 921 So. 2d 693 (Fla. 4th DCA 2006); King v. King, 652 So. 2d 1199 (Fla. 4th DCA 1995); Cain v. Cain, 549 So. 2d 1161 (Fla. 4th DCA 1989). See also 28A FLA. JUR. 2d Homesteads §§ 11–18; Crosby & Miller, Our Legal Chameleon,

2 U. Fla. L. Rev. 12, 32 (1949). « Ch. 19 », « § 19.2 », « B », « 4 », « b » 1 Practice Under Florida Probate Code § 19.2.B.4.b (2022)

b. Leasehold Interests A homestead interest for most purposes requires that it be an interest in real property. At common law, a leasehold, even for as long as 99 years, is not an interest in real property. “As the Supreme Court observed in Williams v. Jones, 326 So. 2d 425, 433 (Fla. 1975), at common law, a leasehold interest in real property was treated as personal property rather than realty.” Dept. of Revenue v. City of Gainesville, 859 So. 2d 595, 603 (Fla. 1st DCA 2003), rev’d on other grounds 918 So. 2d 250. Generally, long-term leasehold interests are taxed the same as fee interests, so it is common to see courts holding long-term leaseholds for taxation purposes to be an interest in real property. However, this is in derogation of the common law and these cases must be examined closely because they are based on various statutory provisions, and, in some cases, on constitutional provisions, changing the common law to define these interests as interests in real property. Leasehold exemptions from homestead forced sale, although not mentioned in the constitution, are specifically provided for in the Florida Statutes. F.S. 222.01, 222.05. These statutes, read together, provide that the owner/occupant of a dwelling house may claim the homestead exemption from forced sale even though the dwelling is on leased land. It has been said that “even if [the debtor] merely retained possession of the land, it is of sufficient value to [the debtor] to have it protected under the homestead law, and it is of no concern whatever to the creditor that another has the superior title.” Hill v. First Nat. Bank of Marianna, 73 Fla. 1092, 75 So. 614, 617 (1917). There is a growing body of law concerning mobile homes on leased property that are exempt from forced sale. See In re Lisowski, 395 B.R. 771 (Bankr. M.D. Fla. 2008), and the cases cited therein. Even a 3,000-squarefoot houseboat used as a permanent residence was exempt under the statute because “it [had] never been equipped with a motor and was towed to its present location. Miami Country Day School v. Bakst, 641 So. 2d 467, 469 (Fla. 3d DCA 1994). See FLORIDA MARITIME LAW AND PRACTICE Chapter 14 (Fla. Bar 7th ed. 2022).

A leasehold interest initially in excess of 98 years will qualify for Article VII, §§ 4 and 6 (taxation and tax appraisal) homestead exemption. (“The real estate may be held by legal or equitable title, by the entireties, jointly, in common, as a condominium, or indirectly by stock ownership or membership representing the owner’s or member’s proprietary interest in a corporation owning a fee or a leasehold initially in excess of ninety-eight years.” Art. VII, § 6(a), Fla. Const.) Although the general definition of homestead, even for purposes of taxation, follows the common-law rule that requires an interest in real property, the provisions of the Florida Constitution cited above specifically allow that exemption to extend to a cooperative unit. It is important to recognize that the forced sale exemption expanded to leaseholds by the statutes does not extend to the constitutional limitation on devise or post-death inurement of the exemption, because those two aspects are applicable only to constitutional homestead, not statutory homestead. In other words, the homestead exemption under the constitution is separate and distinct from the statutory exemption—the two “apply to different types of property interests.” In re Lisowski, 395 B.R. at 781. For example, a mobile home that was the principal residence of the owner and that sits on leased land may be freely devised, even if the owner is survived by a spouse or minor child. The owner’s lifetime exemption from forced sale ends at death. The constitutional homestead limitations and exemptions provided by Art. X, § 4, require an estate in realty. See Gold v. Schwartz, 774 So. 2d 879 (Fla. 4th DCA 2001), regarding application of the constitutional exemption in Art. X, § 4(b) (exemption from forced sale inuring to heir) to a mobile home affixed to real property owned (rather than leased) by the debtor/decedent. The Florida Supreme Court has held that for purposes of descent and devise, ownership of a cooperative unit does not qualify for exemption from forced sale under Article X, § 4, of the Florida Constitution because of the personal property nature of the ownership. In re Estate of Wartels, 357 So. 2d 708 (Fla. 1978). However, the District Court of Appeal, Fifth District, has held that a cooperative apartment is exempt from creditors’ claims under Article X, § 4, of the Florida Constitution. Southern Walls, Inc. v. Stilwell Corp., 810 So. 2d 566 (Fla. 5th DCA 2002). The court in Southern Walls, Inc. examined two conflicting applications of homestead to cooperative apartments. First, the devise of a cooperative apartment is not limited by Article X, § 4(c), because of the nature of cooperative ownership. Wartels.

Second, a co-op may qualify for the homestead tax exemption. However, the Wartels court distinguished this latter qualification because it arises under Article X, § 1, of the Florida Constitution, a different section from the one that relates to the creditors’ exemption. Furthermore, it is clear that, for the limitation on devise to apply (under Article X, § 4(c)), the property must have qualified, during the decedent’s lifetime, for the creditors’ exemption under Article X, § 4(a). Stated differently, if the property is entitled to the creditors’ exemption during life, its devise is limited following death (if there is a surviving spouse or minor child). The Southern Walls, Inc. court found that the lease agreement (combined with membership in the association) “typically gives the purchaser title and the right to exclusively possess and occupy the apartment for the life of the purchaser.” Id. at 572. Courts have recognized that a life estate is a sufficient interest to support the creditors’ exemption. Hill; King v. King, 652 So. 2d 1199 (Fla. 4th DCA 1995). In Wartels, the Florida Supreme Court analyzed the ownership interest and found that the “apartment unit purchaser only receives shares in the corporation which holds title to the land on which the cooperative apartment building is constructed” and a “lease for his individual cooperative apartment unit.” Id. at 709. The court found this combination insufficient to constitute the title interest sufficient to qualify under Article X, § 4. Wartels and Southern Walls, Inc. are irreconcilable; one is correct and the other is not. It could also be argued that Wartels arose before Florida’s Cooperative Act, F.S. Chapter 719, became law in 1976. The stated purpose of that Act is “to give statutory recognition to the cooperative form of ownership of real property.” F.S. 719.102. If cooperative ownership is ownership of an interest in real property, not intangible personal property, then although it does not so provide, the Southern Walls, Inc. decision is probably correct and Wartels has been overturned by statute. However, the character of ownership interest is not clear and it is this character that determines whether cooperative ownership is an interest that can be exempt under Article X, § 4. A need for clarification of this type of ownership interest was recognized by the Third District in Phillips v. Hirshon, 958 So. 2d 425 (Fla. 3d DCA 2007). In Phillips, the decedent devised a life estate in his co-op apartment to his friend. However, at the time of his death, the decedent was survived by two children, one of whom was a minor. The children filed petitions to

determine homestead, alleging that the co-op apartment was the decedent’s homestead and, therefore, not subject to devise under Article X, § 4(c), of the Florida Constitution. In support of their petitions, the children argued that the legislature intended to “imbue” a cooperative apartment “with the same dignity as ‘interests in realty’ ” as is provided to condominiums, Phillips, 958 So. 2d at 429, thereby overruling the holding in Wartels. The court, while appearing sympathetic to the children, noted that its “proper institutional role obligate[d] [it] to adhere to Wartels.” Id. The court then certified the direct conflict in their decision with the Fifth District’s holding in Southern Walls, Inc., noting that in Southern Walls, Inc., the Fifth District found a cooperative to be exempt from claims of creditors based on the same constitutional provision that the Florida Supreme Court in Wartels used to find that it was not exempt for purposes of descent and devise. Finally, the Phillips court noted that it is “important for all Floridians to fully understand the extent to which co-operative apartments … are subject, if at all, to the burdens and benefits of Florida’s homestead law.” Id. at 430. The Florida Supreme Court denied review in Levine v. Hirshon, 980 So. 2d 1053 (Fla. 2008). In Geraci v. Sunstar, EMS, 93 So. 3d 384 (Fla. 2d DCA 2012), the Second District held that a condominium subject to a long-term lease qualified as a beneficial interest in land to which the homestead exemption under Art. X, § 4(a), Fla. Const., applied. The court therefore held that the condominium was protected from forced sale to pay the creditors of the deceased owner. The holdings and court analysis were both right and wrong in several aspects. Two errors the Geraci court made were in holding that (1) because the owner occupied the property pursuant to a long-term lease and made the residence his principal and exclusive residence, those facts are sufficient to confer homestead status pursuant to Article X, § 4(b), of the Florida Constitution; and (2) the facts necessary to confer homestead status for purposes of the creditor’s exemption (Art. X, §§ 4(a) and (b)) are different from those necessary to confer that status for purposes of limitation on devise (Art. X, § 4(c)). Specifically, the Florida Supreme Court holding in Wartels to the effect that the homestead status was dependent on the owner’s interest being an interest in realty, was applicable only to the limitation on devise in paragraph (c), not to the creditor’s exemption of paragraphs (a) and (b).

The Geraci court overlooked the prevailing authority of Holden v. Estate of Gardner, 420 So. 2d 1082 (Fla. 1982), which held that the definition of homestead in Article X, §§ 4(a) and (b), is the same definition of homestead applicable to paragraph (c). In rejecting the petitioner’s argument that the definition of homestead for purposes of paragraphs (a) and (b) was different from the definition of that term in paragraph (c), the Florida Supreme Court stated, “[t]o adopt the construction suggested by the petitioner would create two distinct definitions of homestead; one definition under subparagraphs (a) and (b) of section 4, and another definition under subparagraph (c) concerning the devise of the homestead.” Id. at 1085. This was followed in Phillips, 958 So. 2d at 427: “Although we agree that homestead can be given different meanings in different contexts, see S. Walls, 810 So. 2d at 568–69, we respectfully submit that the courts may not diverge when interpreting the same subsection of the Florida Constitution, even if it seems to make good policy. See Camps Newfound/Owatonna, Inc. v. Town of Harrison, Maine, 520 U.S. 564, 618, 117 S. Ct. 1590, 137 L. Ed. 2d 852 (1997)—(Thomas, J., dissenting).” The logical thread of the Geraci opinion is therefore flawed. Geraci was appealed to the Florida Supreme Court, which initially granted review of the decision based on express and direct conflict (see Sunstar EMS v. Geraci, 123 So. 3d 559 (Fla. 2013)); however, the court later deemed that review improvidently granted, and dismissed the appeal. Although the authors address errors in the Geraci court’s reasoning, we also note that the court reached the correct result, albeit for the wrong reason. The deceased owner’s lifetime homestead exemption inured to his wife upon his death, even though the condominium interest was subject to a long-term lease. This is because F.S. 718.106(1) provides that “[a] condominium parcel created by the declaration is a separate parcel of real property, even though the condominium is created on a leasehold.” Thus, what at common law was personalty (the leasehold interest), has been converted by statute into an interest in real property. As an interest in real property, there is no question that the decedent owner’s exemption should inure to his widow under Art. X, § 4(b). Beginning in the trial court and continuing at least as far as the Second District, the parties and the court missed the statute as the controlling factor. Instead they incorrectly focused on the common law (regarding the condominium as not being an interest in real property) rather than the statutory law, straining to overcome the common-law classification. Also of

interest, there is no corresponding statute in the Florida Cooperative Act, F.S. Chapter 719. Following its decision in Phillips, the issue of an ownership interest in a co-op was again addressed by the Third District in Walters v. Agency for Health Care Administration, 288 So. 3d 1215 (Fla. 3d DCA 2019). In Walters, the decedent died intestate and the sole asset of the estate was the decedent’s interest in a cooperative apartment. The decedent’s daughter, her sole heir at law, filed a petition for summary administration and a petition to determine homestead status of the cooperative stock. The agency filed a claim against the estate and objected to the petition for homestead protection. The trial court denied the daughter’s petition to declare the cooperative stock homestead property and the daughter appealed. On appeal, in reaching its decision, the Third District noted that in its prior holding in Phillips, the court questioned the “continued vitality of the Florida Supreme Court holding in Wartels” and certified the issue to the Florida Supreme Court, but the Florida Supreme Court discharged jurisdiction of the cause. Walters, 288 So. 3d at 1217–1218. In addition, the Third District recognized the conflicting holding in Southern Walls, and it attempted to distinguish the case from Geraci due to the fact that it involved the devise and descent category under Article X, § 4(c), of the Florida Constitution, rather than forced sale of homestead under Article X, §§ 4(a) and (b), of the Florida Constitution. Ultimately, the Third District held that it was bound by the prior holding in Wartels and Phillips and affirmed the trial’s court’s denial of the homestead protection. However the court certified the conflict with Geraci and separately certified the question of whether Wartels has “continuing vitality in light of the adoption by the Florida Legislature of the Cooperative Act.” Walters, 288 So. 3d at 1218. Once again, the Florida Supreme Court initially accepted review of the matter but subsequently discharged jurisdiction. Walters v. Agency for Health Care Administration, 2021 Fla. LEXIS 1052, 2021 WL 2562698 (Fla. 2021). Recognizing the conflict in the case law, the Florida Legislature subsequently revised the Cooperative Act and resolved the issue for owners whose death occurs on or after July 1, 2021. Ch. 2021-99, § 15, Laws of Fla. F.S. 719.103(25) now defines “unit” as “a part of the cooperative property, which is subject to exclusive use and possession. … An interest in a unit is an

interest in real property.” This amendment to the definition of a “unit” under the Cooperative Act statutorily converts an interest in a co-operative unit to an interest in real property. Therefore, as an interest in real property, provided the other homestead requirements are met, an owner’s exemption in a cooperative unit will inure to the owner’s heirs under Article X, § 4(b), of the Florida Constitution, and the restrictions on devise of the property will apply under Article X, § 4(c), of the Florida Constitution. Homestead status will attach to the buyer’s interest in an installment land purchase contract or an agreement for deed, assuming the other requirements are met, for the reason that these interests are equitable interests in real property. See § 19.2.B.4.c. See also Lee, The Interests Created by the Installment Land Contract, 19 U. Miami L. Rev. 367, 397 (1965). « Ch. 19 », « § 19.2 », « B », « 4 », « c » 1 Practice Under Florida Probate Code § 19.2.B.4.c (2022)

c. Equitable Interests In Bessemer Properties v. Gamble, 158 Fla. 38, 27 So. 2d 832, 833 (1946), the Florida Supreme Court applied the exemption from forced sale to the husband’s equitable interest in land (in his wife’s name) on which he built the home, holding that “a homestead exemption extends to any right or interest the head of a family may hold in land.” The District Court of Appeal, Third District, citing Bessemer Properties, held that even if the individual “owns only a beneficial interest in the property, [the individual] is entitled to claim a homestead exemption to the forced sale of property.” Callava v. Feinberg, 864 So. 2d 429, 431 (Fla. 3d DCA 2004). In Callava, the legal title to the property in question was held in the name of a trustee, not the individual; the individual claiming the exemption held only an equitable interest in the property. This principle has been applied to permit a spouse to prevent a sale and foreclosure of property titled in the sole name of the other spouse based on his or her equitable interest in the property under Article X, § 4(c), of the Florida Constitution, requiring a spouse to join in the alienation of homestead property. Coy v. Mango Bay Property & Investments, Inc., 963 So. 2d 873 (Fla. 4th DCA 2007); Taylor v. Maness, 941 So. 2d 559 (Fla. 3d DCA 2006). The court in DeJesus v. A.M.J.R.K. Corp., 255 So. 3d 879, 881 (Fla. 2d DCA 2018), rejected the trial court’s citing to Callava as support for its

conclusion that “Florida law does not require that a person be the owner of a homestead property to be protected by the Florida constitution.” The court determined that the trial court misread the holding in Callava. After its analysis of Callava, the Second District concluded by distinguishing the facts of the case: Callava does not hold that a person need not own property to claim homestead protection. Callava merely holds that one’s ownership interest in the property need not be fee simple title in order to obtain the homestead exemption from the forced sale of the property to satisfy a judgment lien. While the judgment debtor in Callava had some ownership interest in the property—as a beneficiary of the trust that owned it—in the instant case [the debtor] has no ownership interest, either legal or equitable, in the property at issue. DeJesus, 255 So. 3d at 881. « Ch. 19 », « § 19.2 », « B », « 4 », « d » 1 Practice Under Florida Probate Code § 19.2.B.4.d (2022)

d. Tenancy By Entireties And Joint Tenancy With Rights Of Survivorship As long as the other requirements are met, real property held as a tenancy by the entireties qualifies for the homestead exemption from forced sale during the owners’ lifetime, and real property owned in joint tenancy with rights of survivorship as to the qualifying moiety or moieties is similarly exempt. F.S. 732.401(5). However, the constitutional limitation on devise is not applicable, because title is vested in the survivor by virtue of the nature of the estate. Marger v. De Rosa, 57 So. 3d 866 (Fla. 2d DCA 2011); Ostyn v. Olympic, 455 So. 2d 1137 (Fla. 2d DCA 1984); Bendl v. Bendl, 246 So. 2d 574 (Fla. 3d DCA 1971). Also, the decedent’s exemption does not inure to the surviving spouse or heirs under Article X, § 4(b), of the Florida Constitution because the decedent’s interest in the property terminated on death and the creditors simply have nothing to claim against. Kinney v. Mosher, 100 So. 2d 644 (Fla. 1st DCA 1958). See Warner v. Quicken Loans, Inc., 2020 U.S. Dist. LEXIS 77089, 2020 WL 2097981 (M.D. Fla. 2020). See also Percopo, The Impact of Co-Ownership on Florida Homestead, 86 Fla. Bar J. 32 (May 2012); Starling, The Tenancy by the Entireties in Florida, 14 U. Fla. L. Rev. 111 (1961). The provision in F.S. 732.401(5) that real

property owned as an estate by the entireties or as joint tenancy with rights of survivorship shall not be homestead property applies only to descent and not to the exemption from forced sale during the owner’s lifetime. Property held as tenants by the entireties or as joint tenancy with rights of survivorship is also specifically excepted from the definition of protected homestead under F.S. 731.201(33). See § 19.5.B.9. The constitutional exemption and limitation have become controversial as applied to the transfer of property held as tenants by the entireties to a revocable trust of one spouse. See §§ 19.6.A.1–19.6.A.4 for further discussion. « Ch. 19 », « § 19.2 », « B », « 4 », « e • 1 Practice Under Florida Probate Code § 19.2.B.4.e (2022)

e. Funds From Voluntary Sales Or From Involuntary Conversion Homestead status may attach to funds acquired incidental to the conversion of homestead realty, such as fire insurance proceeds, a judgment based on injury to the homestead or invasion of its status either with or without lawful authority, the purchase price from a voluntary sale, and surplus proceeds from an involuntary conversion. See 28A FLA. JUR. 2d Homesteads §§ 26–28; Bunnell, Exempt Status of Proceeds from Conversions of the Homestead, 15 U. Fla. L. Rev. 410 (1962); Case Note, 1 U. Miami L. Rev. 99 (1962), (commenting on decision in Orange Brevard Plumbing & Heating Co. v. La Croix, 137 So. 2d 201 (Fla. 1962)). Homestead status will also attach to surplus proceeds in a foreclosure or other involuntary sale of homestead property. In re Dezonia, 347 B.R. 920 (Bankr. M.D. Fla. 2006). It must appear in the record, however, that the assets for which the exemption is claimed were in fact derived from the exempt homestead property. In the absence of that evidence, the “conversion exemption rule” does not apply. Weiss v. Stone, 220 So. 2d 403 (Fla. 3d DCA 1969). Similarly, in an estate context, the sale of a protected homestead before the entry of an order determining the homestead status will not waive the exemption from creditors’ claims. In re Estate of Hamel, 821 So. 2d 1276 (Fla. 2d DCA 2002). Rather, the exemption from those claims inures to the heirs at the moment of death and a belated determination of the status of the property is merely a ratification of that fact. Id. The law is well settled that proceeds from the sale of the homestead

during lifetime remain protected so long as the funds are segregated and there is an intent to reinvest in a new homestead within a reasonable time. If they are not reinvested, the time for conversion of proceeds into a new homestead expires at some point, and the proceeds become available to creditors. The intention to reinvest is a factual issue that must be determined by the court. However, the mere intent to invest a specified fund in property on which an individual intends to later reside will not protect the fund from levy. State, Dept. of Revenue v. Pelsey, 779 So. 2d 629 (Fla. 1st DCA 2001). In addition, when the decedent’s will directs that the homestead be sold and the proceeds distributed, the proceeds from such a sale will not be exempt from the claims of the decedent’s creditors as would the homestead property itself if devised to a member of the protected class. Knadle v. Estate of Knadle, 686 So. 2d 631 (Fla. 1st DCA 1997); Estate of Price v. West Florida Hospital, Inc., 513 So. 2d 767 (Fla. 1st DCA 1987). In Price, the court followed the reasoning that proceeds from a sale by the decedent during life that were intended to be distributed to the decedent’s children would unquestionably lose their homestead character and would be subject to the claims of the decedent’s creditors. The doctrine of equitable conversion is inapplicable when the potential vendor dies while still physically residing on the homestead property. In re Estate of Skuro, 487 So. 2d 1065 (Fla. 1986). For an analysis of Skuro, see Note, Equitable Conversion Bows to Homestead Exemption, Complicating Florida’s Homestead Exemption Law, 18 Stetson L. Rev. 645 (1989). « Ch. 19 », « § 19.2 », « B », « 5 » 1 Practice Under Florida Probate Code § 19.2.B.5 (2022)

5. Amount Of Property Even before the 1968 Amendment to Article X of the Florida Constitution, a line of decisions held that more than one lot or tract could be included in a homestead but that, as a general rule, they must be contiguous. Crosby & Miller, Our Legal Chameleon, 2 U. Fla. L. Rev. 12, 47 (1949). The 1968 constitutional amendment added the word “contiguous.” The homestead may consist of a home and land owned by the entireties and an adjacent tract owned by one spouse. Wilson v. Florida Nat. Bank & Trust Company at Miami, 64 So. 2d 309 (Fla. 1953); Nesmith v. Nesmith, 155 Fla. 823, 21 So. 2d 789 (1945). See the comments on Wilson in Homestead, Effect of variant

ownership on descent, 6 U. Fla. L. Rev. 576 (1953) and Dowling, Recent Development and the Present Status of the Florida Probate Law, 11 U. Miami L. Rev. 54, 55 (1956). The exemption also applies to a vacant adjacent tract of land purchased after a judgment is recorded. Quigley v. Kennedy & Ely Insurance, Inc., 207 So. 2d 431 (Fla. 1968). However, even though contiguous, an adjacent lot that had never been used for any purpose other than to store business equipment was not entitled to the exemption in In re Drake, 106 B.R. 741 (Bankr. M.D. Fla. 1989). It is important to note that the homestead in Drake was located within a municipality and, therefore, subject to the limitation that the exemption is limited to the residence of the owner or the owner’s family. In addition, the court in Drake found that there was evidence that the debtor at all times considered the lot separate and apart from his residence. In contrast, when a property is located outside a municipality, there are no usage limitations and an adjacent tract or lot used even for a business purpose could be included in a homestead. See Davis v. Davis, 864 So. 2d 458 (Fla. 1st DCA 2004); see also Armour & Co. v. Hulvey, 73 Fla. 294, 74 So. 212 (1917). The exempt homestead may be limited to the portion of an apartment building or condominium that constitutes the actual residence of an individual, even if the individual owns the entire building. Weiss v. Stone, 220 So. 2d 403 (Fla. 3d DCA 1969). See also Buettner v. Fass, 21 So. 3d 114 (Fla. 4th DCA 2009). But see Braswell v. Braswell, 890 So. 2d 379 (Fla. 3d DCA 2004), in which the district court examined whether an individual’s ownership in a percentage of the common areas could be aggregated to find that his ownership interest exceeded the one-half-acre limitation. Although the individual in Braswell owned four condominium units, the court did not reach the issue of whether all four units could qualify for the homestead exemption, but rather remanded the case to the trial court to hear further arguments on that issue. The district court did hold, however, that the homestead exemption contained in Article X, § 4(a)(1), refers to one-half acre of contiguous “land” and does not require an owner to “measur[e] each floor of space in multi-level housing, and [add] it to the square footage of land.” Braswell, 890 So. 2d at 381. If the homeowner rents a portion of the property, the homeowner may be deemed to have abandoned the homestead exemption to a portion of a

dwelling if the property is located within a municipality. In Anderson v. Letosky, 304 So. 3d 801 (Fla. 2d DCA 2020), the decedent rented three out of the four bedrooms in his home to tenants who were not members of his family. His home was located within a municipality and, therefore, the homestead real property was subject to usage limitations. After his death, the decedent’s son petitioned the court for a determination that the residence owned by his father was protected homestead and exempt from the claims of the decedent’s creditors. A judgment creditor of the decedent opposed the petition. The lower court held that rented portion of the home lost its constitutional homestead protection and that only 25% of the home constituted the protected homestead of the decedent on which the exemption inured to the decedent’s son. On appeal, the Anderson court determined that the decedent did not necessarily abandon his homestead protection simply because he engaged in commercial activity within his living space. Rather, the court recognized a two-pronged test in determining if the constitutional homestead exemption extends to the entire property: “first, the court must determine whether the debtor’s residence is a fraction of the entire property; and second the court must determine whether the property can be severed—that is by using an imaginary line the residence can be severed from the remainder of the property” Id. at 804, 805. In Anderson, the rented portion amounted to individual rooms in a single-family residence. Both the tenants and the decedent had access to the common areas. The court found that neither the common areas nor the rented bedrooms could be “severed from the residence by an imaginary line” or “lawfully conveyed as an independent parcel” and, therefore, the renting of the three bedrooms did not destroy the homestead protection for the property. Accordingly, the court reversed the lower court’s decision and remanded the case with instructions to grant the petition and enter an order determining the entire residence to be the protected homestead of the decedent. See First Leasing & Funding of Florida, Inc. v. Fiedler, 591 So. 2d 1152 (Fla. 2d DCA 1992) (when debtor lived in one-story triplex and rented two units, rented units that had separate mailing address and could be severed by imaginary line were not afforded protections from creditors under Article X, § 4, of Florida Constitution). See also In re Aliotta, 68 B.R. 281 (Bankr. M.D. Fla. 1986) (when debtor lived in one unit of fourplex, homestead exemption extended only to portion in which debtor resided as imaginary line could sever residence from rest of property).

The exempt status of a cooperative unit is discussed in § 19.2.B.4.b. « Ch. 19 », « § 19.2 », « B », « 6 • 1 Practice Under Florida Probate Code § 19.2.B.6 (2022)

6. Unimproved Property Ordinarily, homestead property is thought of as land with improvements. A strong argument could be made, nevertheless, that unimproved land is a homestead exempt from forced sale and not subject to devise when a person owns it and actually and continuously occupies it as his or her home. An example might be permanent occupancy of a mobile home or travel trailer situated on owned land whether or not it is attached to the realty. « Ch. 19 », « § 19.2 », « C • 1 Practice Under Florida Probate Code § 19.2.C (2022)

C. Exempt Personal Property Article X, § 4(a), of the Florida Constitution provides the same exemption from forced sale for personal property to the value of $1,000 that it provides for the real property homestead. Under Article X, § 4(b), the exemption as to both kinds of property inures “to the surviving spouse or heirs of the owner,” but Article X, § 4(c), providing restraints on devise and inter vivos alienation of homestead, does not apply to the exempt personal property. See § 19.5.A. Also, the $1,000 of personal property is not an award to or entitlement of the surviving spouse in addition to the spouse’s other interests in the estate, but to the extent otherwise passing to the spouse (or heirs), the personal property would remain exempt in the hands of the recipient. However, there is no guidance as to who, among the surviving spouse or heirs, would be entitled to claim the personal property exemption when both the spouse and heirs receive personal property in excess of the $1,000 limitation. An additional exemption for personal property is provided by F.S. 732.402, which is discussed in §§ 1.2.E.1, 18.2.G, and 19.5.A of this manual, and F.S. 222.25 provides an exemption of $4,000 of personal property for a debtor who “does not claim or receive the benefits of a homestead exemption under [§] 4, Art. X of the State Constitution.”

« Ch. 19 », « § 19.3 » 1 Practice Under Florida Probate Code § 19.3 (2022)

§ 19.3. HISTORICAL EVOLUTION « Ch. 19 », « § 19.3 », • A » 1 Practice Under Florida Probate Code § 19.3.A (2022)

A. 1868 Constitution And 1885 Constitution The first appearance of homestead provisions was in the 1868 Florida Constitution, and it was intended to prevent wholesale loss of homes and farms after the conclusion of the Civil War. The provisions of the 1868 Constitution were carried through to the 1885 Constitution in a slightly modified form, which then remained unchanged until 1968. It was generally held that the homestead could not be devised under the provisions of the 1868 Constitution. Palmer v. Palmer, 47 Fla. 200, 35 So. 983 (1904). When it was amended in 1885, the following provision was added as Article X, § 4: Nothing in this Article shall be construed to prevent the holder of a homestead from alienating his or her homestead so exempted by deed or mortgage duly executed by himself or herself, and by husband and wife, if such relation exists; nor if the holder be without children to prevent him or her from disposing of his or her homestead by will in a manner prescribed by law. During this time, the surviving spouse’s only interest in the homestead was the right to dower or to elect a child’s share. Both rights included an interest, but not the entire interest, in the homestead. However, during some of the time these provisions were effective, by statute the spouse was also entitled to an exclusive right of possession. Also, the widow’s interest was free of creditors’ claims if she received her dower interest (by the statutory definition of dower) and, after the 1885 amendment, if she took a child’s share. Godwin v. King, 31 Fla. 525, 13 So. 108 (1893). The heir’s interest was consistently constitutionally free of creditors’ claims. The language in the 1868 Constitution (Article IX) was that the exemptions “shall accrue to the heirs of the party having enjoyed or taken the

benefit of such exemption.” The 1885 Amendment moved that section to Article X and changed it to provide that the exemptions “shall inure to the widow and the heirs of the party entitled to such exemption.” Because the homestead could not be devised at all until after the 1885 Amendment, and then only if there were no children, the heirs’ interests that passed free of creditors’ claims referred only to those heirs who took by intestate succession, inasmuch as those were the only heirs who inherited the homestead. « Ch. 19 », « § 19.3 », « B » 1 Practice Under Florida Probate Code § 19.3.B (2022)

B. 1968 And 1978 Constitutional Amendments Before 1968, there had been no change to the constitutional homestead provisions since 1885 and little since 1868. Although the prior constitutional provisions exempted both the residence and the business house, the “business house” language was deleted in 1968. A major departure from the earlier provisions was the change in the condition that precluded devise. Formerly, devise was proscribed if the decedent was survived by children, but in the 1968 Amendment, devise was proscribed if there was a spouse or minor child. In 1978, this provision was amended to add the present exception language to Article X, § 4(c), “except the homestead may be devised to the owner’s spouse if there be no minor child.” « Ch. 19 », « § 19.3 », « C • 1 Practice Under Florida Probate Code § 19.3.C (2022)

C. 1984 Constitutional Amendment The 1983 Legislature proposed an amendment to the definition of a homestead in Article X, § 4(a), of the Florida Constitution. It was approved by the electors in the 1984 general election and in accordance with Article XI, § 5(c), became effective January 8, 1985. Since that date a homesteader need only be a natural person; “family headship” is no longer required as a part of the homestead definition. The Florida Supreme Court had previously held that the definition of a homestead under Article X, § 4(a), is the definition of homestead for descent and devise under Article X, § 4(c). Holden v. Estate of Gardner, 420 So. 2d 1082 (Fla. 1982). It is generally

considered that this change to the definition of homestead in Article X, § 4(a) only inadvertently applied to the limitation on devise because each shares the same definition of homestead.

« Ch. 19 », « § 19.4 » 1 Practice Under Florida Probate Code § 19.4 (2022)

§ 19.4. HOMESTEAD AS ASSET SUBJECT TO PROBATE « Ch. 19 », « § 19.4 », • A » 1 Practice Under Florida Probate Code § 19.4.A (2022)

A. Real Property « Ch. 19 », « § 19.4 », • A », • 1 » 1 Practice Under Florida Probate Code § 19.4.A.1 (2022)

1. In General Traditionally, it was said that homestead was not an asset in the hands of the administrator and therefore was not a probate asset. See Walker v. Redding, 40 Fla. 124, 23 So. 565, 566 (1898), in which the Florida Supreme Court noted that “it is well settled by our decisions that the homestead is not assets [sic] in the hands of an administrator.” Under F.S. 733.607, a decedent’s protected homestead real property is not an asset of the probate estate. The spouse and heirs cannot lawfully be deprived of that title or acquire better or different title by proceedings in probate court. An inclusion of the description of the protected homestead property in the probate pleadings does not alter the status of the property as protected homestead. See Monks v. Smith, 609 So. 2d 740 (Fla. 1st DCA 1993), in which the court stated that the homestead does not lose its protected status if the personal representative incorrectly lists it as an asset of the estate. For purposes of this determination, homestead must be separated into two categories: protected homestead devised to heirs, which is exempt from claims of creditors, and homestead devised to non-heirs, which thereby loses its exempt status. « Ch. 19 », « § 19.4 », • A », « 2 » 1 Practice Under Florida Probate Code § 19.4.A.2 (2022)

2. When Homestead Real Property Is Devised To Heirs The constitution exempts the homestead from forced sale during the

homesteader’s lifetime except for the payment of taxes, assessments, and obligations contracted for its purchase, improvement, or repair or for house, field, or other labor performed on the realty. The exemption inures to the surviving spouse and heirs. Article X, § 4(c), of the Florida Constitution permits a devise if the owner has no spouse or minor child. Homestead property that passes to the surviving spouse and heirs by descent or devise and on which the exemption inures is defined as “protected homestead” by F.S. 731.201(33). Although traditionally it was said that protected homestead that passes by operation of law was not an asset in the hands of the personal representative, some courts have, in the past, found the protected homestead that passes by virtue of devise to be an asset of the probate estate. In Monks v. Smith, 609 So. 2d 740 (Fla. 1st DCA 1993), the probate court held that the homestead, which was devised, was an asset of the estate for purposes of effecting the devise in the will. This status, however, did not deprive the beneficiary, who was also a legal heir, of the right to take free of claims of the decedent’s creditors. In City National Bank of Florida v. Tescher, 578 So. 2d 701 (Fla. 1991), the Florida Supreme Court upheld the probate court’s entry of an order allowing the personal representative to sell the property, which had been determined to be homestead. The personal representative in In re Estate of Tudhope, 595 So. 2d 312 (Fla. 2d DCA 1992), was also authorized to effect the sale of homestead property that descended to the decedent’s two minor children. Tescher and Tudhope seem to imply that the court considered the homestead an asset in the hands of the personal representative. (But see Harrell v. Snyder, 913 So. 2d 749 (Fla. 5th DCA 2005), holding that the personal representative has no authority to sell the homestead property.) For several years, however, the Florida case law and statutes have supported the view that protected homestead is not an asset of the probate estate. Cavanaugh v. Cavanaugh, 542 So. 2d 1345 (Fla. 1st DCA 1989). F.S. 733.607(1), before its amendment in 2001, specifically excluded homestead from property that is in the possession or control of the personal representative, and F.S. 733.608, also before its amendment, specifically excluded the homestead from property that is an asset in the hands of the personal representative for the purpose of administering the decedent’s estate. F.S. 733.01(1) (1973) was the predecessor to F.S. 733.607 and 733.608 and contained nearly identical provisions. In an early opinion, Baker v. State, 17

Fla. 406, 409 (1879), the Florida Supreme Court reasoned that it is the constitutional exemption from ordinary debts that prevents homestead realty from becoming an asset of the estate: The statute which makes real estate assets in the hands of an administrator for the payment of debts cannot, of course, refer to the homestead, because the constitutional provision exempting it from sale for ordinary debts, takes so much of the real estate out of the inventory of the assets and the administrator has no control of it. Following that same reasoning, the District Court of Appeal, Fifth District, stated in a footnote: “Homestead property, whether devised or not, passes outside of the probate estate. Personal representatives have no jurisdiction over nor title to homestead, and it is not an asset of the testatory estate.” Clifton v. Clifton, 553 So. 2d 192, 194 n.3 (Fla. 5th DCA 1989). The 2001 Amendments to F.S. 733.607 and 733.608 and case law seem to have resolved any confusion as to whether protected homestead is an asset in the hands of the personal representative. Under F.S. 733.608(1), regardless of whether protected homestead is devised, descends by intestacy, or descends under F.S. 732.401, the property is not an asset in the hands of the personal representative. Nonprotected homestead (property that was the decedent’s homestead but that did not pass to a spouse or heir), on the other hand, is subject to probate and possession by the personal representative. F.S. 733.607(1). See § 19.4.A.3. Furthermore, the Florida Supreme Court has held that “the law is clear that the protected homestead is not a part of the decedent’s estate for purposes of distribution.” McKean v. Warburton, 919 So. 2d 341, 347 (Fla. 2006). In reaching its decision, the court quoted In re Estate of Hamel, 821 So. 2d 1276 (Fla. 2d DCA 2002), in which the Second District noted that homestead does not become a part of the probate estate except when the property is devised to someone other than an heir or in the unusual circumstance in which the will specifically orders the property to be sold and the proceeds divided. See also Harrell. Even though protected homestead is not an asset in the hands of the personal representative, the personal representative may take possession of the protected homestead, if it does not appear to be in the possession of a person who has an interest in the property, for the limited purpose of “preserving, insuring, and protecting it” for the heir or devisee. F.S.

733.608(2). Fla. Prob. R. 5.402. Although the personal representative has that authority, there is no commensurate obligation to take possession and no liability for failure to do so. Taking possession of the homestead may be problematic if, for example, it has negative equity, or for other reasons, and should be undertaken cautiously. If the personal representative does take possession of protected homestead, “any rents and revenues may be collected by the personal representative for the account of the heir or devisee, but the personal representative shall have no duty to rent or otherwise make the property productive.” F.S. 733.608(2). If the personal representative expends funds, the personal representative is entitled to a lien against the property and its revenues to secure repayment of estate funds expended “to preserve, maintain, insure, or protect the property” while it is in the possession of the personal representative. F.S. 733.608(3). Rule 5.403. A personal representative taking possession under the statute must file a notice of taking possession of protected homestead, Rule 5.404(a), and serve it “in the manner provided for service of formal notice on interested persons and on any person in actual possession of the property,” Rule 5.404(c). F.S. 733.608 does not, however, give the personal representative the power to sell the protected homestead property. Harrell. A lien may not be imposed under this statute if the personal representative has not taken possession of the homestead property and cannot be imposed for expenses incurred for any purpose other than preserving, maintaining, insuring, or protecting the homestead property. Herrilka v. Yates, 13 So. 3d 122 (Fla. 4th DCA 2009). « Ch. 19 », « § 19.4 », • A », « 3 • 1 Practice Under Florida Probate Code § 19.4.A.3 (2022)

3. When Homestead Real Property Is Devised To Persons Who Are Not Heirs The homestead may be devised when neither spouse nor minor child survives and may be devised to the spouse when there is no minor child. The will is ineffective to devise title or right of possession until it is admitted to probate. F.S. 733.103(1). Thus, the title of the devisee of the homestead is always dependent on the probate process for its existence and validity. If the property enjoys no exemption from creditors’ claims and its devise is not limited, and in fact it has been devised, it logically follows that this

nonexempt homestead must necessarily be an asset of the estate in the hands of the personal representative. This was clarified by the 2001 Amendments to F.S. 733.607 and 733.608 (discussed in § 19.4.A.2). « Ch. 19 », « § 19.4 », « B • 1 Practice Under Florida Probate Code § 19.4.B (2022)

B. Personal Property Unlike homestead realty, personal property, even though exempt from claims under Article X, § 4(a)(2), of the Florida Constitution, is an asset of the probate estate in all cases, testate and intestate, whether or not a spouse or minor child survives. In re Hawkins’ Estate, 63 So. 2d 313 (Fla. 1953); Hinson v. Booth, 39 Fla. 333, 22 So. 687 (1897). See also In re Estate of Livingston, 161 So. 2d 723 (Fla. 2d DCA 1964). Perhaps it seems illogical that the exempt personalty is an asset in possession of the personal representative even though a spouse or minor child survives, but the homestead realty is not. Before January 1, 1976, the explanation was that (1) homestead is primarily an exemption status, not a rule of inheritance, (2) title to personalty vests in the personal representative while title to realty vests in the heirs, and (3) no provision exists making the descent of the exempt personalty different from that of other personalty. The rule that the title to personalty vested in the personal representative was based on former F.S. 732.26 and judicial interpretation. See Redfearn, WILLS AND ADMINISTRATION IN FLORIDA §§ 12.13–12.14, 21.05 (Harrison Co. 5th ed. 1977). F.S. 733.103 is considerably different from the former statute, but apparently constitutionally exempt personal property is still considered an estate asset. F.S. 732.402(3) grants statutory exempt status to the specific property described in F.S. 732.402(2).

« Ch. 19 », « § 19.5 » 1 Practice Under Florida Probate Code § 19.5 (2022)

§

19.5. DESCENT HOMESTEAD AND CLAIMS

AND DEVISE OF EXEMPTION FROM « Ch. 19 », « § 19.5 », • A »

1 Practice Under Florida Probate Code § 19.5.A (2022)

A. Personal Property Personal property to the value of $1,000 is exempt from forced sale. Art. X, § 4(a)(2), Fla. Const. The exemption inures to the surviving spouse and heirs of the person entitled to it, Art. X, § 4(b), and applies to all debts except those specified in Art. X, § 4(a). Neither the Florida Constitution nor the Florida Statutes prohibit a devise of that personal property or prescribe a manner of intestate descent different from that of other personal property. This personal property may be alienated during the owner’s lifetime without the spouse’s joinder, it may be disposed of by will although a spouse and minor children survive, and it is subject to the right of dower or claim of elective share. Hinson v. Booth, 39 Fla. 333, 22 So. 687 (1897). See also the case comment in Homestead: Right to bequeath personlty, 7 U. Fla. L. Rev. 116 (1954), which provides a concise summary of these rules and a comparison of exempt personalty and homestead realty. The effect of the constitutional provision is that although the personal property is an asset of the estate subject to the administration proceedings, it is not subject to funeral expenses or other debts of the decedent except those described in Art. X, § 4(a). In re Estate of Livingston, 161 So. 2d 723 (Fla. 2d DCA 1964). The personal representative does not have the power to waive the exemption even if it means that the funeral expenses cannot be paid for lack of other means of payment. When the entire estate consists of personal property of $1,000 in value or less, however, the decedent waives it by a provision in the will directing the personal representative to “pay all my just debts and funeral expenses as soon after my decease as conveniently may be.” In re Hawkins’ Estate, 63 So. 2d 313 (Fla. 1953).

This personalty, like homestead realty, retains its exemption only when it is devised or descends to a member of the protected class. There appears to be no limitation on the types of personalty that may be exempt. See Seashole v. O’Shields, 139 Fla. 839, 191 So. 74 (1939); Carter’s Administrators v. Carter, 20 Fla. 558 (1884). In the former case, the sole assets were a bank account and an automobile—a total value of less than $1,000. Nonconstitutional exempt personal property is created by F.S. 732.402. This began primarily as a family entitlement (similar to family allowance) that acquired an exempt status. It is distinguished in many ways from constitutional homestead personal property, which, itself, is not an entitlement but rather a status. As to statutory exempt property, both the entitlement and the exempt status are waived if not claimed within the later of four months after the date of service of the notice of administration or 40 days after the date of termination of proceedings involving matters such as admission, construction, or validity of the will, or certain other matters affecting the estate. F.S. 732.402(6). The exemption provided by this statute is cumulative with that provided by the constitution, which is to say that the spouse or heirs may claim the $1,000 exemption as to personal property not described in F.S. 732.402 (e.g., a bank account). For further discussion of exempt property, see §§ 1.2.E.1 and 18.2.G of this manual, and §§ 2.32 and LITIGATION UNDER FLORIDA PROBATE CODE §§ 4.10–4.11 (Fla. Bar 13th ed. 2022). Family allowance is provided for by F.S. 732.403. See §§ 8.5.A–8.5.D of this manual. « Ch. 19 », « § 19.5 », « B • 1 Practice Under Florida Probate Code § 19.5.B (2022)

B. Real Property « Ch. 19 », « § 19.5 », « B •, • 1 » 1 Practice Under Florida Probate Code § 19.5.B.1 (2022)

1. In General

An important concept in understanding how homestead works is that the devise of the homestead is limited by Article X, § 4(c), of the Florida Constitution, but its descent is controlled by F.S. 732.101–732.106, 732.108, 732.401, and 732.4015. See Hinson v. Booth, 39 Fla. 333, 22 So. 687 (1897). Article X, § 4(a), as amended in 1968, provides that the homestead “shall be exempt from forced sale under process of any court … except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on the realty.” Section 4(b) provides: “These exemptions shall inure to the surviving spouse or heirs of the owner.” As amended in 1968, 1972, and 1984, Art. X, § 4(c) provides that the homestead “shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner’s spouse if there be no minor child.” For further historical discussion see §§ 19.3.A–19.3.C. « Ch. 19 », « § 19.5 », « B •, « 2 » 1 Practice Under Florida Probate Code § 19.5.B.2 (2022)

2. When Neither Spouse Nor Minor Child Survive The fate of homestead real property in the absence of a surviving spouse and descendant has been summarized as follows: The owner may devise the homestead to anyone. The exemption, however, will only inure to the owner’s heirs. For purposes of the new probate code, “heirs” is now defined by the statute to means [sic] “those persons, including the surviving spouse, who are entitled under the statutes of intestate succession to the property of a decedent.” If the property is not devised, it will descend as other intestate property would. Thus, the persons to whom it will descend will by definition be the heirs to whom the exemption inures. Maines & Maines, Our Legal Chameleon Revisited: Florida’s Homestead Exemption, 30 U. Fla. L. Rev. 227, 279 (1978). See Webb v. Blue, 243 So. 3d 1054 (Fla. 1st DCA 2018), in which the court held that prohibition against devise is only intended to protect the decedent’s spouse and minor children and cannot be extended beyond those two classes of individuals. See also Crosby & Miller, Our Legal Chameleon, 2 U. Fla. L. Rev. 12, 56 (1949). In a long line of judicial decisions, the Florida Supreme Court has

extended the protection from the decedent’s creditors to the surviving spouse or heirs of the decedent, regardless of whether those persons were dependent on the decedent. Public Health Trust of Dade County v. Lopez, 531 So. 2d 946 (Fla. 1988); Miller v. Finegan, 26 Fla. 29, 7 So. 140 (1890). The Florida Supreme Court has defined “heirs” for purposes of constitutional homestead to include “any family member within the class of persons categorized in [the Florida] intestacy statute.” Snyder v. Davis, 699 So. 2d 999, 1005 (Fla. 1997). In Snyder, the court held that the decedent’s exemption from creditors inured to her granddaughter to whom the decedent’s homestead property was devised even though the descendant/parent of the granddaughter was living. However, as noted by Justice Grimes in his dissenting opinion, under the rationale of the Snyder majority, “the homestead exemption could accrue to the kindred of the last deceased spouse of the decedent, … even though they would not be entitled to the decedent’s property through intestate succession because lineal descendants closer in consanguinity to decedent survived.” Id. at 1006. The majority’s interpretation in Snyder was followed by the District Court of Appeal, Fourth District, in Moss v. Estate of Moss, 777 So. 2d 1110 (Fla. 4th DCA 2001), and by the Fifth District in Traeger v. Credit First National Ass’n, 864 So. 2d 1188 (Fla. 5th DCA 2004). In Moss, the court held that the brother of the decedent’s deceased spouse and niece were within the class of persons to whom the decedent’s exemption inured. In Traeger, the court held that the son of the decedent’s deceased husband was an “heir,” as that term is broadly defined, to whom the exemption inured. As long as the beneficiary who receives the homestead is within the class designated as the decedent’s heirs, as now defined in Snyder, Moss, and Traeger, the exemption will inure regardless of whether the person took by devise or by intestacy or under the homestead descent statute, F.S. 732.401. Snyder. It is not how the person takes but rather to whom the property passes that is of importance. Bartelt v. Bartelt, 579 So. 2d 282 (Fla. 3d DCA 1991), citing with approval Kelley, Homestead Made Easy, Part I: Understanding the Basics, 65 Fla. Bar J. 17 (March 1991). The fact that an heir of the decedent also has a different personal homestead does not deprive that heir of a right to receive the decedent’s protected homestead free of any claims of the decedent’s creditors. The

proceeds from any subsequent sale after the protected homestead vests in the heir remain protected as to the decedent’s creditors. In re Estate of Tudhope, 595 So. 2d 312 (Fla. 2d DCA 1992). See Estate of Price v. West Florida Hospital, Inc., 513 So. 2d 767 (Fla. 1st DCA 1987) (proceeds from sale before homestead vests in heirs are not protected). The Fourth District has addressed whether a partial interest in homestead may be exempt from the decedent’s creditors under the inuring clause in Article X, § 4(b). In Hubert v. Hubert, 622 So. 2d 1049 (Fla. 4th DCA 1993), the court held that although a life estate devised to the decedent’s friend was not exempt and could be converted for the creditor’s benefit, the remainder interest, not yet possessory, and which was devised to an heir within the protected class, was exempt from the claims of the decedent’s creditors. However, that remainder interest would not be exempt from the remainderman’s own creditors because it did not include a present right to possession, a necessary prerequisite to an exemption under Article X, § 4(a). Aetna Insurance Co. v. LaGasse, 223 So. 2d 727 (Fla. 1969). « Ch. 19 », « § 19.5 », « B •, « 3 » 1 Practice Under Florida Probate Code § 19.5.B.3 (2022)

3. Effect Of Devise To Spouse The homestead may be devised to a spouse in the absence of a minor child. Article X, § 4(c), Fla. Const. An attempted devise of less than the owner’s entire interest (quantity and quality) in the homestead to the surviving spouse is impermissible and the devise will fail. In re Estate of Finch, 401 So. 2d 1308 (Fla. 1981); In re Estate of Cleeves, 509 So. 2d 1256 (Fla. 2d DCA 1987); Iandoli v. Iandoli, 504 So. 2d 426 (Fla. 4th DCA 1987). In Estate of Murphy, 340 So. 2d 107 (Fla. 1976), the Florida Supreme Court also addressed the question of whether the homestead was effectively devised to the surviving spouse through a residuary clause. Although the opinion suggests that a specific devise of homestead “is to be preferred, … the general language of a residuary clause is a sufficiently precise indicator of testamentary intent.” Id. at 109. See also Webb v. Blue, 243 So. 3d 1054 (Fla. 1st DCA 2018) (confirming homestead does not have to be specifically devised). « Ch. 19 », « § 19.5 », « B •, « 4 » 1 Practice Under Florida Probate Code § 19.5.B.4 (2022)

4. Contrasting Permitted Devise To Spouse And Devise To Others The cases cited in § 19.5.B.3 are clear that a devise to the spouse may be only of the owner’s entire interest. When devised to the spouse or an heir, of course, that interest retains the decedent’s exemption from creditors’ claims. However, in Hubert v. Hubert, 622 So. 2d 1049 (Fla. 4th DCA 1993), the court permitted the devise (with its associated creditors’ exemption) of merely a remainder interest to an heir. The apparent inconsistency is only an illusion. In the case of a surviving spouse, devise is restricted by Article X, § 4(c), of the Florida Constitution. Because it is so limited, the property may be devised only as provided by Article X, § 4(c); that limited permission is that it may be “devised” to the spouse “if there be no minor child.” Florida courts have narrowly construed the constitutional term “devised” to mean a devise of the owner’s entire interest; i.e., an undivided devise. In re Estate of Finch, 401 So. 2d 1308 (Fla. 1981); In re Estate of Cleeves, 509 So. 2d 1256 (Fla. 2d DCA 1987). In the absence of a spouse (or a minor child), there is no constitutional limitation on devise; the decedent’s homestead may be devised without limitation. “Without limitation” in this context means less than the decedent’s entire interest may be devised. If devised in a manner that satisfies Article X, § 4(b), of the Florida Constitution, the exemption will inure, as it did on the remainder interest in Hubert. « Ch. 19 », « § 19.5 », « B •, « 5 » 1 Practice Under Florida Probate Code § 19.5.B.5 (2022)

5. Effect Of Valid Nuptial Agreement, Waiver, Or Disclaimer F.S. 732.702(1) provides that a surviving spouse may waive rights to homestead property, “before or after marriage, by a written contract, agreement, or waiver, signed by the waiving party in the presence of two subscribing witnesses.” If the agreement, contract, or waiver is executed after marriage, each spouse must make fair disclosure to the other of his or her estate. F.S. 732.702(2). These provisions (and this discussion) have effect only regarding death-time interests and are not relevant for lifetime considerations of marital agreements. In cases such as City National Bank of Florida v. Tescher, 578 So. 2d 701

(Fla. 1991), it has held that spouses have the right to waive their statutory and constitutional homestead rights and that such a waiver may affect the interests of descendants. See Ballard v. Pritchard, 332 So. 3d 570, 574 (Fla. 2d DCA 2021), quoting Rutherford v. Gascon, 679 So. 2d 329, 331 (Fla. 2d DCA 1996) (“[T]o find a waiver of homestead protection by a surviving spouse, ‘evidence must demonstrate the survivor’s intent to waive the constitutional and statutory claim to homestead property.’ ”). For example, if the testator is married but chooses not to devise the homestead to his or her spouse, it may not be devised to anyone else. Art. X, § 4(c), Fla. Const. By statute, the title then descends with a life estate to the surviving spouse and a vested remainder interest to the descendants in being. F.S. 732.401(1). Effective October 1, 2010, the surviving spouse has the right to elect in lieu of a life estate under F.S. 732.401(1) to take an undivided one-half interest in the homestead as a tenant in common, with the remaining undivided one-half interest vesting in the decedent’s descendants in being at the time of the decedent’s death, per stirpes. F.S. 732.401(2). An election by the surviving spouse to take an undivided one-half interest must be made within six months after the decedent’s death and during the surviving spouse’s lifetime. F.S. 732.401(2)(b). The time to file the election may not granted except in the limited circumstance when a petition by an attorney in fact or by a guardian of the property of the surviving spouse for approval to make the election is filed within six months after the decedent’s death and during the surviving spouse’s lifetime. F.S. 732.401(2)(c). The six-month time period cannot be extended for excusable neglect. See Samad v. Pla, 267 So. 3d 476 (Fla. 2d DCA 2019) (Fla. R. Prob. P. 5.042(b) does not apply to acts required to be done within specified time in F.S. 732.401). Once made, the election is irrevocable. F.S. 732.401(2)(d). For an example of a form to make this election and instructions on how the election is made, see F.S. 732.401(2)(e). If the spouse has already died, however, so that the testator was unmarried at death (assuming no minor child), the testator could freely devise the homestead to, or to the exclusion of, the descendants. The existence of a valid nuptial agreement has been held to be the functional equivalent of the nonowner spouse having predeceased the owner, thus permitting the homestead to be freely devised, if there is no minor child. Hartwell v. Blasingame, 584 So. 2d 6 (Fla. 1991); Tescher. The Florida Supreme Court

in Hartwell followed its reasoning in Tescher and upheld the right of a spouse knowingly and intelligently to forgo a right that is intended to protect only the property rights of the individual who chooses to make the waiver. Those descendants who would inherit in the absence of such a waiver were found not to have standing to challenge this waiver. See also Lyons v. Lyons, 155 So. 3d 1179 (Fla. 4th DCA 2015), in which the court held that the surviving spouse had no standing to assert rights of her deceased spouse and thereby challenge the validity of her transfer of her homestead property to her own trust, because her then-spouse (now deceased) did not join in the conveyance, nor could she challenge the waiver of homestead by her deceased spouse. Any waiver by the surviving spouse, however, must be knowing and intelligent. Rutherford v. Gascon, 679 So. 2d 329 (Fla. 2d DCA 1996). A post-death waiver by a spouse who is not aware that title vests in him or her by operation of law upon the death of the decedent will not serve to waive homestead rights. The effect of this decision on a premarital waiver, when no disclosure is otherwise required, is unclear. Until relatively recently, controversy existed regarding whether the joinder of the spouse in a deed (or execution of a separate warranty deed) either to the other spouse or to his or her revocable trust is the equivalent of the waiver of the spouse’s homestead rights, the same as a nuptial agreement executed under F.S. 732.702. The District Court of Appeal, Fourth District, considered this issue in Stone v. Stone, 157 So. 3d 295 (Fla. 4th DCA 2014), and held that the spouse waived her homestead rights when she executed a warranty deed transferring her share of the couple’s homestead real property to her husband’s Qualified Personal Residence Trust. The warranty deed provided that she “grants, bargains, sells, aliens, remises, releases, conveys, and confirms” the property “together with all the tenements, hereditaments, and appurtenances thereto belonging or in anywise appertaining.” Id. at 304. Likewise, a three-judge panel sitting for the Third District held, in effect, that a deed from the husband and wife (in entireties ownership) to the wife waived the homestead rights of the surviving husband to limit devise solely to the husband upon the wife’s death. The nonfinal opinion in that case was withdrawn before it became final, and before any rehearing or en banc rehearing. Neither the Fourth District nor the Third District specifically addressed

whether the waiver was intentional; whether the waiving spouse fully understood the homestead rights he or she was waiving by signing the deed; or whether “fair disclosure,” as required by F.S. 732.702, was made or was necessary before execution of the deed, given the fact that the waiver was limited to a waiver only of homestead rights. Yet, earlier, in Rutherford v. Gascon, 679 So. 2d 329 (Fla. 4th DCA 1996), the Fourth District had held that for a waiver of homestead rights to be valid, the trial court had to find that the spouse who signed the deed transferring homestead to the other spouse or the other spouse’s revocable trust intended to waive his or her constitutional limitation on the right to devise and knew that would be the result. As stated in Rutherford, “[i]n order to find that a survivor spouse has waived/relinquished homestead protection, evidence must demonstrate the survivor’s intent to waive the constitutional and statutory claim to homestead property.” Id. at 331. Because the Stone opinion does not discuss this requirement, it is not possible to know if the court overlooked this requirement or whether that fact was undisputed. In light of the controversy created by the Stone decision, and in an attempt to resolve the question of waiver by deed, the RPPTL section proposed a separate statute to specify “safe harbor waiver language.” Under F.S. 732.7025, a spouse waives his or her rights as a surviving spouse with respect to the devise restrictions under Article X, § 4(c), of the Florida Constitution if the following (or substantially similar) language is included in a deed: By executing or joining this deed, I intend to waive homestead rights that would otherwise prevent my spouse from devising the homestead property described in this deed to someone other than me. F.S. 732.7025(1). Subsection (2) of this statute further clarifies that the “waiver language in subsection (1) “may not be considered a waiver of the protection against the owner’s creditor claims during the owner’s lifetime and after death” and that “[s]uch language may not be considered a waiver of the restrictions against alienation by mortgage, sale, gift, or deed without the joinder of the owner’s spouse.” F.S. 732.7025(2).

It is important to note that F.S. 732.7025 does not create an irrebuttable presumption that the spouse has waived his or her homestead rights. In fact, an irrebuttable or conclusive presumption would render the proposed statute unconstitutional. See In Estate of Roberts, 388 So. 2d 216 (Fla. 1980), which upheld the constitutionality of F.S. 732.702, finding that the waiver under that statute resulted in a rebuttable presumption, so the wife was not denied access to the courts to challenge the validity of the agreement. The practitioner should further note that F.S. 732.7025 does not remove the restrictions on devise if the decedent is survived by a minor child, or if the surviving spouse reacquires an interest in the homestead property after the waiver is executed. Furthermore, although F.S. 732.7025 is not encompassed in F.S. 732.702, which requires “fair disclosure to the other of that spouse’s estate,” it is assumed financial disclosure will still be required if the deed is executed after marriage. Therefore, the authors recommend that lawyers use a nuptial agreement limited to the homestead rights that complies with F.S. 732.702 in addition to the safe harbor language of F.S. 732.7025 to effect a valid waiver of homestead rights. Another question might be the effect of a disclaimer on the right to devise or on creditors’ claims. For example, F.S. 739.104(1) provides that a beneficiary may disclaim any interest in property. Could a post-death disclaimer by the surviving spouse validate a devise of the homestead to a third party (or to a trust) to the disadvantage of the descendants who would have received a vested remainder if the homestead had not been susceptible to devise? In In re Estate of Janien, 12 FLW Supp. 221 (Fla. Cir. Ct. 2005), the circuit court in Palm Beach County held that a disclaimer by a surviving spouse cannot “breathe life into [an] invalid devise of homestead real property.” The court based its ruling on the theory that an interest of a descendent in the homestead property vests at the moment of death. If the decedent is survived by a spouse and two children, a devise to one child cannot be revived by a disclaimer by the spouse. In such a case, the spouse has only a life interest in the homestead after the decedent’s death and cannot disclaim an interest greater than what he or she had. Effective October 1, 2010, F.S. 732.401(4) codified the Janien result and provides that if a spouse’s life estate created under subsection (1) of the statute is disclaimed pursuant to F.S. Chapter 739, the interest of the decedent’s descendants may not be divested.

F.S. 732.4015, as amended October 1, 2010, provides that if an interest in homestead has been validly devised to a surviving spouse and the surviving spouse’s interest is disclaimed, the disclaimed interest must pass in accordance with the Florida Uniform Disclaimer of Property Interests Act, F.S. Chapter 739. As to the inverse of that proposition, if the homestead is devised (e.g., by the residuary) to persons who are heirs and persons who are not, could a disclaimer by the non-heirs cause the entire interest in the homestead to pass to the heirs and thereby become fully exempt from creditors’ claims when it was not before? F.S. 739.402(2)(d) bars the right to disclaim if the disclaimant (not the decedent) is insolvent. Because, in this instance, the disclaimer would not purport to divest a vested interest, as under the Janien facts, strict construction suggests that the disclaimer could convert the disclaimed interest to protected homestead and thereby eliminate the creditors’ claims. « Ch. 19 », « § 19.5 », « B •, « 6 » 1 Practice Under Florida Probate Code § 19.5.B.6 (2022)

6. Homestead Paradigm COMMENT: A representation of the issues that must be considered in an estate context to determine whether the property is subject to the claims of creditors or is subject to devise is depicted in graphical form below.

« Ch. 19 », « § 19.5 », « B •, « 7 » 1 Practice Under Florida Probate Code § 19.5.B.7 (2022)

7. Distinction Between Devise And Descent Regarding Exemption From Claims Historically, there was an issue whether creditors of the decedent could reach the protected homestead if it was devised, although the law was settled that creditors had no interest if the property descended by intestate succession. The question was whether the “devise” destroyed the exempt character, even if devised to the same person who would have inherited if the homestead had not been devised. It has never been in doubt that devise to a

person not in the protected class (heirs) would destroy the exemption and thereby make the property subject to the claims of the decedent’s creditors. The District Court of Appeal, Third District, in In re Estate of Hill, 552 So. 2d 1133 (Fla. 3d DCA 1989), held that the devise resulted in loss of the exemption. Commentators criticized that result. See, e.g., Kelley, Homestead Made Easy, Part I: Understanding the Basics, 65 Fla. Bar J. 17 (March 1991). Subsequently, in an en banc opinion, the district court receded from that holding and held that whether the exemption would inure to an otherwise qualified person was not a function of intestacy as long as the person taking title either by devise or as a result of intestacy was an “heir.” Bartelt v. Bartelt, 579 So. 2d 282 (Fla. 3d DCA 1991). In the same opinion, the court also held that the devise to one member of the protected class (heirs), to the exclusion of others of that class, would not destroy or limit the exemption. In that instance, the decedent’s homestead was devised to a son, to the exclusion of a daughter. This issue was clarified by the Florida Supreme Court in Snyder v. Davis, 699 So. 2d 999, 1003 (Fla. 1997), in which the court held that the “devise” of the homestead property does not destroy the exempt nature of the property, but rather that “the protections against creditors … inure to the benefit of the person to whom the homestead property is devised by will.” The personal representative in Snyder was attempting to effectuate a sale of the homestead property to pay a specific devise, claims of creditors, and expenses of administration. Because the property was devised to the decedent’s granddaughter, an individual within the class of intestate heirs, the court held that the exemption from creditors inured to the granddaughter. Therefore, the protected homestead was not subject to the expenses of administration. Although a “devise” of homestead property does not destroy the exemption, issues have been raised as to whether protected homestead property devised through a residuary clause is subject to general abatement statutes in insolvent estates. In McKean v. Warburton, 919 So. 2d 341 (Fla. 2006), the only remaining asset of the estate was the decedent’s homestead. The respondent argued that the will, in its entirety, evidenced an intent by the testator that the general cash devise be satisfied before the residuary devise, and therefore he intended for the residuary devise of the protected homestead property to abate in favor of the preresiduary general devise. The Florida

Supreme Court rejected this argument and held that protected homestead devised through a residuary clause does not become a general asset of the estate and therefore may not be used to satisfy the general or specific devises. In the same year, the Florida Supreme Court confirmed its holding in Warburton in McEnderfer v. Keefe, 921 So. 2d 597 (Fla. 2006). In McEnderfer, the court again held that “where a decedent is not survived by a spouse or minor children, the decedent’s homestead property passes to the residuary devisees, not the general devisees, unless there is a specific testamentary disposition ordering the property to be sold and the proceeds made a part of the general estate.” Id. Based on these holdings, it is clear that the homestead property, regardless of whether it is devised through a will or passes by operation of law, passes outside of the probate assets and retains its protected status. There is one exception, however, when the will contains a direction that the property be sold and proceeds distributed. In Estate of Price v. West Florida Hospital, Inc., 513 So. 2d 767 (Fla. 1st DCA 1987), the decedent’s will directed the sale of her homestead and devised the proceeds of the sale equally to her two adult children. She was survived by neither a spouse nor a minor child. When a creditor tried to reach the proceeds of the sale, the court held that if [the decedent] had sold her house during her lifetime and distributed the proceeds to her two children, those proceeds would unquestionably lose their homestead character and would be subject to the claims of her creditors. This result is not altered because the sale, with no intent to reinvest the proceeds, took place following her death in accordance with the directions in her will. Id. See also Thompson v. Laney, 766 So. 2d 1087 (Fla. 3d DCA 2000) (confirming that when will directs that homestead property be sold and proceeds distributed, proceeds lose their homestead protection); Knadle v. Estate of Knadle, 686 So. 2d 631 (Fla. 1st DCA 1997) (because will specifically directed that homestead property be sold and proceeds placed in residue for distribution along with other assets, it lost its homestead character). The question then becomes what constitutes a direction of sale in the will and whether an actual sale before a homestead determination exposes the

property to claims of creditors or other expenses of administration. In In re Estate of Tudhope, 595 So. 2d 312 (Fla. 2d DCA 1992), the decedent died testate survived by two minor children. The decedent’s condominium was determined to be homestead as described in Article X, § 4, and it was determined that title passed to the minor children upon the decedent’s death. The children were unable to meet the maintenance and mortgage obligations on the condominium and the court ordered it sold by the personal representative. (There was a guardian of the minors, but the opinion does not discuss why the property was not sold by the guardian.) There was an existing judgment against the decedent and several claims were pending in the estate. On the issue of whether the proceeds were subject to the claims of creditors, the court ruled that the protected homestead was not converted to dollars before it passed to and vested in the decedent’s minor children, and therefore was not subject to the judgment or the creditors’ claims. Applying that same theory, the same court in In re Estate of Hamel, 821 So. 2d 1276 (Fla. 2d DCA 2002), held that a sale prior to the determination of homestead did not change the protected status of the property. In Hamel, at the time of the decedent’s death, there was a contract pending on the sale of the decedent’s homestead real property. The protected homestead property was devised through the residuary clause to the decedent’s daughters. Prior to obtaining a determination of homestead status, the daughters sold the condominium. The buyer required a deed from the personal representative and a deed from the daughters. A creditor attempted to reach the proceeds and argued that the proceeds became an asset of the probate estate until an order determining homestead could be obtained. The court found that proceedings to determine if property is protected homestead are “permissive, not required.” Id. at 1280. The court then held “that the heirs’ homestead rights vested prior to the time the property was converted to cash [and therefore did] not fall into the narrow exception created in Price.” Id. In Engelke v. Estate of Engelke, 921 So. 2d 693 (Fla. 4th DCA 2006), the Fourth District rejected a general direction in a trust for the trustee to pay the debts of the estate as a direction of sale. In Engelke, the property was transferred to a revocable living trust, which, upon the death of the decedent, gave the decedent’s wife the right to live on the property during her lifetime, and then, upon her death, devised the property to the decedent’s children. The decedent’s wife, who was also the personal representative, attempted to force

the sale of the homestead property in the trust through a general direction in the trust to pay the claims of creditors and expenses of administration if the estate assets were insufficient. Recognizing the holdings in Hamel and several other cases cited above, the court found that when the trust was read as a whole, the general direction to pay estate expenses did not require the sale of the protected homestead and that the protected homestead, regardless of how it was devised, was not available for the payment of expenses of administration. Effective July 1, 2021, legislation consistent with the holding in Engelke was enacted, which provides, inter alia, that “a power of sale or general direction to pay debts, expenses and claims within the trust instrument does not subject an interest in the protected homestead to the claims of the decedent’s creditors, expenses of administration and obligations of the decedent’s estate as provided in [F.S.] 736.05053.” F.S. 736.1109(2). The new statute further provides that “[i]f a trust directs the sale of property that would otherwise qualify as protected homestead, and the property is not subject to the constitutional limitations on the devise of the homestead under the State Constitution, title shall remain vested in the trustee and subject to the provisions of the trust.” F.S. 736.1109(3). This is consistent with the holding in Price and its progeny. Thus, it is now clear that although a general power of sale in a trust does not cause property that would otherwise qualify as protected homestead to lose its exempt status, a direction of sale of the homestead property, regardless of whether such direction is contained in a will or a trust, destroys the protection, provided the property is not devise restricted. A direction of sale would not affect the protected status of homestead property that is devise restricted, because title to that property passes by operation of law and not under the terms of the trust. See Aronson v. Aronson, 81 So. 3d 515 (Fla. 2d DCA 2012). For further discussion of when property titled in the name of a trust at the decedent’s date of death will otherwise qualify as protected homestead, see § 19.6A.4. In Estate of Shefner v. Shefner-Holden, 2 So. 3d 1076, 1077 (Fla. 3d DCA 2009), the court held that a precatory statement in a will that “[i]f and when the house is sold by my son,” the proceeds are to be divided, was not sufficient to constitute a direction of sale when the will also directed that the son not be forced to sell the property against his will.

A specific direction in a will that debts of the estate must be paid from the homestead property, has, however, been found to be the same as a direction of sale, which destroyed the homestead protection. In Cutler v. Cutler, 994 So. 2d 341 (Fla. 3d DCA 2008), the decedent specifically devised her homestead property to her daughter and specifically devised a vacant lot to her son. In her will, the decedent directed that if her estate was insufficient to pay the “claims, charges and allowances against, and costs of administration” of her estate, the balance should be paid equally from the specific devise to her daughter of the protected homestead and the specific devise to her son of the non-protected homestead. Id. at 343. The court initially rejected the decedent’s right to direct the sale of the property through the will and held that the specific devise of the protected homestead property created a constitutionally created benefit, personal to the beneficiary, which was hers to assert. However, on rehearing, the court reversed its prior holding and held that the decedent’s direction in a specific manner that the homestead property be used to satisfy her debts was the “equivalent of ordering it sold and the proceeds distributed to pay debts.” Cutler, 994 So. 2d at 345. The court then recognized that such a direction, under “Price and its progeny,” resulted in the loss of homestead protections. Id. Therefore, the court held that the property passed “into the beneficiary’s hands impressed with the obligation to pay the testatrix’s debts” and the decedent’s homestead protection did not inure to her daughter. Id. at 346. Likewise, a specific direction in the will that certain dollar amounts be paid to specified beneficiaries from the “sale” of a decedent’s residence was found to be a direction of sale and to destroy the homestead protection under Price and its progeny. Pajares v. Donahue, 33 So. 3d 700 (Fla. 4th DCA 2010). In that case, the decedent, after specifying who was to receive what dollar amounts from the sale of her residence, provided for the devise of that residence, “after all estate taxes, debts are satisfied” to her sister and her niece. Id. at 702. The court held that the provisions of the will, read together, directed the sale of the property and the division of the proceeds, thereby destroying the homestead protections and subjecting the devise to “debts” of the estate. This holding should be contrasted to the holding in Warburton. « Ch. 19 », « § 19.5 », « B •, « 8 » 1 Practice Under Florida Probate Code § 19.5.B.8 (2022)

8. Effect Of Survival Of Minor Child

Under the present law, the effect of the survival of a minor child on a devise of homestead can present some of the greatest problems for the estate lawyer. For example, if a divorced man whose residence is exempt from forced sale as a homestead wishes to devise his homestead to his dependent mother who resides with him, he cannot do so because of the minority of his child living elsewhere with the former spouse. See Lorraine v. Grover, Ciment, Weinstein & Stauber, P.A., 467 So. 2d 315 (Fla. 3d DCA 1985) (malpractice case in which lawyer was sued by mother when devise of homestead to her failed). See also Adams v. Clark, 48 Fla. 205, 37 So. 734 (1904). This restriction applies even if the decedent owns but does not reside on the property, provided the owner’s family resides on the property. Bayview Loan Servicing, LLC v. Giblin, 9 So. 3d 1276 (Fla. 4th DCA 2009). The survival of a minor child can frustrate the clearly expressed intent of the testator. A will clause stating, “I intentionally and expressly make no provision for my son in this, my Last Will and Testament,” has no effect with regard to homestead. If at the time of the decedent’s death, the child has not reached the age of majority, the homestead may not be devised, even to the spouse. For this purpose the age of majority in Florida is 18 years. F.S. 743.07. See Artigas v. Enriquez, 617 So. 2d 423 (Fla. 3d DCA 1993). If the testator attempts to devise a homestead to a minor child, to the exclusion of the other children, the fact that one of the children is a minor absolutely prohibits the devise. Thus, the devise fails and the property passes pursuant to F.S. 732.401 (assuming there is no surviving spouse). The adult children share equally with the minor in the inheritance because it “shall descend in the same manner as other intestate property.” Id., Art. X, § 4(c), Fla. Const. Adult children, however, have no standing to contest the validity of a waiver by a spouse and the subsequent devise of the homestead property. Hartwell v. Blasingame, 584 So. 2d 6 (Fla. 1991). Although the homestead cannot be devised if the decedent has a minor child, the homestead can be alienated by gift or sale during the life of the decedent under Article X, § 4(c), of the Florida Constitution. F.S. 732.4017(1), effective October 1, 2010, codified current law and clarifies that the owner of the homestead real property may, during his or her lifetime, joined by his or her spouse, if married, convey title or a vested interest in homestead. It may be conveyed to an irrevocable trust created by the grantor

as long as the transferor/owner of the homestead property does not retain a power, alone or in conjunction with any other person, to revoke the trust or re-vest the interest in the transferor. Such a transfer is not a devise for purposes of F.S. 731.201, 732.4015, or Article X, § 4(c), Florida Constitution, and the property does not descend by operation of law as provided in F.S. 732.401 because the interests vested during lifetime. See also Stone v. Stone, 157 So. 3d 295 (Fla. 4th DCA 2015). A power possessed by the transferor to alter the beneficial use and enjoyment of the interest within a class of beneficiaries identified in the trust instrument is not a right of revocation if the power may not be exercised in favor of the transferor, the transferor’s creditors, the transferor’s estate, or the creditors of the transferor’s estate, and may not be exercised to discharge the transferor’s legal obligations. F.S. 732.4017(2). The transferor may retain a separate legal or equitable interest in the property and the trust may provide that the interest transferred does not become a possessory interest until a date certain or on a specified date, without subjecting the transfer to treatment as a devise for purposes of F.S. 731.201 or 732.4015. F.S. 732.4017(3)(a)–(3)(b). Furthermore, the interest transferred to the trust may be subject to divestment, expiration, or lapse on a date certain or upon a specified event. F.S. 732.4017(3). Because the Florida Constitution allows alienation of the homestead during lifetime by gift, using an irrevocable trust described in F.S. 732.4017, the divorced man described in Lorraine above could avoid the restrictions on devise that frustrate his intention to care for his elderly mother. The divorced man can alienate the homestead during his life by transferring title to his homestead real property, while retaining a life estate in the property, to an irrevocable trust (a completed gift allowed by the constitution) that provides that the trustee will hold the property for the benefit of his mother during her lifetime. The trust may also provide for the termination of the trust upon the death of the mother and the reversion of any interest held by the trust to the transferor. This technique may also be used to avoid an outright distribution of homestead real property to a minor child upon the single parent’s death, by transferring title to a remainder interest in the property to a trust for the benefit of the minor child and providing that the trust terminates upon the child attaining a stated age, and it can also provide that the trust will

terminate and deliver its assets (in this case, the remainder interest in the protected homestead) to the settlor if he or she is living on the child’s 18th birthday. F.S. 732.4017 is one of the few tools in the estate lawyer’s toolbox to address this particular issue. « Ch. 19 », « § 19.5 », « B •, « 9 • 1 Practice Under Florida Probate Code § 19.5.B.9 (2022)

9. Title Held By Entireties Or As Joint Tenants With Right Of Survivorship Before the 1968 Amendment to Article X, § 4(c), of the Florida Constitution, the homestead could not be conveyed without consideration. This was held to prevent direct conveyance from one spouse to both spouses, as permitted by F.S. 689.11(1), if the property was homestead. Moore v. Moore, 237 So. 2d 217 (Fla. 4th DCA 1970). In Moore, the court, in voiding a direct conveyance under the statute, held that “such transfer would in effect abrogate or cancel the inheritable rights of the children in the homestead vouchsafed by the Florida Constitution of 1885.” Id. at 220. See also Attorney’s Title Insurance Fund, Inc.©, TNs 16.02.04–16.02.05. After the 1968 Amendment to Article X, § 4(c), to permit alienation of the homestead by gift, a tenancy by the entireties may be created by a direct conveyance without consideration. Jameson v. Jameson, 387 So. 2d 351 (Fla. 1980). Furthermore, F.S. 732.401(5) presently exempts property held by the decedent and his or her spouse as tenants by the entireties and real property owned by the decedent and another as joint tenants with right of survivorship from the statutory restrictions on devise. The concept of inter vivos alienation of homestead property to remove the property from the restrictions on devise is supported by case law. In Ostyn v. Olympic, 455 So. 2d 1137 (Fla. 2d DCA 1984), the court held that the decedent’s interest in property owned as joint tenants with right of survivorship with several collateral family members, which property later became the decedent’s homestead by virtue of his marriage and change in status as “head of the family,” descended to the surviving joint tenant, and the wife received no interest. In so holding, the court found a parallel with tenancy by the entireties ownership, which prevails over the constitutional

provisions limiting devise, citing Denham v. Sexton, 48 So. 2d 416 (Fla. 1950). The court stated: “Accordingly, on [the decedent’s] death, there was no property interest then owned by him to which a homestead interest could attach for the benefit of the [surviving spouse].” Ostyn, 455 So. 2d at 1138. Therefore, the constitutional limitation on devise to the surviving spouse when there is a minor child can be circumvented, if the intended beneficiary is the spouse, by intervivos creation of a tenancy by the entireties or a joint tenancy with right of survivorship without consideration. It is not the statutory authority that compels this result; rather the statutory provisions merely represent the determinations of the court regarding these forms of ownership as they relate to the limitations on devise of homestead in Article X, § 4(c). Denham; Marger v. De Rosa, 57 So. 3d 866 (Fla. 2d DCA 2011); Ostyn; Bendl v. Bendl, 246 So. 2d 574 (Fla. 3d DCA 1971). An inter vivos alienation of the property by gift to create ownership status of joint tenancy with right of survivorship in a third party should also be effective to remove the property from the restrictions on devise, even in the presence of a minor child, to the extent the decedent’s interest in the property terminates upon the decedent’s death. Of course, this would require joinder of the spouse of the owner, if married. Art. X, § 4(c), Fla. Const. In Lorraine v. Grover, Ciment, Weinstein & Stauber, P.A., 467 So. 2d 315 (Fla. 3d DCA 1985), a lawyer prepared a will that purported to devise the decedent’s homestead with a life estate to his mother and remainder to his children who were minors at the time of his death. The devise failed as being constitutionally impermissible, and the disappointed mother sued the lawyer for malpractice. Although the court upheld a summary judgment for the lawyer, the court noted that “[a]s the plaintiff suggests, it may have been possible to structure a conveyance to avoid the constitutional provision by having [the testator] make an inter vivos transfer of a vested interest in the residence to her.” Id. at 317. The decision is based on the privity rule, and the court found that this case did not fall within the narrow exceptions to that rule. See DeMaris v. Asti, 426 So. 2d 1153 (Fla. 3d DCA 1983). Under DeMaris, a lawyer will be liable to an intended beneficiary under a will (who is not in privity with the lawyer) only if the lawyer’s negligence in drafting the will or having it properly executed directly results in the plaintiffbeneficiary’s loss. Facially, that may seem to be the result here, however, the

Lorraine court noted that “there was no means by which a will could have been drafted so that [the testator’s] testamentary intent, that a life estate in the homestead pass to his mother on his death, could have been accomplished.” Id. at 319. The basis for the negligence alleged was not the failure of the devise in the will because there was no way it could have been drafted to satisfy the testator’s intent. Rather the negligence here was the failure to advise the testator that he could not devise a life estate in his homestead to his mother because he was survived by a minor child, and the loss was the value of a substitute devise the testator might have provided had he been properly advised. Because the failure was not of the devise in the will, the DeMaris exception to the privity rule did not apply. The Lorraine court held that the testator’s testamentary intent was not frustrated by the lawyer’s professional negligence, “but rather by Florida’s constitution and statutes.” Id. In a strongly worded dissent in Lorraine, Judge Pearson deemed it “utterly indefensible” to regard “an attorney’s failure to advise a testator that his desired devise is a nullity” as “less negligent than an attorney’s faulty draftsmanship or improper execution of a will.” Id. The dissent’s argument, however, is one against the privity rule generally, because, almost consistently, its application results in a similar injury to one in which the drafted clause fails because of a lawyer’s negligence. In Clemons v. Thornton, 993 So. 2d 1054 (Fla. 1st DCA 2008), property owner A, although married to B, attempted to alienate his homestead real property during his lifetime by executing a deed transferring a life estate to A and B, with a remainder interest to C, an adult relative. B did not join in the deed. The court held that the deed created a life estate in A and B, as tenants by the entireties, but was ineffective to convey a remainder interest to C because B did not execute the deed. Therefore, the remainder interest in the property remained vested in A (who died intestate). Upon A’s death, the remainder interest passed by intestate succession to all of A’s descendants, not just to C. Presumably, however, if B had joined in the deed, the deed would have been effective to alienate the remainder interest during A’s lifetime by gift and the property would have avoided the restrictions on its devise. In a similar case, A, although married to but separated from B, took title to the homestead as A and C, his wife. A and C held themselves out as

husband and wife. Later, a quitclaim deed was executed by A and C to A and C as joint tenants with right of survivorship. A then died, survived by B and C. The court ruled that the quitclaim deed purporting to create the joint tenancy with right of survivorship was invalid because the property was A’s homestead and B, A’s actual spouse, did not join in the deed. The original deed created only a tenancy in common between A and C. Upon A’s death, his one-half interest was his homestead and passed as a life estate to B, his surviving spouse, with a remainder to A’s son. In re Estate of Schorr, 409 So. 2d 487 (Fla. 4th DCA 1982). A clearly significant factor in Ostyn was that the survivorship provisions of the ownership of the property attached before the homestead status and neither Ostyn, Clemons, nor Schorr involved a minor child. The constitution contains no limitation on alienation of the homestead in the presence of a minor child, only a limitation on devise, and an alienation by deed is not significantly different than an alienation by transfer in trust permitted under F.S. 732.4017. Therefore, the presence of a minor child does not prevent the alienation. In Marger, the issue was whether the existence of a minor child when the survivorship interest was created in the joint tenants in the homestead would overcome the survivorship rights as a “devise” prohibited by Article X, § 4(c). The court held that the survivorship provisions of the title prevailed and the homestead passed to the decedent’s mother as surviving joint tenant, even though two of decedent’s minor children were living when he acquired the real property with his mother and the two children were still minors at the time of the decedent’s death.

« Ch. 19 », « § 19.6 » 1 Practice Under Florida Probate Code § 19.6 (2022)

§ 19.6. HOMESTEAD AND TRUSTS « Ch. 19 », « § 19.6 », • A » 1 Practice Under Florida Probate Code § 19.6.A (2022)

A. Revocable Living Trusts « Ch. 19 », « § 19.6 », • A », • 1 » 1 Practice Under Florida Probate Code § 19.6.A.1 (2022)

1. In General Traditionally, if property could not be devised, it could not be conveyed to a revocable living trust and then, upon the death of the settlor, be disposed of through the devise of the trust assets. The interest conveyed to a revocable living trust is only a contingent interest subject to the right of the settlor to exercise the power to revoke at any time during his or her lifetime. Therefore, a conveyance to a trust cannot remove the limitations on devise when it is not an absolute conveyance of any vested estate in the land to take effect during the settlor’s lifetime. In addition, F.S. 732.4015(2)(a) now defines “owner” to include the settlor of a revocable trust, for purposes of limitation on the ability to devise. F.S. 736.1109(1) provides that a devise of a homestead under a trust that violates the restrictions on devise under Article X, § 4(c), of the Florida Constitution will fail and title to the property passes under F.S. 732.4015. « Ch. 19 », « § 19.6 », • A », « 2 » 1 Practice Under Florida Probate Code § 19.6.A.2 (2022)

2. When Decedent Is Survived By Spouse Or Minor Child “That which the law forbids to be done directly cannot lawfully be done by indirection. If an attempted conveyance of homestead real estate is, in legal and practical effect, and operation[,] a will, it may not be effective when the owner of the homestead leaves a wife or child.” Johns v. Bowden, 68 Fla. 32, 66 So. 155, 159 (1914). (The practitioner should note that the constitution has been amended to place a restriction on the devise of homestead only when the owner is survived by a spouse or minor child.) If it cannot be

devised by will, the court has held that it cannot be devised by trust. In re Estate of Johnson, 397 So. 2d 970 (Fla. 4th DCA 1981). However, see In re Estate of Donovan, 550 So. 2d 37 (Fla. 2d DCA 1989), in which the husband devised his homestead to his revocable living trust. The wife was the personal representative of his estate and the trustee of his trust. The trust, by its terms, provided it was to terminate 45 days following his death and then be distributed entirely to his surviving spouse. The daughter claimed that the homestead had not been devised (to the spouse) as permitted by the constitution, and title therefore descended with a life estate in the spouse and remainder in fee simple to the daughter. Although a strict constructionist argument can be made that the devise to the trust should fail, if substance over form is considered, the devise succeeds; this was in fact the court’s ruling. Historically, the general conclusion, supported by F.S. 732.4015, was that conveyance of a homestead to a revocable living trust was ineffective to devise title by the trust if the settlor was survived by a spouse or minor child at the time of the settlor’s death, regardless of whether there was a spouse or minor child in existence when the property was conveyed to the trust. See Arnold, Homestead Law Conference 1991, 23 THE FUND CONCEPT 123 (Nov. 1991). In contrast see § 19.5.B.8 regarding conveyance to an irrevocable trust. This general conclusion was confirmed in Aronson v. Aronson, 81 So. 3d 515 (Fla. 3d DCA 2012), in which the owner, while residing in Massachusetts, transferred title to his Key Biscayne property to his revocable trust. Several years after transferring title of the property to the trust, the owner and his wife moved to Florida and began residing on the Key Biscayne property. Under the terms of the trust, the owner’s wife was entitled to a life interest in the trust assets and the children were entitled to the remainder of the trust assets upon the wife’s death. The court held that the restrictions on devise of homestead property in Article X, § 4(c), of the Florida Constitution “applied equally to property held by a revocable trust as to testamentary bequests.” Aronson, 81 So. 3d at 519. The court further held that upon the owner’s death, title to the homestead passed outside of the trust and outside of probate to vest in the “twinkle of an eye” in the wife for life, with a remainder interest in the children under F.S. 732.401(1). Aronson, 81 So. 3d

at 519. Effective July 1, 2021, the holding in Aronson was codified in F.S. 736.1109(1), which provides that “[i]f a devise of homestead under a trust violates the limitations on the devise of homestead in [§] 4(c) Art. X of the State Constitution, title shall pass as provided in [F.S.] 732.401 at the moment of death.” « Ch. 19 », « § 19.6 », • A », « 3 » 1 Practice Under Florida Probate Code § 19.6.A.3 (2022)

3. When Decedent Is Not Survived By Spouse Or Minor Child When no spouse or minor child exists, there are no restrictions placed on the devise of homestead property. See § 19.5.B.2. Therefore, by placing the homestead property in a revocable living trust during the owner’s lifetime, the owner is not attempting to do indirectly what could not be done directly. Although, as of the date of publication of this manual, there is no case law directly on point, courts have held that when at all relevant times the decedent was not survived by a spouse or minor child, there is no person within the protected class with standing to contest the placement of the homestead property into a revocable living trust. In re Estate of Morrow, 611 So. 2d 80 (Fla. 2d DCA 1992). See Hartwell v. Blasingame, 584 So. 2d 6 (Fla. 1991) (regarding who has standing to invoke protection of Article X, § 4(c), of Florida Constitution). See also Arnold, Homestead Law Conference 1991, 23 THE FUND CONCEPT 123 (Nov. 1991). « Ch. 19 », « § 19.6 », • A », « 4 • 1 Practice Under Florida Probate Code § 19.6.A.4 (2022)

4. Does Exemption Inure When Homestead Is Devised To Trust? In HCA Gulf Coast Hospital v. Estate of Downing, 594 So. 2d 774 (Fla. 1st DCA 1992), the District Court of Appeal, First District, addressed the issue of whether the exemption inures when the protected homestead is devised to a trust. The court looked to the substance rather than the form of the devise in holding that the property retained its exempt character. In the decedent’s will, she devised her homestead to her former husband, as trustee of a testamentary spendthrift trust for her daughter. (The opinion implies that the daughter was not a minor.) A creditor challenged the exempt status of the home because it was not devised directly to an heir. The court stated that the

beneficiary of a trust was within the class of persons to whom the exemption inured and held that the constitution does not mandate the technique by which the qualified person must receive title but rather only defines the class of persons to whom the exemption inures. The court further stated that “the trustee … although possessed of legal title in the subject property, exercised nothing more than a supervisory interest in the homestead. Were the facts otherwise, this result may have been different” indicating that title, except for naked legal title, was in the daughter. Id. at 776. Although the opinion does not discuss any of the specific terms of the trust, one must wonder if the trustee had the power to sell the property. Following the First District’s decision in Downing, the Fourth District addressed this issue in Engelke v. Estate of Engelke, 921 So. 2d 693 (Fla. 4th DCA 2006). In Engelke, the decedent transferred ownership of his undivided one-half interest (the spouse owned the other one-half interest) in his residence to his revocable living trust. Upon his death, the trust provided that his spouse (who had executed an antenuptial agreement) be permitted to live in the residence during her life and, upon her death, that the property be distributed to his children. The trust also contained a general direction that the trustee pay the settlor’s funeral expenses, claims against the settlor’s estate, and costs of administration to the extent the estate assets were insufficient. The personal representative (the decedent’s second wife) attempted to force the sale of the homestead property to pay the claims against the estate, including a family allowance to herself. The court held that transfers of interests in homestead property to revocable grantor trusts do not destroy the property’s homestead character, so that the constitutional exemption from forced sale inured to the benefit of the heirs named as trust beneficiaries “upon the moment of the owner’s death.” Id. at 696. The court explained that while [the decedent’s] residence was held in a revocable trust, it was owned by a “natural person” for purposes of the constitutional homestead exemption. Because [the decedent] retained a right of revocation, he was free to revoke the trust at any point in time. Accordingly, he maintained an ownership interest in his residence, even though a revocable trust held title to the property. Id. at 696. The court further held that the general direction to pay estate

expenses did not subject the protected homestead property to the claims of the estate or expenses of administration. In Elmowitz v. Estate of Zimmerman, 647 So. 2d 1064 (Fla. 3d DCA 1994), 51 A.L.R. 5th 951, the issue was whether the decedent’s homestead exemption inured under Article X, § 4(b), to her sister, even though the homestead was devised to a trust for the sister, and not to the sister herself. The court held that the devise to a revocable living trust caused the decedent’s exemption not to inure to her heir, the sister, noting that the “property was not specifically devised to [the sister], thus she could not claim protection under … Florida’s Constitution.” Id. at 1065 n.1. Although poorly worded, the court’s language about the property losing its homestead protection was intended to convey the concept that the exemption did not inure to the sister, because even though she was a qualified heir, she did not have a specific right to possession of the homestead property during the term of the trust, and she did not inherit the property nor an equitable interest in it; rather, she “was only entitled to an equivalent in value from the assets of the trust.” Id. The Elmowitz court deemed this an insufficient interest to support inurement of the decedent’s exemption. The court in Elmowitz cited In re Estate of Morrow, 611 So. 2d 80 (Fla. 2d DCA 1992), as support for its holding. However, Morrow did not reach the question of whether protected homestead property transferred to a trust loses its protected status, because there was no beneficiary who was a member of the protected class to provide the personal representative with justification for filing the petition. Instead, although not stated in the opinion, the court’s reasoning in Elmowitz seems to follow the holding of the First District in Estate of Price v. West Florida Hospital, Inc., 513 So. 2d 767 (Fla. 1st DCA 1987), in which the court held that the decedent’s direction in her will to sell her homestead and equally distribute the sale proceeds to her children caused the homestead property to lose its protected status. In fact, the Florida Supreme Court subsequently serial-cited both Elmowitz and Estate of Price for that proposition. (See below.) The Elmowitz decision is poorly written in that it omits discussion of several facts and theories of law that could have produced a different result. The case was either ignored or dismissed as an anomaly for years, until cited by the First District in Knadle v. Estate of Knadle, 686 So. 2d 631 (Fla. 1st

DCA 1997). In Knadle, as in Estate of Price, the decedent directed in her will that her personal representative sell her homestead “as soon as reasonably practical” and add the net proceeds to the residue of her estate. The residue of the estate was devised in trust for the decedent’s children. The Knadle court relied on Estate of Price in holding that the homestead exemption was lost because of the sale and devise to trust, and cited, but did not discuss, Elmowitz. Elmowitz was next cited by the Florida Supreme Court in McKean v. Warburton, 919 So. 2d 341 (Fla. 2006), in which the court, again, equated trust ownership of homestead property with the situation in which the decedent directed the sale of the homestead in the will. The court noted that, in both instances, the beneficiary receives only an interest in value or sale proceeds and does not receive an interest in the homestead itself. The court distinguished In re Estate of Tudhope, 595 So. 2d 312 (Fla. 2d DCA 1992), in which the homestead was devised to decedent’s two minor children before sale. Although it was subsequently determined that the children could not make the mortgage payments, and the court therefore ordered the homestead sold, title to the property nonetheless vested in the beneficiaries as of the moment of death. In both Estate of Price and Knadle, the testator’s direction that the homestead be sold prevented title from vesting in an heir. Again, Elmowitz was cited only in passing. Elmowitz was most recently cited, albeit in passing, in Estate of Shefner v. Shefner-Holden, 2 So. 3d 1076, 1078 (Fla. 3d DCA 2009), in which the court concluded that when “a testator directs that his or her homestead be sold and the proceeds distributed … , the property loses its constitutional protection. In such cases, the decedent is devising money, not homestead property, and the proceeds may be subject to the claims of decedent’s creditors and administrative expenses.” Although the Florida Supreme Court has not directly addressed this issue, the court’s reference in McKean to Elmowitz would imply that devise of the homestead to a trust for an heir, when the trust provisions do not result in vesting of an equitable interest in the homestead property itself, or at least the right to possession for the heir’s lifetime, is no different than directing that the homestead be sold and the proceeds distributed to, or made available in trust for, an heir.

The reasoning in Elmowitz seems to raise questions when the homestead is devised to the decedent’s testamentary or revocable trust (or is owned by the trust upon the death of the decedent and thereafter continues in trust) and the heir, who is not the settlor and has no right to revoke the trust, has only a life income interest in the continuing trust. In this instance, the heir has only the right to the income from the trust for some term, perhaps for life, but has no right to possession and no legal or beneficial interest in the land. The land (the decedent’s homestead) may be sold by the trustee or rented to a third party, in either circumstance without the consent or joinder of the heir. The right to possession is in the control of the trustee, and any occupancy of the beneficiary/heir is at the sufferance of the trustee absent specific language granting further rights in the trust document. Regarding the lifetime exemption from claims of creditors, case law seems to confirm that a settler of a revocable living trust will be able to retain the constitutional protection under Article X, § 4(a), of the Florida Constitution during his or her lifetime. In Callava v. Feinberg, 864 So. 2d 429 (Fla. 3d DCA 2004), the former wife sold a prior nonhomestead property and purchased a home but took title in the name of a third party trustee. The creditor who had a judgment lien on the property the former wife sold to purchase the subject property, and who subsequently obtained an equitable lien on the homestead, attempted to foreclose on the lien against the homestead. In support of the foreclosure, the creditor argued that the former wife was not entitled to the constitutional exemption from forced sale because legal title to the former wife’s home was not in her name but in the name of a trustee. The court disagreed, finding that “even if [the former wife] owns only a beneficial interest in the property, she is entitled to claim a homestead exemption to the forced sale of the property.” Id. at 431. In the bankruptcy arena, bankruptcy courts have extended constitutional homestead protection from forced sale to property held in a revocable living trust. See, e.g., In re: Romagnoli, 631 B.R. 807 (S.D. Fla. 2021); In re Alexander, 346 B.R. 546 (Bankr. M.D. Fla. 2006). F.S. 736.0505(1)(a), which became effective July 1, 2007, appears to bolster this argument: “The property of a revocable trust is subject to the claims of the settlor’s creditors during the settlor’s lifetime to the extent the property would not otherwise be exempt by law if owned directly by the

settlor.” F.S. 736.151, which is part of the new Community Property Trust Act, F.S. 736.1501 et seq., under the Florida Trust Code, F.S. Chapter 736, governs homestead property held in a community property trust and provides: Property transferred to or acquired subject to a community property trust may continue to qualify or may initially qualify as the settlor spouses’ homestead within the meaning of [§] 4(a)(1), Art. X of the State Constitution and for all purposes of general law, provided that the property would qualify as the settlor spouses’ homestead if title was held in one or both of the settlor spouses’ individual names. F.S. 736.151(1). « Ch. 19 », « § 19.6 », « B » 1 Practice Under Florida Probate Code § 19.6.B (2022)

B. Irrevocable Trusts Irrevocable trusts do not appear to present the problem associated with revocable living trusts discussed in § 19.6.A.4. Homestead may be alienated by “mortgage, sale[,] or gift.” Art. X, § 4(c), Fla. Const. A transfer to an irrevocable living trust would satisfy the requirements of a gift, assuming the trust provided for a vested interest in a third party. Therefore, a valid alienation would occur and the property would no longer be the owner’s homestead unless a qualifying life estate or trust interest were reserved, which would then protect that interest against the settlor’s creditors during the settlor’s lifetime under Article X, § 4(a). But that interest would expire upon death and leave creditors with nothing to attach. This line is less clearly drawn when determining whether the lifetime exemption from creditors is available to the grantor in the case of transfers to certain popular split interest trusts in which the settlor retains an interest for years and may retain the right to regain the property, if he or she dies before the expiration of the term or the right to purchase it from the trust. If the owner is married, the joinder of the spouse is necessary when there is an attempt to alienate the homestead property, even by gift. Jameson v. Jameson, 387 So. 2d 351 (Fla. 1980). In Cutler v. Cutler, 994 So. 2d 341 (Fla. 3d DCA 2008), an unmarried decedent transferred her homestead property to an irrevocable land trust in which she retained a life estate. Upon

her death, the trust provided for the distribution of all trust assets to the decedent’s estate. The decedent’s will then specifically devised the property to the decedent’s daughter. On appeal, the court initially held that the decedent “was an ‘owner’ of her residence for purposes of devising the homestead protection on that residence on her death” and found it “immaterial that legal title to the residence … was held in an irrevocable trust during [decedent’s] lifetime.” Cutler v. Cutler, 32 FLW D583, D585 (Fla. 3d DCA 2007). On rehearing, however, the court withdrew its original opinion. In the later opinion, the court again rejected the argument that the property was not owned by a natural person and therefore did not qualify for the constitutional protection, but limited its holding regarding the lifetime constitutional exemption from forced sale to the remainder interest in the property. Interestingly, the opinion also seems to suggest that the exemption from creditors that attached to the remainder interest could have inured to the decedent’s daughter but for the instruction in the will that amounted to a direction of sale, and destroyed the exemption. Cutler. Although the holding in Cutler appears to expand the benefits of constitutional homestead protection to property held in split interest trusts, caution should be exercised in this area. As stated in § 19.6.A.4, Article X, § 4, of the Florida Constitution applies only to property owned by a natural person. In the context of a revocable trust, most courts have looked to the settlor’s right of revocation as a substantial factor in extending the benefits of the constitutional protection during the settlor’s lifetime. See Engelke v. Estate of Engelke, 921 So. 2d 693 (Fla. 4th DCA 2006); In re Alexander, 346 B.R. 546 (Bankr. M.D. Fla. 2006). In a split interest trust, settlors will not have a right of revocation. In Stone v. Stone, 157 So. 3d 295 (Fla. 4th DCA 2015), the District Court of Appeal, Fourth District, addressed the exposure of property in a split interest trust to restrictions on devise when the property is pulled back into the decedent’s estate through documentary rights of reversion when the grantor fails to outlive the term of a qualified personal residence trust (QPRT). In this case, the decedent and his wife owned their residence as tenants by entireties. As part of their estate planning, they transferred title to the property from themselves, jointly, to themselves as tenants in common, each owning a one-half interest. On the same day, the decedent executed a deed transferring his one-half interest in the property to himself and his wife

as trustees of his QPRT. His wife joined in the deed. Under the terms of the QPRT, if the decedent died within five years of the creation of the trust, the trust assets reverted back to the decedent’s estate. The decedent died approximately four years and ten months after the creation of the QPRT, requiring that his interest in the homestead real property reverted to his estate. Pursuant to the terms of his will, the homestead property poured over into his revocable trust and the trust assets were further held in trust for the benefit of the surviving spouse during her lifetime, remainder to his daughter to the exclusion of his son. The trustee of the decedent’s daughter’s trust filed a petition seeking a determination of whether the devise of the homestead to the decedent’s revocable trust violated the constitutional restrictions on devise. The court held that the QPRT satisfied the requirements of F.S. 732.4017 and, therefore, the transfer into the QPRT was not a devise, but that the restrictions on devise did apply to the subsequent devise of the homestead property through the decedent’s revocable trust because the decedent failed to survive the required term of the QPRT. In addition, however, the court held that the surviving spouse waived her homestead rights when she executed the deed to the QPRT and, therefore, there were no restrictions on devise at the time of the decedent’s death. The practical issue, which was not discussed in the Stone opinion, is that during the term of the QPRT, the holder of the retained term interest cannot intend to make the property his or her permanent residence because the right of occupancy will expire when the QPRT term expires, and hence, during the settlor’s lifetime, the property cannot be Article X, § 4 homestead. Caution should be exercised in this area when advising clients regarding the exposure of property to claims of creditors or restrictions on devise when the property is pulled back into their estate through rights of reversion. If the decedent is survived by a minor child or a surviving spouse who has not waived her rights in the homestead property, the decedent’s interest in the homestead property will be subject to the restrictions on devise. « Ch. 19 », « § 19.6 », « C • 1 Practice Under Florida Probate Code § 19.6.C (2022)

C. Constructive Trusts In King v. Ellison, 622 So. 2d 598 (Fla. 4th DCA 1993), approved 648 So. 2d 666, the District Court of Appeal, Fourth District, declined to create a

constructive trust over protected homestead property when F.S. 732.401(1) frustrated the intent of the testator. The court stated that treatment of protected homestead under Florida law has never had equity as a foundation and the limitation is the constitution, which is assumed to reflect the strong public policy of this state.

« Ch. 19 », « § 19.7 » 1 Practice Under Florida Probate Code § 19.7 (2022)

§ 19.7. LIENS THAT DEFEAT HOMESTEAD The classes of obligations, such as valid taxes and assessments, specified in Article X, § 4(a), of the Florida Constitution, prevail over the homestead exemption from forced sale. Encumbrances voluntarily executed in compliance with constitutional and statutory requirements likewise are unaffected by the exemption regardless of the inception date of the homestead status. An individual cannot, however, while alive, otherwise waive his or her constitutional right to homestead protection under Article X, § 4, of the Florida Constitution. Chames v. DeMayo, 972 So. 2d 850 (Fla. 2007). In Chames, the appellant retained a law firm to represent him in a family law proceeding. The retainer agreement contained the following language: “[T]he client hereby knowingly, voluntarily and intelligently waives his rights to assert his homestead exemption in the event a charging lien is obtained to secure the balance of attorney’s fees and costs.” Id. at 852. The law firm later withdrew from the representation and obtained a charging lien against the appellant’s homestead. The Florida Supreme Court declined to allow the law firm as a general creditor to enforce the lien against the homestead. In reaching its decision, the court held that “the homestead exemption protects not only the debtor but also the debtor’s family and the State.” Id. at 860. The court also recognized that Article X, § 4(a), provides specific, delineated exceptions to the exemption from forced sale and that the exemption from forced sale, by its own terms, does not apply to mortgaged property. However, the court found that the retainer agreement did not fall within those exceptions or qualify as a formal mortgage. The court further held that a waiver of the exemption other than as specifically provided in § 4(a), without formal mortgage of the property, was not a valid waiver and was against public policy and unenforceable. See also Quiroga v. Citizens Property Insurance Corp., 34 So. 3d 101 (Fla. 3d DCA 2010). However, a lien that attaches before creation of the homestead status will not be affected by the subsequent attachment of homestead status. Pasco v. Harley, 73 Fla. 819, 75 So. 30 (1917). In Pasco, a judgment lien attached to the defendant’s home, and shortly thereafter he married so as to become the

head of a family. Because the lien had previously attached, it was unaffected by the subsequent homestead status. However, homestead status will attach to nonexempt assets (e.g., balance in a bank account) that have been invested in the homestead property even if the assets were invested with the intent to delay, hinder, or defraud creditors. Havoco of America, Ltd. v. Hill, 790 So. 2d 1018 (Fla. 2001). The interest inherited by an heir would not be exempt from the heir’s own debts unless the heir acquired a homestead status of his or her own before a lien attached. When the homestead status attaches at the same time as the lien, the homestead status will prevail. When there is an outstanding judgment against a person, if that person inherits an interest in a home sufficient to support homestead on the heir’s account, the homestead status attaches first to prevent attachment of the lien. Aetna Insurance Co. v. LaGasse, 223 So. 2d 727 (Fla. 1969); Quigley v. Kennedy & Ely Insurance, Inc., 207 So. 2d 431 (Fla. 1968). When a judgment debtor takes title with the intention to make the real property the debtor’s homestead, the homestead status prevails to prevent the attachment of the lien. Bowers v. Mozingo, 399 So. 2d 492 (Fla. 3d DCA 1981). Homestead property exempt from a subsequent judgment lien will become subject to that lien if the homestead status is abandoned. However, death does not constitute abandonment; the exemption from the homestead property owner’s debts continues (or inures) for the benefit of the spouse or heirs if, by some lawful means, they, or one of them, takes the title. See § 19.8. Proceeds of involuntary conversion of homestead take on the exempt status of the real estate through equitable conversion as long as there is a bona fide intent to reinvest such funds in another homestead within a reasonable time. Orange Brevard Plumbing & Heating Co. v. La Croix, 137 So. 2d 201 (Fla. 1962). See § 19.2.B.4.e. See also Bunnell, Exempt Status of Proceeds from Conversions of the Homestead, 15 U. Fla. L. Rev. 410 (1962); 28A FLA. JUR. 2d Homesteads §§ 26–28. La Croix is the subject of the case note in Sylvester, The Exemption of Proceeds from a Voluntary Sale of Homestead Property, 17 U. Miami L. Rev. 99 (1962). Homestead status prevails over a claim by the state under the RICO statutes (see F.S. 895.02(9), 895.05(2)(a)) and will prevent the forfeiture of

homestead under the RICO Act for property used in the course of racketeering activity. Butterworth v. Caggiano, 605 So. 2d 56 (Fla. 1992), 16 A.L.R. 5th 1118. Homestead status does not, however, prevail over a claim under the federal civil or criminal forfeiture statutes. United States v. Fleet, 498 F.3d 1225 (11th Cir. 2007). In Fleet, the court held that the substituted property provision of the federal criminal forfeiture statute preempts the Florida homestead exemption even without an express preemption clause in the statute. In reaching its decision, the court looked to its prior decisions in which it held that the federal civil forfeiture statute preempts the Florida homestead exemption. See United States v. Lot 5, Fox Grove, Alachua County, Florida, 23 F.3d 359 (11th Cir. 1994). The Fleet court further noted that, under the Supremacy Clause, Art. VI, cl. 2, of the United States Constitution, if “Congress intended for federal law to preempt state law, it does.” Fleet, 498 F.3d at 1227. Homestead property is not exempt from an alimony obligation that predates the purchase of the property. Spector v. Spector, 226 So. 3d 256 (Fla. 4th DCA 2017); Gepfrich v. Gepfrich, 582 So. 2d 743 (Fla. 4th DCA 1991). This is not so as to alimony and child support obligations that arise after the homestead status exists. See Hipler, Florida’s Homestead Realty: Is It Exempt from Imposition of an Equitable Lien for Nonpayment of Alimony and Child Support? 82 Fla. Bar J. 34 (July/Aug. 2008). Furthermore, homestead status will not prevail over the right of a cotenant to obtain partition when the owner of the homestead property is not entitled to exclusive possession of the property, as, for example, when one spouse has been awarded exclusive possession in a dissolution of marriage. If the property is not subject to physical division in the partition action, the court may order the property sold and the proceeds divided. Tullis v. Tullis, 360 So. 2d 375 (Fla. 1978). This, of course, would not apply to permit a remainderman descendant to partition property against the surviving spouse/life tenant, because the life tenant is entitled to exclusive possession, and also will not permit a cotenant who receives the property through inheritance to prevail over the rights provided to a former spouse over the property in a marital settlement agreement before the decedent’s date of death. See Friscia v. Friscia, 161 So. 3d 513 (Fla. 2d DCA 2014). An equitable lien can attach to the homestead and defeat the

constitutional exemption from forced sale. In Hirchert Family Trust v. Hirchert, 65 So. 3d 548 (Fla. 5th DCA 2011), a married couple created a joint trust as residents of California. The wife died and the trust provided it would be divided into a residuary trust and a survivor’s trust. The husband was trustee of both trusts and was the complete owner of the survivor’s trust, but only the income beneficiary of the residuary trust. He remarried, sold the assets of the residuary trust, and invested the proceeds in a home in California, purchased jointly with his new wife. He then died and the new wife sold the home, moved to Florida, and purchased a new home that was her homestead. The successor trustee of the residuary trust learned of the husband’s theft of the trust funds, traced them to the Florida homestead of his new wife, and sued to establish and foreclose his equitable lien on the new wife’s homestead. The District Court of Appeal, Fifth District, found that “placement of an equitable lien over the [Florida homestead] based on [the husband]’s constructive fraud emanating from his breach of fiduciary duty, fits within the equitable exception to the homestead protections afforded by the Florida Constitution.” Id. at 552. See also Spikes v. OneWest Bank FSB, 106 So. 3d 475 (Fla. 4th DCA 2012) (equitable vendor’s lien was permitted on homestead property).

« Ch. 19 », « § 19.8 » 1 Practice Under Florida Probate Code § 19.8 (2022)

§ 19.8. ABANDONMENT OF HOMESTEAD “A homestead is abandoned by taking up a permanent abode at a distant place.” Lanier v. Lanier, 95 Fla. 522, 116 So. 867, 868 (1928). As recently summarized in In re Mangieri, 2021 Bankr. LEXIS 1169, 2021 WL 1747422, *4 (Bankr. M.D. Fla. 2021): “ ‘Courts have described abandonment as occurring when the owner leaves the home with no intention of returning, takes up permanent abode at another place, and pursues a livelihood in the new area.’ Stated another way, a homestead is abandoned when it no longer serves as the [owner’s] bona fide home and place of permanent residence” [internal citations omitted]. There are two threshold requirements to establish homestead exemption status under the Florida Constitution: (1) the owner “must intend to reside permanently at the subject property”; and (2) the owner “must actually reside at the property.” Id. The first requirement is a subjective standard, whereas the second requirement is an objective standard. In any event, absence from the property does not constitute abandonment. Rather, “intent is the critical factor in determining whether the homestead has been abandoned.” Id. Continuous residence is not required to maintain homestead status as long as the absence is temporary or there is an intent to return. See Crain v. Putnam, 687 So. 2d 1325 (Fla. 4th DCA 1997); Vandiver v. Vincent, 139 So. 2d 704 (Fla. 2d DCA 1962); Marsh v. Hartley, 109 So. 2d 34 (Fla. 2d DCA 1959). See also Novoa v. Amerisource Corp., 860 So. 2d 506 (Fla. 3d DCA 2003). The particular facts and circumstances of each case must be considered in determining whether the homestead has been abandoned. Mangieri, citing Marsh v. Hartley, 109 So. 2d 34 (Fla. 2d DCA 1959). See 28A FLA. JUR. 2d Homesteads §§ 84–91; Maines & Maines, Our Legal Chameleon Revisited: Florida’s Homestead Exemption, 30 U. Fla. L. Rev. 227, 256 (1978); Crosby & Miller, Our Legal Chameleon, 2 U. Fla. L. Rev. 12 (1949). A spouse’s interest in homestead property may be relinquished by a nuptial agreement. F.S. 732.702; Trapani v. Gagliardi, 502 So. 2d 957 (Fla. 2d DCA 1987); Johnson v. Johnson, 140 So. 2d 358 (Fla. 2d DCA 1962). See § 19.5.B.5. See also DRAFTING MARRIAGE CONTRACTS IN FLORIDA § 2.2.B.5

(Fla. Bar 13th ed. 2021); Annot., Operation and effect of antenuptial agreements to waive or bar surviving spouse’s right to probate homestead or surviving family’s similar homestead right or exemption, 65 A.L.R. 2d 727 (1959). Before January 8, 1985, when no other persons were involved in the homestead status, departure of the owner’s wife with intention to create a permanent separation terminated the homestead status because the owner was no longer the head of a family. Barlow v. Barlow, 156 Fla. 458, 23 So. 2d 723 (1945); In re Estate of Van Meter, 214 So. 2d 639 (Fla. 2d DCA 1968). However, the 1985 Amendment to the Florida Constitution removed the “head of family” requirement for homestead status. See § 19.3.C. Because family head status no longer is a requirement, the homestead status will not terminate upon the spouse’s departure or absence. In re Estate of Scholtz, 543 So. 2d 219 (Fla. 1989). See also Cuello, The Long-Standing Concept of “Abandonment” of the Homestead Did Not Survive the 1985 Amendments to the Florida Constitution, 86 Fla. Bar J. 37 (Dec. 2012).

« Ch. 19 », « § 19.9 • 1 Practice Under Florida Probate Code § 19.9 (2022)

§

19.9. PROCEDURE HOMESTEAD STATUS

TO

DETERMINE « Ch. 19 », « § 19.9 •, • A »

1 Practice Under Florida Probate Code § 19.9.A (2022)

A. In General In many estates, when the decedent owned homestead real property, as defined in Article X, § 4(a), of the Florida Constitution, it is desirable to get a judicial determination as to whether the decedent’s exemption from forced sale inures under the provisions of Article X, § 4(b) or whether the devise of the protected homestead (by specific devise, by residuary devise, or under the terms of a revocable living trust) is effective. Both the effectiveness of a devise (or the manner in which title descends) and the creditor’s status are of concern to title examiners. There is no better time than shortly following the decedent’s death to make and then document this determination. With the passage of time, it will become more difficult to resolve this issue. Legal concepts such as subject matter jurisdiction, jurisdiction over the person, adequacy of notice, due process, representation, or proper service receive too little attention. As a result, a large percentage of homestead determinations have been incorrectly done, and the order obtained is ineffective for the intended purpose. Many such determinations were, in the past, accomplished simply by preparing a form petition and order and mailing them to the clerk with a request that the judge enter the accompanying order. No consideration was given to notice; no thought was given to service on those persons whose rights are purported to be determined by the order or constitutional due process. Questions of notice or service aside, in certain instances, the only asset of the decedent’s estate is the homestead property. When there is no other asset, it sometimes may appear to be an unnecessary effort to open a formal probate administration merely to obtain an order determining homestead status.

In some instances, a practice has evolved of filing a “stand-alone” petition to determine homestead status in the probate division or (if the circuit has no probate division) in the civil division, or to file a summary administration and to attempt to determine homestead status as a part of that proceeding. However, some clerks decline to accept such a petition and some judges refuse to entertain them. It is accurate to say that much confusion and uncertainty surrounds the proper procedure to obtain judicial determination of homestead status. « Ch. 19 », « § 19.9 •, « B » 1 Practice Under Florida Probate Code § 19.9.B (2022)

B. Subject Matter Jurisdiction Subject matter jurisdiction to determine homestead status is in the circuit court under Article V, § 20(c)(3), of the Florida Constitution. This constitutional provision confers exclusive original jurisdiction in the circuit court in “proceedings relating to the settlement of the estate of decedents and minors, the granting of letters testamentary, … and other jurisdiction usually pertaining to courts of probate; … and in all actions involving the titles or boundaries or right of possession of real property.” Id. See also F.S. 26.012 (which, interestingly, overrides constitution and describes jurisdiction of circuit court in nearly identical language). In counties where the circuit court is divided into divisions for convenience, there is probably a local rule or administrative order that requires probate proceedings to be filed in the probate division. However, failure to follow this rule or order is not a jurisdictional deficiency, but merely a basis for transferring the cause to the proper division on application of any interested person. Stated another way, a judge in the criminal or juvenile division of the circuit court can enter a valid homestead order if the proceedings are regular in every other way. Grossman v. Selewacz, 417 So. 2d 728 (Fla. 4th DCA 1982). Having determined the circuit court to be the proper court, it is then necessary to determine the proper form of the action, which may include: a quiet title action (F.S. Chapter 65); a declaratory judgment action (F.S. Chapter 86); or a probate proceeding (F.S. Chapters 731–733, 735).

Any of the foregoing are appropriate and the lawyer may select from among them; however, the applicable procedure is different under each proceeding. « Ch. 19 », « § 19.9 •, « C » 1 Practice Under Florida Probate Code § 19.9.C (2022)

C. Determination In Nonprobate Proceeding In a nonprobate context, the lawyer first must examine the options under a quiet title action or a declaratory judgment action. Such actions would commence with the filing of a complaint in the civil division (assuming there are divisions of the circuit court in the applicable county). For example, a “Petition to Determine Homestead Status of Real Property” is within the subject matter jurisdiction of the circuit court as it is described in § 19.9.B and would properly be construed as a complaint for declaratory relief. That proceeding, like any other, requires proper service of process. Either a quiet title action or a declaratory judgment action could proceed as an in rem or quasi in rem action, with the court obtaining jurisdiction over the res (the alleged homestead) and then, after proper notice, determining rights of persons in that property. It is the “proper notice” aspect that is of special interest here. In proceedings other than probate proceedings, F.S. Chapter 48 (Process and Service of Process) and Chapter 49 (Constructive Service of Process) are relevant portions of the statutes that must be consulted to determine how to give proper notice and obtain jurisdiction over the person, for the purpose of determining that person’s interest (or absence of interest) in the homestead. For example, creditors of the decedent may be both interested and necessary parties to determine homestead. Creditors may be considered similar to judgment creditors in an action to quiet title. Other interested persons would be persons who would receive an interest in the real estate under the will or by intestacy if it is determined not to be protected homestead. All persons having any interest in the property must be served with proper process for the court to obtain jurisdiction over them, not for purpose of an in personam judgment, but for the purpose of adjudicating that person’s interest (or absence of interest) in the real property. The required court process can be in the form of a summons served by personal or substituted service, as described in F.S. Chapter 48, or by constructive service, perfected by publication and mailing of a notice of action, as

described in F.S. Chapter 49, in appropriate circumstances. Assuming the lawyer opts for a “probate proceeding,” how can such a proceeding be conducted and how is proper notice given? A so-called “stand-alone” petition to determine homestead is itself not a probate proceeding because it asks for no relief other than the homestead determination. Such a petition would properly be construed as a complaint for declaratory judgment. Such a complaint has no alternative regarding service and notice; it must be given under either F.S. Chapter 48 or F.S. Chapter 49. Furthermore, as in a quiet title action, all persons with an interest must be properly before the court or represented by a guardian ad litem. In most instances, this requirement of personal or constructive service and presence of all persons with an interest is too onerous for the probate lawyer to consider proceeding in this manner. It has been the practice of some courts (in the probate division, as applicable) to entertain such stand-alone homestead petitions. Although the court has subject matter jurisdiction, it probably never acquires any kind of jurisdiction over all necessary parties, and the final order is jurisdictionally flawed. The court’s order has no effect on persons over whom the court never acquired jurisdiction, whether estate heirs who, years later, may challenge the homestead status and title, or creditors who, within the period allowed by statute, may challenge the exempt status and title determined by the order entered. See Burns v. Estate of Cobb, 589 So. 2d 413 (Fla. 5th DCA 1991). A homestead order obtained without proper service on the parties has no more effect than a quiet title order or a declaratory judgment in an action that had no defendants. For example, in Key v. All Persons Claiming Any Estate, 160 Fla. 723, 36 So. 2d 366, 367 (1948), a quiet title action in which the only defendants were “all parties claiming any estate, right, title or interest in or lien upon the real property herein described” was deemed procedurally insufficient. The court held that when service is performed via constructive service, due process of law demands that the service be of such a nature as to be reasonably calculated to give notice to one owning or claiming an interest in the property. See also Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S. Ct. 652, 94 L. Ed. 865 (1950).

It has been the practice of other courts to refuse to entertain a stand-alone homestead petition. This too is incorrect, because it is only the jurisdiction over the rem and the service that is probably deficient, not the court’s subject matter jurisdiction. In fact, neither the clerk nor the judge has authority to refuse to file or hear such a petition, even though the requested relief may be denied or non-binding because of the failure to have all necessary parties before the court. « Ch. 19 », « § 19.9 •, « D » 1 Practice Under Florida Probate Code § 19.9.D (2022)

D. Determination In Probate Proceeding The easiest way to manage the homestead determination is as a part of a probate proceeding. Unfortunately, the term “probate proceeding” is not defined in the Code, although it is used in F.S. 731.105, 732.2125(2), 733.106(1), 733.608(4), and 733.702(1). The practitioner should note that effective July 1, 2021, F.S. 736.0201(7) provides that a probate proceeding may be used to determine the homestead status of real property owned by a trust if the settlor was treated as the owner of the interest in the trust under F.S. 732.4015. A probate proceeding is the most convenient and most conventional proceeding to support the homestead determination, for several reasons. First, it is traditional, because, when probate jurisdiction was in the county judge’s courts, that court determined homestead status in a probate proceeding. In re Noble’s Estate, 73 So. 2d 873 (Fla. 1954). Even in more recent times, the probate proceeding is still the most convenient proceeding for that determination because of the simplified method of notice and service (formal notice) and the representation statute, F.S. 731.303. Second, a probate proceeding as the host proceeding makes sense because, in accordance with the limitations on devise in Article X, § 4(c), of the Florida Constitution and in the Code, the descent of the property in question must be determined before a determination of the continuing status of the exemption. A determination that the decedent died intestate or an order admitting a will to probate and record is a prerequisite to the determination of the descent of the decedent’s homestead. Third, the ability to use formal notice to give notice and acquire

jurisdiction over the person must be considered when determining homestead status in a probate proceeding. “In a probate proceeding, formal notice is sufficient to acquire jurisdiction over the person receiving formal notice to the extent of the person’s interest in the estate or in the decedent’s protected homestead.” F.S. 731.301(2). A form for formal notice is Practice Form No. 48, Kelley & Bronner, THE FLORIDA BAR PROBATE SYSTEM (Fla. Bar 5th ed. 2018). Another form is Form No. P-1.0500, available from Florida Lawyers Support Services, Inc.© (FLSSI), P.O. Box 568157, Orlando, FL 32856-8157 (407/515-1501 or 800/404-9278; www.flssi.org). Formal notice may be served by any form of mail or commercial delivery service requiring a signed receipt, or as provided in F.S. Chapter 48 or 49. Fla. Prob. R. 5.040(a)(3). In nearly every instance, the petitioner will elect to use the mail or a commercial delivery service. Fourth, the ability to bind others who are not actually parties to the proceeding must be considered when determining homestead status in a probate proceeding. F.S. 731.303(1)(c) provides that in proceedings involving estates of decedents, an “unborn or unascertained person … who is not otherwise represented is bound by an order to the extent that person’s interest is represented by another party having the same or greater quality of interest in the proceeding.” Such unknown or unascertained persons could be beneficiaries, heirs, or, particularly, creditors. This does not suggest that one or even several of the known creditors could be served with formal notice of the petition to determine homestead status and that the presence of that token creditor or group of creditors therefore would be sufficient to bind other known but non-noticed creditors. The representation statute, F.S. 731.303, purports to bind only absent persons who are “unborn or unascertained,” not those who are known but absent. The personal representative already has the statutory obligation to “make a diligent search to determine the names and addresses of creditors of the decedent who are reasonably ascertainable.” F.S. 733.2121(3)(a). Rule 5.385(b)(1) references the personal representative’s duty to make diligent search to determine the names of beneficiaries. Therefore, all interested persons, with the exception of unascertainable creditors, should be known to the personal representative and should be served by a proper method with notice of the proceeding.

Notice of a probate proceeding must be given to every interested person, or to a person who can bind the interested person. Query: Who are interested persons in determination of homestead status? In answering this question, the lawyer should assume various alternative results in the proceeding: the property is determined to be homestead or the property is determined not to be homestead; the exemption inures or the exemption does not inure; or the property is devisable or the property is not devisable. The lawyer must then determine whose rights could be affected in any of these determinations—those persons are the interested persons who must receive notice of the proceeding. The following list probably includes all interested persons in most instances: Any surviving spouse. All known heirs at law, whether the estate is testate or intestate; if testate, because they are interested in whether the creditor’s exemption inures; if intestate, because they will inherit unless there is a spouse or minor child, in which case they will not inherit or will inherit a lesser estate. F.S. 732.401. Testate devisees of the alleged homestead, because they will inherit unless there is a spouse or minor child. Creditors to the extent their claims are not barred. (A creditor’s claim may be barred if the creditor is served with a notice to creditors and fails to file a claim within the allowed three-month or 30-day period, F.S. 733.702; all creditors’ claims are barred, even without any notice, after two years have passed since the decedent’s death, F.S. 733.710.) If there is no known creditor who is not barred, a guardian ad litem must be appointed in order to bar unknown (unascertainable) creditors if the claims period remains open. Any other person in possession of the property. See Burns v. Estate of Cobb, 589 So. 2d 413 (Fla. 5th DCA 1991).

« Ch. 19 », « § 19.9 •, « E » 1 Practice Under Florida Probate Code § 19.9.E (2022)

E. Guardian Ad Litem If the property is not devisable because of the presence of a minor child or children, a guardian ad litem must be appointed to represent all such minors. There may be known or unknown minors who are heirs but who are not children of the decedent. Their interests may be different from the interests of the decedent’s minor children and a separate guardian ad litem would have to be appointed. If there is any possibility that unknown or unascertained beneficiaries may have an interest, a guardian ad litem must be appointed to represent the interests of these persons unless they are represented under the provisions of F.S. 731.303. In the appointment of a guardian ad litem, potential conflicts must be considered. For example, if there might be unknown creditors and unknown heirs at law, the same guardian ad litem could not represent both. Appointment of a single guardian ad litem is ineffective to represent both classes. The lawyer must also consider whether F.S. 731.303 avoids the necessity for appointment of a guardian ad litem; however, the statute should be read carefully because it is not as broad as some believe. Finally, there may be due process issues that must be considered. Lawyers should seek appointment of a guardian ad litem, especially when the homestead determination is to be accomplished before creditors have been barred and when there may be unknown and unascertainable creditors. F.S. 731.303(4) provides, in part: If the court determines that representation of the interest [by others with the same or greater quality of interest or by the personal representative, assuming no conflict of interest between them] would otherwise be inadequate, the court may, at any time, appoint a guardian ad litem to represent the interests of … an unborn or unascertained person. See also Fla. Prob. R. 5.120. However, in the authors’ opinion, if a creditor is known or reasonably ascertainable, the creditor should be given notice of the proceedings to determine homestead status, and representation under F.S. 731.303 should

not be relied on in lieu of actual notice because of due process issues. See Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 108 S. Ct. 1340, 99 L. Ed. 2d 565 (1988). The guardian of the property of any incapacitated person must be served. « Ch. 19 », « § 19.9 •, « F » 1 Practice Under Florida Probate Code § 19.9.F (2022)

F. Curative Acts And Statutes Of Limitations As Remedy To Defective Homestead Determination In a proceeding to determine homestead status, whether as a quiet title action, a declaratory action, or a probate proceeding, if insufficient notice is given to an interested person to acquire jurisdiction to adjudicate that person’s interest in the alleged homestead property, any order entered is void (not merely voidable) as to that person. The omitted person (or that person’s descendants) can bring an action at any later time to set aside the order determining homestead status and be entitled to a trial de novo on the issue of homestead status, unless that person’s interest expires before he or she brings the action. For example, a situation might exist in which no creditors are given notice of the petition to determine homestead status, and the remaining portion of the two-year term after the decedent’s death has expired or subsequently expires. The complete omission of notice to creditors of the proceeding in this instance is benign insofar as creditor’s rights are concerned, because they have expired. From a title viewpoint, improper notice (or a complete lack thereof) to creditors will be cured when the twoyear time period imposed by F.S. 733.710 runs. Also, if the non-noticed creditor eventually is paid (assuming the estate is solvent), the failure to give notice of the petition to determine homestead status will be inconsequential. However, as to an heir, devisee, or beneficiary whose interest was purportedly affected, a different set of rules applies. In the instance of a claimed interest in the real property (as opposed to entitlement to satisfaction of debt from the general assets of the estate), questions of adverse possession and title curative acts such as F.S. 95.231 (20-year statute) and F.S. Chapter 712, the Marketable Record Title Act (30-year statute), must be considered to determine whether an otherwise defective order may form a basis for good

title. It is clear that the existence of a deed or the probate of a will purporting to convey title of record for more than 20 years will not cure defects relating to homestead interests. Reed v. Fain, 145 So. 2d 858 (Fla. 1962); Chasteen v. Chasteen, 213 So. 2d 509 (Fla. 1st DCA 1968); Cahill v. Chesley, 189 So. 2d 818 (Fla. 2d DCA 1966). The question of the validity of an instrument conveying title that has been of record for at least 30 years is less, but not much less, clear. Although a void deed may be a root of title, Marshall v. Hollywood, Inc., 236 So. 2d 114 (Fla. 1970), as may a wild deed, City of Miami v. St. Joe Paper Co., 364 So. 2d 439 (Fla. 1978), the Marketable Record Title Act will not cure an inherently defective deed conveying homestead property, ITT Rayonier, Inc. v. Wadsworth, 346 So. 2d 1004 (Fla. 1977); Reid v. Bradshaw, 302 So. 2d 180 (Fla. 1st DCA 1974). The District Court of Appeal, First District, has held that the Marketable Record Title Act “cannot modify … constitutional requirements.” Sigmund v. Elder, 631 So. 2d 329, 331 (Fla. 1st DCA 1994). By analogy, an order determining that real property was not the decedent’s homestead and could be freely devised would not bind the decedent’s minor child or spouse who did not receive proper notice of the proceeding to determine homestead status and who was deprived of the constitutional right of due process. The will devising the purported nonhomestead property probably could not form or precede a root of title under the Act. Furthermore, an order determining homestead that improperly fails to recognize a life estate in the property does not constitute a title transaction, extinguishing the life estate, which was properly devised in the will. Mullins v. Mullins, 274 So. 3d 513 (Fla. 5th DCA 2019). Rather, the homestead order cannot create new rights, but rather explains or clarifies the rights that already exist in the property by operation of law or by a valid devise of the property in the decedent’s will. Id. See also Warner v. Quicken Loans, Inc., 2020 U.S. Dist. LEXIS 77089, 2020 WL 2097981 (M.D. Fla. 2020) (court lacked subject matter jurisdiction to determine homestead status of property held by decedent and his spouse as tenants by the entireties; subject order purporting to vest title to property with life estate in spouse and remainder in children was not binding and could not serve to effectuate change in ownership of property).

Finally, a claim of title based on adverse possession may produce a different result. A claim of an heir, devisee, or beneficiary to property that was the homestead of the decedent, which cannot be barred by a statute of limitations or title curative act, may be extinguished by adverse possession of the property by another under color of title for a period of seven years, within narrow limitations. Jahn v. Purvis, 145 Fla. 354, 199 So. 340 (1940); Mullan v. Bank of Pasco County, 101 Fla. 1097, 133 So. 323 (1931). However, as between members of a family as common remaindermen, the family member claiming adversely to fellow family members must be of especially adverse attitude against what ordinarily would be their common interest. Race v. Moseley, 308 So. 2d 137 (Fla. 2d DCA 1975); Vaughn v. Vaughn, 119 So. 2d 391 (Fla. 1st DCA 1960). In Chasteen, title to homestead property was not adversely acquired by one remainderman when certain others were minors when the decedent died and no guardian ad litem was appointed on their behalf. The burden was not carried by the adverse interest to prove actual knowledge on the part of the other heirs of his adverse claims. Thus, reliance on curative acts or adverse possession is an unsatisfactory strategy to replace compliance with due process requirements in the determination of homestead status. « Ch. 19 », « § 19.9 •, « G » 1 Practice Under Florida Probate Code § 19.9.G (2022)

G. Notice By Formal Notice A final reason to use a probate proceeding as the host proceeding to determine homestead status is that the Florida Probate Rules apply, not the civil procedure rules. Fla. Prob. R. 5.010. Typically, a homestead determination is not an adversary proceeding, as defined in Rule 5.025, but it will require giving formal notice, Rule 5.041, because F.S. 731.301(2) gives the court “jurisdiction over the person receiving formal notice to the extent of the person’s interest in the estate or in the decedent’s protected homestead.” Informal, or even actual, notice would be insufficient. It appears that, for the probate court to acquire jurisdiction over the property in question sufficient to determine its homestead character, some other proceeding must be instituted in the probate court. It is not well known that there are actually three reported opinions that address this matter. However, none of the three cited any of the others as authority, even though

two were issued by the same court, the District Court of Appeal, Fifth District. This is apparently because these opinions are inconsistently indexed. The latest of the three, a reported circuit court case, is In re Estate of Wright, 2 FLW Supp. 143 (6th Cir. 1994), in which it was held that a petition to determine homestead real property, a death certificate, and an affidavit asserting that the decedent had no outstanding creditors at the time of his or her death was inadequate to support a proceeding to determine homestead status. The court ruled that “the descent of this property must be determined in accordance with the Florida Probate Code and that the petition before the court is inadequate.” Other pertinent cases are Ford v. Ford, 581 So. 2d 203 (Fla. 5th DCA 1991), and Burns v. Estate of Cobb, 589 So. 2d 413 (Fla. 5th DCA 1991). In Ford, the decedent, shortly before his death, conveyed his homestead to his revocable living trust, which had his wife as its only beneficiary. After his death, his wife filed a petition for summary administration, alleging under oath that there was no real property or any other assets in the estate (they were in the trust). No formal notice was given (apparently no notice at all was given). Homestead determination was required by the title insurance company in connection with a later sale of the home. The court, however, stated that “[r]egardless of the demands of the title insurance industry, the Probate Rules are not a substitute for declaratory judgment actions or quiet title suits.” Id. at 204. This case stands for the proposition that the homestead status of real property titled to a revocable trust cannot be determined in a summary probate. The court stated in Ford, “[The decedent], joined by his wife, conveyed property (including his former homestead) into an inter vivos trust naming his wife as sole beneficiary. … If there is no real property in the estate, then there is no authority for the probate court to determine homestead property.” Id. The same basis, that the decedent (personally) owned no real property, could be argued for the proposition that homestead status of trustowned homestead cannot be determined in the probate proceeding. In Burns, the decedent apparently lived in his homestead with his female friend. Following his death, the decedent’s sons filed a “stand-alone” petition to determine homestead “[p]ursuant to Florida Probate Rule 5.405.” Id. at 414 n.1. There was no associated probate proceeding. No notice was given to the friend, even though she continued to reside on the property. After the

decedent’s sons obtained an order declaring the property to be the decedent’s homestead and declaring the sons to be the owners, the sons brought a separate ejectment action to recover exclusive possession of the property. The friend petitioned to “reopen” the probate proceeding in which the homestead determination was made (to assert a “betterments” claim), but the court ruled it could not be reopened because it had never been opened initially. However, the friend was not bound by the homestead determination. The court properly held “that [the friend] was not a party to the judicial proceeding determining homestead, was not duly noticed as to it and under due process concepts is not legally bound by that determination.” Id. at 415. « Ch. 19 », « § 19.9 •, « H » 1 Practice Under Florida Probate Code § 19.9.H (2022)

H. Procedural Conclusions Many courts are becoming due-process-aware. It therefore is essential that the probate and real property bar be able to understand and deal with these constitutional issues. Substantially greater consideration must be given to due process, notice, service, and representation in homestead determinations than has been the previous experience. Due process shortcomings regarding notice to creditors only, are selfcorrecting merely by the passage of time. However, for the period of the statute of limitations (for creditors not receiving notice and not otherwise represented) or the statute of nonclaim (two years following death), at least the personal representative, if not the purchaser (from one to whom the title was determined to have descended) and the title company, remains exposed to liability for failure to give proper notice. This liability is not based on a lien theory, but on the theory that the personal representative wrongfully surrendered possession of the property to an heir or devisee and that the purchaser was charged with notice of that wrongful surrender. It is hoped that this chapter will clarify the issue of what is actually wrong in these types of cases, as well as highlight other deficiencies in some homestead petitions. In the three reported cases discussed in § 19.9.G, and in many proceedings that have been finalized or are now being considered, what is wrong involves matters of jurisdiction and procedure with strong constitutional due process overtones.

A petition to determine homestead may be combined with a petition for summary administration if the other statutory requirements are met. See F.S. 735.201 et seq. A formal administration, however, is generally recommended as the best host proceeding for homestead adjudication. « Ch. 19 », « § 19.9 •, « I » 1 Practice Under Florida Probate Code § 19.9.I (2022)

I. Forms For Petition To Determine Homestead Status In Probate Proceeding « Ch. 19 », « § 19.9 •, « I », • 1 » 1 Practice Under Florida Probate Code § 19.9.I.1 (2022)

1. Petition To Determine Homestead Status Of Real Property— Testate COMMENT: This form should not be used if the decedent is survived by a minor child or if the estate is intestate. If the decedent is survived by a spouse, and if the decedent’s entire interest in the homestead is not devised outright to the surviving spouse, the devise fails. In this instance, an alternate form for intestate estate should be used. If the homestead is not devised to a spouse or to an heir included in a class described in F.S. 732.103, the creditor’s exemption does not inure to that devisee unless two years or more have passed since the decedent’s death, in which case all creditors are barred regardless of homestead status. If the decedent is survived by a spouse, but that spouse has waived his or her homestead rights, the spouse is considered to have predeceased the decedent for purposes of homestead exemption status. If the decedent has an otherwise valid will but one of the disqualifiers is present and the devise of the homestead fails because of Article X, § 4(c), of the Florida Constitution, an alternate form for intestate estate should be used. See Kelley’s Homestead Paradigm at § 19.5.B.6. IN THE CIRCUIT COURT _________ COUNTY, FLORIDA PROBATE DIVISION File Number ___

Division ___ IN RE: ESTATE OF _________, Deceased

PETITION TO DETERMINE HOMESTEAD STATUS OF REAL PROPERTY [Testate] Petitioner, (name), as personal representative of this estate, whose address is , alleges: COMMENT: This petition may be filed by any interested person. If not filed by the personal representative, modify the allegation through the petition. If there are multiple petitioners, change the singular to plural throughout the petition. To determine the correct alternative allegations, see Kelley’s Homestead Paradigm at § 19.5.B.6. 1. Decedent, (name), was a resident of _________ County, Florida, and died testate on (date). 2. Decedent’s last Will dated , has been admitted to probate by order of this court dated . COMMENT: If the Will has a codicil or codicils, insert “and Codicil, dated ” and change to the plural number verb, if applicable, in the paragraph above. 3. At the time of death, Decedent owned and resided on property in County, Florida described as (insert description), together with improvements thereon and located at , with the county tax ID number (the “Property”). COMMENT: Insert a legal description above. If the decedent was a tenant in common of the property, so indicate in the legal description and state the decedent’s portion of the ownership interest. If the decedent owned the homestead jointly with rights of survivorship or as tenants by the entirety, homestead status may not be determined in a probate

proceeding. If the homestead is located in a municipality, residence is not required if the homestead is occupied by a member of the decedent’s family. If the property is located in a municipality and is occupied by one or more members of the decedent’s family, but not the decedent, replace the italicized text in the paragraph above with: “residential property inside a municipality on which one or more members of Decedent’s family resided”. 4. The Property is contiguous and is located in a municipality and is not greater than one-half acre in area. COMMENT: If this statement is incorrect, delete the italicized text and substitute: “outside a municipality and is not greater than 160 acres in area.” 5. Decedent’s interest in the Property was full fee simple ownership. COMMENT: Change the italicized language, as necessary, to describe the decedent’s interest in the property. For example: an undivided one-half interest as tenant in common with (name). OR full beneficial interest in the Property titled to (name) as trustee of the (name) revocable living trust, in which Decedent had full right of revocation during lifetime, and which is a trust described in F.S. 733.707(3).

See Bessemer Properties v. Gamble, 27 So. 2d 832 (Fla. 1946); Engelke v. Engelke, 921 So. 2d 693 (Fla. 4th DCA 2006). 6. The Property was Decedent’s homestead within the meaning of Article X, § 4, of the Florida Constitution. 7. Decedent was not survived by a minor child. COMMENT: If the decedent was survived by a minor child or children, the homestead may not be devised and will descend under F.S.

732.401(1), subject to the surviving spouse’s election under F.S. 732.401(2). In this instance, use an alternate form for intestate estate. See Kelley’s Homestead Paradigm at § 19.5.B.6. 8. At the time of death, the decedent was married to survived.

(name) who

COMMENT: If the decedent was not survived by a spouse, replace the italicized language with: “not survived by a spouse.” Delete Paragraph 9, and the first option in Paragraph 10, and renumber the paragraphs in the petition accordingly. 9. Petitioner is unaware of a marital agreement that waives any of the surviving spouse’s homestead rights and believes that no such waiver exists. COMMENT: If the decedent is survived by a spouse (and no minor child(ren)) and there is a nuptial agreement, delete the italicized language in Paragraph 9 and substitute: Decedent and (name), entered into a marital agreement dated______, a copy of which is attached. That marital agreement waived all of the surviving spouse’s homestead rights and [he] [she] is treated as having predeceased Decedent for purposes of the limitation on devise in Art X, § 4(c), Fla. Const., and F.S. 732.401. Delete the first and third options in Paragraph 10 and the accompanying table, and use the second option in Paragraph 10 because the spouse is considered to have predeceased the decedent. See City National Bank of Florida v. Tescher, 578 So. 2d 701 (Fla. 1991); Steffens v. Evans, 70 So. 3d 758 (Fla. 4th DCA 2011). If the devise of the homestead would otherwise fail under Article X, § 4(c), of the Florida Constitution, a spousal waiver of homestead rights (in the absence of a minor child) saves the devise. See Comment in Paragraph 10. If the devise to the surviving spouse (if any) does not include the decedent’s entire interest or if it is devised in trust for the surviving spouse, the devise fails. Art. X, § 4(c), Fla. Const. See In re Estate of Finch, 401 So. 2d 1308 (Fla. 1981); Aronson v. Aronson, 81 So. 3d 515

(Fla. 3d DCA 2012); In re Estate of Cleeves, 509 So. 2d 1256 (Fla. 2d DCA 1987). See Introductory Comment. If the devise fails, unless it is saved by a valid nuptial agreement, use an alternate form for intestate estate. However, in the absence of a minor child, if the surviving spouse executed a valid marital agreement, waiving his or her homestead rights, the spouse is treated as having predeceased the decedent and not to exist for purposes of the limitation on devise under Art. X, § 4(c), Fla. Const., and F.S. 732.401, thereby validating a nonspousal devise or a spousal devise of less than the decedent’s entire interest, or a spousal devise in trust that would otherwise have failed. See Tescher. See also See Kelley’s Homestead Paradigm at § 19.5.B.6. COMMENT: Paragraph 10 contains three optional provisions. Use the appropriate option and delete the other two options. If the first option applies, also delete the table following Paragraph 10. In the appropriate option in Paragraph 10, insert a reference to the paragraph in the Will, Codicil, or revocable trust that devises the decedent’s homestead. The devise may be a specific devise or it may be by the residuary clause. If the devise was in a Codicil or revocable trust, correct the reference to the document. 10. Decedent devised [his] [her] entire interest in the Property in of the Will outright to [his] [her] surviving spouse, Decedent’s exemption from the claims of creditors has inured to [his] [her] under Art. X, § 4(b), Fla. Const., and the Property is exempt from claims of creditors. COMMENT: If the decedent was survived by a spouse (but no minor child), in the absence of a valid nuptial agreement, the only valid devise of the decedent’s homestead is the decedent’s entire ownership interest outright to the surviving spouse Art. X, § 4(c), Fla. Const. See In re Estate of Finch, 401 So. 2d 1308 (Fla. 1981); Aronson v. Aronson, 81 So. 3d 515 (Fla. 3d DCA 2012); In re Estate of Cleeves, 509 So. 2d 1256 (Fla. 2d DCA 1987). Otherwise, the devise fails and it passes pursuant to F.S. 732.401(1). If the devise fails, use an alternate form for intestate estate. See also See Kelley’s Homestead Paradigm at § 19.5.B.6. OR

10. Decedent’s homestead was validly devised by of Decedent’s Will to the [person] [persons] indicated in the following table who [is an heir] [are heirs] of Decedent in a class listed in F.S. 732.103 and to whom Decedent’s exemption from the claims of creditors has inured under Art. X, § 4(b), Fla. Const. The Property is exempt from claims of creditors under Art. X, § 4(b), Fla. Const. COMMENT: This option presumes there is no surviving spouse but that the heir or heirs of the decedent inherit the homestead. This is also the case if the surviving spouse waived his or her homestead rights in a valid nuptial agreement. If this second option is appropriate, delete options one and three in Paragraph 10, and list those heirs under F.S. 732.103 who stand to inherit the property in the Will, Codicil(s), or Trust in the Table below. See Snyder v. Davis, 699 So. 2d 999 (Fla. 1997). Do not list the surviving spouse in the Table. If there is a surviving spouse who has not waived his or her homestead rights, use the first option in Paragraph 10, and delete this second option and the third option, as well as the Table. OR 10. Decedent’s homestead was validly devised by of Decedent’s Will to the [person] [persons] indicated in the following table who are not heirs of Decedent. The Property is not exempt from claims of creditors under Art. X, § 4, Fla. Const., and is an asset in the hands of the personal representative for payment of administrative expenses, creditors’ claims, and other proper purposes of administration. COMMENT: This option presumes there is no surviving spouse or minor child and that the homestead is not validly devised to an heir or heirs. Delete the other two options in Paragraph 10 and complete the Table. If two years has passed since the decedent’s death, delete the italicized language in Paragraph 10. Name(s) Address(es)

Relationship to Decedent (F.S. 732.103)

Interest in Homestead

Year of Birth (If Minor)

COMMENT: For names listed in the Table, Fla. R. Gen. Prac. & Jud. Admin. 2.425(a)(1) permits the use of a minor’s name in a court document only if the allegation in the document or statement in the order affects the minor’s ownership of real property. If any part of the homestead property passes to a person who is neither a surviving spouse nor an heir or heirs in a class under F.S. 732.103, list that person in the Table but indicate in the Relationship column “None”. 11. The time for filing claims pursuant to the published Notice to Creditors expired on (date). Creditors who have filed timely claims in this estate and the current status of those claims are as follows: COMMENT: If the claims period remains open and if the petition is filed before all creditors may be determined, delete “expired on” and the balance of the first sentence in Paragraph 11 and substitute: remains open and will expire on (date). In this instance, an attorney ad litem may need to be appointed for unfiled or unknown creditors. Only creditors (or persons claiming an interest in the homestead property) who were served with proper notice of this proceeding or are otherwise represented are bound by the court’s determination of homestead status. However, if two or more years have passed since the decedent’s death, delete the first sentence in Paragraph 11 and substitute: More than two years have passed since the date of Decedent’s death and all claims of creditors are barred pursuant to F.S. 733.710. In all instances, list any known or reasonably ascertainable creditors in the following Table. Paid creditors are not interested persons. Name(s) Address(es) Nature of Claim Amount of Claim Current Status of Claim

COMMENT: For names listed in this Table, Fla. R. Gen. Prac. & Jud. Admin. 2.425(a)(1) permits the use of a minor’s name in a court

document only if the allegation in the document or statement in the order affects the minor’s ownership of real property. 12. In addition to Petitioner and those persons identified above, the only other persons who may be interested in this petition, their addresses, possible interests, and birth year of any minors are: COMMENT: List any other interested person in the Table or indicate “None”. Name(s) Address(es) Interest in Homestead Year of Birth (If Minor)

13. All interested persons have either joined in this petition, consented to the relief requested, been served formal notice of this proceeding, or waived notice thereof. WHEREFORE, Petitioner requests that an order be entered determining that the Property constitutes the homestead of Decedent, title to which descended to Decedent’s surviving spouse, (name), free of the claims of creditors, and directing the personal representative to surrender possession of the Property to the surviving spouse. OR COMMENT: If the following provision is selected, delete the preceding provision. Otherwise, delete this provision and the following two paragraphs. WHEREFORE, Petitioner requests that an order be entered determining that the Property constitutes the homestead of Decedent, title to which descended to the persons and in the shares stated in Paragraph 10, and that Decedent’s exemption from claims of creditors inures to those persons pursuant to Art. X, § 4(b), Fla. Const., and direct the personal representative, if in possession, to surrender possession of the Property to those persons, and further direct that the personal representative shall have no further responsibility with respect to the

Property. COMMENT: If the devisees include the surviving spouse or heirs, change the language the italicized language to indicate which shares are exempt from creditors’ claims: that Decedent’s exemption from claims of creditors does not inure to a surviving spouse or an heir or heirs of Decedent, and that the Property is an asset in the hands of the personal representative for payment of expenses of administration, creditors’ claims, and other proper purposes of administration, and direct that the personal representative shall take possession of the Property, if not already in possession. OR that the Property is an asset in the hands of the personal representative for payment of expenses of administration and other proper purposes of administration, except that creditors’ claims are barred, and direct that the personal representative shall take possession of the Property, if not already in possession Under penalties of perjury, I declare that I have read the foregoing, and the facts alleged are true, to the best of my knowledge and belief. /s/____________ /s/____________ (name of attorney) Petitioner Attorney for Petitioner (address and phone number) (e-mail address(es)) Florida Bar No. ___

COMMENT: The personal representative’s signature is required on the petition. Fla. Prob. R. 5.020(a), 5.330. The petition must be verified. Rule 5.405(b). This petition must be served by formal notice on all interested persons (including unpaid creditors), Rule 5.403(c), although it is not a per se adversary proceeding, Rule 5.025(a). Formal notice is necessary for the court to acquire jurisdiction over the person to the extent of his or her interest in the homestead. F.S. 731.301. Formal notice is served by sending a copy of the notice, together with the petition, by any form of mail that requires a signed receipt or by any commercial delivery service

that requires a signed receipt. Rule 5.040(a)(3). Service is complete upon receipt, and this form of service is exempt from the five-day mailbox rule. Rule 5.042(d). The practice in most circuits (with certain exceptions) is that a copy of the service package is also filed electronically, see Fla. R. Gen. Prac. & Jud. Admin. 2.516(a), 2.525, so that the clerk’s file is complete. However, electronic service is not required and the e-service list on the E-portal may be deselected. After the paper service, Proof of Service of Formal Notice must be electronically filed and served by informal notice. If service of the formal notice is on an interested person who has previously appeared in the proceeding, represented by a lawyer, service must be on the lawyer unless service on the person is ordered by the court. Rules 5.041, 2.516(b). See Rules 5.040(a)(4), (a)(e). « Ch. 19 », « § 19.9 •, « I », « 2 • 1 Practice Under Florida Probate Code § 19.9.I.2 (2022)

2. Petition To Determine Homestead Status Of Real Property— Intestate COMMENT: Entireties property or joint tenancy with the right of survivorship property may not be determined to be homestead property in a probate proceeding. This form should be used for an intestate estate. In that instance, unless the decedent has no heirs, the homestead will be exempt from creditors’ claims. See Snyder v. Davis, 699 So. 2d 999 (Fla. 1997). This form is also appropriate for a testate estate in which the decedent’s homestead property is devised, but the devise fails, for example, because the decedent is survived by a spouse or a minor child and the decedent’s entire interest in the homestead is not devised outright. In this instance, elect “Failed Devise” in the petition’s title. If the decedent is survived by a spouse (but no minor child), but the spouse has waived his or her homestead rights, the spouse is considered to have predeceased the decedent for purposes of homestead descent and distribution, and a devise that would otherwise fail because of the existence of a surviving spouse, instead, is valid. In that instance, the testate form should be used. See § 19.9.I.1. See also Kelley’s Homestead Paradigm at § 19.5.B.6. IN THE CIRCUIT COURT

_________ COUNTY, FLORIDA PROBATE DIVISION File Number ___ Division ___ IN RE: ESTATE OF _________, Deceased

PETITION TO DETERMINE HOMESTEAD STATUS OF REAL PROPERTY [Intestate] [Failed Devise] Petitioner, (name), whose address is , as personal representative of this estate, alleges: COMMENT: This petition may be filed by any interested person. If not filed by the personal representative, modify the italicized language accordingly. If there is more than one petitioner, modify the petition to use plural verbs, pronouns, and nouns accordingly. 1. Decedent , was a resident of County, Florida, and died intestate on (date). COMMENT: If the decedent died testate, but was either survived by a minor child or by a spouse to whom less than the decedent’s entire interest was devised, the devise of the homestead fails. In that instance, choose “Failed Devise” in the title of the petition and add the following Paragraph 2 (and renumber the remaining paragraphs accordingly). See also Introductory Comment. 2. Decedent executed an otherwise last valid Will dated , a copy of which is attached as Exhibit “A”, wherein Decedent devised the homestead in Article by to (describe homestead devise). However, Decedent was survived by a [minor child] [surviving spouse] and Decedent’s entire interest in the homestead was not devised outright to the [minor] [surviving spouse] , thereby causing that devise to fail because of the limitation on devise in Art. X, § 4(c), Fla. Const.

2. At the time of [his] [her] death, Decedent owned and resided on property in County, Florida described as: (insert legal description), together with improvements thereon and located at with the county tax ID number (the “Property”). COMMENT: If the homestead is located in a municipality, residence is not required if the homestead is occupied by a member of the decedent’s family. If the property is located in a municipality and is occupied by one or more members of decedent’s family, but not by the decedent, replace the italicized text in the paragraph with: residential property located in a municipality on which one or more members of Decedent’s family resided. If the decedent was a tenant in common of the property, so indicate in the legal description and state the decedent’s portion of the ownership interest. If decedent owned the homestead jointly with rights of survivorship or as tenants by the entirety, homestead status may not be determined in a probate proceeding. 3. The Property is contiguous and is located in a municipality and is not greater than one-half acre in area. COMMENT: If the statement above is not applicable, delete the italicized text and substitute: “outside a municipality and is not greater than 160 acres in area.” 4. Decedent’s interest in the Property was full fee simple ownership. COMMENT: Change the italicized text in this paragraph, as necessary, to describe the decedent’s interest in the property. For example: an undivided one-half interest as tenant in common with (name). OR full beneficial interest in the Property titled to (name), as trustee of the (name) revocable living trust, in which Decedent had full right of revocation during [his] [her] lifetime, and which is otherwise a trust described in F.S. 733.707(3).

See Bessemer Properties v. Gamble, 27 So. 2d 832 (Fla. 1946); Engelke v. Engelke, 921 So. 2d 693 (Fla. 4th DCA 2006). 5. The Property was Decedent’s homestead within the meaning of Art. X, § 4, Fla. Const. 6. At the time of (name) who survived.

[his] [her] death, Decedent was married to

COMMENT: If the decedent is not survived by a spouse, delete the italicized text and insert: “unmarried at the time of [his] [her] death.” In addition, delete Paragraphs 7 and 8, and the first option in Paragraph 9 (and renumber the paragraphs in the petition accordingly). 7. Petitioner is unaware of a marital agreement that waives any of the surviving spouse’s homestead rights and believes that no such waiver exists. COMMENT: If the decedent is survived by a spouse (and no minor child) and there is a valid nuptial agreement, delete the italicized text and substitute: Decedent and (name) entered into a marital agreement dated______, a copy of which is attached as Exhibit “A”. That marital agreement waived all of the surviving spouse’s homestead rights and [he] [she] is treated as having predeceased Decedent for purposes of the limitation on devise in Art. X, § 4(c), Fla. Const., and F.S. 732.401. See City National Bank of Florida v. Tescher, 578 So. 2d 701 (Fla. 1991); Steffens v. Evans, 70 So. 3d 758 (Fla. 4th DCA 2011). Delete the first and third options in Paragraph 9, as well as the Table, and use the second option in Paragraph 9 because the spouse is considered to have predeceased the decedent. 8. Pursuant to F.S. 732.401(2), Decedent’s surviving spouse timely and properly elected to take an undivided one-half interest in Decedent’s homestead as a tenant in common, with the remaining undivided one-half interest vesting in Decedent’s descendants in being at the time of Decedent’s death, per stirpes.

COMMENT: A prerequisite for this election is that without the election, the spouse would receive a life estate in the homestead under F.S. 732.401(1). If the surviving spouse’s election under F.S. 732.401(2) was not made, or if it was not timely or properly made, delete the italicized text and replace it with: The surviving spouse has not made an election under F.S. 732.401(2) and is thereby entitled to a life estate in the Property. Delete Paragraph 8 if there is no surviving spouse. If an election is not made or is ineffective (this presumes a surviving spouse and heirs), describe the spouse’s interest as a one-half interest as tenant in common in the Table in the third option in Paragraph 9. COMMENT: Paragraph 9 contains three optional provisions. Use the appropriate option and delete the other two options and relevant tables. 9. Decedent was not survived by descendants. Decedent’s entire interest in the Property descended by intestacy to Decedent’s surviving spouse free of the claims of creditors. F.S. 732.102(1), 732.401(1); Art. X, § 4(b), Fla. Const. OR 9. Decedent was survived by one or more descendants who [is] [are] [a member] [members] of a class identified in F.S. 731.103 and who inherited the interest in the Property shown in the following table free of the claims of creditors. F.S. 732.102(1); Art. X, § 4(b) Fla. Const. Name(s) Address(es) Relationship to Decedent (F.S. 732.103)

Interest in Homestead

Year of Birth (If Minor)

COMMENT: If this option is applicable, delete the other two options in Paragraph 9 and the related table. List in the table all heirs pursuant to F.S. 732.103 who stand to inherit by intestacy. Do not list a surviving spouse in the table. If there is a surviving spouse and heirs, delete this option and the first option in Paragraph 9 and use the third option unless

the spouse has waived his or her homestead rights. See Snyder v. Davis, 699 So. 2d 999 (Fla. 1997). This option applies when the homestead descends by intestacy to the descendants pursuant to F.S.732.103, and the share of each heir is determined by intestacy. See Kelley’s Homestead Paradigm at § 19.5.B.6. For names listed in the Table, Fla. R. Gen. Prac. & Jud. Admin. 2.425(a) (1) permits the use of a minor’s name in a court document if the document or order affects the minor’s ownership of real property. OR 9. Decedent was survived by a spouse and one or more descendants who [is a member] [are members] of a class identified in F.S. 731.103, each of whom inherited the interest in the Property as shown in the following table, free of the claims of creditors. F.S. 732.102(1); Art. X, § 4(b), Fla. Const.: Name(s) Address(es) Relationship to Decedent (F.S. 732.103)

Interest in Homestead

Year of Birth (If Minor)

COMMENT: For names listed in the Table, Fla. R. Gen. Prac. & Jud. Admin. 2.425(a)(1) permits the use of a minor’s name in a court document if the document or order affects the minor’s ownership of real property. This option applies if there is a surviving spouse who has not waived his or her homestead rights and heirs. See Kelley’s Homestead Paradigm at § 19.5.B.6. 10. In addition to Petitioner and those persons identified above, the only other persons who may be interested in this petition, their addresses, possible interests, and birth year of any minors are: Name(s) Address(es) Interest in Homestead Year of Birth (If Minor)

COMMENT: For the names listed in the Table, Fla. R. Gen. Prac. & Jud. Admin. 2.425(a)(1) permits the use of a minor’s name in a court document if the document or order affects the minor’s ownership of real property. Other persons who might have or claim an interest, including unpaid creditors, should be listed in the Table. Unpaid creditors should be disclosed in the Table and served with formal notice. Only creditors or persons claiming an interest in the homestead who are served with proper notice of the proceeding or are otherwise represented are bound by the court’s determination of homestead status. Do not include the petitioner in the Table. If all interested persons have either joined in this petition, consented to the relief requested, been served with formal notice of this proceeding, or waived notice thereof, indicate “None” in the Table. WHEREFORE, the Petitioner requests that an order be entered determining that the Property constitutes the homestead of Decedent, title to which descended to the persons and in the shares stated in Paragraph 9, and that Decedent’s exemption from claims of creditors inures to those persons pursuant to Art. X, § (b), Fla. Const., and directing the personal representative, if then in possession, to surrender possession of the Property to those persons, and further directing that the personal representative shall have no further responsibility with respect to the Property. Under penalties of perjury, I declare that I have read the foregoing, and the facts alleged are true, to the best of my knowledge and belief. /s/____________ /s/____________ (name of attorney) Petitioner Attorney for Petitioner (address and phone number) (e-mail address(es)) Florida Bar No. ___

COMMENT: The personal representative’s signature is required on the petition. Fla. Prob. R. 5.020(a), 5.330. The petition must be verified. Rule 5.405(b). This petition must be served by formal notice on all interested persons

(including unpaid creditors), Rule 5.403(c), although it is not a per se adversary proceeding, Rule 5.025(a). Formal notice is necessary for the court to acquire jurisdiction over the person to the extent of his or her interest in the homestead. F.S. 731.301. Formal notice is served by sending a copy of the notice, together with the petition, by any form of mail that requires a signed receipt or by any commercial delivery service that requires a signed receipt. Rule 5.040(a)(3). Service is complete upon receipt, and this form of service is exempt from the five-day mailbox rule. Rule 5.042(d). The practice in most circuits (with certain exceptions) is that a copy of the service package is also filed electronically, see Fla. R. Gen. Prac. & Jud. Admin. 2.516(a), 2.525, so that the clerk’s file is complete. However, electronic service is not required and the e-service list on the E-portal may be deselected. After the paper service, Proof of Service of Formal Notice must be electronically filed and served by informal notice. If service of the formal notice is on an interested person who has previously appeared in the proceeding, represented by a lawyer, service must be on the lawyer unless service on the person is ordered by the court. Rules 5.041, 2.516(b). See Rules 5.040(a)(4), (a)(e). « Ch. 19 », « § 19.9 •, « J » 1 Practice Under Florida Probate Code § 19.9.J (2022)

J. Forms For Order Determining Homestead Status « Ch. 19 », « § 19.9 •, « J », • 1 » 1 Practice Under Florida Probate Code § 19.9.J.1 (2022)

1. Order Determining Homestead Status Of Real Property — Testate COMMENT: This form should be used only if the homestead property is validly devised by the decedent’s Will. If the devise of the homestead property fails because the decedent is survived by a minor child or spouse and the decedent’s entire interest in the homestead is not devised outright, use the form order for intestate estate. See § 19.9.J.2. If the decedent is survived by a spouse, but the spouse has waived his or her homestead rights, the spouse is considered as having predeceased the decedent for purposes of homestead exemption status. City National Bank of Florida v. Tescher, 578 So. 2d 701 (Fla. 1991). See Kelley’s Homestead Paradigm at § 19.5.B.6.

(Title of Estate)

(Title of Court)

ORDER DETERMINING HOMESTEAD STATUS OF REAL PROPERTY This action was heard on the petition of the personal representative of this estate for an order determining the status of Decedent’s homestead real property, and COMMENT: If the petition is filed by an interested person other than the personal representative, modify the italicized text, accordingly, and throughout the order. If there is more than one petitioner, use plural verbs, pronouns, and nouns throughout the order. To determine the correct, alternative paragraphs below, see Kelley’s Homestead Paradigm at § 19.5.B.6. THE COURT FINDS: 1. All interested persons have been served proper notice of this proceeding, or have waived notice thereof, or have consented in advance to the court’s determination. 2. Decedent,

(name), died testate on

(date).

COMMENT: If two years or more has passed since the decedent’s death, had been dead add the following sentence to Paragraph 2: More than two years have passed since the date of Decedent’s death and all claims of creditors are barred pursuant to F.S. 733.710. 3. Decedent’s Will was admitted to probate by order of this court dated . 4. At the time of Decedent’s death, Decedent was a resident of Florida and owned and resided on property located in a municipality in County, Florida that meets the size and contiguity requirements of homestead real property as stated in Art. X, § 4, Fla. Const. COMMENT: If the homestead is located in a municipality, residence is not required if the homestead is occupied by a member of the decedent’s family. If the property is located in a municipality and is occupied by one or more members of the decedent’s family, but not by the decedent,

replace the italicized text with: residential property located in a municipality on which one or more members of Decedent’s family resided If the property is located outside a municipality, replace italicized text, “in”, with “outside”. If the property is located outside a municipality, but is protected homestead, the decedent himself or herself must have resided on the property. If the homestead is located in a municipality, it is limited to one-half acre in area; if it is located outside a municipality, it is limited to 160 acres. Art. X, § 4, Fla. Const. That property is legally described as: (insert legal description), together with improvements thereon, and is located at (the “Property”). The county tax ID number of the Property is . 5. Decedent was not survived by a minor child. COMMENT: If the decedent is survived by a minor child or children, the homestead may not be devised, or, if the decedent is survived by a spouse and did not devise his or her entire interest in the property outright to the spouse, any attempted devise fails. In that instance, the property descends under F.S. 732.401(1), subject to the surviving spouse’s election under F.S. 732.401(2). Rather than this form, use the form order for an intestate estate. See § 19.9.J.2. See also Kelley’s Homestead Paradigm at § 19.5.B.6. 6. Decedent’s interest in the Property was full fee simple ownership. COMMENT: Change the italicized text, as necessary, to describe the decedent’s interest in the property. For example: an undivided one-half interest as tenant in common with (name), each owning an undivided one-half interest. OR full beneficial interest in the property titled to (name), as trustee of the (name) revocable living trust, in which Decedent had full right of revocation during [his] [her] lifetime, and which is

otherwise a trust described in F.S. 733.707(3). See Bessemer Properties v. Gamble, 27 So. 2d 832 (Fla. 1946); Engelke v. Engelke, 921 So. 2d 693 (Fla. 4th DCA 2006). COMMENT: Paragraph 7 contains three optional provisions. Use the appropriate option and delete the other two options. 7. Decedent was: survived by a spouse, devised.

(name), to whom the Property was validly OR

survived by a spouse, (name), who has validly waived [his] [her] homestead rights in a marital agreement dated , and is thereby considered as predeceased for purposes of this homestead determination. OR unmarried at the time of

[his] [her] death.

COMMENT: If the decedent is survived by a spouse, the only valid devise of the homestead is of the decedent’s entire ownership interest to the surviving spouse; any other devise fails and the homestead descends pursuant to F.S. 732.401, subject to the spouse’s election under F.S. 732.401(2) to take a one-half interest as tenant in common. However, if the surviving spouse has executed a valid marital agreement waiving his or her homestead rights, the spouse is treated as having predeceased the decedent for purposes of limitation on devise under Art. X, § 4(c), Fla. Const., and F.S. 732.401, and the devise is unrestricted if there is no minor child(ren). See City National Bank of Florida v. Tescher, 578 So. 2d 701 (Fla. 1991). Rather than this form, use the form order for an intestate estate. See § 19.9.J.2. See also Introductory Comment and Kelley’s Homestead Paradigm at § 19.5.B.6. COMMENT: Paragraph 8 contains two optional provisions. Use the appropriate option and delete the other option. 8. Decedent was: not survived by an heir in one of the classes of persons described in F.S.

732.103. COMMENT: The term “heir,” as used Art. X, § 4(b), Fla. Const., includes “any family member within the class of persons categorized in our intestacy statute.” Snyder v. Davis, 699 So. 2d 999, 1005 (Fla. 1997). If the decedent is not survived by an heir, the second option is not applicable. OR survived by one or more descendants included in one of the classes of persons listed in F.S. 732.103 as follows: Name(s) Address(es) Relationship to Decedent (F.S. 732.103) Year of Birth (If Minor)

COMMENT: Do not list the spouse in the Table. For names listed in the Table, Fla. R. Gen. Prac. & Jud. Admin. 2.425(a)(1) permits the use of a minor’s name in a court document if the document or order affects the minor’s ownership of real property. IT IS ADJUDGED: 1. The Property constitutes the homestead of Decedent within the meaning of Art. X, § 4, Fla. Const. 2. Decedent’s entire interest in the Property was validly devised by of Decedent’s Will to: COMMENT: Fill in the blank in Paragraph 2, as necessary, to describe the decedent’s interest in the property. For example: an undivided one-half interest as tenant in common with (name), each owning an undivided one-half interest, OR full beneficial interest in the property titled to (name), as trustee of the (name) revocable living trust, in which Decedent had full

right of revocation during [his] [her] lifetime, and which is otherwise a trust described in F.S. 733.707(3). See Bessemer Properties v. Gamble, 27 So. 2d 832 (Fla. 1946); Engelke v. Engelke, 921 So. 2d 693 (Fla. 4th DCA 2006). Insert the reference to the paragraph or article in the Will or trust that devises the decedent’s homestead. The devise may be a specific devise or it may be devised by a residuary clause. If the devise is in a Codicil, change the language to “[first] Codicil”. List information about the devisee(s) in the following Table: Name(s) Address(es) Relationship to Decedent (F.S. 732.102, 732.103)

Vested Interest(s) in Homestead

COMMENT: For names listed in the Table, Fla. R. Gen. Prac. & Jud. Admin. 2.425(a)(1) permits the use of a minor’s name in a court document if the document or order affects the minor’s ownership of real property. If the devisee(s) listed in the Table is not the surviving spouse or an heir, indicate “None”, unless two years or more have passed since the decedent’s death, in which case the interest is subject to probate and the claims of creditors. The order must then be modified, accordingly, to reflect the nonprotected status of that interest. If title to the property passes to the surviving spouse or an heir or heirs, it is exempt from creditors’ claims. Art. X. § 4(b), Fla. Const. Or if it has been two years or more since the date of the decedent’s death, all creditors are barred regardless of who inherits the property. F.S. 733.710. Otherwise, it is subject to claims of creditors. Art. X. § 4(b), Fla. Const. COMMENT: Paragraph 3 contains three optional provisions. Use the appropriate option and delete the other options. 3. Title to the Property passes, as stated in Paragraph 2: to a person or persons to whom Decedent’s exemption from claims of creditors has inured under Art. X, § 4(b), Fla. Const., and the Property is

thereby protected homestead, as defined by F.S. 731.201(33), and is not subject the claims of Decedent’s creditors. OR to a person or persons who are neither a surviving spouse nor an heir of Decedent, and the Property is an asset in the hands of the personal representative for payment of creditors’ claims and other proper purposes of administration, and the personal representative is entitled to possession of the Property. OR to a person or persons who are neither a surviving spouse nor an heir of Decedent, as shown in the Table in Paragraph 2. However, pursuant to F.S. 733.710, all claims against this estate are barred. The Property is an asset in the hands of the personal representative for proper purposes of administration, other than payment of claims, and the personal representative is entitled to possession of the Property. COMMENT: If it has been two or more years since the date of the decedent’s death and title has passed to a person who is neither a surviving spouse nor an heir of the decedent, select the language in the third option. 4. The Property constitutes the exempt homestead of Decedent, title to which upon Decedent’s death passed, and the constitutional exemption from claims of Decedent’s creditors inures to those persons identified in Paragraph 2. 5. The personal representative is authorized and directed to surrender to the persons named in the Table all of the Property that may be in the possession or control of the personal representative, and the personal representative shall have no further responsibility with respect to the Property. OR The Property is not protected homestead and is an asset in the hands of the personal representative for payment of creditors’ claims and other proper purposes of administration.

COMMENT: If it has been two or more years since the decedent’s death, delete the italicized text and substitute: proper purposes of administration except payment of creditors’ claims. 6. The personal representative is authorized and directed to take possession of the Property to be administered as provided in F.S. 733.607 and 733.608. Any person now in possession of the Property is directed forthwith to surrender that possession to the personal representative. ORDERED at _________, Florida, on /s/____________ Circuit Judge

(date).

Copies furnished to: ____________ COMMENT: A copy of the order should be transmitted by the court or under its direction (often by direction to the lawyer for the personal representative) to all interested persons. The language regarding the furnishing of a conformed copy is suggested. The court may require submission to the judge of a stamped, self-addressed envelope for this purpose, or may electronically serve the order. Fla. R. Gen. Prac. & Jud. Admin. 2.516(a), (b), (h). « Ch. 19 », « § 19.9 •, « J », « 2 • 1 Practice Under Florida Probate Code § 19.9.J.2 (2022)

2. Order Determining Homestead Status Of Real Property — Intestate COMMENT: This form should be used if the decedent dies intestate, or if the homestead is devised but fails because the decedent is survived by a minor child or because the decedent is survived by a spouse and the decedent’s entire interest in the homestead is not devised outright. See Art. X § 4(c), Fla. Const. If the homestead is validly devised, use the form order for testate estate. See § 19.9.J.1. The exemption from creditors’ claims will inure under Art. X, § 4(b), Fla. Const., in intestacy because the homestead passes to the surviving spouse (if there is one), and heirs (if there is at least one). If

the decedent is survived by a spouse, but the spouse has waived his or her homestead rights, the spouse is considered as having predeceased the decedent for purposes of homestead. City National Bank of Florida v. Tescher, 578 So. 2d 701 (Fla. 1991). See Kelley’s Homestead Paradigm at § 19.5.B.6. (Title of Estate)

(Title of Court)

ORDER DETERMINING HOMESTEAD STATUS OF REAL PROPERTY [Intestate] This action was heard on the petition of the personal representative of this estate for an order determining the status of Decedent’s homestead real property, and COMMENT: If the petition is filed by an interested person other than the personal representative, modify the italicized text, accordingly, and throughout the order. If there is more than one petitioner, use plural verbs, pronouns, and nouns throughout the order. To determine the correct, alternative paragraphs below, see Kelley’s Homestead Paradigm at § 19.5.B.6. THE COURT FINDS: 1. All interested persons have been served proper notice of this proceeding, or have waived notice thereof, or have consented in advance to the court’s determination. 2. Decedent,

(name), died intestate on

(date).

3. At the time of Decedent’s death, Decedent was a resident of Florida and owned and resided on property located in a municipality in County, Florida that meets the size and contiguity requirements of homestead real property as stated in Art. X, § 4, Fla. Const. COMMENT: If the homestead is located in a municipality, residence is not required if the homestead is occupied by a member of the decedent’s family. If the property is located in a municipality and is occupied by one or more members of the decedent’s family, but not by the decedent, replace the italicized text with:

residential property located in a municipality on which one or more members of Decedent’s family resided If the property is located outside a municipality, replace italicized text, “in”, with “outside”. If the property is located outside a municipality, but is protected homestead, the decedent himself or herself must have resided on the property. If the homestead is located in a municipality, it is limited to one-half acre in area; if it is located outside a municipality, it is limited to 160 acres. Art. X, § 4, Fla. Const. That property is legally described as: (insert legal description), together with improvements thereon, and is located at (the “Property”). The county tax ID number of the Property is . 4. Decedent’s interest in the Property was full fee simple ownership. COMMENT: Change the italicized text, as necessary, to describe the decedent’s interest in the property. For example: an undivided one-half interest as tenant in common with (name), each owning an undivided one-half interest. OR full beneficial interest in the property titled to (name), as trustee of the (name) revocable living trust, in which Decedent had full right of revocation during [his] [her] lifetime, and which is otherwise a trust described in F.S. 733.707(3). See Bessemer Properties v. Gamble, 27 So. 2d 832 (Fla. 1946); Engelke v. Engelke, 921 So. 2d 693 (Fla. 4th DCA 2006). COMMENT: Paragraph 5 contains four optional provisions. Use the appropriate option and delete the other options. 5. Decedent was: survived by a spouse,

(name). OR

survived by a spouse, ss (name), who has validly waived [his] [her] homestead rights in a marital agreement dated , and is thereby considered as predeceased for purposes of this homestead determination. OR survived by a spouse, (name), who timely and properly elected pursuant to F.S. 732.401(2) to receive an undivided one-half interest in Decedent’s homestead as a tenant in common, with the remaining undivided one-half interest vesting in Decedent’s descendants in being at the time of Decedent’s death, per stirpes. OR unmarried at the time of death. 6. Decedent was: not survived by an heir in one of the classes of persons described in F.S. 732.103. COMMENT: The term “heir,” as used Art. X, § 4(b), Fla. Const., includes “any family member within the class of persons categorized in our intestacy statute.” Snyder v. Davis, 699 So. 2d 999, 1005 (Fla. 1997). If the decedent is not survived by an heir, the second option is not applicable. OR survived by one or more descendants included in one of the classes of persons listed in F.S. 732.103 as follows: Name(s) Address(es) Relationship to Decedent (F.S. 732.103) Year of Birth (If Minor)

COMMENT: Do not list the spouse in the Table. For names listed in the Table, Fla. R. Gen. Prac. & Jud. Admin. 2.425(a)(1) permits the use of a minor’s name in a court document if the document or order affects the minor’s ownership of real property.

IT IS ADJUDGED: 1. The Property constitutes the homestead of Decedent within the meaning of Art. X, § 4, Fla. Const. 2. Decedent’s interest in and title to the Property descended pursuant to F.S. 732.401 to: Name(s) Address(es) Relationship to Decedent (F.S. 732.102, 732.103)

Vested Interest(s) in Homestead

COMMENT: For names listed in the Table, Fla. R. Gen. Prac. & Jud. Admin. 2.425(a)(1) permits the use of a minor’s name in a court document if the document or order affects the minor’s ownership of real property. List the surviving spouse and/or heirs inheriting the homestead and the interest(s) inherited, which will depend on the preceding findings of fact regarding a surviving spouse and/or heirs. See Kelley’s Homestead Paradigm at § 19.5.B.6. 3. Title to the Property passes, as stated in Paragraph 2 to a person or persons to whom Decedent’s exemption from claims of creditors has inured under Art. X, § 4(b), Fla. Const., and the Property is thereby protected homestead, as defined by F.S. 731.201(33), and is not subject to probate or to the claims of Decedent’s creditors. 4. Upon Decedent’s death, the Property constituted the exempt homestead of Decedent, title to which passes to the persons and in the interests, as stated in Paragraph 2, and the constitutional exemption from claims of Decedent’s creditors inures to those persons. 5. The personal representative is authorized and directed to surrender to the persons named above all of the Property that may be in the possession or control of the personal representative, and the personal representative shall have no further responsibility with respect to the Property. ORDERED at _________, Florida, on

(date).

/s/____________ Circuit Judge Copies furnished to: ____________ COMMENT: A copy of the order should be transmitted by the court or under its direction (often by direction to the lawyer for the personal representative) to all interested persons. The language regarding the furnishing of a conformed copy is suggested. The court may require submission to the judge of a stamped, self-addressed envelope for this purpose, or may electronically serve the order. Fla. R. Gen. Prac. & Jud. Admin. 2.516(a), (b), (h). « Ch. 19 », « § 19.9 •, « K • 1 Practice Under Florida Probate Code § 19.9.K (2022)

K. Application Of Servicemembers Civil Relief Act To Determination Of Homestead A final, somewhat esoteric, procedural consideration is the Servicemembers Civil Relief Act, 50 U.S.C. Appx. §§ 501 et seq. (now renumbered 50 U.S.C. §§ 3901 et seq.). This Act replaced the former Soldiers’ and Sailors’ Civil Relief Act of 1940 and was signed into law on December 19, 2003. Pub. L. No. 108-189, 117 Stat. 2835. Whether the Act applies to a proceeding to determine homestead is undetermined. There is a paucity of precedent in this area, particularly regarding the most recent version of the Act. Section 201(b)(1) of the current Act (50 U.S.C. § 3931(b) (1)) provides: In any action or proceeding covered by this section, the court, before entering judgment for the plaintiff, shall require the plaintiff to file with the court an affidavit — (A) stating whether or not the defendant is in military service and showing necessary facts to support the affidavit; or (B) if the plaintiff is unable to determine whether or not the defendant is in military service, stating that the plaintiff is unable to determine whether or not the defendant is in military service. In an Article discussing the former version of the Act, it was observed that

[t]he stated purpose of the act is to protect the civil rights of active duty, uniformed service personnel from any demonstrated prejudice arising from judicial proceedings, and transactions conducted by or against them in their absence. … The primary intent of the act is to preclude the entry of a default judgment against a servicemember without his or her knowledge and opportunity to defend. Vento & Kornspan, Protection Under the Soldiers’ and Sailors’ Civil Relief Act for United States Military and Activated Reservists, 65 Fla. Bar J. 32 (Feb. 1991). Construing the former Act, courts have interpreted it generally not to apply to in rem actions, except certain in rem actions specified in the Act, including foreclosure and quiet title. Borough of East Rutherford v. Sisselman, 97 A.2d 431 (N.J. Super. Ct. Ch. Div. 1953). Compare United States v. 293.530 Acres of Land, Situated in Toole County, State of Utah, 127 F. Supp. 205 (D. Utah 1955). See Attorney’s Title Insurance Fund, Inc., TNs 29.01.01, 29.01.02. The Act also has been found not to apply to the admission of a will to probate. Case v. Case, 124 N.E.2d 856 (Ohio Prob. Ct. 1955). However, that holding is probably distinguishable on its unique facts. If the Act applies to a homestead proceeding, failure to comply does not make the judgment void but merely voidable, and then only under limited conditions. The conditions for voiding the judgment are that (1) the application to void the judgment must be made within 90 days after the person seeking to void it has separated from the service, (2) there must be a showing that the person has been prejudiced by reason of military service in making a defense, and (3) the person has a meritorious or legal defense to the action or some part of it. Attorney’s Title Insurance Fund, Inc., TN 29.01.01. The authors are unaware of any courts requiring compliance with the Act, including filing the affidavit regarding military service, and unaware of any practitioners who are complying with the Act in homestead determinations. Footnotes — Chapter 19: *

J.D. with honors, 1994, Stetson University. Ms. Bronner is a member of The Florida Bar, a member of the Executive Council for the Real Property, Probate and Trust Law Section of The Florida Bar, and a fellow of the American College of Trust and Estate Counsel. She serves in the Probate And Trust Law Division of the Real Property, Probate and Trust Law Section. Ms. Bronner is the co-author

of THE FLORIDA BAR PROBATE SYSTEM (Fla. Bar 5th ed. 2018) and frequent lecturer on topics related to wills and trusts. She is the sole shareholder in the law firm of Tae Kelley Bronner, P.L., in Tampa, Florida. **

LL.B., 1964, University of Florida. Mr. Kelley is a member of The Florida Bar and is Florida Bar Board Certified in Wills, Trusts and Estates. He is a Fellow of the American College of Trust and Estate Counsel, a past chair of the Real Property, Probate and Trust Law Section of The Florida Bar, a past chair of the Probate Law Committee of that Section, a past co-chair of the Probate Rules Committee of The Florida Bar, and a past chair of the Wills, Trusts and Estates Certification Committee of The Florida Bar. Mr. Kelley is the author of THE FLORIDA BAR PROBATE SYSTEM (Fla. Bar 5th ed. 2018) and numerous articles and chapters in professional journals and other Florida Bar Legal Publication manuals. He has lectured on topics related to wills and trusts for The Florida Bar and other sponsoring organizations for more than 40 years. Mr. Kelley is the 1991 recipient of the Association of Continuing Legal Education Administrators Award for Excellence in Continuing Legal Education. He is a shareholder of The Kelley Law Firm, P.L., in Fort Lauderdale, and limits his practice to wills, trusts, estates, and estate and trust litigation.

Licensed to Otis K Pitts, Otis K Pitts

« Ch. 20 » 1 Practice Under Florida Probate Code Ch. 20 (2022)

Chapter 20 PITFALLS IN ESTATE ADMINISTRATION—A VIEW FROM THE BENCH HON. MARK A. SPEISER* Contents § 20.1. INTRODUCTION § 20.2. THE JUDICIARY A. Duties Of Judges In The Probate Division B. Common Mistakes In Dealing With Probate Judges 1. Misrepresenting Facts Or Acting In Ignorance Of Law 2. Relying On Probate Judge As Insurance Against Malpractice 3. Relying On Probate Judge For Legal Advice Or Instruction § 20.3. THE BAR A. Observing Proper Standards And Providing Quality Representation 1. Quality Over Quantity 2. Lawyer’s Duty To Interested Parties 3. Avoiding Unnecessary Requests For Court Action 4. Correct Filing Of Litigation B. Checklist Of Practical Suggestions For Lawyers § 20.4. CONCLUSION « Ch. 20 », • § 20.1 » 1 Practice Under Florida Probate Code § 20.1 (2022)

§ 20.1. INTRODUCTION Pitfalls in estate administration are easy to spot from either side of the “fence”—that is, from the Bench or from the Bar. The ability to identify these

pitfalls springs from following a simple caveat: study the Florida Probate Code and the Florida Probate Rules. For lawyers routinely engaged in probate litigation, familiarity with the Florida Rules of Civil Procedure is equally important. This may appear to be an overly simplistic instruction, but this caveat, if faithfully observed, will spare the lawyer difficulty and potential embarrassment before the judge, as well as the lawyer’s peers and clients, when appearing in Florida probate courts.

« Ch. 20 », « § 20.2 » 1 Practice Under Florida Probate Code § 20.2 (2022)

§ 20.2. THE JUDICIARY « Ch. 20 », « § 20.2 », • A » 1 Practice Under Florida Probate Code § 20.2.A (2022)

A. Duties Of Judges In The Probate Division Although all circuit court judges have the same jurisdiction and authority on all circuit court matters, caseloads in some jurisdictions are divided by subject matter, e.g., probate, civil, criminal, and family. The following circuits in Florida currently have separate divisions or assignment of cases to specific judges for probate: Second (Franklin, Gadsden, Jefferson, Leon, Liberty, and Wakulla counties); Fourth (Duval County); Fifth (Citrus, Hernando, Lake, Marion, and Sumter counties); Sixth (Pinellas and Pasco counties); Eighth (Alachua, Baker, Bradford, Gilchrist, Levy, and Union counties); Ninth (Orange and Osceola counties); Tenth (Hardee, Highlands, and Polk counties); Eleventh (Miami-Dade County); Twelfth (DeSoto, Manatee, and Sarasota counties); Thirteenth (Hillsborough County); Fifteenth (Palm Beach County); Seventeenth (Broward County); Eighteenth (Brevard and Seminole counties); and Twentieth (Charlotte, Collier, Glades, Hendry, and Lee counties). A growing number of circuits encompassing multiple counties are also

consolidating probate cases before specific judges. In addition to all of the emergencies that arise in the probate divisions, such as Baker Act proceedings (mental health), Marchman Act proceedings (substance and alcohol abuse), Browning cases (living wills or life support issues and procedures), and cases involving abuse, neglect, and exploitation of elderly persons and disabled adults, probate judges are also responsible for routine duties expected of all circuit judges, and may also be required to serve as duty judge for other types of emergencies such as domestic violence injunctions and criminal first appearance hearings. The following factors require that probate judges be wise and patient in order for the probate divisions to operate efficiently and effectively: It requires a great deal of time, professional commitment, and financial resources to develop and operate a productive probate division. The senior probate judge or the probate administrative chief judge must oversee the budget; must ensure that the other judges, general magistrates, staff attorneys assigned to that division, as well as the circuit’s court administrator, and general counsel are kept well informed; and, like all administrative judges, must also report to the circuit’s Chief Judge, who ultimately oversees the entire operations of the judicial circuit. Staying informed involves being apprised of local and state government activities, including those of relevant county and state budget committees, the county commission, the Trial Court Budget Commission, the Office of State Courts Administrator, the Florida Supreme Court, the Florida Courts Technology Commission, E-Filing Portal Authority, the Florida Department of Elder Affairs Office of Public and Professional Guardians (OPPG), and the media. The annual budget process impacts whether the local probate bar has an efficient, responsive, and productive judiciary. Probate judges, like all judges, must continually coordinate and cooperate with the clerk of court, court deputies, court monitors, Public Guardians, Professional Guardians, examining committee members appointed to evaluate alleged incapacitated persons (AIP), court appointed attorneys designated to represent the AIP, general magistrates who assist the judges in discharging their duties, and court reporters. These are the key court personnel who help the entire probate court

system meet the expectations of lawyers, litigants, and the public it serves. The responsibilities and duties of probate judges across the state are constantly increasing. Regardless of where they preside, all probate judges are vested with the responsibility to deal with cases arising from numerous relevant chapters in the Florida Statutes, currently including Chapters 198, 222, 392–394, 397, 415, 518, 655, 709–710, 716–717, 725, 765, 768, and 825. This is in addition, of course, to their duties in handling probate, trust, guardianship, conservatorship, and curatorship proceedings under F.S. Chapters 731–739, 744, and 747. « Ch. 20 », « § 20.2 », « B • 1 Practice Under Florida Probate Code § 20.2.B (2022)

B. Common Mistakes In Dealing With Probate Judges « Ch. 20 », « § 20.2 », « B •, • 1 » 1 Practice Under Florida Probate Code § 20.2.B.1 (2022)

1. Misrepresenting Facts Or Acting In Ignorance Of Law Probate judges are intelligent, dedicated, experienced, and well-versed in probate law and typically have spent years in other court divisions. In fact, many judges sitting in the probate divisions have initiated and requested this assignment. Lawyers who understand this will reduce the likelihood of delay or embarrassment (or possibly even a grievance). Unfortunately, far too many probate lawyers test this premise, intentionally or otherwise, at least once in their careers. Problems arise when lawyers misrepresent the facts when presenting a case for judicial determination. At this point, it is worth noting the oath for admission to The Florida Bar, which provides, in relevant part: I do solemnly swear: … I will maintain the respect due to courts of justice and judicial officers; … I will employ for the purpose of maintaining the causes confided to me such means only as are consistent with truth and honor, and will never seek to mislead the judge or jury by any artifice or false statement of fact or law. The following are examples of blatant ignorance of the law or attempts to intentionally mislead or misdirect judges, and lack of preparedness, which the

authors (past and present) have experienced during their years in the probate division: The “deceased” is not yet dead. (See § 3.5.A of this manual.) On many occasions, individuals have sought to open an estate when the alleged dead person had not yet died. In one instance, the named personal representative was in Florida to visit the “deceased” and did not want to spend more money to return for the funeral (all funeral arrangements had been made) and open an estate. Therefore, a lawyer was hired to prepare the necessary documents admitting the will to probate, appointing the personal representative, and allowing the fiduciary to open and remove the contents of the safe-deposit box. Because Fla. Prob. R. 5.205, Filing Evidence of Death, allows for a grace period after opening an estate for the filing of an official record of death of a decedent, there may be no way for the court to know whether the “decedent” is really dead. Rule 5.205(a). In this particular case, subsequent inquiries revealed that a probate proceeding was about to begin before death took place. The practitioner should note, however, that Rule 5.205(c) authorizes the court, without notice or a hearing, whenever it chooses, to require a personal representative or the petitioner (in a summary administration) to file a death certificate at any time during the proceeding. Lawyers file paperwork to open an estate with a death certificate that states the decedent resided in a county or state other than the one in which they are filing for probate administration. If the death certificate incorrectly lists the residence of the decedent and it is filed with the opening paperwork, lawyers should not be surprised when the court requires an amended death certificate before opening the estate. Practitioners should note that Rule 5.205 requires the filing of the death certificate no later than three months after the date of either first publication of notice to creditors (in formal or ancillary administration) or at any time before the entry of an order of summary administration. Rule 5.205(a). This grace period allows the lawyer plenty of time to make necessary corrections by petitioning the Florida Department of Health or the foreign state that issued the death certificate for an amended death certificate. Residence and address can be corrected in this manner. Until the amended death certificate is filed, the probate

judge will not issue letters of administration bestowing power and authority to the person seeking appointment as personal representative or enter an order of summary administration. However, for corrections to marital status or the name of the surviving spouse, the Florida Department of Health requires a court order after an evidentiary hearing. F.S. 382.016(2). Lawyers should opt to wait, rather than file an incorrect death certificate and risk having the administration held up. The affidavits and petitions state that a “diligent search” has been conducted and that there are “no other known heirs or beneficiaries” or no other “reasonably ascertainable creditors.” Within a few months after discharge of a personal representative or entry of an order of summary administration, a decedent’s child(ren), spouse, or other relative may appear at the clerk’s office, having received no notice of the administration. The probate file is ordered and thoroughly reviewed, but does not contain any indication that the newly found heir or beneficiary existed. A hearing is set at which it becomes apparent that the personal representative or a petitioner in a summary administration, who usually is a close relative of this “newly discovered” person, now has a “clearer” memory. In some jurisdictions, to circumvent this “oversight” of identifying and serving a notice of administration on heirs or beneficiaries otherwise entitled to inherit, probate judges are requiring personal representatives/petitioners to file an affidavit of heirs in intestate administrations as a prerequisite to the opening of the estate. Similar issues likewise arise with regard to creditors, especially in summary administration proceedings in which there is no requirement to publish notice of the proceedings. Lawyers and personal representatives are often “surprised” to discover that the hospital where the decedent was receiving treatment at the time of his or her death is a reasonably ascertainable creditor. Although what constitutes a “diligent search” or a “reasonably ascertainable creditor” varies with the facts of each case (see Soriano v. Estate of Manes, 177 So. 3d 677 (Fla. 3d DCA 2015); Strulowitz v. Cadle Co., 839 So. 2d 876 (Fla. 4th DCA 2003)), the expansion of Internet-accessible databases, such as yellowpages.com and anywho.com, makes satisfying the task of a diligent search to identify reasonably ascertainable creditors less demanding. Lawyers should bear in mind that the statute of limitations for fraud on the court has no time limitation.

The court is given false information during an F.S. 731.103(3) proceeding (Evidence as to death or status). (See § 3.6.S of this manual.) As in the example above, those words “after diligent search and inquiry” can spoil the best-laid plans of fraud. In one case, five years after a man’s alleged disappearance, his parents appeared in court with their lawyer to provide evidence of death pursuant to F.S. 731.103(3). Under oath, the parents said that their middle-aged son had been in the drug business and was missing. He supposedly left their house one night never to be heard from again. Under oath, they stated that, about three years after disappearing, he had been involved in a big drug deal that went sour. In fact, they had newspaper stories about law enforcement in another Gulf state finding a number of bodies that had been piled up and burned. One body was identified as that of the missing person’s best friend and suspected drug partner. Other evidence was presented. Ultimately, the court ruled the alleged missing son to be presumed dead. It eventually was revealed that the presumed deceased son had earned a large amount of money, had some valuable real estate, and had numerous liquid assets. The parents were apparently anxious to possess these assets. The probate was opened, and eventually closed. Two or three years later, the son showed up to reclaim his assets. The parents stood by their story and insisted that this person was not their son. Yet fingerprints proved otherwise. The parents were required to return everything they prematurely “inherited.” (Investigation later revealed that the son, rather than meeting an early death like his friend, was in prison when his parents were misleading the court.) Lawyers misrepresent the grounds for an extension of time within which to close an estate. In non-taxable estates, a petition for discharge must be filed within 12 months from the date letters of administration are issued, unless a petition for extension of time for good cause shown is granted Rule 5.400(c). A lawyer blaming the court for any delay in the discharge of the estate is inadvisable. Disgruntled beneficiaries often will complain directly to the court about the judge’s supposed recalcitrance. When the delay in fact results from the lawyer’s action or inaction, the court expects the lawyer to be honest with his or her clients. Unjustly attributing delay to a judge will significantly damage a lawyer’s reputation with the judiciary. Honesty and candor are always the best choices. A lawyer’s professional respect entails and reflects years of

labor to develop, yet it can be quickly shattered and destroyed by one misdeed or act of unprofessional misconduct. Improper requests are made to remove items from the safe-deposit box. (See § 1.2.E.2.b of this manual.) Probate judges must carefully read petitions to open safe-deposit boxes. Unfortunately, lawyers often misinterpret the law regarding estates and safe-deposit boxes. Some lawyers still submit petitions that rely on the procedures found in former F.S. 661.50 and 665.0801 (repealed in 1992) as authority to open a deceased lessee’s safe-deposit box. The current statutes are F.S. 655.935 (Search procedure on death of lessee), F.S. 655.936 (Delivery of safedeposit box contents or property held in safekeeping to personal representative), and F.S. 655.937 (Access to safe-deposit boxes leased in two or more names). Lawyers should study these statutory provisions carefully. F.S. 655.936 requires that the initial opening of a decedent’s safe-deposit box be conducted pursuant to F.S. 733.6065, by any two of the following persons: an employee of the financial institution, the personal representative, or the personal representative’s attorney of record. The two persons who open the safe-deposit box must prepare an inventory under oath. The inventory, together with a copy of the financial institution’s safe-deposit box entry record including the time period from six months before death through the date of inventory, must be filed with the court within 10 days of opening the safe-deposit box. F.S. 733.6065(1). These provisions, unfortunately, are frequently ignored. One statute applies before a personal representative is appointed (F.S. 655.935); the other applies after the personal representative is appointed (F.S. 655.936). F.S. 655.935 also provides that only certain contents may be removed from the safe-deposit box at that stage of the proceedings: (1) [T]he lessor shall remove and deliver only: (a) Any writing purporting to be a will of the decedent, to the court having probate jurisdiction in the county in which the financial institution is located. (b) Any writing purporting to be a deed to a burial plot or to give burial instructions, to the person making the request for a search.

(c) Any document purporting to be an insurance policy on the life of the decedent, to the beneficiary named therein. F.S. 655.935(2) provides that the “officer of the lessor” must “make a complete copy of any document removed and delivered” from the safedeposit box, along with “a memorandum of delivery identifying the name of the officer, the person to whom the document was delivered, the purported relationship of the person to whom the document was delivered, and the date of delivery,” and place these documents and memorandum in the safe-deposit box. F.S. 655.935(3) provides that “[t]he lessor may charge reasonable fees to cover costs incurred pursuant to this section.” Unfortunately, probate courts routinely yet erroneously receive petitions that request that one of the authorized persons named in this statute be allowed to access the safe-deposit box, as provided above, and retrieve the contents listed above, plus “any other documents or items contained in the box,” or “to deliver to petitioner’s attorney, any other contents of the box,” or “to the person named in this order, in addition to those documents named in F.S. 655.935, any jewelry, coins from any country and paper currency from any country, watches (men’s or ladies’), stock certificates, certificates of deposit, deeds, leases, mortgages, letters of credit, heirlooms, photographs, substances, videotapes, and anything else contained in said safe-deposit box.” If the petition requests removal of any of these additional aforementioned items, the judge will be irritated and concerned because this statute has only one intent: to locate the original will, the burial instructions, the burial deed, and any insurance policies on the life of the decedent. Practitioners should note that, regarding insurance policies, the lessor (bank or other financial institution) is authorized to deliver any insurance policy on the life of the decedent only to the beneficiary or beneficiaries named in the policy. F.S. 655.935(1)(c). Regarding F.S. 655.936, many lawyers forget or are not aware that this statute makes a significant distinction between resident personal representatives and personal representatives appointed by a court in another state. If appointed in another state, the personal representative must present an affidavit to the safe-deposit box lessor. Even then, the lessor is not permitted to release the contents until three months have passed after the

letters of appointment are issued to the out-of-state personal representative, and, furthermore, only if an in-state personal representative has not been appointed. Despite the insistence by an outof-state personal representative that the financial institution release the contents of the safe deposit box based on his or her letters of appointment, Florida law prevails. Another interesting aspect concerning access to the safe deposit box is that the box may contain illegal items: If the personal representative and the financial institution employee open the box and find contraband in the box, the contraband must be given to local law enforcement. The lawyer may wish to warn the fiduciary of this possibility. One final cautionary suggestion is in order: Lawyers should study In re Estate of Ciriello, 2 FLW Supp. 328 (15th Cir. 1994), in which a person other than the appointed personal representative obtained an order to open the decedent’s safe-deposit box without giving notice to the personal representative. Upon learning of the existence of the personal representative, Judge Wessel struck the order and observed: [P]robate proceedings are a very informal process in the Court genre … [requiring] the participants to act in a candid, honest and open manner with the Court, so the Court is fully informed, prior to entering its orders. * * * In every circuit in this State ex parte proceedings are routinely scheduled and entertained in probate matters. Anything short of … total candor by persons availing themselves of this informal approach to the administration of estates would [wreak] havoc on the administration of estates in this State. As the volume of filed cases surpasses available resources for the courts, members of The Florida Bar must remember their ethical obligations as “officers of the court.” If the court cannot rely on lawyer representations, there is little rationale for requiring that personal representatives be represented by members of The Florida Bar. The petitioner misrepresents why oaths of original witnesses to the will cannot be obtained. (See § 5.3.C.4.a of this manual.) F.S. 733.201(3)

allows a will to be admitted to probate upon the oath of the personal representative if the witnesses who attested the will are incapacitated or cannot be found, or if their testimony cannot be obtained within a reasonable time. Occasionally, a personal representative, in employing this statutory provision, will tell the court that it will take more than a reasonable amount of time to obtain the testimony (oath) of an attesting witness. Frequently, when there is an attempt to open an estate using this “shortcut,” there is trouble. This type of situation usually involves one of the following scenarios: (1) The will being offered is an earlier will; the petitioner knows that the witnesses to the earlier will were also the witnesses to a later will; and, in all probability, these witnesses, if allowed to testify regarding the earlier will, would mention the later will and establish its valid execution; or (2) the will being offered is the product of fraud, duress, lack of capacity, or undue influence. Either of these wills is subject to attack, and, by misrepresenting the availability to the attesting witnesses, the personal representative may substantially delay a possible will challenge by interested persons. The practitioner should note that probate judges carefully scrutinize requests to admit wills under the procedure outlined in F.S. 733.201(3). Petitions for sale of property are filed without the necessary allegations. (See § 10.5.A.2.a of this manual.) In In re Estate of Corbin, 637 So. 2d 51 (Fla. 1st DCA 1994), the circuit judge granted a petition to sell real property and signed an order devoid of any necessary findings of fact. In reversing, the district court ruled that orders for sale under F.S. 733.613(1) must comply with the dictates of that statute. Although F.S. 733.613 no longer contains specific requirements for the contents of the petition (having been deleted as part of the effort to remove procedural matters from statutes), those requirements are now contained in the Florida Probate Rules. See Rule 5.370(a). Petitions for authorization or confirmation of sale must set forth the reasons for the sale, a description of the property sold or to be sold, and the price and terms of the sale. In In re Estate of Collin, 279 So. 2d 48, 49 (Fla. 4th DCA 1973), the court held that the trial court must “make a factual determination upon such

evidence as may be presented, as to whether the proposed sale is necessary and in the best interest of the estate.” If a deficient petition for sale is presented in court literally hours before a scheduled closing, and the court refuses to sign the order because the aforesaid requirements have not been met, the scheduled closing will likely not occur. The petition should also advise the court if it is an arm’s length transaction for fair market value and, if not, it should provide an explanation as to why a non-arm’s length transaction should nevertheless by approved. Also, many judges will require that if a petition for sale of homestead property is filed before the expiration of the creditors’ period for filing claims, that the net sale proceeds be held in the lawyer’s trust account or other escrow account pending a determination of whether the real property is protected from subsequent timely filed claims of unpaid creditors. Petitions are filed without giving notice and scheduling hearings. Lawyers file petitions and submit proposed orders to the judge expecting that the orders will automatically be signed, without providing the required notice to interested parties and without scheduling the appropriate hearing (e.g., evidentiary) that may be necessitated by the type of petition being filed with the court. Another common notice mistake is failing to provide notice of estate proceedings to trust beneficiaries when the trustees of the trust and the personal representatives of the estate are the same. F.S. 731.201(2) defines beneficiaries of an estate as heirs at law in an intestate estate and devisees in a testate estate, and when each personal representative of the estate is also a trustee of the trust, the qualified beneficiaries, as defined in F.S. 736.0103(16), of the trust are also beneficiaries of the estate; as such, they are entitled to and benefit from all notice requirements. Lawyers are surprised when the judge requires a bond. Lawyers may be surprised to learn that the judge requires the personal representative to post a bond even though the will waives that requirement and the beneficiaries have all consented to waiving the posting of a bond. F.S. 733.402(4) allows the court this discretion, and, in exercising it, the court considers several factors, including: the residence of the personal representative, the personal representative’s ability and capacity to manage the estate’s assets, the size of the estate, the liquidity of the

estate, the status of the assets (e.g., exempt or nonexempt), and the sum of the claims of known creditors. Boilerplate language that purports to remove the court’s discretion does not deter a judge from requiring a bond if there is a possibility that the personal representative will disappear with estate assets, leaving the beneficiaries and creditors with nothing. In lieu of a bond, the court may put restrictions in the letters of administration that effectively freeze the estate assets unless a court order is obtained for any sale, transfer, or other disposition. Depending on the size of the estate and the type of assets, a bond may well be the best course of action. In the long run, the bond premium paid often is a less costly estate expense than the use of a restricted depository to hold the estate’s liquid assets. If every time during the estate’s administration, the lawyer is required to prepare a motion and secure an order to remove cash from the restricted account, the fees incurred in this often repetitive undertaking are quite costly and incur untimely delays. Currently, the bond premiums for probate bonds are quite reasonable. A lawyer who prepared a will is also named as the personal representative. This scenario potentially entitles the lawyer to receive two fees at the conclusion of the estate administration: one as the personal representative and one as the lawyer for the personal representative (assuming, as is more often the case, that the personal representative retains himself or herself to serve as lawyer for the estate). F.S. 733.617(6). Although F.S. 733.617(6) allows a lawyer who also serves as personal representative to receive compensation as both a personal representative and a lawyer, this practice, although not inherently nefarious, nevertheless may open the door to scrutiny and penetrating questions by the court on its own initiative or as a result of a challenge initiated by the estate beneficiaries or creditors. The drafting lawyer should avoid duress or overly suggestive conduct that leads to counsel serving in both capacities. If the testator initiates this arrangement and is adamant that the drafting lawyer serve as personal representative—for example, if there is no qualified family member or friend the testator trusts or is available to serve as an estate administrator—the drafting lawyer must document by a memorandum to the file or an affidavit from the testator

as to how and why this arrangement came to be. If the lawyer cannot, upon inquiry from the court, establish that he or she did not unduly influence or pressure the testator to appoint himself or herself as personal representative, the lawyer will be removed and face a potential Florida Bar inquiry. It should be apparent from the foregoing list that lawyers must be thoroughly familiar with probate law and procedure, and that probate judges are justified in refusing to comply with inappropriate requests of counsel. « Ch. 20 », « § 20.2 », « B •, « 2 » 1 Practice Under Florida Probate Code § 20.2.B.2 (2022)

2. Relying On Probate Judge As Insurance Against Malpractice Lawyers should pay close attention to the judge during court proceedings. Far too often, lawyers are so intent on presenting their client’s case in a will contest or other litigated matter that they overlook something or fail to submit an exhibit into evidence. Opposing counsel may try to help by asking a general question in the direction of the judge, such as “Is this will in evidence?” If statements like these go unheeded by the lawyer, it may result in the case being dismissed or the petition being denied for lack of evidence. Judges are not responsible for initiating inclusion of the will or other documents into evidence. The lawyer must stay focused during every minute spent in court. The lawyer should never wait until the last minute to get an order signed. As noted in § 20.2.A, probate judges are responsible for much more than just probate proceedings. The chances are continually increasing that a lastminute order will not be signed for a period of time. In analyzing the time schedule for a new estate, lawyers must look ahead. For example, protected homestead should be identified early, and steps should be taken to have it declared as such before any emergency arises. Also, lawyers should be aware of fluctuations in the stock market to avoid having to rush into court for an order to sell securities in a market downturn. Likewise, it is unprofessional to request an order approving the sale of real property on a last-minute, emergency basis, the day before a closing date that has been set for months. Lawyers must not count on the court for assistance and protection to compensate for a lack of planning. The lawyer’s lack of oversight does not create an emergency that the court must immediately address and respond to.

Lawyers representing fiduciaries in estates and trusts should be mindful of the “prudent investor rule” set forth in F.S. 518.11. Section (1)(d) of the statute provides: The fiduciary has a duty, within a reasonable time after acceptance of the trust, estate, or guardianship, to review the investment portfolio and to make and implement decisions concerning the retention and disposition of original preexisting investments in order to conform to the provisions of this section. The fiduciary’s decision to retain or dispose of an asset may be influenced properly by the asset’s special relationship or value to the purposes of the trust, estate, or guardianship, or to some or all of the beneficiaries, consistent with the trustee’s duty of impartiality, or to the ward. Lawyers should not rely on notices from the court or motions to compel filed by opposing counsel as their reminder or “tickler” system. Instead, lawyers should develop a deadline tracking mechanism within their offices. The court will not look favorably on a lawyer who files compulsory documents (such as the inventory in an estate or answers to interrogatories) only after being served with an order to show cause or motion to compel. Nor will the judge be favorably inclined to award fees to a lawyer for the filing of an extension of time only after receiving notice that something is due. « Ch. 20 », « § 20.2 », « B •, « 3 • 1 Practice Under Florida Probate Code § 20.2.B.3 (2022)

3. Relying On Probate Judge For Legal Advice Or Instruction A “Motion for Instructions” or a “Writ of Mandamus for Help” may sound somewhat ridiculous, but judges have seen both. More commonly, lawyers attempt to contact the judge or court staff by telephone to obtain advice on how to proceed. Judges and court staff attempt to avoid this trap by indicating they cannot speak with the lawyer. Ex parte communications or any sort of advice, whether it is to a lawyer, layperson, or an unrepresented beneficiary, are ill-advised. What may begin as an uncontested matter, such as a simple probate administration, could become adversarial. If it then becomes known that the judge provided instructions to an interested party or responded to a lawyer’s “Writ for Help,” allegations may arise that the judge favored one side over the other. If pleadings are challenged, the lawyer who received the help may defend by stating: “The judge told me to do it this

way.” At this point, the judge may need to recuse himself or herself for engaging in ex parte communications. Judges can easily avoid this type of situation by simply not offering help on probate matters. Lawyers seeking information have better options for procedural inquiries: they may contact court personnel, and if the clerk’s office cannot answer the question, the lawyer may ask the judge’s law clerk or staff attorney in circuits in which staff attorneys are employed. However, lawyers should not expect law clerks, staff attorneys, or deputy clerks to do more than explain the court’s policy. Nor should lawyers expect law clerks, staff attorneys, or deputy clerks to be co-counsel or explain a court order. The circuits have established websites that provide practical information, including frequently asked questions, and, increasingly, e-mail addresses to assist lawyers. The Florida Supreme Court’s website, www.floridasupremecourt.org, has links to the circuits. Also, lawyers owe it to themselves and to their clients to consider voluntarily joining a state and/or local Bar section in this practice area.

« Ch. 20 », « § 20.3 » 1 Practice Under Florida Probate Code § 20.3 (2022)

§ 20.3. THE BAR « Ch. 20 », « § 20.3 », • A » 1 Practice Under Florida Probate Code § 20.3.A (2022)

A. Observing Proper Standards And Providing Quality Representation « Ch. 20 », « § 20.3 », • A », • 1 » 1 Practice Under Florida Probate Code § 20.3.A.1 (2022)

1. Quality Over Quantity Despite pressing business obligations and the demand for overhead dollars, the lawyer should never succumb to the temptation to elevate quantity of work over quality of work. An examination of pleadings and other documents reveals the growing use of sample forms (such as those contained in this and other manuals) without revising the forms to fit the facts of the particular case. If using a form, the lawyer must review it for applicability to the relief being sought and craft it for the case. Many citizens draft their own wills using inappropriate forms, and pro se litigants are petitioning to open estates and do probate administration. If the probate bar does not make a sustained effort to produce quality work and if it fails to encourage a concerted effort to advertise and promote its services, probate lawyers may cease to serve clients other than those who are very wealthy. « Ch. 20 », « § 20.3 », • A », « 2 » 1 Practice Under Florida Probate Code § 20.3.A.2 (2022)

2. Lawyer’s Duty To Interested Parties It cannot be stressed strongly enough that lawyers should promptly return phone calls from both personal representatives and the estate’s beneficiaries and creditors. Judges constantly receive telephone calls, e-mails, and other correspondence from represented and unrepresented fiduciaries, creditors, or beneficiaries who are disgruntled or frustrated because the estate’s lawyer will not return telephone calls or provide information regarding the status of

the estate administration. This does not bode well for counsel for the estate! Unless the beneficiary is proceeding with an action adverse to the personal representative, the lawyer is obligated to keep the beneficiary informed about the progress of the estate proceeding as it relates to expected distributions. Although, technically, the personal representative is the lawyer’s client, the lawyer’s fee is paid from the estate, not from the assets of the personal representative. Therefore, the lawyer has a fiduciary duty to the beneficiaries and creditors of the estate as well. Furthermore, the lawyer is required to assist the personal representative in carrying out the personal representative’s legal duties to the beneficiaries. See § 4.2.B of this manual. « Ch. 20 », « § 20.3 », • A », « 3 » 1 Practice Under Florida Probate Code § 20.3.A.3 (2022)

3. Avoiding Unnecessary Requests For Court Action F.S. 733.603 provides that the “personal representative shall proceed expeditiously with the settlement and distribution of a decedent’s estate and, except as otherwise specified by this code or ordered by the court, shall do so without adjudication, order, or direction of the court.” Nonetheless, courts are often petitioned for unnecessary relief. One example of an unnecessary request for court action is a petition for approval of the lawyer’s or personal representative’s fees in an estate. Providing notice to the interested persons and an opportunity to object is the logical first course of action rather than petitioning the court, unless the estate assets are restricted from distribution, sale, or transfer by court order. The lawyer must be diligent to ensure that his or her fees and the personal representative’s fees are reasonable. Courts are more frequently holding evidentiary hearings for surcharge or disgorgement claims by creditors and beneficiaries who are deprived of money that would otherwise be estate assets because of the excessive fees sought by the lawyer or personal representative. Simmons v. Estate of Baranowitz, 189 So. 3d 819 (Fla. 4th DCA 2015); Kozinski v. Stabenow, 152 So. 3d 650 (Fla. 4th DCA 2014). If there are no objections, the lawyer need not waste estate assets by obtaining an order. F.S. 733.6171(1) provides that “[a]ttorneys for personal representatives are entitled to reasonable compensation … without a court order.” However, if the lawyer seeks extraordinary fees, the better practice is to seek court approval with notice to all beneficiaries. F.S. 733.6171(5). Judge Craig Villanti, of the District Court of Appeal, Second District,

made the following observation in a specially concurring opinion: I fully concur in the majority opinion but take this opportunity to expound on what I perceive to be an overused and overrated probate procedure — requesting and receiving court approval when it is not necessary or legally required. I suspect this superfluous procedure is used because it is viewed as a means of obtaining a harbor safe from criticism or consequence for the future actions so “authorized.” As this case demonstrates, this assumption is incorrect. Pursuant to [F.S.] 733.612 … , the personal representative “acting reasonably for the benefit of the interested persons” may perform the “transactions authorized” “without court order.” If done, then the personal representative is entitled to the protection afforded by [F.S.] 733.602(2). Obtaining court approval for actions already authorized by statute does not insulate the personal representative from personal liability, nor does it eliminate the requirements of [F.S.] 733.612 that the personal representative act reasonably and for the benefit of the interested persons. Additionally, the unnecessary solicitation of court approval itself may arguably even be perceived as a dissipation of estate assets. In re Estate of Wejanowski, 920 So. 2d 190, 192 (Fla. 2d DCA 2006). The most prevalent examples of “superfluous procedure” in estate administration are petitions for approval of sale of real property. These requests are usually driven by requests by the title insurance industry. If the estate inventory contains nonexempt real property and the will confers the power to sell real property, the lawyer should not waste estate assets by charging lawyer fees to get court approval; it is unnecessary. F.S. 733.613(2). Moreover, if the property has been determined to be homestead property, it is not an estate asset; the court should not be asked to exercise jurisdiction as a title insurance commitment requirement when it has none. Multiple requests for extensions of time to discharge an estate, and overtures to the court for court approval as insulation from any future liability when court approval is not necessary, add to the expense of probating the estate. Not only may this type of action be perceived as a waste of estate assets, it may be grounds for a reduction in the compensation to the lawyer. Any interested person bearing the impact of the lawyers’ fees would have a

reasonable argument that the lawyer should not be compensated for this work. The lawyer would have a difficult time convincing the court that obtaining superfluous rulings from the court amounts to the rendition of service to the estate. See F.S. 733.106(3). These instances and other unnecessary requests tax and challenge judicial resources, with a resulting unnecessary financial burden to the estate and heirs. « Ch. 20 », « § 20.3 », • A », « 4 • 1 Practice Under Florida Probate Code § 20.3.A.4 (2022)

4. Correct Filing Of Litigation When initiating estate or trust litigation, lawyers should be aware of the procedural practice in the specific circuit. In many circuits, the petitioner may check “other” on the civil cover sheet and the case will be heard in a probate division rather than a civil division. In other circuits, the clerk of court determines whether any adversarial proceeding is assigned to the probate division. Often the assignment is governed by a local administrative order. A survey of the state has found no consistent policy that separates administration from litigation, nor actions at law from actions in equity, when it comes to probate litigation. The probate courts of this state are currently the beneficiaries of the “avoid probate at all costs” movement of the 1980s. See Dacey, HOW TO AVOID PROBATE (Crown Pub. 1979). The movement had its roots in the 1960s with the introduction of the “Dacey Trust.” The invention of word processing programs and the aggressive promotion of revocable living trusts by stock brokers and financial analysts combined to produce an enormous number of unnecessary and poorly drawn instruments. Thus, the probate courts are currently seeing more litigation involving revocable living trusts. These instruments are routinely executed at the same time the client executed a Last Will and Testament, durable power of attorney, health care surrogate designation, and living will. Under these circumstances, the grounds for a will contest are identical to a challenge to the trust, durable power of attorney, and health care surrogate designation. For example, the trust will suffer from the same infirmities of lack of capacity or undue influence, or both, that subject the will to challenge.

Although all of these documents were executed on the same day, at the same time, with the same witnesses, the trust litigation may have been filed in a civil division and a will contest filed in a probate division. Lawyers should consider whether it makes better sense to try these actions together since the grounds for challenge are the same. The trust case may involve matters entitling the parties to a jury trial, and there may be better potential for success in the hands of a jury. Often the lawyer may conclude that the issues are simply too complex for a lay audience and elect a bench trial. It is important for the lawyer to remember that the choice of divisions may be circumscribed by the principle announced by the Florida Supreme Court in DeWitt v. Duce, 408 So. 2d 216, 218 (Fla. 1981): “[I]f adequate relief is available in a probate proceeding, then that remedy must be exhausted before a tortious interference claim may be pursued.” See Knott v. Genung, 310 So. 3d 990 (Fla. 2d DCA 2020). See also Schilling v. Herrera, 952 So. 2d 1231 (Fla. 3d DCA 2007) (noting exception to rule if probate proceeding has been closed, and numerous cases citing DeWitt). Probate lawyers would readily agree that a will contest is undoubtedly a probate matter. The contest of a will for undue influence and lack of capacity may be accompanied by a demand for a trust accounting, constructive trust, or removal of trustee, or an action for breach of fiduciary duty, validity of a quitclaim deed, validity of a durable power of attorney, conversion, civil theft, fraud, specific performance, injunction, or mortgage foreclosure. See, e.g., Voorhees v. Africano, 2016 U.S. Dist. LEXIS 147976, 2016 WL 6246910 (M.D. Fla. 2016). Clearly, many of these matters are, on their face, matters for the civil division. The careful lawyer can avoid unnecessary delay in the resolution of the case by learning local rules on case assignment. The lawyer may also consider the potential to consolidate the cases under Fla. R. Civ. P. 1.270. If the cases are not consolidated, the lawyer may have an obligation to file a Notice of Civil Action pursuant to Fla. Prob. R. 5.065. Surprisingly, many lawyers fail to inform the probate court of litigation involving the personal representative that is pending in a civil division. Occasionally, paternity and family law issues also have a direct impact on the estate administration, but may be proceeding in the family law court without the knowledge of the probate court. Lawyers should file the notice and keep the probate court informed. Not only will the probate judge appreciate being apprised of the

status of the proceeding, but the lawyer will be viewed as a thorough and conscientious practitioner. « Ch. 20 », « § 20.3 », « B • 1 Practice Under Florida Probate Code § 20.3.B (2022)

B. Checklist Of Practical Suggestions For Lawyers COMMENT: A former author of this chapter (Judge Tom Penick) conducted a survey of common mistakes probate lawyers routinely make that slow down the efficient and productive administration of estates. Why is a submitted order stamped “NOT SIGNED”? The answers to this question constituted the survey. What follows is a checklist compiled from the initial answers and supplemented with additional observations over time. There is no guarantee that strict adherence to this checklist will solve all of the probate problems lawyers will encounter, but it certainly will help lawyers conduct administrations in a more efficient and “client-pleasing” way. Start by knowing the current law, policies, and rules of procedure. Keep up to date on the statutory law, appellate decisions, and changes in policies and procedures in your circuit. The law is always changing, and the policies and administrative procedures in the circuit in which you practice may be as well. Being an active member of an appropriate Florida Bar committee or local bar committee can be helpful in keeping up with pending and newly enacted statutes as well as probate rules. Multi-circuit and multicounty circuit lawyers may encounter policies that vary from county to county. Always be aware of any recent changes in policies and procedures. This may be accomplished in many ways, some of which were discussed in § 20.2.B.3. Visit your circuit’s website—many provide their current policies and procedures; join a Florida Bar section—many sections provide legislative updates; or visit the Florida Legislature’s website at www.leg.state.fl.us. That site provides the status and full text of every pending bill. Update your forms. Always make sure you are using the appropriate form for the county and circuit in which you practice.

Circuits and counties within multi-county circuits may use different forms. Contact the clerk’s office or visit the circuit’s website to ensure that you are filing the correct form. Filing an incorrect form and having it sent back reflects poorly on the lawyer and unnecessarily taxes the client. Review your documents for grammatical, spelling, and substantive errors before filing them. This is the lawyer’s responsibility, and errors will likely result in delays and require amended documents before the court can enter an order. If your documents are returned repeatedly for errors, it reflects on your lack of oversight. Most judges will not accept the “blame it on the secretary” excuse for these types of mistakes. Read the Rules of General Practice and Judicial Administration. These rules are integral to service, e-filing, confidentiality, and many other practice requirements and considerations. The mandatory requirement for e-filing of court documents and records requires lawyers to stay informed about what is happening in the counties and circuits in which they practice and be prepared to change their office practices accordingly. E-filing provides the court documents and records for the court clerks. A lawyer who needs a judge to review a document and enter an order must become familiar with local practice as to how the matter is forwarded, e.g., does the clerk automatically inform the judge or must the lawyer take an additional step? Determine whether the judicial circuit in which you practice has an Agreed Order Portal. If so, the lawyer, if compliant with the criteria for submission, can secure expeditiously e-signed judicial orders. Send the court paper copies of all petitions, motions, and supporting documents set for hearing as a courtesy if requested by a judge. The paper copies assist the judges with review and better prepare them for a hearing. Be familiar with the confidentiality issues involved in your case and review Fla. R. Gen. Prac. & Jud. Admin. 2.420. If your pleading contains confidential information, you must file a “Notice of

Confidential Information Within Court Filing” required by that rule and ensure that it is received by the clerk. If you want to exempt information from public access that is not automatically exempt, strictly comply with the requirements of filing a “Motion to Determine Confidentiality of Court Records.” Rule 2.420. The clerk is not required to identify and designate information as confidential. Id. Most probate documents are public records, however, inventories and accountings filed in estates are confidential and may be viewed only by the personal representative, the personal representative’s lawyer, or an interested party. Review Rule 2.425 for your obligations regarding redaction of information. Implement a policy of quality: Quality starts with the lawyer. You must set the example. Review the checklist used in your practice to conduct client interviews and gather estate information. (See the checklists in Chapter 1 of this manual.) Work with your probate team. The team members who help interview clients, draft pleadings, and complete forms are valuable assets to your practice. Ensure that they are up to date on the areas of the law they help you with. However, do not rely on them completely, and blindly sign anything they produce. Review everything—your signature is on it. The “buck stops” with you. Do it right the first time. The initial package of probate documents is often lacking something that will delay the opening of an estate. Check it thoroughly: Is the petition complete? Have you and the personal representative signed it? Is your Florida Bar number on the petition or pleading? Are your mailing and e-mail address(es) in your signature block? Is the decedent’s date of death on the petition?

Is the valuation of assets on the petition? Unfortunately, this information often is vague or not included. Do not be surprised if a vague asset valuation in the petition, such as “greater than $75,000”, results in the bond being set at $1 million. After all, $1 million is greater than $75,000. Is the original will attached? Is it self-proved pursuant to Florida law? If not, have you acquired the necessary proof (oath of witness to will, oath of personal representative) or, for wills executed in another state, a copy of the relevant state statute or affidavit stating that the will meets the state’s requirements? Are the oath of the personal representative and designation of resident agent executed properly? If your probate judge requires a bond for all estates, is one submitted? Are consents and waivers attached? Are the appropriate proposed orders for entry by the court included? Is the filing fee correct for the type of administration? Is this the proper venue? Remember, in many circuits, original wills and death certificates, and e-filed copies of the same, must be received by the court before letters of administration and an order admitting the will can be signed by the judge. If required by your circuit (and typically only in an intestate estate), submit an affidavit of heirs, signed by the proposed personal representative(s) in a formal administration and petitioner(s) in a summary administration, as well as an affidavit of no prior felony convictions in both testate and intestate estates. Did you review the court’s webpage for checklists or other filing requirements? These are a roadmap for you and can reduce delays in processing your filings.

COMMENT: These are just a few of the items that the lawyer must check. Do not e-file improper or incomplete documents. The lawyer must review all notices received from the E-Filing Portal. If a document is not accepted and, thus, not made a part of the official court record, the court cannot enter any order. Remember, also, not to rely on the information from the deputy clerk as the “law of the circuit,” because only the judge can make the final decision, and the statement “the clerk told me to do it this way” will not make the documents correct. It is the lawyer’s responsibility, not that of the clerk or staff attorney, to submit complete and correct documents. Make sure that all “i’s” are dotted and all “t’s” are crossed. Know your clients’ needs. Know the type of estate that will best get the job done for the client. It is disheartening for a judge to see an estate opened for a surviving spouse as a formal estate when all possible claims have been paid and the gross estate cannot exceed $75,000. Will you need a determination of beneficiaries? Can you locate all beneficiaries? Will you have to petition to sell the real property or other assets? Review and plan ahead. The best practice is to agree on the fee and the manner of computing the fee in writing with the personal representative at the time you are retained. Bear in mind, if the fee can be construed as excessive by the creditors/beneficiaries, they have the right and authority to challenge the compensation paid. F.S. 733.6171(5). If you will also be serving as personal representative, ensure that the fees charged for services performed in each capacity are commensurate and appropriate for the duties rendered. Estate lawyers should never charge their attorney hourly rate for performing non-attorney functions as a personal representative. F.S. 733.617(6). COMMENT: Whole books have been published on this issue; it is the biggest pitfall in probate. Now is the time to realize that the public is educated either by formal education, the media, or “the school of

hard knocks.” The world is dollar-conscious and lawyers must deal with that fact up front. Do not even prepare the first document until the client has been given a complete explanation of how the fee for services is computed and the personal representative has agreed on the fee. COMMENT: The attorneys’ fees statute, F.S. 733.6171, is only a rebuttable presumption, a concept that is explored in depth in Chapter 15 of this manual. Many lawyers have learned the hard lesson that it does not always pay to type the fee statute into the fee contract and tell the client, “My fee is set by statute and you must pay me this amount.” By the end of the probate administration, the client has learned what the statute really says, and a litigious battle may very well ensue. Be cognizant that if a personal representative is unable to represent the estate on a particular matter due to a conflict of interest, it is your duty as the lawyer to petition the court to appoint an administrator ad litem to represent the interest of the estate on that issue and for you to then step aside to allow the administrator ad litem to advance the interests of the estate. F.S. 733.308. Give the court complete information. Do not “shortchange” the required information in petitions and orders. For example, in a summary administration, tell the court if the will requires formal administration. On homestead orders, give the added help: identify the person getting the homestead as son, daughter, heir, friend, or other. It will save the court’s time and speed along your order. Advise the court as to whether the estate has to open an ancillary administration in another state and the status of that proceeding. “Shoot straight” with the court. This has been emphasized repeatedly throughout this chapter. Your reputation will follow you to the next administration proceeding. Keep a copy of the Oath of Admission on your desk at all times. Meet all time standards. Probate is time-oriented. Know these times and make sure your staff knows them. Develop your own tickler

system. Allow time for obtaining the signatures of personal representatives or other interested persons who live out-of-state. Many circuits have developed elaborate, public tickler systems to remind lawyers to get the work done. The message here is that too many lawyers rely on the court system to make them do what they should discipline themselves to do. COMMENT: If any deadlines are missed, the beneficiaries will possibly send an unkind letter to the court, the media, The Florida Bar, state officials, or others who hold influential positions. Unless there is a valid reason for the missed deadline or some unique answer, the lawyer will likely have lost valuable goodwill. Secure the checkbook. If you let the personal representative have the checkbook, trouble may ensue. Almost all possible disasters involving the misuse of estate funds have occurred in probate cases. As a component of this, ensure that electronic access to estate accounts (including online transfers) is limited. Do not be stuck holding the paper checkbook while a rogue personal representative uses the power of the Internet to transfer funds far and away with a mouse click. Never allow a debit card to be used. Observe the 60-day inventory rule (Fla. Prob. R. 5.340(a)). If the inventory is not filed within 60 days of issuance of letters, there is an ever-increasing chance that the estate and the estate assets are fast parting ways. Keep reminding the personal representative that if no inventory is filed within the 60-day period, the court will be asking some very penetrating questions before granting any extensions. If additional assets are located, file an amended inventory. In fact, you should petition for an extension of the 60-day requirement if the inventory cannot be timely filed. To file the inventory late without requesting an extension will surely rouse the ire of the beneficiaries and creditors, as well as the court. Monitor the lis pendens. Do not assume that a lis pendens filed in the probate case will automatically get filed in the public records, especially if your clerk’s office has a separate and distinct probate division. See Koschler v. Dean, 642 So. 2d 1119 (Fla. 2d DCA 1994).

Know what your specific probate requires. Every circuit has a set of local “rules.” Get a copy and study the local requirements. It can save you time, effort, money, and embarrassment. For example, consider orders that have the “DONE AND ORDERED” section and signature line on a separate page; expect these to not be signed. A client of a well-known probate lawyer inserted a whole page of items between the last page of the order and the signature page. This client was confident enough that he fired the lawyer and personally appeared in court seeking enforcement of his self-written order provisions. Although this ploy did not work, most judges have learned not to sign an order unless the signature page has carryover words from the previous page, plus the case number typed on it. If an order has multiple pages, the case number on each page will assist the court and the clerk. If faced with a problem, admit it and consult with another probate lawyer. Consider mediation as an alternative to trial when disputes cannot be resolved. Alternative dispute resolution, if successful, may reduce fees and costs of administration, expedite resolution, and enhance your image and reputation with both the court and your client(s).

« Ch. 20 », « § 20.4 • 1 Practice Under Florida Probate Code § 20.4 (2022)

§ 20.4. CONCLUSION The examples in this chapter are real. Some have happened with relative frequency. The probate bar bears a heavy responsibility to stop any erosion of the profession and the judicial process. There is a reason that personal representatives are required to have counsel. See Fla. Prob. R. 5.030(a). It is not just to provide employment for members of The Florida Bar. The court requires lawyers for personal representatives to ensure that matters, when presented, comply with statutes, rules, and case law. If the members of the Bar fail in this responsibility, the requirement for personal representatives to be represented by a lawyer could very well be discarded. The collapse of the system will be to the detriment of the bench, bar, heirs, beneficiaries, and creditors. It is hoped that the observations contained in this chapter will assist lawyers in fulfilling their professional responsibilities. Footnotes — Chapter 20: *

J.D., 1972, University of North Carolina; LL.M. in Taxation, 1976, Georgetown University. Judge Speiser has been a Circuit Judge since 1983, and previously served for six years as Administrative Chief Judge of the Criminal Division, and four years as Administrative Chief Judge for the Probate Division of the 17th Judicial Circuit. He is a former faculty member at the Florida Advanced Judicial College and served on the Florida Supreme Court’s Mental Health and Substance Abuse Task Force. Judge Speiser is currently a Florida Supreme Court Senior Circuit Court Judge, a Florida Supreme Court Certified Mediator, a Florida Supreme Court approved Arbitrator, and a frequent lecturer at the Conference of Circuit Judges and the Real Property, Probate And Trust Law Section of The Florida Bar.

Licensed to Otis K Pitts, Otis K Pitts

« Ch. 21 » 1 Practice Under Florida Probate Code Ch. 21 (2022)

Chapter 21 PROBATE LITIGATION STACY B. RUBEL* J. ERIC VIRGIL** Contents § 21.1. INTRODUCTION § 21.2. ETHICS AND CONFLICTS A. In General B. Lawyer Conflicts C. The Lawyer As Witness 1. In General 2. Prospective Lawyer As Witness May Not Also Serve As Advocate 3. Other Disqualification Issues And Potential Role Of Lawyer’s Firm D. Multiple Representation § 21.3. TYPES OF PROBATE LITIGATION A. Will Or Trust Contest 1. Grounds a. In General b. Undue Influence i. In General ii. Definition iii. Ethical And Liability Considerations In Document Drafting I. Constitutional Foundation II. Drafting When Undue Influence Is Suspected III. Drafting When Diminished Capacity Is Suspected iv. Conditional Renunciation v. Presumptions And Burden Of Proof

vi. Presumptions Involving Spouse vii. Order Of Trial viii. Quantum Of Proof ix. Diminished Capacity x. Naturalness Of Disposition xi. Undue Influence And The “Dutiful” Child xii. Lawyer As Undue Influencer xiii. Other Applications Of Undue Influence c. Testamentary Capacity i. Definition ii. Presumption And Burden Of Proof d. Improper Execution i. Wills ii. Trusts I. Application Of Formalities Required For Execution Of Will II. Limited Exceptions For Certain Pre-October 1 1995, Trusts III. Power Of Agent Under Durable Power Of Attorney To Execute Trust Documents e. Other Grounds i. In General ii. Revocation iii. Mistake iv. Insane Delusion v. Forgery vi. Charitable Devise vii. Murder viii. Abuse, Neglect, Exploitation, Or Aggravated Manslaughter Of Elderly Or Disabled Person ix. Share Of Pretermitted Spouse Or Child 2. Incorporation By Reference 3. Partial Invalidity 4. Dependent Relative Revocation

B. Will Or Trust Construction 1. In General 2. Construction By Statute 3. Rules Of Construction 4. Evidence 5. Reformation To Correct Mistakes; Modification To Achieve Testator’s Tax Objectives C. Creditors’ Claims 1. In General 2. Due Process Issues And Notice To Creditors 3. Extension Of Time To File 4. Claims Of The Sovereign D. Elective Share And Other Entitlements E. Joint And Survivorship Property Litigation F. Totten Trust Or Pay-On-Death Accounts G. Determination Of Beneficiaries H. Other Probate Litigation § 21.4. JURISDICTION AND PROCEDURE A. Subject Matter Jurisdiction B. Proper Forum And Applicable Law C. In Personam And In Rem Jurisdiction D. Acquiring Jurisdiction E. Party Petitioner F. Party Respondents G. Procedure H. Fees And Costs I. Application Of “Dead Person’s Statute” J. Right To Jury Trial K. Appeals § 21.5. TAX CONSEQUENCES OF SETTLEMENT AGREEMENTS « Ch. 21 », • § 21.1 » 1 Practice Under Florida Probate Code § 21.1 (2022)

§ 21.1. INTRODUCTION Probate litigation is a highly specialized branch of probate practice into which probate lawyers, even probate specialists, should venture with care. The probate lawyer is equipped with knowledge of substantive probate law and procedure, but frequently is not well versed in civil trial procedures and practices. Civil trial procedures and practices apply to adversarial probate matters because the Florida Probate Rules specify that these contested issues are governed by the Florida Rules of Civil Procedure. By way of contrast, the general (or other specialty) litigation lawyer is equipped with knowledge of litigation procedure and trial techniques but frequently lacks the substantive probate knowledge necessary to recognize the deficiencies or strengths of the client’s case or of the arguments made by opposing counsel as they are being made. For example, the many facets of the concepts of fiduciary duty and conflict of interest are not generally within the detailed knowledge of the general trial lawyer. Sometimes the estate lawyer will try to handle the early stages of a fiduciary dispute hoping to settle the matter without the necessity of reaching trial or even significant discovery issues. Capable opposing counsel will soon sense that the estate lawyer is incapable of trying the matter, and any resulting settlement will likely favor the side that is prepared to go to trial over the one that is not. This situation is true in any type of litigation. Alternative solutions present themselves. The first is the team approach, in which the probate lawyer and the general practitioner handle the entire litigation and trial as a team. However, the probate lawyer may have been the drafting lawyer for the documents in question or may otherwise have dealt with the subject of the litigation and may be in a conflict position when the litigation involves the validity of the will or its construction, or may be a material witness. It is also possible that the witness exclusion rule will be invoked, which could create questions regarding the role of the lawyer as counsel. F.S. 90.616. See § 21.2.C. This may necessitate hiring an outside probate lawyer to team with the litigation specialist. The second alternative is the probate litigation specialist. Although a narrow specialty, probate litigation is a broad subject area unto itself and this chapter does not purport to cover it in substantial detail. The aim of this

chapter is to assist the probate lawyer in planning to avoid litigation and, if the planning fails, to identify the major issues and offer possible solutions. LITIGATION UNDER FLORIDA PROBATE CODE (Fla. Bar 13th ed. 2022) is a companion publication that is specific to matters covered generally in this chapter. That manual contains in-depth coverage of procedural considerations and the following substantive and procedural topics: jurisdiction of the probate court, intestate succession, wrongful death, will contests, rights of the surviving family, jointly held assets, creditors’ claims, will construction, homestead litigation, removal of the personal representative and surcharge, compensation disputes, tortious interference in estate planning, jury trials, and appellate practice in probate.

« Ch. 21 », « § 21.2 » 1 Practice Under Florida Probate Code § 21.2 (2022)

§ 21.2. ETHICS AND CONFLICTS « Ch. 21 », « § 21.2 », • A » 1 Practice Under Florida Probate Code § 21.2.A (2022)

A. In General Conflicts of interest must be examined in detail in each probate litigation matter. The probate field is permeated by various rights and duties, and many of these duties are fiduciary duties. See BASIC ESTATE PLANNING IN FLORIDA Chapter 12 (Fla Bar 10th ed. 2020). Also, various rights and duties may be co-existent in a single individual. For example, a personal representative of an estate is a fiduciary owing duties of loyalty and avoidance of conflict, not only to beneficiaries but to creditors and even to a spouse electing against the will. That is, the fiduciary’s obligations in administering the estate are not only to those who take under the will as beneficiaries, but also to others entitled to payments, assets, or shares of the estate as creditors or as an electing surviving spouse. The personal representative (or one of several personal representatives) may also be a beneficiary or even a creditor. In many instances, even when the personal representative is not disqualified from acting as a fiduciary while also having other interests, the lawyer may not be able to represent the personal representative in other capacities. « Ch. 21 », « § 21.2 », « B » 1 Practice Under Florida Probate Code § 21.2.B (2022)

B. Lawyer Conflicts As noted in the last section, issues of conflict may arise in probate litigation matters for the lawyers involved. Intelligent management and understanding of conflicts is enhanced when the parties understand that the estate lawyer’s client is the personal representative, not the estate or its beneficiaries. See Comment to Rule Regulating Fla. Bar 4-1.7. Lawyer conflicts took on an expanded scope in the wake of the District Court of Appeal, Fourth District’s, decision in In re Estate of Gory, 570 So. 2d 1381, 1383 (Fla. 4th DCA 1990), in which the lower court disqualified a

law firm representing a personal representative on grounds that the firm owed a fiduciary duty to both the personal representative and the beneficiaries and, therefore, could not be called as a witness in a dispute regarding the reasonableness of the personal representative’s compensation. In reversing the order, the appellate court stated: We have no quarrel with the view that counsel for the personal representative of an estate owes fiduciary duties not only to the personal representative but also to the beneficiaries of the estate. … This does not mean, however, that counsel and the beneficiaries occupy an attorneyclient relationship. They do not. Although Gory states that the personal representative (the client) owes fiduciary duties to the beneficiaries, it seems wrong to impose vicarious conflicting obligations on the lawyer. This is especially true in light of the 2011 enactment of F.S. 90.5021, discussed below, which clarified the scope of the fiduciary lawyer-client privilege and confirmed that communications between estate or trust fiduciaries and their counsel are lawyer-client privileged, absent matters falling within the crime or fraud exception. A better way to view the Gory principle is to say that the affirmative duty of the lawyer is to provide advice and counsel to the fiduciary client to guide that client away from any action or nonaction that would breach the fiduciary’s duty to the beneficiary or to any beneficiary. Prior to the 2011 enactment of F.S. 90.5021, a serious issue arose when a dissatisfied beneficiary attempted discovery of what would otherwise be lawyer-client privileged communications between the personal representative and the lawyer. If the lawyer and the fiduciary owe duties to the beneficiary, and the fiduciary charges the cost of that advice against funds ultimately belonging to the beneficiary, what right should a beneficiary have to discover what advice was given and whether the client followed that advice? Before 2011, there was some authority to argue that a beneficiary may gain access to some of this material—in particular, communications involving administration as opposed to those involving litigation. The seminal case typically cited for this proposition was Riggs National Bank of Washington, D.C. v. Zimmer, 355 A.2d 709 (Del. 1976). See Falk, The Fiduciary’s Lawyer-Client Privilege: Does It Protect Communications from Discovery by a Beneficiary? 77 Fla. Bar J. 18 (March 2003).

However, F.S. 90.5021, which became effective in June 2011, clarified that communications between estate or trust fiduciaries and their counsel are lawyer-client privileged, absent matters falling within the crime or fraud exception. Specifically, F.S. 90.5021 provides: (1) For the purpose of this section, a client acts as a fiduciary when serving as a personal representative or a trustee as defined in [F.S.] 731.201 and 736.0103, an administrator ad litem as described in [F.S.] 733.308, a curator as described in [F.S.] 733.501, a guardian or guardian ad litem as defined in [F.S.] 744.102, a conservator as defined in [F.S.] 710.102, or an attorney in fact as described in [F.S.] chapter 709. (2) A communication between a lawyer and a client acting as a fiduciary is privileged and protected from disclosure under [F.S.] 90.502 to the same extent as if the client were not acting as a fiduciary. In applying [F.S.] 90.502 to a communication under this section, only the person or entity acting as a fiduciary is considered a client of the lawyer. (3) This section does not affect the crime or fraud exception to the lawyer-client privilege provided in [F.S.] 90.502(4)(a). In 2014, The Florida Bar, acting on the recommendation of its Code and Rules of Evidence Committee, petitioned the Florida Supreme Court to adopt this statute to the extent it is procedural, as a court rule. However, the court declined to do so, without explaining its reasoning. In re Amendments to Florida Evidence Code, 144 So. 3d 536, 537 (Fla. 2014). In 2018, the Probate Rules Committee of The Florida Bar and the Code and Rules of Evidence Committee of The Florida Bar asked the Florida Supreme Court to reconsider the adoption of F.S. 90.5021, to the extent it is procedural. In re: Amendments to Florida Evidence Code—2017 Out-ofCycle Report, 234 So. 3d 565 (Fla. 2018). After considering the Committees’ report, the comments submitted to the Committees and filed with the court, and the Committees’ response, the court decided on adopting F.S. 90.5021 to the extent it is procedural, and made its adoption effective retroactively to June 21, 2011, the date that F.S. 90.5021 became law. Id. The lower court’s erroneous imposition of fiduciary duties to a nonclient in Gory was probably the result of concern that beneficiaries generally misunderstand the fact that the lawyer is not representing them. Rule 4-4.3 of

the Rules of Professional Conduct addresses this situation. It includes the admonition: “When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.” Letter No. 4, Kelley & Bronner, THE FLORIDA BAR PROBATE SYSTEM (Fla. Bar 5th ed. 2018), cautions the beneficiary, calling for an explicit statement by the lawyer for the personal representative, which substantially provides: I am required by Rule 4-1.7 of the Rules of Professional Conduct, which govern the conduct of members of The Florida Bar, to be certain that you understand that my client in this matter is the personal representative. Although I will be advising the personal representative regarding duties and obligations owed to you personally as a beneficiary of this estate, it is important for you to understand that I am not your attorney nor the attorney for any beneficiary of this estate. Although it is not necessary for you to have your own attorney in order to receive your bequest as stated in the will (and most beneficiaries of estates normally do not have their own separate lawyer involved in the estate proceeding), if you feel you need representation, and especially if you feel there is or may be any conflict or adversary position between you and the personal representative or any beneficiary, you should speak to your own attorney and get his or her advice to determine whether you need to be separately represented in this estate proceeding. If you do not have your own separate lawyer involved and you have any question on any matter relating to the probate of this estate or the distribution to you of your bequest, you may feel free to contact me at any time. Related to this issue is that of the lawyer-client privilege under F.S. 90.502. Subsection (2) of that statute provides: “A client has a privilege to … prevent any other person from disclosing … the contents of confidential communications when such other person learned of the communications because they were made in the rendition of legal services to the client.” In conjunction with this, the lawyer must also consider Rule 4-1.6(a), which provides, inter alia: “A lawyer must not reveal information relating to representation of a client.” The issue becomes whether the client is the

fiduciary. See also First Union National Bank of Florida v. Whitener, 715 So. 2d 979 (Fla. 5th DCA 1998). The appellate court in Gory found no conflict that would disqualify the law firm from representing its client, the personal representative, in a compensation dispute with the beneficiaries. It was unnecessary for the court to find that counsel “owes fiduciary duties … to the beneficiaries of the estate.” Gory, 570 So. 2d at 1383. This dictum is probably overbroad. Nonetheless, it has been cited often in attempts to disqualify counsel. For example, in Kaplan v. Divosta Homes, L.P., 20 So. 3d 459 (Fla. 2d DCA 2009), the plaintiff in a personal injury action sought to disqualify the defendant’s counsel because the firm represented the personal representative of an estate, not related to the instant litigation, in which the plaintiff was a beneficiary. In the plaintiff’s motion to disqualify, the plaintiff alleged that a fiduciary duty was owed to him as a primary beneficiary. The court, citing Gory, found the fiduciary duty argument to be without merit and declined to disqualify counsel, holding that “[e]ven if there were some type of fiduciary duty relating to the administration of the estate, that relationship does not create an attorney-client relationship requiring disqualification.” Kaplan, 20 So. 3d at 462. In Bain v. McIntosh, 597 F. App'x 623 (11th Cir. 2015), beneficiaries of a trust cited Gory in an attempt to assert that under Florida law the lawyer for a trustee owes fiduciary duties to the beneficiaries of a trust. The Bain court rejected that argument. It described the language in Gory as dicta and noted Gory’s holding that “even if the law firm owed a fiduciary duty to the personal representative and the beneficiaries, Florida law did not mandate disqualification because no attorney-client relationship existed between the law firm and the beneficiaries.” Bain, 597 F. App'x 624. « Ch. 21 », « § 21.2 », « C » 1 Practice Under Florida Probate Code § 21.2.C (2022)

C. The Lawyer As Witness « Ch. 21 », « § 21.2 », « C », • 1 » 1 Practice Under Florida Probate Code § 21.2.C.1 (2022)

1. In General The estate planning lawyer is a key witness in a will contest. This is especially true when the lawyer supervised the execution of the contested

will. The lawyer will have knowledge that is relevant to the testator’s intent and capacity, the formalities of execution, and undue influence factors, such as those set forth by the Florida Supreme Court in seminal case In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971). When there is sufficient opportunity for observation of the testator, the lawyer’s opinion as to competency is admissible. Connell v. Green, 330 So. 2d 473 (Fla. 1st DCA 1976). Communications concerning a will by the testator to his or her lawyer are not privileged after the demise of the testator in “an issue between parties who claim through the same deceased client.” F.S. 90.502(4)(b). Thus, during the planning process, the estate planning lawyer should understand that communications with the client regarding the will are discoverable in a subsequent will contest. See, e.g., Vasallo v. Bean, 208 So. 3d 188 (Fla. 3d DCA 2016) (in will contest based on undue influence, statements by testator to estate planning lawyer regarding reasons for disinheriting certain children were not privileged under F.S. 90.502(4)(b)). « Ch. 21 », « § 21.2 », « C », « 2 » 1 Practice Under Florida Probate Code § 21.2.C.2 (2022)

2. Prospective Lawyer As Witness May Not Also Serve As Advocate The lawyer who is a witness to a will is disqualified from acting as an advocate for a party involved in a contest of the will. Eccles v. Nelson, 919 So. 2d 658 (Fla. 5th DCA 2006). Rule Reg. Fla. Bar 4-3.7(a) prohibits lawyers from acting as an advocate in any “trial in which the lawyer is likely to be a necessary witness on behalf of the client” except in certain circumstances, such as when the testimony relates to an uncontested issue. Exceptions under the rule also include situations in which disqualification of the lawyer would work a substantial hardship on the client. This exception is narrowly construed. The practical application of the rule as it stands is that a drafting lawyer who will be called as a witness in support of the will or trust may not act as advocate at the trial of either a will or trust contest or a will or trust construction matter and, depending on the facts, other contested probate matters. « Ch. 21 », « § 21.2 », « C », « 3 • 1 Practice Under Florida Probate Code § 21.2.C.3 (2022)

3. Other Disqualification Issues And Potential Role Of Lawyer’s Firm In In re Estate of Gory, 570 So. 2d 1381 (Fla. 4th DCA 1990), the court held that a lawyer representing a personal representative in a matter adverse to the interest of a beneficiary may testify and continue to represent the personal representative. The Gory court relied on Rule Reg. Fla. Bar 4-3.7(b) (which allows a lawyer to act as an advocate in a trial, with some exceptions, even when another person in the lawyer’s firm is likely to be called as a witness) to conclude that the trial court departed from the essential requirements of law by disqualifying an entire firm when only one lawyer would be called as a witness and there was no indication that his testimony would be adverse to his client’s position. Gory. This is because the denial of the right to choose one’s own lawyer is deemed to cause irreparable harm. Id. In other words, Rule 4-3.7(b) prevents imputed disqualification. Thus, Gory and Rule 4-3.7(b) support the concept that a firm may represent one of the parties in a contest even if the drafting lawyer is a member of the firm. The drafting lawyer would be limited to being a witness whereas other members of the firm could be advocates. Whether it is a good practice for that lawyer’s firm to accept representation of one of the parties to the contest is another matter entirely and caution is advised. The prospective lawyer-witness whose firm may participate as trial counsel must not only consider the ethical implications of their role in the case but also consider the effect on the client’s interests if the firm of the lawyer-witness who is likely to testify to a critical issue in litigation declines representation in the advocacy process. It is clear that representation by the firm would be barred if the representation would involve conflicts of interest under Rule 4-1.7 or 41.9, which address conflicts of interest pertaining to current and former clients, respectively. A lawyer may continue to represent the personal representative in routine estate administration matters and testify as a witness in a contest concerning the will. See Hiatt v. Estate of Hiatt, 837 So. 2d 1132 (Fla. 4th DCA 2003) (beneficiary’s counsel, who also advised beneficiary on antenuptial agreement at issue, could not be disqualified based on mere possibility that counsel would be called as witness in probate action; personal representative offered no evidence that counsel was necessary witness or that his testimony

would be adverse to beneficiary’s position). In Devins v. Peitzer, 622 So. 2d 558 (Fla. 3d DCA 1993), the court refused to disqualify the personal representative’s lawyer in a will contest solely because the contestants had announced their intention to call the lawyer as an adverse witness. The court held that the disqualification rule was not designed to permit a party to disqualify opposing counsel merely by calling him as a witness on their behalf. Thus, there appears to be a distinction between a situation in which the lawyer seeking to testify is an advocate for a party in an adversary proceeding (see § 21.2.C.1), which calls for the lawyer’s disqualification, and a situation in which the testifying lawyer represents the personal representative only in nonadversary, routine estate administration, in which case the lawyer may be called as a witness. « Ch. 21 », « § 21.2 », « D • 1 Practice Under Florida Probate Code § 21.2.D (2022)

D. Multiple Representation Rule Reg. Fla. Bar 4-1.7(a) prohibits the representation of a client if (1) doing so would be directly adverse to another client or (2) “there is a substantial risk that the representation of [one] or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by [the lawyer’s personal interest].” There are two opinions in which lawyers have been disciplined for representing the beneficiary of an estate while concurrently representing the personal representative of the same estate. They are The Florida Bar v. Brigman, 307 So. 2d 161 (Fla. 1975) (suspension) and The Florida Bar v. McKenzie, 442 So. 2d 934 (Fla. 1984) (reprimand). In both instances, presumably the clients were different persons. In Brigman, the respondent accepted the representation of beneficiaries while concurrently advising the estate’s executor. Since he also was found guilty of three other disciplinary violations and, based on his “total recalcitrance, including his refusal to appear for the hearing,” he was suspended for six months and beyond, until proving his rehabilitation. Brigman, 307 So. 2d at 161. The facts were clear that the dual representation was at a time when the beneficiaries and the personal representative had a controversy.

In McKenzie, the respondent accepted both a retainer from an heir and also appointment as the lawyer for the personal representative in the same estate. The violation for which the public reprimand was imposed came under former DR 5-105, similar to current Rule 4-1.7(a)(2). The prohibition of a lawyer representing both the personal representative and a beneficiary can be overbroad, so there are exceptions under certain circumstances. Rule 4-1.7(b) provides that, “[n]otwithstanding the existence of a conflict of interest under [Rule 4-1.7(a)], a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a position adverse to another client when the lawyer represents both clients in the same proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing or clearly stated on the record at a hearing. For instance, if a lawyer represents the sole residuary devisee of a will challenged by a third party on the grounds of undue influence, and also represents the personal representative of the estate in the defense of the will, there appears to be no inherent conflict solely by the nature of the representation. This would be especially true with the clients’ consent to the arrangement and if the lawyer reasonably believes the representation of each client would not be adversely affected. Another example is when the lawyer represents the personal representative in the administration of a pour-over will that has as its beneficiary the trustee of a revocable trust, when the trustee and the personal representative are the same person. It is also possible that, should a conflict develop in the future, the lawyer would have to withdraw from representation of one or both of the clients, and the employment agreement should provide for that eventuality. In interpreting Rule 4-1.7(a), the lawyer should ask whether there is an actual, or the likelihood of an actual, present conflict between the two parties represented.

« Ch. 21 », « § 21.3 » 1 Practice Under Florida Probate Code § 21.3 (2022)

§ 21.3. TYPES OF PROBATE LITIGATION « Ch. 21 », « § 21.3 », • A » 1 Practice Under Florida Probate Code § 21.3.A (2022)

A. Will Or Trust Contest « Ch. 21 », « § 21.3 », • A », • 1 » 1 Practice Under Florida Probate Code § 21.3.A.1 (2022)

1. Grounds « Ch. 21 », « § 21.3 », • A », • 1 », • a » 1 Practice Under Florida Probate Code § 21.3.A.1.a (2022)

a. In General The statutory grounds for contesting a will include undue influence (F.S. 732.5165), lack of testamentary capacity (F.S. 732.501), defects in execution (F.S. 732.502), fraud (F.S. 732.5165), duress (F.S. 732.5165), mistake (F.S. 732.5165), and revocation (F.S. 732.505, 732.506). Similar statutory grounds are available by statute for contesting a revocable trust. See F.S. 736.0402, 736.0403, and 736.0406. A petition for revocation of probate is governed by F.S. 733.109 and Fla. Prob. R. 5.270. Frequently, undue influence, lack of testamentary capacity, and defects in execution are listed as separate counts in a single pleading for revocation of probate. The pleader should keep in mind the provisions of Fla. R. Civ. P. 1.110, which requires that each separate claim founded on a different set of facts be stated in a separate count. It is permissible to plead multiple counts that, through incorporation by reference, may share facts if the shared facts support each separate claim. However, the practice of wholesale incorporation by reference in each count of all preceding paragraphs of a multiple count complaint has been held to be a violation of the rule. RHS Corp. v. City of Boynton Beach, 736 So. 2d 1211 (Fla. 4th DCA 1999); Gerentine v. Coastal Security Systems, 529 So. 2d 1191 (Fla. 5th DCA 1988).

This practice of wholesale incorporation by reference in multi-count pleadings has been characterized, in federal cases, as a “shotgun pleading” and it has been held to violate Fed. R. Civ. P. 8. See, e.g., Weiland v. Palm Beach County Sheriff’s Office, 792 F.3d 1313 (11th Cir. 2015). See also Paylor v. Hartford Fire Ins. Co., 748 F.3d 1117, 1126–1127 (11th Cir. 2014) (“defendant served with a shotgun complaint should move the district court to dismiss the complaint pursuant to Rule 12(b)(6)3 or for a more definite statement pursuant to Rule 12(e)4 on the ground that the complaint provides it with insufficient notice to enable it to file an answer”). Aside from the violation of applicable rules, this type of multiple count incorporation may lead to fatal inconsistencies, where alternative pleadings are involved. Practitioners should keep in mind that F.S. 57.105(1), which provides for the award of attorneys’ fees when the court finds the losing party or the losing party’s lawyer “knew or should have known that a claim [w]as not supported by the material facts necessary to establish the claim or [w]ould not be supported by the application of then-existing law to those material facts” may come into play depending on how facts are incorporated as to various counts. Hence, a “shotgun” pleading, covering numerous counts, is discouraged. A detailed discussion of the various grounds for contesting a will or trust is provided in turn below. « Ch. 21 », « § 21.3 », • A », • 1 », « b » 1 Practice Under Florida Probate Code § 21.3.A.1.b (2022)

b. Undue Influence « Ch. 21 », « § 21.3 », • A », • 1 », « b », • i » 1 Practice Under Florida Probate Code § 21.3.A.1.b.i (2022)

i. In General A will is void if the execution is procured by “fraud, duress, mistake, or undue influence.” F.S. 732.5165. “Fraud and undue influence are not, strictly speaking, synonymous, though undue influence has been classified as either a species of fraud or a kind of duress, and in either instance is treated as fraud in general.” Peacock v. Du Bois, 90 Fla. 162, 105 So. 321, 322 (1925). “The phrase ‘undue … influence’ … is in law another term for fraud.” In re Mach’s Estate, 118 Fla. 421, 159 So. 519, 520 (1935). The only ground for contesting a will that can result in partial invalidity is

undue influence. F.S. 732.5165 provides in part: “Any part of the will is void if [procured by undue influence], but the remainder of the will not so procured shall be valid if it is not invalid for other reasons.” A similar provision can be found in the Florida Trust Code under F.S. 736.0406. See F.S. 736.0207. In American Red Cross v. Estate of Haynsworth, 708 So. 2d 602 (Fla. 3d DCA 1998), the court struck a provision in a will providing for a 5% probate fee for the drafting lawyer but left the remainder of the will untouched. « Ch. 21 », « § 21.3 », • A », • 1 », « b », « ii » 1 Practice Under Florida Probate Code § 21.3.A.1.b.ii (2022)

ii. Definition Simple influence should be distinguished from that which rises to the level of “undue” influence. Only undue influence is sufficient as a ground to invalidate a decedent’s will or trust. Influence that rises to the level of “undue” influence is that which amounts to “overpersuasion, duress, force, coercion or artful or fraudulent contrivances to such a degree that there was a destruction of the free agency and will power” of a testator. In re Estate of Carpenter, 289 So. 2d 410, 411 (Fla. 4th DCA 1974). Logic, and limited examples in the case law, distinguish “undue” influence from “simple” influence, even when the degree of influence results in a document in favor of the influencer. “Mere affection, kindness, or attachment of one person for another may not of itself constitute undue influence.” In re Estate of Dunson, 141 So. 2d 601, 605 (Fla. 2d DCA 1962). Undue influence, as a species of fraud, is rarely practiced when independent disinterested witnesses have the opportunity to observe. It is a dark and nefarious activity that occurs in the shadows. Therefore, direct proof of undue influence, may be extremely difficult or impossible to obtain. Recognizing this, Florida courts, as well as a majority of those in other states, have permitted contestants to satisfy their initial burden by showing sufficient facts to raise a presumption of undue influence. Presumptions as classified by law may be conclusive or rebuttable. Rebuttable presumptions are subclassified into presumptions affecting the burden of proof on one hand and presumptions affecting the burden of going forward with the evidence on the other (the “bursting bubble” presumption). Hack v. Janes, 878 So. 2d 440 (Fla. 5th DCA 2004), provides a good analysis of these differences. See F.S.

90.301–90.304. See also F.S. 733.107(2), which provides: “In any transaction or event to which the presumption of undue influence applies, the presumption implements public policy against abuse of fiduciary or confidential relationships and is therefore a presumption shifting the burden of proof under ss. 90.301–90.304.” This presumption is discussed further at § 21.3.A.1.b.v. « Ch. 21 », « § 21.3 », • A », • 1 », « b », « iii » 1 Practice Under Florida Probate Code § 21.3.A.1.b.iii (2022)

iii. Ethical And Liability Considerations In Document Drafting « Ch. 21 », « § 21.3 », • A », • 1 », « b », « iii », • I » 1 Practice Under Florida Probate Code § 21.3.A.1.b.iii.I (2022)

I. Constitutional Foundation Testamentary freedom is favored under Florida public policy, as evidenced by the Florida Supreme Court’s determination in Shriners Hospital for Crippled Children v. Zrillic, 563 So. 2d 64 (Fla. 1990), and a person has a right to devise his or her own property under Article I, § 2, of the Florida Constitution. « Ch. 21 », « § 21.3 », • A », • 1 », « b », « iii », « II » 1 Practice Under Florida Probate Code § 21.3.A.1.b.iii.II (2022)

II. Drafting When Undue Influence Is Suspected In light of a person’s constitutional right to devise his or her own property under Article I, § 2, of the Florida Constitution, it is important for the drafting lawyer to recognize undue influence, or suspected undue influence, when it is occurring. When undue influence is known or suspected, it raises serious ethical (and practical) questions for the drafting lawyer. Initially, there is a choice: should the lawyer refuse to draw the will, or should the lawyer draw the will, document the file with a memorandum or affidavit from the lawyer and staff detailing all of the surrounding circumstances that are observable, and make this known to the court when the will is offered subsequently for probate? If the lawyer refuses to draft the will, it may end the client or influencer’s quest for it to be drafted, but it may otherwise lead the client (or influencer) to seek another lawyer with less knowledge of the client than the initial lawyer. On the other hand, if the lawyer chooses to go forward, the

lawyer should understand that he or she is undertaking not just an estate planning engagement but also potential involvement as a witness in a future document contest. Vasallo v. Bean, 208 So. 3d 188 (Fla. 3d DCA 2016) (in will contest based on undue influence, estate planning lawyer was required to testify regarding statements by testator to lawyer related to testator’s reasons for disinheriting certain children). Dissatisfied contestants are also not hesitant about bringing malpractice suits or bar complaints in connection with the contested document. If the lawyer does undertake to draft the will, it is the duty of the lawyer to draw the will as the testator directs. Vignes v. Weiskopf, 42 So. 2d 84 (Fla. 1949). See Florida Bar v. Betts, 530 So. 2d 928 (Fla. 1988) (in disciplinary matter involving lawyer who guided incompetent client to execute codicil, court stated that “a lawyer’s responsibility is to execute his client’s wishes, not his own”); Erlandsson v. Erlandsson, 296 So. 3d 431 (Fla. 4th DCA 2020) (in contested guardianship case, court-appointed lawyer for alleged incapacitated person was bound by F.S. 744.102(1) and Rules Reg. Bar 41.2(a) and 4-1.14 to represent client’s expressed wishes as opposed to what lawyer perceived as client’s best interests). Once the will is drafted, it is the duty of the lawyer to testify as to the facts surrounding the will if called to testify as to those facts. Vignes. The moral or ethical obligations to prepare the document do not extend to instructions given to the lawyer by a person other than the testator, and creates a duty to preserve, in its purest form, all evidence of the suspected undue influence. Drafting the will and documenting the file with evidence of undue influence, as a suggested approach, however, has the practical disadvantage that the lawyer may die before the client and the proof of the possible undue influence will die with the lawyer, or that the lawyer may be unaware that the will has been offered for probate. It is also important for the lawyer to identify (and document) those circumstances in which undue influence is not present, when many of the surrounding circumstances would otherwise lead one who was not directly involved to presume the contrary. Great caution should be exercised so the lawyer does not end up appearing to abet any undue influence. As an example, the lawyer may suggest that the original will be kept in the lawyer’s office. See § 21.3.A.1.b.v for other suggested precautions.

« Ch. 21 », « § 21.3 », • A », • 1 », « b », « iii », « III • 1 Practice Under Florida Probate Code § 21.3.A.1.b.iii.III (2022)

III. Drafting When Diminished Capacity Is Suspected With regard to a potentially incapacitated client, can a lawyer ethically prepare a will for that client if the lawyer is unsure whether the client has testamentary capacity? For estate planners, a key resource for ethical guidance is the ACTEC Commentaries on the Model Rules of Professional Conduct, published by the American College of Trust and Estate Counsel Foundation (commentaries). See ACTEC COMMENTARIES (5th ed. 2016), available online at https://actecfoundation.org/trust-and-estate-professionalresources/professional-conduct-rules-for-trust-and-estate-practitioners. The commentaries review the Model Rules of Professional Conduct (MRPC) and analyze them in a trusts and estates context. With regard to determining the extent of diminished capacity of a client, the commentary to MRPC 1.14 “Client with Diminished Capacity” states, in part: “In determining whether a client’s capacity is diminished, a lawyer may consider the client’s overall circumstances and abilities, including the client’s ability to express the reasons leading to a decision, the ability to understand the consequences of a decision, the substantive appropriateness of a decision, and the extent to which a decision is consistent with the client’s values, longterm goals and commitments. In appropriate circumstances, the lawyer may seek the assistance of a qualified professional.” Commentaries at 161. With regard specifically to testamentary capacity, the comment states, in part: “If the testamentary capacity of a client is uncertain, the lawyer should exercise particular caution in assisting the client to modify his or her estate plan. The lawyer generally should not prepare a will, trust agreement or other dispositive instrument for a client whom the lawyer reasonably believes lacks the requisite capacity. On the other hand, because of the importance of testamentary freedom, the lawyer may properly assist clients whose testamentary capacity appears to be borderline. In any such case the lawyer should take steps to preserve evidence regarding the client’s testamentary capacity.” Id. at 162. Florida has several reported decisions analyzing the lawyer’s dilemma when the client is potentially incapacitated. In Vignes v. Weiskopf, 42 So. 2d 84, 85 (Fla. 1949), the Florida Supreme Court held that it was proper for a

lawyer to prepare and supervise the execution of a codicil for a client who was “incurably ill and was in such pain that a great deal of medicine to relieve him of his suffering was being administered.” The court stated, “[w]e are convinced that the lawyer should have complied as nearly as he could with the testator’s request, should have exposed the true situation to the court, which he did, and should have then left the matter to that tribunal to decide whether in view of all facts surrounding the execution of the codicil it should be admitted to probate. Had the lawyer arrogated to himself the power and responsibility of determining the capacity of the testator, decided he was incapacitated, and departed, he would indeed have been subjected to severe criticism when, after the testator’s death, it was discovered that because of his presumptuousness the last-minute effort of a dying man to change his will had been thwarted.” Id. at 86. In a disciplinary action, the Florida Supreme Court touched on the topic again in Florida Bar v. Betts, 530 So. 2d 928 (Fla. 1988), in which a lawyer was publicly reprimanded for improperly coercing an apparently incompetent client into executing a codicil. The lawyer had prepared a codicil at a time when the client was “in a rapidly deteriorating physical and mental state.” The codicil eliminated the testator’s daughter and son-in-law as beneficiaries, and, after several efforts, the lawyer persuaded the client to restore the beneficiaries. However, when the second codicil was presented, the testator was in a comatose state, so the lawyer guided the testator’s hand to execute the codicil with an X. The court observed: “Improperly coercing an apparently incompetent client into executing a codicil raises serious questions both of ethical and legal impropriety, and could potentially result in damage to the client or third parties. It is undisputed that [the lawyer] did not benefit by his action and was merely acting out of his belief that the client’s family should not be disinherited. Nevertheless, a lawyer’s responsibility is to execute his client’s wishes, not his own.” Id. at 929. Courts may give deference to lay people and the lawyer’s observations with regard to a client’s testamentary capacity. In In re Estate of Hammermann, 387 So. 2d 409 (Fla. 4th DCA 1980), multiple witnesses who had seen the decedent at or around the time of executing his will, including the lawyer, a registered nurse, and a 90-year-old friend who had known the decedent for several decades, testified that he appeared to have capacity. However, two psychiatrists testified to the contrary. The trial court denied the

petition to revoke the will. In affirming the decision, the appeals court found that the lay testimony was competent evidence of testamentary capacity during execution of the will, and “the trial court was not obliged to reject that evidence in light of medical testimony to the contrary.” Id. at 411. In analyzing what course to take with regard to capacity concerns, a practical consideration for the drafting lawyer involves the time that will subsequently be required of the lawyer for testimony, which may be compensated only at the minimal rate applicable for a fact witness. It may be possible to contract with a client (after considering ethical limitations of such activity) as a condition of the initial employment to direct the estate to pay the lawyer the regular hourly rate if consultation or testimony is later required in a dispute over the validity of the document. This payment arrangement would be as an alternative to that for a regular fact witness—i.e., the statutory fee of $5 per day, plus 6 cents per mile, as provided in F.S. 92.142(1). « Ch. 21 », « § 21.3 », • A », • 1 », « b », « iv » 1 Practice Under Florida Probate Code § 21.3.A.1.b.iv (2022)

iv. Conditional Renunciation “It appears to be well settled that a beneficiary under a will who desires to contest that will must first divest himself [or herself] of any beneficial interest which he [or she] has under the will.” Pournelle v. Baxter, 151 Fla. 32, 36, 9 So. 2d 162 (1942). Renunciation has evolved, however, to become a matter of form without substance as a result of later case precedent that the renunciation may be conditioned upon the successful outcome of the challenge, In re Estate of Harby, 269 So. 2d 433 (Fla. 2d DCA 1972), and that the renunciation need not be made at the filing if the beneficiary has not received assets pursuant to the challenged document and no prejudice would result, In re Estate of Filion, 353 So. 2d 1180 (Fla. 2d DCA 1977). A standard conditional renunciation clause typically found in a petition to revoke probate is as follows: “Petitioner renounces any devise or interest petitioner may have under the purported will. This renunciation is made as a condition to contesting the will of the decedent and is a qualified renunciation under the case law of Florida.” The effect is that, if the attack is successful, the will has been voided and no renunciation was necessary. If not, the renunciation was conditional on the

invalidity of the will, the condition failed, and the petitioner claims the bequest under the will. In a case in which a renunciation was made but inadvertently was not stated as conditional, the Florida Supreme Court ruled that it was conditional, nonetheless. Carman v. Gilbert, 641 So. 2d 1323 (Fla. 1994). However, in dicta, the court also suggested that any such unsuccessful beneficiary should have attorneys’ fees charged against that beneficiary’s share of the estate under F.S. 733.106(4). See § 15.4.S of this manual. Practitioners should note that the conditionally-renouncing beneficiary in the contest is still almost certainly an “interested person” in the estate because the contestant’s challenge, if successful, typically would result in some inheritance under a previous document or by intestacy. See Cruz v. Community Bank & Trust of Florida, 277 So. 3d 1095 (Fla. 5th DCA 2019) (daughter and son had standing as interested persons in breach of trust action due to possibility they would inherit estate under previous will or laws of intestacy). For further discussion of conditional renunciation, see LITIGATION UNDER FLORIDA PROBATE CODE § 3.2.B.3 (Fla. Bar 13th ed. 2022). « Ch. 21 », « § 21.3 », • A », • 1 », « b », « v » 1 Practice Under Florida Probate Code § 21.3.A.1.b.v (2022)

v. Presumptions And Burden Of Proof The landmark case that addresses undue influence is In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971). No will or trust contest should ever be tried, nor pleadings prepared, without early and extensive study of this case. Carpenter clarified several matters having to do with contests of wills. The first is the law as it relates to the burden of proof and the burden of going forward with the evidence and the manner in which the presumption of undue influence, having been raised, then vanishes. Those portions of the case were reversed by the 2002 Amendment of F.S. 733.107, which added subsection (2). See Hannibal v. Navarro, 317 So. 3d 1179 (Fla. 3d DCA 2021) (under F.S. 733.107(2), “the alleged wrongdoer bears the burden of proving that there was no undue influence”). This statute is discussed below. A finding that remains valid under Carpenter is the manner in which a

presumption of undue influence can arise. The court in Carpenter determined that undue influence may be presumed if three principal factors are present. These three factors are whether the alleged undue influencer is a substantial beneficiary, had a confidential relationship with the decedent, and actively procured the will or other document being challenged. Id. at 71. The first requirement is that one be a substantial beneficiary. It might be logically argued that a person normally would not unduly influence another person regarding a testamentary document unless that person were then to be included as a substantial beneficiary. However, logic would also suggest other scenarios; for example, a person might influence the testator to make a devise to the influencer’s spouse or child. In Tallahassee Bank & Trust Co. v. Brooks, 200 So. 2d 251 (Fla. 1st DCA 1967), undue influence practiced by the rector of a church in favor of his church and his diocese was held to constitute a ground for voiding the gift, even though the beneficiaries —the church and the diocese—were innocent. In In re Estate of Van Horne, 305 So. 2d 46, 49 (Fla. 3d DCA 1974), the court stated the general rule that “parts of a will may be held valid notwithstanding other parts are invalid on account of undue influence exercised upon the testator, provided the parts so effected [sic] are separable so that the will remains intelligible in itself if the invalid parts are deleted upon probate.” In Van Horne, the guardian was found to have unduly influenced the ward, but the other beneficiary, the ward’s blood nephew, was innocent. The court allowed the devise to the nephew to stand. In Fiel v. Hoffman, 169 So. 3d 1274 (Fla. 4th DCA 2015), the court declined to extend the reach of the slayer statute beyond the convicted murderer, the estranged wife of the testator. As a result, the alternate devisees —the murderer’s daughter and grandchildren—were not thereby disqualified as heirs. See § 21.3.A.1.e.vii. However, the court found that allegations that the will had been procured by undue influence—that the testator’s wife had used physical violence and death threats to procure the will to benefit her, her daughter, and her grandchildren—were sufficient to survive the motion to dismiss. Consequently, the trial court’s dismissal was reversed and the case was remanded. The court noted a recognized limitation to the “part valid/part

invalid” rule: “The doctrine is not applicable where it is impossible to determine to what extent the specific legacies have been tainted by the undue influence; in such a situation the whole will must either be refused probate or admitted thereto” [internal citations omitted]. Fiel, 169 So. 3d at 1279. The second requirement is that the undue influencer must have a confidential relationship with the testator. The term confidential relationship “embraces both technical fiduciary relations and those informal relations [that] exist wherever one [person] trusts in and relies upon another. … It may be moral, social, domestic, or merely personal” [internal citations omitted]. Carpenter, 253 So. 2d at 701. This recognizes the reality that it is difficult for a testator to be unduly influenced by one whom the testator does not trust implicitly or rely on greatly. The last major factor required to raise the presumption of undue influence is that of active procurement. Although active procurement may take many forms, the court in Carpenter set forth a working checklist for identifying it. The seven factors, which are not intended as an exclusive list, are: (a) presence of the beneficiary at the execution of the will; (b) presence of the beneficiary on those occasions when the testator expressed a desire to make a will; (c) recommendation by the beneficiary of an attorney to draw the will; (d) knowledge of the contents of the will by the beneficiary prior to execution; (e) giving of instructions on preparation of the will by the beneficiary to the attorney drawing the will; (f) securing of witnesses to the will by the beneficiary; and (g) safekeeping of the will by the beneficiary subsequent to execution. Id. at 702. It is not suggested that all these factors must be present for active procurement to be found. However, the more factors present in a given situation, the greater the chances that the court will find active procurement. In addition, as has been observed by multiple courts, the Carpenter criteria are not exclusive. Carpenter itself noted that we “may expect supplementation by other relevant considerations appearing in subsequent cases.” Id. For case law with additional considerations, see Newman v. Smith, 82 So. 236 (Fla. 1918) (considering reasonableness of will provisions), and In re Estate of Winslow v. Patterson, 147 So. 2d 613 (Fla. 2d DCA 1962) (considering insulation of testator from her relatives and efforts to prejudice her against them).

In this regard, courts have also routinely considered the mental and physical health of the testator when the will was executed. See Carpenter; In re Estate of Reid, 138 So. 2d 342 (Fla. 3d DCA 1962). See also Cripe v. Atlantic First National Bank of Daytona Beach, 422 So. 2d 820 (Fla. 1982) (“Where there is such inequality of mental strength, active procurement can be shown by evidence … of a request or suggestion by the dominant party.”). Active procurement is the area in which the drafting lawyer may most easily manage the facts to avoid (or create) the appearance of undue influence. This is not to suggest that a lawyer should abet undue influence. However, a lawyer should advise the client, who is acting under his or her own free will, if the lawyer sees circumstances that may give rise to the later argument of active procurement that could have been avoided, and counsel the client as to ways to address those circumstances if the client so chooses. This may involve, for example, advising the client to seek new counsel so the document can be drafted where the appearance of active procurement circumstances does not exist. The client may choose not to heed the advice, but the lawyer can warn the client that, in the worst case scenario, the court will void the will and thus thwart the intention of the testator. Some may argue that it should not be the lawyer’s function to manipulate the facts surrounding the creation and execution of the will either to create indicia of undue influence when otherwise none would exist or to “cleanse” these indicia by requiring the client to provide his or her own transportation to and from the lawyer’s office or sending the beneficiary to the reception room while the will conference is conducted. If the lawyer “cleanses” the process, the question becomes whether the lawyer eliminates the undue influence or only its obvious indicia. These considerations are very difficult real-world judgment calls for estate planning lawyers and must be analyzed on a case-by-case basis. As previously noted, F.S. 733.107(2) was added effective April 23, 2002, and it was amended in 2014. As noted at § 21.3.A.1.b.ii, that subsection provides: “In any transaction or event to which the presumption of undue influence applies, the presumption implements public policy against abuse of fiduciary or confidential relationships and is therefore a presumption shifting the burden of proof under [F.S.] 90.301–90.304.” This change has a dramatic impact on litigation in which the presumption is raised.

Under the prior law, as decided by Carpenter, only a reasonable explanation of the proponent’s involvement in the process of procuring the will was necessary to cause the presumption to vanish, thereafter requiring the case to be decided on the greater weight of the evidence without regard to the presumption. The District Court of Appeal, Third District, held that the “reasonable explanation” requires but a “minimal response to overcome the presumption.” Ahlman v. Wolf, 483 So. 2d 889, 892 (Fla. 3d DCA 1986). The same court subsequently called the presumption “slight.” Jordan v. Jordan, 601 So. 2d 287, 289 (Fla. 3d DCA 1992). The proven facts giving rise to the presumption remained in the evidence, but these might be the only evidence of the alleged undue influence, and might be insufficient to meet the burden of proof (greater weight), which always remained on the challenger. Recalling that undue influence, by its very character, generally occurs outside the ability of anyone (other than the undue influencer) to observe, producing evidence of it beyond that from which the presumption arose could be difficult or impossible. It is likely that there were numerous instances in which cases were tried but the opponent of the will simply could not produce and present the necessary evidence to support a decision to overturn the will. That dramatically changed following the 2002 Amendments to F.S. 733.107(2). No longer is the presumption a vanishing or “bursting bubble” presumption. Ehrhardt, FLORIDA EVIDENCE §§ 302.1, 302.2 (Thomson/West 2019). Now, once the presumption is raised, the burden of proof is reversed, requiring the proponent of the will to prove, by the greater weight of the evidence, that no undue influence occurred. This proof of a negative is one of the most difficult burdens a litigant can have. It is considerably more likely, now, that the proponents of valid wills that devise property to a person with a close confidential relationship to the decedent, against whom the factors giving rise to the presumption may be proved, will be put to the requirement of disproving that they unduly influenced their benefactors. Some will fail. However, advocacy with faith in experienced trial judges to reach the right result will provide some relief. The initial burden of proof still remains on the challenger. See Carpenter; Derovanesian v. Derovanesian, 857 So. 2d 240 (Fla. 3d DCA 2003). It is only the procedural methodology that has changed in a manner that ultimately makes it more difficult for the proponent to sustain the will if the challenger is able to raise the presumption. Just as before, the challenger must

present a prima facie case, and that may be accomplished by proving those Carpenter factors that will cause the presumption of undue influence to arise. It is only after this has occurred that the change in the law impacts the burden of the defender of the will, who must thereafter prove that no undue influence was exercised. A case that discusses this change in the law regarding the burden of proof and the procedure that must be followed is Diaz v. Ashworth, 963 So. 2d 731 (Fla. 3d DCA 2007), in which the court found that the Carpenter presumption was raised, but the defender proved by a preponderance of the evidence that the will was not procured by undue influence. See Hack v. Janes, 878 So. 2d 440 (Fla. 5th DCA 2004). It is uncertain whether F.S. 733.107(2) applies to pre-2002 Amendment matters. Two courts have applied the amended statute to a case filed before its effective date, although the question of applicability was apparently not raised in either case. See Newman v. Brecher, 887 So. 2d 384 (Fla. 4th DCA 2004); Hack. In the latter case, the matter was tried before the effective date of the 2002 Amendment, but reversed and remanded for retrial. The court applied the amended statute relating to the burden of proof at the second trial. In comparison, the matter in Derovanesian arose before the effective date but was tried after that date, and the court appears not to have applied (or mentioned) the amended statute. As of the date of publication of this manual, this issue appears to be unresolved. However, any uncertainty may be resolved with the passage of time. Recently, at least one court appeared to implicitly treat the 2002 Amendment as a prospective change in the law, rather than simply clarifying the law. See Hannibal v. Navarro, 317 So. 3d 1179 (Fla. 3d DCA 2021) (“under the amended statute … the alleged wrongdoer bears the burden of proving that there was no undue influence”). « Ch. 21 », « § 21.3 », • A », • 1 », « b », « vi » 1 Practice Under Florida Probate Code § 21.3.A.1.b.vi (2022)

vi. Presumptions Involving Spouse It is significant to recognize that the presumption of undue influence in the execution of a will cannot arise when the alleged influencer is the spouse of the decedent. Goertner v. Gardiner, 125 Fla. 477, 170 So. 112 (1936); Tarsagian v. Watt, 402 So. 2d 471 (Fla. 3d DCA 1981); In re Estate of Knight, 108 So. 2d 629 (Fla. 1st DCA 1959). The basis for this position is

sound because, as explained in Tarsagian, “[w]ere the confidential relationship between spouses not exempted from that presumption of undue influence rule, the presumption would arise in nearly every case in which the spouse is a substantial beneficiary, since the required active procurement would almost always be present.” Id. at 472 n.1. This is especially significant now that the presumption has the effect of shifting the burden of proof. Spousal undue influence can (and must) be directly proven rather than making use of the presumption. For cases finding spousal undue influence not based on a presumption, see In re Auerbacher’s Estate, 41 So. 2d 659 (Fla. 1949), overruled in part 253 So. 2d 697, and Hoffman v. Kohns, 385 So. 2d 1064 (Fla. 2d DCA 1980), disapproved on other grounds 460 So. 2d 895. Under Florida law, a marriage may not be voided after death upon proof that it was procured by fraud, duress, or undue influence, these defenses being personal to the spouse. See F.S. 732.805. See also Smith v. Smith, 224 So. 3d 740 (Fla. 2017), in which the Florida Supreme Court analyzed F.S. 744.3215(2)(a) (addressing marital rights of incapacitated persons) to determine whether marriage of an incapacitated person is void or voidable. It concluded that the statute “does not preclude the possibility of ratification of a marriage if the court subsequently gives its approval, but an unapproved marriage is invalid and can be given legal effect only if court approval is obtained.” Id. at 748. The court noted that “a ‘voidable marriage is good for every purpose until avoided [and] it can be attacked only in a direct proceeding during the life of the parties.’ ” Id., quoting Kuehmsted v. Turnwall, 103 Fla. 1180, 138 So. 775, 777 (1932). However, F.S. 732.805 provides that if the marriage is found by a preponderance of the evidence to have been procured by fraud, duress, or undue influence, the spousal exemption from the presumption of undue influence, and all marital rights in a decedent’s estate flowing from the marital status, are void. Under these circumstances, the protections and benefits that came with the marriage are eliminated, even though the marriage remains intact. « Ch. 21 », « § 21.3 », • A », • 1 », « b », « vii » 1 Practice Under Florida Probate Code § 21.3.A.1.b.vii (2022)

vii. Order Of Trial The trial, the order of trial, and the burden of proof in a will contest comprise a form of legal minuet. The initial burden is on the proponent of the

will to establish its formal execution and attestation. F.S. 733.107(1). “A selfproving affidavit executed in accordance with [F.S.] 732.503 or an oath of an attesting witness executed [pursuant to F.S.] 733.201(2) is admissible and establishes prima facie the formal execution and attestation of the will. Thereafter, the contestant [has] the burden of establishing the grounds on which the probate of the will is opposed or revocation is sought.” F.S. 733.107(1). Except in cases against surviving spouses (see § 21.3.A.1.b.vi), to assert undue influence, the contestant tactically attempts to raise the presumption by proving the factors in In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971) (see § 21.3.A.1.b.v), or other factors of active procurement. See Hathaway, Make It An Even 10: Courts Rely on More Than the Seven Carpenter Factors to Analyze a Claim for Undue Influence of a Will or Trust, 83 Fla. Bar J. 87 (June 2009). If the contestant successfully proves a prima facie case establishing a confidential relationship, active procurement, and substantial beneficiary status, the presumption is raised and the contestant may rest. In the typical trial, the contestant will continue to offer all available proof of undue influence before resting because it is unlikely that the court will provide gratuitous advice that the presumption has arisen, and one cannot be sure that the court finds the evidence sufficient to raise the presumption. When the challenger rests, the usual practice is that the proponent of the will moves for involuntary dismissal (not directed verdict, since this is a bench trial), arguing that the challenger failed to establish a prima facie case of undue influence. A prima facie case may have been made if the challenger alleged sufficient facts to raise the presumption or otherwise established direct proof of undue influence. In deciding a motion for involuntary dismissal, the court is not permitted to weigh the evidence; rather, it can only determine if there is any evidence that would support a prima facie case for the challenger, who would prevail if that evidence was not rebutted. If a prima facie case for undue influence is not established during the challenger’s case in chief, the court should grant the proponent’s motion for involuntary dismissal. See McCabe v. Hanley, 886 So. 2d 1053 (Fla. 4th DCA 2004). The court may rule, or reserve ruling, on the motion for involuntary dismissal. If the motion is actually denied at that point (as opposed to the ruling being reserved), the burden of proof shifts to the proponent to produce

evidence proving the absence of undue influence. F.S. 733.107(2). In the dissenting opinion in McCabe, 886 So. 2d at 1057, Judge Bryan questioned the utility of a motion for involuntary dismissal as a matter of course: This error resulted because the defense attorney moved for the involuntary dismissal when there was a clear factual issue. This frequently happens. Attorneys believe they must move for directed verdicts or involuntary dismissals as a matter of course. That may have some merit in a jury trial, but only creates a problem in a nonjury trial. It is the rare case that has no factual issue. Trial courts do no service in nonjury cases by granting the motion. Attorneys do their clients no service by making the motion because in cases in which they would otherwise prevail, the case may have to be retried giving the plaintiff another bite at the apple. This is judicial-speak for “be careful what you ask for because you might get it.” When the challenger rests, the proponent has the opportunity to present its case. Because proponents may not know whether the court has shifted the burden, they should always be prepared to prove, by a preponderance of the evidence, that undue influence did not occur. During the proponent’s case, the proponent may provide rebuttal evidence. If the proponent believes that the burden has not shifted, the proponent may choose to rest in lieu of providing additional evidence. However, particularly if the proponent moves for involuntary dismissal and the motion is not granted, the proponent should assume evidence is necessary. « Ch. 21 », « § 21.3 », • A », • 1 », « b », « viii » 1 Practice Under Florida Probate Code § 21.3.A.1.b.viii (2022)

viii. Quantum Of Proof Questions were raised by the decision in In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971) (see § 21.3.A.1.b.v) regarding the quantum of proof (i.e., the level or amount of proof) required in cases of undue influence, because the “clear and convincing” standard was mentioned in some places and the “greater weight” standard was mentioned in others. It was not until 1982 that this question was finally resolved when the Florida Supreme Court

determined the standard of proof required of the challenger to be the preponderance of evidence (i.e., the greater weight of the evidence). Cripe v. Atlantic First National Bank of Daytona Beach, 422 So. 2d 820 (Fla. 1982). (Practitioners should note that the “clear and convincing” standard may be applicable when a lawyer is the person alleged to have exerted undue influence on a client. See § 21.3.A.1.b.xi.) Following the 2002 Amendment to F.S. 733.107 (see § 21.3.A.1.b.v), the question arose whether the holding in Cripe that the quantum of proof was “greater weight” had been superseded and was “clear and convincing.” That was clarified by the court in Hack v. Janes, 878 So. 2d 440 (Fla. 5th DCA 2004), in which the court held that the quantum of proof remains the greater weight of the evidence standard. « Ch. 21 », « § 21.3 », • A », • 1 », « b », « ix » 1 Practice Under Florida Probate Code § 21.3.A.1.b.ix (2022)

ix. Diminished Capacity While a person who lacks testamentary capacity cannot make a valid will, a person with merely diminished capacity, if not lacking testamentary capacity, can still make a valid will but may be particularly susceptible to undue influence. Thus, there is an interrelationship between the mental and physical condition of the testator and undue influence. In In re Estate of Reid, 138 So. 2d 342, 350 (Fla. 3d DCA 1962), overruled in part on other grounds 253 So. 2d 697, the court observed: “While she was not legally without capacity to make a will, the record irrefragably established that the testatrix was a person of extremely weak mental and physical health. Clearly then, it would take little to influence a person such as the testatrix.” In Gardiner v. Goertner, 110 Fla. 377, 149 So. 186, 189 (1933), the court stated: “What degree of influence will vitiate a will depends much upon the bodily and mental vigor of the testator, for that which would overwhelm a mind weakened by sickness, dissipation, or age might prove no influence at all to one of strong mind in the vigor of life.” It has also been stated that “[t]here is nothing more flexible than a sick mind.” In re Auerbacher’s Estate, 41 So. 2d 659, 661 (Fla. 1949), overruled in part 253 So. 2d 697. « Ch. 21 », « § 21.3 », • A », • 1 », « b », « x » 1 Practice Under Florida Probate Code § 21.3.A.1.b.x (2022)

x. Naturalness Of Disposition An additional factor often considered by the court is the naturalness of the testamentary disposition and its comparison to dispositions in prior wills. A dramatic change in the testamentary plan or a long-expressed intention, absent an identifiable change of circumstances, leads to a strong inference of the presence of undue influence. Newman v. Smith, 77 Fla. 633, 82 So. 236 (1919); In re Estate of Deane, 153 So. 2d 26 (Fla. 3d DCA 1963). The exclusion of a child or children when those children would be the natural objects of the testator’s bounty, without other factors, will not raise the presumption of incompetency or undue influence. Wartmann v. Burleson, 139 Fla. 458, 190 So. 789 (1939); Roberts v. Bryant, 201 So. 2d 811 (Fla. 2d DCA 1967). However, it is a common emotional reaction of an omitted child or heir at law to leap to the conclusion that the omission is prima facie evidence of undue influence by a sibling, a more remote heir, a friend, or the spouse of the decedent. The lawyer who is contacted by the disappointed beneficiary must address the matter more objectively, remembering that, except as to a spouse or pretermitted child, Florida does not have forced heirship by statute or common law. The lawyer must look to the history of the relationship between the client and the decedent, the degree of closeness, arguments between them, frequency and type of contact, visits, gifts, and other indicia of fondness, estrangement, or dislike. Consanguinity alone does not create a right to participate as a beneficiary in an estate. « Ch. 21 », « § 21.3 », • A », • 1 », « b », « xi » 1 Practice Under Florida Probate Code § 21.3.A.1.b.xi (2022)

xi. Undue Influence And The “Dutiful” Child It is common in families with multiple children for one child to undertake the bulk of the care for an aging parent. That “dutiful” child may likely assist the parent with tasks such as scheduling appointments or driving the parent to errands. This conduct, of course, also falls squarely into the factors in In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971), related to active procurement when the child assists their parent with the estate plan. See § 21.3.A.1.b.v. Presence of these factors can be used to establish a presumption of undue influence, but they also may be present when a dutiful child assists an aging parent. See Derovanesian v. Derovanesian, 857 So. 2d 240 (Fla. 3d

DCA 2003). A “dutiful child” argument can be used to explain the presence of active procurement elements such that the Carpenter presumption does not arise or to prove that no undue influence actually occurred after the burden has shifted. As explained in section §§ 21.3.A.1.b.v and vii, above, when the presumption of undue influence arises, the burden then shifts to the purported undue influencer to prove that no undue influence occurred. In Estate of Kester v. Rocco, 117 So. 3d 1196, 1200 (Fla. 1st DCA 2013), the court held that where communications and assistance are consistent with a “dutiful” adult child towards an aging parent, there is no presumption of undue influence. See also Carter v. Carter, 526 So. 2d 141, 143 (Fla. 3d DCA 1988) (“if an adult child … cannot talk to his parent about [the desire to change a will], then we have finally demolished the family ties of love and natural affection”). In the authors’ opinion, the court in Kester stated matters overbroadly when it held that there is no presumption of undue influence when evidence of “dutiful child” activities are present. It seems better to state that evidence that the accused influencer was a “dutiful child’ may be used to show that no undue influence occurred because there is a reasonable explanation for the presence of the Carpenter factors. See Hannibal v. Navarro, 317 So. 3d 1179 (Fla. 3d DCA 2021) (under F.S. 733.107(2), “the alleged wrongdoer bears the burden of proving that there was no undue influence”). Though the term “dutiful child” was not used, Carpenter is actually a dutiful child case. In Carpenter, the daughter of the testator was accused of undue influence in the procurement of her mother’s will in which she was named the sole beneficiary, to the exclusion of her three siblings. The District Court of Appeal, Fourth District, expressed doubt regarding active procurement because the daughter’s activity assisting her mother “was primarily as a messenger on behalf of her mother.” Carpenter at 702. Moreover, the Fourth District found that the daughter came forward with a reasonable explanation for her active role in her mother’s affairs (i.e., as a dutiful child), and, as a result, the court ultimately determined that the evidence was insufficient as a matter of law to sustain a finding of undue influence. However, the Florida Supreme Court determined that it was the function of the trial court to interpret those facts, and “since the facts giving rise to the presumption of undue influence are themselves evidence of undue

influence, those facts remain in the case and will support a permissible inference of undue influence.” Id. at 705. Thus, Carpenter is an example of when the dutiful child argument was ultimately unsuccessful in avoiding the presumption of undue influence. « Ch. 21 », « § 21.3 », • A », • 1 », « b », « xii » 1 Practice Under Florida Probate Code § 21.3.A.1.b.xii (2022)

xii. Lawyer As Undue Influencer Matters of alleged undue influence involving inter vivos gifts or testamentary devises to a lawyer representing the donor or the testator are governed by a distinct set of rules. Contrary to procedure in other circumstances, when the lawyer is the alleged undue influencer, the burden is on the lawyer initially to prove that the gift or devise was untainted by undue influence; the degree of proof apparently imposed in these instances is that of “clear and convincing” evidence. Zinnser v. Gregory, 77 So. 2d 611 (Fla. 1955); Nelson v. Walden, 186 So. 2d 517 (Fla. 2d DCA 1966); In re Estate of Reid, 138 So. 2d 342 (Fla. 3d DCA 1962). Although an argument might have been made that the decision in In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971) (see § 21.3.A.1.b.v), may have superseded some of the earlier cases relating to the locus of the burden of proof and the quantum of proof, this is clearly not the case. It continues to be clear that the lawyer has the burden of showing the fairness and validity of the gift in the face of a presumption of invalidity and, furthermore, such showing must be by clear and convincing evidence. Ritter v. Shamas, 452 So. 2d 1057 (Fla. 3d DCA 1984). The Rules of Professional Conduct (Chapter 4 of the Rules Regulating The Florida Bar) recognize potential conflict in the area of gifts and devises in Rule Reg. Fla. Bar 4-1.8(c). The Comment to that rule, as it relates to gifts, provides: A lawyer may accept a gift from a client, if the transaction meets general standards of fairness and if the lawyer does not prepare the instrument bestowing the gift. For example, a simple gift such as a present given at a holiday or as a token of appreciation is permitted. If a client offers the lawyer a more substantial gift, subdivision (c) does not prohibit the lawyer from accepting it, although the gift may be voidable by the client under the doctrine of undue influence, which treats client gifts as presumptively fraudulent. In any event, due to concerns about

overreaching and imposition on clients, a lawyer may not suggest that a gift be made to the lawyer or for the lawyer’s benefit, except where the lawyer is related to the client as set forth in subdivision (c). If effectuation of a gift requires preparing a legal instrument such as a will or conveyance, however, the client should have the detached advice that another lawyer can provide and the lawyer should advise the client to seek advice of independent counsel. Subdivision (c) recognizes an exception where the client is related by blood or marriage to the donee. The practitioner should note that Rule 4-1.8 previously only prohibited lawyers from soliciting “substantial” gifts, but in 2017 the Florida Supreme Court adopted amendments to the Rule and the Comment to Rule 4-1.8, eliminating the word “substantial” as it relates to gifts. In re: Amendments to Rules Regulating The Florida Bar (Biennial Petition), 234 So. 3d 577 (Fla. 2017). As a result, a lawyer is prohibited from soliciting any gift from a client. « Ch. 21 », « § 21.3 », • A », • 1 », « b », « xiii • 1 Practice Under Florida Probate Code § 21.3.A.1.b.xiii (2022)

xiii. Other Applications Of Undue Influence Undue influence is recognized as a ground for voiding an inter vivos gift, Hicks v. Hicks by & through Wilson, 491 So. 2d 346 (Fla. 4th DCA 1986); a survivorship joint bank account, Cripe v. Atlantic First National Bank of Daytona Beach, 422 So. 2d 820 (Fla. 1982); and a testamentary disposition under a living trust, Kunce v. Robinson, 469 So. 2d 874 (Fla. 3d DCA 1985). Previously, undue influence was not a proper ground to void the revocation of a living trust, at least not during the lifetime of the settlor. Florida National Bank of Palm Beach County v. Genova, 460 So. 2d 895 (Fla. 1985). See Freeman v. Lane, 504 So. 2d 1297 (Fla. 5th DCA 1987). Then, in 2009, the District Court of Appeal, Fourth District, took the Florida Supreme Court’s decision in Genova one step further and held that the revocation of a revocable trust by the settlor as a result of undue influence could not be challenged, even after the settlor’s death. MacIntyre v. Wedell, 12 So. 3d 273 (Fla. 4th DCA 2009). However, the MacIntyre decision was superseded when, in 2011, F.S. 736.0406 was amended to provide:

If the creation, amendment, or restatement of a trust is procured by fraud, duress, mistake, or undue influence, the trust or any part so procured is void. The remainder of the trust not procured by such means is valid if the remainder is not invalid for other reasons. If the revocation of a trust, or any part thereof, is procured by fraud, duress, mistake, or undue influence, such revocation is void. F.S. 732.5165 was concurrently amended to provide, “[i]f the revocation of a will, or any part thereof, is procured by fraud, duress, mistake, or undue influence, such revocation is void.” An action to contest the validity of all or part of a trust may not be commenced until the trust becomes irrevocable. F.S. 736.0207. However, there is a limited exception to this limitation regarding a guardian. The Florida Guardianship Law, F.S. Chapter 744, and the Florida Trust Code, F.S. Chapter 736, permit a guardian, with court permission, to challenge the validity of a trust that has not become irrevocable if the guardianship court determines that the action “appears to be in the ward’s best interests during the ward’s probable lifetime.” F.S. 736.0207, 744.441(11). « Ch. 21 », « § 21.3 », • A », • 1 », « c » 1 Practice Under Florida Probate Code § 21.3.A.1.c (2022)

c. Testamentary Capacity « Ch. 21 », « § 21.3 », • A », • 1 », « c », • i » 1 Practice Under Florida Probate Code § 21.3.A.1.c.i (2022)

i. Definition Lack of testamentary capacity is the second ground for setting aside a will, ranked in order of statistical success. Although mental condition may be a consideration in undue influence, undue influence is not a consideration in determining testamentary capacity. F.S. 732.501 requires that one must be “of sound mind” to make a will, but there is no definition, in the statutes or in the rules, of “testamentary capacity.” In fact, in 2007, a committee of the Real Property, Probate and Trust Law Section of The Florida Bar considered whether it would propose a statutory definition. However, the committee was unable to agree on the precise definition of the term and ultimately voted not to propose legislation. The definition of testamentary capacity therefore is provided exclusively by case law, and the cases with an adequate definition

are infrequent. Furthermore, the term has been defined differently, depending on the facts of each case. Testamentary capacity in Florida is generally defined as the ability to 1. understand in a general way the nature and extent of the property to be disposed of; 2. understand in a general way the testator’s relationship to those who would naturally claim substantial benefit from the will, i.e., the natural objects of one’s bounty; 3. understand the practical effect of the will or dispositive provisions of a trust as executed; and 4. consider the three foregoing matters and hold them in mind for a sufficient length of time to perceive at least their obvious relations to each other and to form some rational judgment in relation to them. In re Wilmott’s Estate, 66 So. 2d 465 (Fla. 1953); American Red Cross v. Estate of Haynsworth, 708 So. 2d 602 (Fla. 3d DCA 1998); In re Estate of Dunson, 141 So. 2d 601 (Fla. 2d DCA 1962). It is especially significant to note from the foregoing that what is required of the testator at the instant of execution of the will or trust is not only the ability to understand “the nature and extent of the property to be disposed of,” but also that the testator actually understands “the practical effect of the will as executed.” Newman v. Smith, 77 Fla. 633, 649, 82 So. 236 (1919). Simple mistake of fact is insufficient as a matter of law to void an otherwise valid will. For example, if a testator believed that his securities portfolio had become valueless when it was actually worth several million dollars, this mistake of fact would not invalidate the document. If, however, the mistake of fact rises to the level of an “insane delusion,” an opposite result might be reached. York v. Smith, 385 So. 2d 1110 (Fla. 1st DCA 1980). See § 21.3.A.1.e.iv. « Ch. 21 », « § 21.3 », • A », • 1 », « c », « ii • 1 Practice Under Florida Probate Code § 21.3.A.1.c.ii (2022)

ii. Presumption And Burden Of Proof

Having once arrived at the first plateau of understanding of the definition of testamentary capacity, it is then important to keep in mind that there is an initial rebuttable presumption of testamentary capacity. The burden is clearly on the contestant to prove the absence of testamentary capacity. Schaefer v. Voyle, 88 Fla. 170, 102 So. 7 (1924). When a person has already been adjudicated incompetent, however, the presumption is against testamentary capacity and it is incumbent on the proponent of the will to establish by sufficient evidence the presence of testamentary capacity. American Red Cross v. Estate of Haynsworth, 708 So. 2d 602 (Fla. 3d DCA 1998); Chapman v. Campbell, 119 So. 2d 61 (Fla. 2d DCA 1960). As noted by the Florida Supreme Court in Murrey v. Barnett National Bank of Jacksonville, 74 So. 2d 647 (Fla. 1954), even a lunatic may make a will in a lucid interval. Practitioners should be aware that courts do not typically make specific findings as to testamentary capacity when hearing a petition to determine incapacity of an alleged incapacitated person in a guardianship proceeding. During the guardianship proceeding, the court appoints an examining committee of three people to meet with and evaluate the alleged incapacitated person and determine the person’s ability to exercise certain rights (not including testamentary capacity). Despite the presumption against testamentary capacity in guardianships, there is authority that if an incapacitated ward can demonstrate testamentary capacity at the time of execution of a will, such execution is still valid. In re Estate of Supplee, 247 So. 2d 488 (Fla. 2d DCA 1971) (decedent possessed testamentary capacity during lucid interval when she executed new will). The moment at which testamentary capacity is to be tested is the moment of execution of the will or trust. Id. Although evidence of mental condition both before and after the execution may be persuasive, the burden falls on the one alleging lack of capacity to prove that lack of capacity at the moment of execution. It is for this reason, and because of the strong presumption of capacity provided by law, that voiding a will or trust on the ground of lack of testamentary capacity is infrequent. The burden of overthrowing a will or trust on this ground is a heavy one, especially in light of the constitutional right of testamentary freedom, and must be sustained by a preponderance of the evidence. Hendershaw v. Estate of Hendershaw, 763 So. 2d 482 (Fla. 4th

DCA 2000). The presumption of testamentary capacity is one of the strongest presumptions found in the law. Mere old age, physical frailty or sickness, failing memory, or vacillating judgment are not inconsistent with testamentary capacity. Feebleness of body or mental weakness does not tend to create the presumption of incompetence. Murrey. “Eccentricities of habit, peculiarities in appearance or behavior, or penuriousness do not of themselves establish lack of testamentary capacity; but on the question of testamentary capacity, it is generally permitted to show in connection with other evidence of incapacity such behavior and characteristics.” Heasley v. Evans, 104 So. 2d 854, 856 (Fla. 2d DCA 1958). Testimony of witnesses on the question of capacity may be either expert or lay testimony. See In re Estate of Hammermann, 387 So. 2d 409 (Fla. 4th DCA 1980) (lay testimony is competent evidence of testamentary capacity during execution of will and trial court is not obliged to reject lay testimony in favor of contrary expert testimony). Testimony will not be disqualified because the witness is interested in the outcome; however, the weight afforded this testimony may be affected. F.S. 90.601; Farish v. Bankers Multiple Line Insurance Co., 425 So. 2d 12 (Fla. 4th DCA 1983), modified on other grounds 464 So. 2d 530. See also F.S. 732.504(2) (allowing any competent person to act as witness). Certain rigid proscriptions formerly existed with relation to testimony by an interested person as to oral communication between that person and a decedent, when the adverse party in the action was either a personal representative, heir at law, legatee, devisee, or survivor of the deceased person. See F.S. 90.602 (2005), which was commonly referred to as the Dead Person’s Statute. This statute was repealed by the 2005 Legislature and a specific hearsay exception was created under F.S. 90.804(2)(e) to permit hearsay testimony on the subject matter of evidence offered and admitted by an adverse party. For example, if a party offers a joint account agreement or a will or trust into evidence, the other party may offer what would otherwise be hearsay testimony regarding that agreement, will, or trust. See § 21.4.I. In the authors’ opinion, witnesses whose testimony is the most valuable and carries the greatest weight generally include:

(1) those disinterested persons who knew the decedent over a substantial period of time and had sufficient opportunity to observe the decedent at or about the time in issue; (2) treating physicians, especially those who had the opportunity to treat the decedent over a long period of time; (3) consulting physicians and other experts who had the opportunity to examine the decedent; (4) the drafting lawyer, especially when the lawyer was also involved in the execution of the document; and (5) other medical experts testifying about x-rays, test results, or medical records, who never had the opportunity to examine the decedent. « Ch. 21 », « § 21.3 », • A », • 1 », « d » 1 Practice Under Florida Probate Code § 21.3.A.1.d (2022)

d. Improper Execution « Ch. 21 », « § 21.3 », • A », • 1 », « d », • i » 1 Practice Under Florida Probate Code § 21.3.A.1.d.i (2022)

i. Wills The execution of a will is governed by F.S. 732.502. Neither nuncupative (unwritten, oral) nor holographic (handwritten) wills are valid in Florida, even if valid under the law of the state where declared or written, except that a handwritten will properly executed under F.S. 732.502(1) is not considered holographic and is therefore valid. F.S. 732.502(2). See Zaidman v. Zaidman, 305 So. 3d 330 (Fla. 3d DCA 2020); Malleiro v. Mori, 182 So. 3d 5 (Fla. 3d DCA 2016). Thus, a holographic will is one that is entirely written in the hand of the testator and signed by that person but not executed with the formalities required by statute. In some jurisdictions, this type of will is valid to bequeath personal property. A document otherwise meeting the requirements of F.S. 732.502 is equally valid whether typed, computergenerated, or written in the hand of the testator or someone else’s hand. A nuncupative will is an oral will declared before witnesses and, before the adoption of the Florida Probate Code (effective January 1, 1976), was effective to devise tangible personal property.

Under F.S. 732.502(1)(c), at least two attesting witnesses must sign a will in the presence of each other and in the presence of the testator. However, the statute does not require the testator to have signed in the presence of the two witnesses as long as the testator acknowledges to them that he or she executed the document. “The purpose of the statute governing the execution of will is to assure not only that the signature on the will is that of the testator, but to provide reasonable assurance of the circumstances under which the signature was affixed to the document.” Jordan v. Fehr, 902 So. 2d 198, 201 (Fla. 1st DCA 2005). The practitioner should also note that F.S. 732.502(1)(a)2 permits the testator to direct another, in the testator’s presence, to subscribe (i.e., write or sign) the testator’s name at the end of the will. Florida law requires strict compliance with the execution formalities and does not have exceptions for harmless error. See, e.g., Zaidman; Bitetzakis v. Bitetzakis, 264 So. 3d 297 (Fla. 2d DCA 2019); Price v. Abate, 9 So. 3d 37 (Fla. 5th DCA 2009). In Allen v. Dalk, 826 So. 2d 245 (Fla. 2002), a testator in the lawyer’s office signed multiple originals of various documents, such as a power of attorney and a living will, which were appropriately witnessed. Her will was also one of the documents included in the papers to be signed, and she declared to the witnesses and the notary that it was her last will; but in the shuffle of paperwork, she neglected to sign the single original of her last will, even though the witnesses did sign and the notary acknowledged all signatures (including that of the non-signing testator). The Florida Supreme Court declined to give that document validity and refused to create a constructive trust. Florida law does not require that the will be declared by the testator or published as the testator’s will, nor is it required that the attesting witnesses know at the time they subscribed the document that it was a will. In re Estate of Beakes, 306 So. 2d 99 (Fla. 1975), 71 A.L.R. 3d 873. Florida law also does not require that the attesting witnesses be disinterested. F.S. 732.504(2). The most frequently successful attack on a will on the ground of improper execution involves a factual pattern in which one of the witnesses or the testator was not present at the time the other witness subscribed the document. Price v. Abate, 9 So. 3d 37 (Fla. 5th DCA 2009); In re Neil’s Estate, 39 So. 2d 801 (Fla. 1949); Jordan. Each inquiry into the validity of a

will should include a detailed examination of the signing sequence and identify those present at the time, and special attention should be given when that event occurs without a lawyer present. Furthermore, prudent practice requires one attacking a will to actually examine the original document which, presumably, has been deposited with the court, for any obvious alteration that might not appear on a copy. For estates of decedents dying after October 1, 2010, the self-proving affidavit, as provided under F.S. 732.503, or the oath of an attesting witness executed, as required in F.S. 733.201(2), establishes prima facie the due execution and attestation of the will under F.S. 732.502, and satisfies the initial burden of the will proponent in a will contest to prove due execution under F.S. 733.107. Since January 2020, Florida began allowing remote online notaries (see F.S. 117.05(5), (13), and (14)), and in July 2020, the provisions of F.S. 732.522 regarding the execution of electronic wills and the testamentary aspects of revocable trusts became effective. F.S. 732.523 provides the selfproof requirements for electronic wills. A more in-depth look into electronic wills and remote notarization is outside the scope of this chapter, but may be the cause of a surge of new litigation in the future. Of particular note is F.S. 117.285(5)(g), which provides that any document signed by a “vulnerable adult” in the presence of a witness by means of audio-video communication technology will not be effective. “Vulnerable adult” is defined in F.S. 415.102(28) as “a person 18 years of age or older whose ability to perform the normal activities of daily living or to provide for his or her own care or protection is impaired due to a mental, emotional, sensory, long-term physical, or developmental disability or dysfunction, or brain damage, or the infirmities of aging.” F.S. 117.201(12) defines the person whose signature the online notary is acknowledging electronically as the “principal.” Under F.S. 117.285(5), the principal must answer the following questions in order to identify whether the testator is a vulnerable adult: 1. Are you under the influence of any drug or alcohol today that impairs your ability to make decisions? 2. Do you have any physical or mental condition or long-term

disability that impairs your ability to perform the normal activities of daily living? 3. Do you require assistance with daily care? If the principal answers yes to any of the questions, the principal may not execute a document outside the physical presence of witnesses. Practitioners should be wary that vulnerable principals might not be forthright about their vulnerable status. Time may prove that the vulnerable adult definition is so broad that it leads to litigation with regard to e-wills. The contestant of an electronic record has the burden to prove that the principal was a vulnerable adult at the time of executing the electronic documents, and if it is proven that the document was signed by a vulnerable adult, the document is void. In light of these issues, estate planners should weigh the likelihood of litigation against the benefits of e-wills and explain the risks to their clients prior to allowing clients to take advantage of these new statutory provisions. “A will may be admitted to probate upon the oath of any attesting witness taken before any circuit judge, commissioner appointed by the court, or clerk.” F.S. 733.201(2). Practitioners should note that the statute does not permit the oath of witness (as distinguished from self-proof) to be taken by a notary public, in the absence of the person appointed as a commissioner. Id. F.S. 732.502(1)(a)1 requires that the will be signed “at the end,” but signing the attestation clause only or signing elsewhere in the will may be sufficient, depending on the intention of the testator. In re Schiele’s Estate, 51 So. 2d 287 (Fla. 1951); Bradley v. Bradley, 371 So. 2d 168 (Fla. 3d DCA 1979). Florida law permits a testator to sign a will by making a mark not commonly regarded as a formal signature. See In re Williams’ Estate, 182 So. 2d 10, 12 (Fla. 1965) (“a mark made by the testator at the proper place on his will with the intent that it constitute his signature and evidence his assent to the will is sufficient to satisfy the statutory requirement that he ‘sign’ his will.”). However, a partial signature including only a first name, where the decedent’s normal signature includes both first and last names, is not valid. Bitetzakis. The witnesses, however, are not required to sign at any particular place or with any particular mental intent. In re Estate of Charry, 359 So. 2d 544 (Fla. 4th DCA 1978). But “it is essential for the witnesses to sign in the testator’s and each other’s presence.” Simpson v. Williamson, 611 So. 2d 544 (Fla. 5th DCA 1993).

Finally, inquiry must be made regarding the witnesses’ qualifications to serve as witnesses. F.S. 732.504(1) provides: “Any person competent to be a witness may act as a witness to a will.” F.S. 90.601 provides: “Every person is competent to be a witness, except as otherwise provided by statute.” F.S. 90.603 provides that a person is disqualified to testify as a witness if the person is “[i]ncapable of expressing himself or herself concerning the matter in such a manner as to be understood, either directly or through interpretation by one who can understand him or her.” Even a young child may be a witness if the court determines that the child understands the duty to tell the truth. F.S. 90.605(2); Lloyd v. State, 524 So. 2d 396 (Fla. 1988); Fletcher v. State, 506 So. 2d 90 (Fla. 2d DCA 1987). In summary, F.S. 732.502 should be tracked precisely to determine whether the will was properly executed. « Ch. 21 », « § 21.3 », • A », • 1 », « d », « ii • 1 Practice Under Florida Probate Code § 21.3.A.1.d.ii (2022)

ii. Trusts « Ch. 21 », « § 21.3 », • A », • 1 », « d », « ii •, • I » 1 Practice Under Florida Probate Code § 21.3.A.1.d.ii.I (2022)

I. Application Of Formalities Required For Execution Of Will The formalities required for the execution of a valid trust may be confusing. The overriding rule is that the testamentary aspects of a trust or trust amendment created after October 1, 1995, by a Florida resident are valid only if the document is executed with the formalities required for execution of a will; that is, “a trust—or an amendment thereto—must be signed by the settlor in the presence of two attesting witnesses and those witnesses must also sign the trust or any amendments in the presence of the settlor and of each other. These requirements are strictly construed.” Kelly v. Lindenau, 223 So. 3d 1074, 1076–1077 (Fla. 2d DCA 2017) (trust amendment improperly executed due to lack of second witness’s signature could not be validated or enforced, so neither a constructive trust nor reformation to correct mistakes were available). See F.S. 736.0403(2)(b). F.S. 689.075, relating to inter vivos trusts, incorporates the requirements found in F.S. 736.0403(2)(b), regarding the execution of the trust, with the

formalities required for a will. The formality requirements appear to apply not only to the testamentary aspects of the trust, but to all aspects of the trust. F.S. 689.075(1)(g) was first adopted in 1969 to avoid the common-law doctrine of merger, which stands for the proposition that when ownership of dominant and subservient estates are unified under the same ownership (which must be co-extensive and equal in validity, quality, and all other circumstances of right), those estates will merge. See Reid v. Barry, 93 Fla. 849, 112 So. 846 (1927); Lacy v. Seegers, 445 So. 2d 400 (Fla. 5th DCA 1984). This provision prevents the doctrine of merger from being applied, and in the case in which the settlor and the trustee are the same person, the statute provides that, if the trust was executed with the formalities required for execution of a will in the jurisdiction in which the trust was executed, or was otherwise valid in that jurisdiction, it is valid under the laws of Florida. See Zuckerman v. Alter, 615 So. 2d 661 (Fla. 1993). An exception to this is if the settlor is a Florida resident, in which case the testamentary aspects are invalid unless the trust is executed in accordance with the requirements for execution of a will in Florida, even if the trust is executed in another state and the execution otherwise complies with the formalities required for execution of a will in the other state. F.S. 736.0403. See F.S. 732.502(2). In Pasquale v. Loving, 82 So. 3d 1205 (Fla. 4th DCA 2012), the court held that, when a pour-over will was executed concurrently with the trust, the trust could not be separately challenged without also challenging the will. See § 21.3.A.2 below. « Ch. 21 », « § 21.3 », • A », • 1 », « d », « ii •, « II » 1 Practice Under Florida Probate Code § 21.3.A.1.d.ii.II (2022)

II. Limited Exceptions For Certain Pre-October 1 1995, Trusts Because the discussion in this section refers only to pre-October 1, 1995, trusts that have not been subsequently amended, this has very limited application. Trusts involving tangible or intangible personal property need not be witnessed or even, under certain circumstances, be in writing. Webster v. St. Petersburg Federal Savings & Loan Ass’n, 155 Fla. 412, 20 So. 2d 400 (1945); In re Estate of Pearce, 481 So. 2d 69 (Fla. 4th DCA 1986).

A trust with real property as an asset, if intended to be more than merely an agency between the trustee and the settlor (which agency terminates upon the death of the settlor), must be in writing and executed with the formalities required of a deed. F.S. 689.01, 689.05, 689.06. In Florida, a trust of personalty may be created orally or in writing without the necessity of witnesses, but must be proven by clear and convincing evidence. F.S. 736.0407; Zuckerman. « Ch. 21 », « § 21.3 », • A », • 1 », « d », « ii •, « III • 1 Practice Under Florida Probate Code § 21.3.A.1.d.ii.III (2022)

III. Power Of Agent Under Durable Power Of Attorney To Execute Trust Documents F.S. 709.2202 prohibits an agent under a power of attorney from exercising certain authority, commonly referred to as “super powers,” unless the principal signed or initialed next to the specific enumeration of authority. As it relates to trusts, the agent must have specific authority to create, amend, modify or revoke a trust. « Ch. 21 », « § 21.3 », • A », • 1 », « e • 1 Practice Under Florida Probate Code § 21.3.A.1.e (2022)

e. Other Grounds « Ch. 21 », « § 21.3 », • A », • 1 », « e •, • i » 1 Practice Under Florida Probate Code § 21.3.A.1.e.i (2022)

i. In General In addition to the grounds set forth above in § 21.3.A.1, the probate of a will may be revoked for any of the following reasons: the testator revoked the will; the testator executed the will believing it to be another document; the will was forged; or the testator executed the will while suffering from an insane delusion. Partial revocation may occur under certain circumstances. « Ch. 21 », « § 21.3 », • A », • 1 », « e •, « ii » 1 Practice Under Florida Probate Code § 21.3.A.1.e.ii (2022)

ii. Revocation A will may be revoked by one of the three following methods only:

Execution of a subsequent inconsistent will or codicil, but only to the extent of the inconsistencies. F.S. 732.505(1). Execution of a subsequent document (including a subsequent will) specifically revoking the prior will, as long as the subsequent document is executed with the formalities of a will. F.S. 732.505(2). Defacement or destruction of the will by the testator or some other person at the testator’s direction, with the intent and for the purpose of revocation. F.S. 732.506. See In re Estate of Dickson, 590 So. 2d 471 (Fla. 3d DCA 1991). Unlike a will, a revocable living trust cannot be revoked by destroying it, because no statute authorizes that result, unless the trust instrument authorizes destruction as a method of revocation, or the act of destroying it is determined by clear and convincing evidence to be an act done by the settlor with the intention to revoke the trust. F.S. 736.0602(3)(b)2. A will is not revoked by the simple oral expression by the testator that he or she no longer desires the testamentary plan contained in the will or intends to revoke it, and it is not revoked by the testator giving instructions to a lawyer to prepare a new will. In Dahly v. Dahly, 866 So. 2d 745, 748 (Fla. 5th DCA 2004), the court held: [The testator’s] attempt to revoke portions of his will by lining through the name of the designated personal representative, placing the word “delete” over certain paragraphs in the will, and placing his signature with the words, “Please draw up a new will making all changes noted here” on a note in the adjoining margin failed to meet the statutory requirements for revocation. To that end, the [testator] did not burn, tear, cancel, deface, obliterate, or destroy the will for the purpose of revocation. Rather, he apparently attempted to modify some but not all of the terms of his existing will. Additionally, and perhaps more importantly, the [testator] did not sign the altered will at the end of the document, nor did he have any attesting witnesses to the altered document. Consequently, the probate court erred in concluding that the [testator’s] actions constituted revocation.

Partial revocation may be accomplished only by a subsequent inconsistent will or other document, and not by defacement or destruction. Taft v. Zack, 830 So. 2d 881 (Fla. 2d DCA 2002). “[T]he decedent’s attempt to revoke a portion of his first codicil by lining through the names of three designated personal representatives and placing the word ‘deleted,’ his signature, and date in the adjoining margin failed to meet the mandatory will formalities of section 732.502.” Cioeta v. Estate of Linet, 850 So. 2d 562, 565 (Fla. 4th DCA 2003). When it can be shown that the original of a will was known to be in the possession of the decedent and then cannot be found after death, there is a presumption that the decedent destroyed it with the intention of revoking it. Brennan v. Honsberger, 101 So. 3d 415 (Fla. 5th DCA 2012). This becomes relevant in an action to establish a lost or destroyed will. The petitioner must overcome this hurdle before the lost will can be established for the purposes of probate. In re Washington’s Estate, 56 So. 2d 545 (Fla. 1952). This presumption that the testator intended to revoke the will that is missing may be rebutted with competent, substantial evidence that the party alleging its revocation had access to the testator’s home, an opportunity to destroy the will, and a pecuniary interest in doing so. In re Estate of Hatten, 880 So. 2d 1271 (Fla. 3d DCA 2004), Walton v. Estate of Walton, 601 So. 2d 1266 (Fla. 3d DCA 1992); see In re Washington’s Estate. If the presumption is overcome, or does not arise to begin with because the original will was in possession of a third party (the lawyer, for example), there are items of proof still to accomplish. See F.S. 733.207, discussed in § 5.6.C.1 of this manual, and Fla. Prob. R. 5.510. An interesting case that discusses this area of the law is Smith v. DeParry, 86 So. 3d 1228 (Fla. 2d DCA 2012). In DeParry, a codicil was executed outside the lawyer’s office in the presence of the lawyer and an unrelated third-party witness. The lawyer took possession of the codicil after its execution, but it could not be found after the decedent’s death. The lawyer and another individual were designated as the personal representatives in the will. The codicil created a pet trust, with the other personal representative designated as the trustee of the pet trust, and the one who would receive the funds for caring for the decedent’s pets. The residuary beneficiary was a minor represented by a guardian ad litem (GAL). The share of the minor

would be diminished if the $40,000 provided in the codicil for the pet trust was funded. Recall that F.S. 733.207 requires that when a will is lost or destroyed, its contents may be proven either “by the testimony of two disinterested witnesses, or, if a correct copy is provided, by one disinterested witness.” In DeParry, no photocopy existed, but the lawyer’s computer contained the original codicil, and this was printed and provided to the court. The drafting lawyer-witness testified that the computer-printed copy was a correct copy of the original. The court examined the definition of the term “correct copy” in In re Estate of Parker, 382 So. 2d 652, 653 (Fla. 1980), in which the Florida Supreme Court had held: The word “copy,” then, means a double of an original instrument, such as a carbon or photostatic copy. The word “correct” modifies and qualifies the word “copy.” It strengthens the already strong word “copy.” We therefore conclude that the words “correct copy” means a copy conforming to an approved or conventional standard and that this requires an identical copy such as a carbon or photostatic copy. The GAL argued that a “correct copy” could only be a carbon or photostatic copy. The DeParry court noted that in 1980, when Parker was decided, personal computers were uncommon, and that the Florida Supreme Court did not intend to exclude future technology developments from producing correct copies. It further noted that as many offices are becoming paperless, in the future, there may rarely be available a paper copy of any kind. The DeParry court reversed the trial court’s decision and found that the printout of the computer file was a correct copy as required by the statute. With that copy, only one disinterested witness was required to prove the contents of the lost codicil. However, finding a disinterested witness proved insurmountable. The GAL argued that the personal representative appointed as trustee was not “disinterested” because F.S. 731.201(23) defines a personal representative as an “interested person.” The DeParry court held the “interest” referred to in the statute was a personal interest in the outcome, not a representative interest that may be present related to standing and notice requirements. It found that a personal representative was not disqualified from serving as the “disinterested witness” as long as there was no personal interest. However, in

this case, the personal representative, although present at the signing, was disqualified as a disinterested witness because he was the trustee of the pet trust and was the person who would be paid for keeping the animals. The lawyer who served as the joint personal representative was likewise disqualified as a disinterested witness because the fact that he was alleged to have lost the codicil could expose him to liability, and that exposure made the lawyer an “interested person.” His assistant had read the codicil but had not witnessed its execution. The remaining witness was present at the signing but had not read the document and could not prove the content of the document. Therefore, the lost codicil could not be established. Many lawyers who are not fiduciaries consider the process of establishing a lost or destroyed will or codicil to be a mere formality, without considering the substance and scope of the burdens, which may be impossible to overcome. DeParry is one of many examples why that belief is unfounded. Another is Brennan v. Estate of Brennan, 40 So. 3d 894 (Fla. 5th DCA 2010), in which the court found that witness affidavits were insufficient to establish the lost will when the parties did not stipulate to the submission of affidavits in lieu of testimony. In an unusual case, In re Estate of Tolin, 622 So. 2d 988 (Fla. 1993), the testator destroyed a photocopy of a codicil, in the presence of witnesses, believing it to be an original and with the intention to revoke. The Florida Supreme Court found the revocation of the codicil ineffective but impressed a constructive trust for the disappointed beneficiary (the residuary devisee under the will). The Florida Supreme Court’s subsequent decision in Allen v. Dalk, 826 So. 2d 245 (Fla. 2002), discussed at § 21.3.A.1.d.i, offers an interesting contrast to its decision in Tolin. In Dalk, the testator signed multiple originals of a power of attorney and a living will, which were appropriately witnessed. However, in the shuffle, the testator neglected to sign the single original of her last will, even though the witnesses did sign. The court declined to give that document validity. Revocation is further addressed in LITIGATION UNDER FLORIDA PROBATE CODE § 3.3.B.3. (Fla. Bar 13th ed. 2022). « Ch. 21 », « § 21.3 », • A », • 1 », « e •, « iii » 1 Practice Under Florida Probate Code § 21.3.A.1.e.iii (2022)

iii. Mistake

F.S. 732.5165 provides that a will is void if based on mistake in executing a will when the testator believed the document to be another document (such as a power of attorney). Under these circumstances, the testator would not have the requisite testamentary intent. This mistake is not a mistake of fact, which is defined as “[a] mistake about a fact that is material to a transaction; any mistake other than a mistake of law.” BLACK’S LAW DICTIONARY (11th ed. 2019). For example, if a testator excludes someone from a will or trust on the mistaken belief that the excluded person is not the testator’s child, the will remains valid. See, e.g., York v. Smith, 385 So. 2d 1110 (1980). Similarly, a mistake in the inducement will not invalidate a will or trust. See, e.g., Forsythe v. Spielberger, 86 So. 2d 427 (1956) (complaint that settlor was induced by fraud to amend trust was not grounds to invalidate amendment). « Ch. 21 », « § 21.3 », • A », • 1 », « e •, « iv » 1 Practice Under Florida Probate Code § 21.3.A.1.e.iv (2022)

iv. Insane Delusion As previously stated, mistake of fact is not a ground for invalidating a will. However, when the mistake is actually an insane delusion, the will may be invalidated. As the Florida Supreme Court has explained: A mere belief in a state of facts, however imperfect or illogical, will not support an insane delusion. It must be the offspring of an unsound or deranged condition of the mind. Any belief [that] arises from reasoning from a known premise, however imperfect the process may be, or how illogical the conclusion reached, is not an insane delusion. If one of normal faculties can put himself in the place of the subject of an insane delusion and conceive how he could believe that which he is charged with believing, and still be in full possession of his faculties, an insane delusion is not established. Hooper v. Stokes, 107 Fla. 607, 609 (1933). An important and necessary ingredient is that “[t]he conception must be persistently adhered to against all evidence and reason.” Hooper, 145 So. at 856. A further requirement to set aside a will on the grounds of insane delusion is that the person alleging the insane delusion have a claim to the testator’s bounty, thereby giving them standing to move to set aside the will.

In Forsythe v. Spielberger, 86 So. 2d 427 (Fla. 1956), the Florida Supreme Court held that the testator, who mistakenly believed his daughter had removed diamonds from his ring and substituted zircons, was not suffering from an insane delusion when he redrafted his testamentary document to delete his daughter as a beneficiary. In York v. Smith, 385 So. 2d 1110 (Fla. 1st DCA 1980), a testator’s mistaken belief that he was not the father of his only child, which caused him to revise his testamentary document to delete his child as a beneficiary, was held not to be an insane delusion that would be a ground for voiding the document. In In re Estate of Edwards, 433 So. 2d 1349 (Fla. 5th DCA 1983), when the testator believed that his brother had committed a break-in and robbery on his property and felt that his mother and his sisters and brothers were all conspiring against him, and changed his testamentary document to devise his entire estate to a casual employee of five years, the court held that the testator was not suffering from an insane delusion but simply a mistake of fact, and this was not a ground for voiding the testamentary document. The first reported Florida case in which a will was invalidated on the grounds of insane delusion was In re Estate of Hodtum, 267 So. 2d 686 (Fla. 2d DCA 1972). In this case, the decedent, in his prior will, requested a Masonic burial and devised the residue of his estate to a Masonic lodge. The decedent subsequently asked his lawyer to draw a new will deleting the Masonic lodge entirely as a beneficiary of the will, for the reason that he had been blackballed or expelled from the Masons. The lawyer investigated this fact with the Masons and determined that it was untrue and so advised his client. The client persisted in his belief that he had been expelled from the Masons and again instructed the lawyer to draw the will deleting them as a beneficiary. After the lawyer declined to do so, the decedent employed another lawyer and executed the will as he desired. See also McCabe v. Hanley, 886 So. 2d 1053 (Fla. 4th DCA 2004) (involuntary dismissal was inappropriate when son presented prima facie case of insane delusion because trial court cannot weigh credibility of evidence on motion for involuntary dismissal). Another case finding insane delusion was Miami Rescue Mission, Inc. v. Roberts, 943 So. 2d 274 (Fla. 3d DCA 2006). In that case, the decedent, while in the hospital and only one day before her death, changed her will and disinherited her caretaker in favor of four charities. “[Decedent] believed that

[the caretaker] had abandoned her, ‘let her dog die,’ and was stealing from her.” Id. at 275. Evidence showed that the caretaker visited every day in the hospital and reassured her that her dog was fine. In Levin v. Levin, 60 So. 3d 1116 (Fla. 4th DCA 2011), there was record evidence that the decedent had seen her daughter multiple times in the years leading up to execution of the will and trust. The court determined that the daughter, who challenged the validity of a will and trust that left her a much smaller portion of the decedent’s estate than did a previous will, was entitled to have the trial court determine, either based on the record or after an evidentiary hearing, whether the decedent’s apparently mistaken belief that she had not seen her daughter in the 7 to 11 years before execution of the challenged will and trust constituted an insane delusion, and whether it was linked to the reduction in the daughter’s bequest. « Ch. 21 », « § 21.3 », • A », • 1 », « e •, « v » 1 Practice Under Florida Probate Code § 21.3.A.1.e.v (2022)

v. Forgery Forgery, of course, is always an issue that must be investigated. Although this is a matter that often depends on the testimony of handwriting experts, when the testimony is conflicting, the court may accept the testimony of eyewitnesses to the execution of the will over that of the experts. Dozier v. Smith, 446 So. 2d 1107 (Fla. 2d DCA 1984). « Ch. 21 », « § 21.3 », • A », • 1 », « e •, « vi » 1 Practice Under Florida Probate Code § 21.3.A.1.e.vi (2022)

vi. Charitable Devise Historically, Florida law allowed for the cancellation of any charitable devise made in the months before the death of a testator. Specifically, under former F.S. 732.803, if a charitable devise was made for the first time in a will executed within six months of a testator’s death, a spouse or lineal descendant who stood to inherit could elect to cancel the charitable devise. However, that statute was declared unconstitutional by Shriners Hospitals for Crippled Children v. Zrillic, 563 So. 2d 64 (Fla. 1990), and was subsequently repealed by the Florida Legislature in 1991. See Chapter 91-223, § 10, Laws of Florida.

« Ch. 21 », « § 21.3 », • A », • 1 », « e •, « vii » 1 Practice Under Florida Probate Code § 21.3.A.1.e.vii (2022)

vii. Murder Under the “slayer statute,” a decedent’s killer is not entitled to inherit under the decedent’s will, and has no rights of survivorship in jointly owned property as a beneficiary of a life insurance policy or through other means. It is no longer required that the killer have been criminally convicted of the offense; rather, the circuit court within its civil jurisdiction “may determine by the greater weight of the evidence whether the killing was unlawful and intentional.” F.S. 732.802. A corresponding statute, F.S. 736.1104 (formerly F.S. 737.625), relates to trusts. The majority view, which Florida courts have adopted, is that if the slayer was legally insane at the time of the killing, that killing is not “unlawful” for purposes of the statute, and the slayer is not precluded from inheritance. Congleton v. Sansom, 664 So. 2d 276 (Fla. 1st DCA 1995). In Fiel v. Hoffman, 169 So. 3d 1274 (Fla. 4th DCA 2015) (discussed in § 21.3.A.1.b.v), the court declined to extend the reach of the slayer statute beyond the testator’s murderer, who was the testator’s estranged wife and the mother of the alternate devisees. Thus, the slayer statute did not disqualify the alternate devisees under the decedent’s will. However, the court found that the undue influence exercised by the slayer spouse may have so permeated the will that no part of it could stand, so the case was remanded. « Ch. 21 », « § 21.3 », • A », • 1 », « e •, « viii » 1 Practice Under Florida Probate Code § 21.3.A.1.e.viii (2022)

viii. Abuse, Neglect, Exploitation, Or Aggravated Manslaughter Of Elderly Or Disabled Person In 2021, the Florida Legislature created F.S. 732.8031, “Forfeiture for abuse, neglect, exploitation, or aggravated manslaughter of an elderly person or a disabled adult.” The statute prevents a person convicted of abuse, neglect, exploitation, or aggravated manslaughter of an elderly or disabled person, decedent, or other person, on whose death the beneficiary’s interest depends, from receiving any of the benefits under the decedent’s will or the Florida Probate Code. The statute uses the definitions for “elderly person” and “disabled adult” found in F.S. 825.101.

The conviction can be from any jurisdiction and it creates a rebuttable presumption that the statute applies, in which case the estate passes as if the convicted person predeceased the decedent. If a qualifying conviction has not been found, the court “may determine by the greater weight of the evidence whether the decedent’s or other person’s death was caused by or contributed to by the abuser’s, neglector’s, exploiter’s, or killer’s conduct.” F.S. 732.8031(1)(b), (2)(b), (3)(b). In a joint tenancy, the interest of the convicted person is severed so that the decedent’s share passes as sole property without rights of survivorship. F.S. 732.8031(2) This includes property owned as joint tenants with right of survivorship and as tenancies by the entirety. The same applies to beneficiary designations, such as in a bond or life insurance policy, and other contractual arrangement. F.S. 732.8031(3). Furthermore, “any other property or interest acquired as a result of the abuse, neglect, exploitation, or manslaughter must be returned in accordance with [F.S. 732.8031].” F.S. 732.8031(4). There is an exception to these rules if it is proven, by clear and convincing evidence, that the victim, if capacitated, still wants the convicted person to receive the property. The evidence must show that, after the conviction, the victim: ratifies an intent that the person so convicted of abuse, neglect, or exploitation retain his or her inheritance, survivorship rights, or any other right that might otherwise be removed by this section by executing a valid written instrument, sworn to and witnessed by two persons who would be competent as witnesses to a will, which expresses a specific intent to allow the convicted person to retain his or her inheritance, survivorship rights, or any other right that might otherwise be removed by this section. F.S. 732.8031(7). « Ch. 21 », « § 21.3 », • A », • 1 », « e •, « ix • 1 Practice Under Florida Probate Code § 21.3.A.1.e.ix (2022)

ix. Share Of Pretermitted Spouse Or Child A pretermitted heir is defined as “[a] child or spouse who has been omitted from a will, as when a testator makes a will naming his or her two

children and then, sometime later, has two more children who are not mentioned in the will.” BLACK’S LAW DICTIONARY (11th ed. 2019). A will is partially revoked in its operation by the successful claim for a pretermitted spouse’s or child’s share—that is, a share taken as if the decedent had died intestate. F.S. 732.301, 732.302. See § 21.3.G. In Via v. Putnam, 656 So. 2d 460 (Fla. 1995), a decedent had a mutual will with his prior spouse creating a contract to devise his entire estate at his death to their children, and he remarried without a nuptial agreement to limit the new spouse’s rights. The new spouse claimed a pretermitted share, and the children filed a creditors’ claim as third-party beneficiaries under the mutual will contract, alleging that their father breached his contract not to defeat its terms and that their claim was prior in interest to the surviving spouse’s rights as a beneficiary. The Florida Supreme Court held: Florida has a strong public policy concerning the protection of the surviving spouse of the marriage in existence at the time of the decedent’s death … . [T]he children, as third-party beneficiaries under the mutual wills of their parents, should not be given creditor status … when their interests contravene the interests of the surviving spouse under the pretermitted spouse statute. Id. at 461. The Florida Supreme Court affirmed the lower court’s determination that the new spouse was entitled to the pretermitted spouse share under F.S. 732.301, noting the statute’s three exceptions: “(1) when ‘[p]rovision has been made for, or waived by, the spouse by prenuptial or postnuptial agreement;’ (2) when ‘[t]he spouse is provided for in the will’; or (3) when ‘[t]he will discloses an intention not to make provision for the spouse.’ ” Putnam, 656 So. 2d at 466. « Ch. 21 », « § 21.3 », • A », « 2 » 1 Practice Under Florida Probate Code § 21.3.A.2 (2022)

2. Incorporation By Reference When a will is a pour-over will, concurrently executed with a trust, the trust cannot be separately challenged without also challenging the will. Pasquale v. Loving, 82 So. 3d 1205 (Fla. 4th DCA 2012). In Pasquale, the pour-over will provided: The residue shall be added to and become a part of the Existing Trust,

and shall be held under the provisions of said Agreement in effect at [the decedent’s] death, or if this is not permitted by applicable law or the Existing Trust is not then in existence, under the provisions of said Agreement as existing today. If necessary to give effect to this gift, but not otherwise, said Agreement as existing today is incorporated herein by reference. Id. at 1207. The court found that “[b]ecause the trust was incorporated into the will, the [alleged beneficiaries] could not properly challenge the validity of the trust while adequate remedies were available at probate.” Id. The court cited DeWitt v. Duce, 408 So. 2d 216, 218 (Fla. 1981), in which the Florida Supreme Court held that “if adequate relief is available in a probate proceeding, then that remedy must be exhausted before a tortious interference claim may be pursued.” If the trust (but not the will) had been successfully challenged, and was declared to be of no force or effect, the language of the will would “absorb” the trust into the will as a testamentary trust. The trust disposition would, therefore, continue to have effect, albeit under the provisions of the will, an unchallenged document. The Pasquale court equated this situation to the DeWitt scenario, in which the disappointed beneficiary bypassed an available will contest and sued the alleged undue influencer for tortious interference with an expectancy. DeWitt held that when there was an adequate remedy in probate, it must be exhausted before the independent tort would lie. The logic of applying DeWitt to Pasquale is elusive; however, the court was correct in this logical requirement. The real reason the Pasquale court ruled as it did was because even if it found the trust to be defective as an independent document, its dispositive provisions would continue to have full effect in an unchallenged document, the will. Thus, although the challenger had never mentioned the last will or identified it in the pleading, the court with great effort construed the petition challenging the trust documents as a petition to revoke probate. Perhaps the outcome would be different if the challenged trust instrument were a trust amendment or restatement. In this scenario, if the trust document were determined to be void, the prior trust document would govern, as opposed to the will. See section § 21.3.A.4 below regarding dependent relative revocation.

« Ch. 21 », « § 21.3 », • A », « 3 » 1 Practice Under Florida Probate Code § 21.3.A.3 (2022)

3. Partial Invalidity F.S. 732.5165 provides that any part of a will procured by undue influence is void, but the remainder of the will is valid as long as there is no other reason to invalidate it. A will challenger may wish to uphold portions of the document and excise only that portion benefiting an alleged undue influencer. See In re Estate of Lane, 492 So. 2d 395 (Fla. 4th DCA 1986). Portions of a will may be upheld as valid if the invalid portions can be struck while the remainder of the will remains intelligible and functional as a document. Id. See § 21.3.A.1.b.v. If striking portions as having been obtained by undue influence will defeat the manifest intent of the testator, interfere with the general scheme of distribution, or work an injustice to other heirs, or when “ ‘it is impossible to determine to what extent the specific legacies have been tainted by the undue influence,’ ” the will must stand or fall as a complete document. In re Estate of Van Horne, 305 So. 2d 46, 49 (Fla. 3d DCA 1975), quoting 57 AM. JUR. 2d Wills, § 366. In Van Horne and in In re Kiggins’ Estate, 67 So. 2d 915 (Fla. 1953), one of the two residuary devisees was found to have procured the devise by undue influence, and the courts separated the residuary devise from the undue influencer while permitting the remaining innocent residuary beneficiary to inherit the entire residuary. See also American Red Cross v. Estate of Haynsworth, 708 So. 2d 602 (Fla. 3d DCA 1998), in which the court struck a provision in a will providing for a 5% probate fee for the drafting lawyer but left the remainder of the will untouched. Further authority for upholding a portion of the will may be found in Leffler v. Leffler, 151 Fla. 455, 10 So. 2d 799 (1942). In Fiel v. Hoffman, 169 So. 3d 1274 (Fla. 4th DCA 2015), the court addressed whether a complaint stated a cause of action, acknowledging that Florida law recognizes challenges as to partial invalidity of a document. In Wehrheim v. Golden Pond Assisted Living Facility, 905 So. 2d 1002 (Fla. 5th DCA 2005), the court noted that, depending on the facts proved, a revocation clause in a will may be valid even if the remainder of the will was

invalid because of undue influence, thereby causing the estate to pass by intestacy. See § 21.3.A.4 below regarding dependent relative revocation. « Ch. 21 », « § 21.3 », • A », « 4 • 1 Practice Under Florida Probate Code § 21.3.A.4 (2022)

4. Dependent Relative Revocation If a will is determined to be invalid, does the entire estate pass by intestacy, or is the penultimate will revived under the doctrine of “dependent relative revocation”? There also is the question of whether this doctrine might apply to a particular gift (perhaps the residuary gift) in a will or whether it is limited to the invalidity of the entire will. Dependent relative revocation is recognized in Florida and some, but not all, other states. Stewart v. Johnson, 142 Fla. 425, 194 So. 869 (1940). The application of this doctrine is an attempt by the law to determine the intention of the testator, when the last will fails, as to whether the testator would prefer that the prior will be operative or that the property descend under the laws of intestacy. The rule provides a rebuttable presumption that a testator who revokes a prior testamentary document with a subsequent testamentary document would prefer the operation of the prior document to intestacy if the subsequent document fails. The doctrine also requires that the contents of the prior will be ascertainable. Application of the doctrine should be considered when the provisions of the invalidated will are not materially different from those of the prior will. If that is not the case, and the invalidated will itself reveals an intention to revise substantially the prior testamentary plan, those facts would be persuasive that the doctrine should not apply. Practitioners should keep in mind that, in case of the invalidity of the last document, the prior document is not automatically revived. It is important to recognize that the doctrine depends on a presumption that may be rebutted by the evidence. From a planning point of view (in cases not involving undue influence), when the subsequent will shows a radical departure from the prior testamentary plans, the drafting lawyer may do well to explain in the document itself the reason for this departure. Depending on the situation, it may also be advisable to state that the testator would prefer intestacy to a prior document. Thus, if a will is revoked by a separate written instrument

(see F.S. 732.505(2)), better practice would suggest that the separate written instrument explain the purposes for the revocation and whether the testator would prefer intestacy. It does appear possible to substitute only a portion of a prior will under the doctrine, including a prior residuary devise. In re Estate of Jones, 352 So. 2d 1182 (Fla. 2d DCA 1977). In In re Estate of Barker, 448 So. 2d 28 (Fla. 1st DCA 1984), however, when a later will accidentally omitted the residuary clause, the doctrine was held not to apply to supply the residuary clause from the next earlier document. It appears that the application of the doctrine to a portion of the document depends on the failure of an extant portion as opposed to its complete omission. In First Union National Bank of Florida, N.A. v. Estate of Mizell, 807 So. 2d 78 (Fla. 5th DCA 2002), the court held that the validity of a known prior will must be determined before intestacy may be found. “The intestate determination necessarily requires a determination that the [prior] will is ineffective.” Id. at 79. In Wehrheim v. Golden Pond Assisted Living Facility, 905 So. 2d 1002 (Fla. 5th DCA 2005), the respondent moved for summary judgment on the ground that petitioners, decedent’s children, would not inherit if the last will were revoked (and therefore did not meet the definition of “interested person” necessary to bring the action), because there were three prior wills that also disinherited the children. The court in Wehrheim considered the “sufficient similarity” requirement for dependent relative revocation to apply, and determined that the decedent’s exclusion of her children throughout her wills passed the sufficient similarity test, even though a charity was named as the primary beneficiary of the estate for the first time under the challenged will. Wehrheim and Mizell stand for the proposition that intestate heirs, like beneficiaries of a prior will, must plead (and prove) the invalidity of intervening wills in order to establish standing as interested persons. A case with a detailed explanation and expanded view of dependent relative revocation is In re Estate of Murphy, 184 So. 3d 1221 (Fla. 2d DCA 2016). In Murphy, the District Court of Appeal, Second District, was tasked with determining whether the decedent’s estate should pass through intestacy or whether the doctrine of dependent relative revocation applied to revive a prior estate plan. The probate court had found that the decedent’s lawyer and

his secretary exercised undue influence in six wills that increasingly devised them a substantial portion of her $12 million estate. The probate court found the residuary clauses to be void and ordered that the residuary estate pass through intestacy. Essentially, the probate court had determined that the sixth will’s revocation clause, revoking all of the decedent’s prior wills, remained valid, leaving the majority of the estate to pass through intestacy to heirs who were still unknown. The order was appealed by the lawyer and his secretary, and crossappealed by the one relative with whom the decedent was familiar (and close) and who was named a residuary beneficiary in a prior will, on the basis that the court should have effectuated her devise under dependent relative revocation. The court remanded the case for the probate court to consider the dependent relative revocation presumption. However, the probate court did not conduct an evidential hearing, focusing its analysis on the testamentary instruments without considering extrinsic evidence. The probate court concluded that the doctrine of dependent relative revocation did not apply because of what it deemed “dramatic” differences between the residuary devises, leading the court to believe the decedent would have preferred intestacy to the dispositive scheme under any of her six documents, with the tainted devises stripped out. On subsequent appeal, the appellate court noted the axiom that intestacy should be avoided, if possible. Then it clarified the complete and proper sequence of analysis: (i) Did the proponent of dependent relative revocation establish sufficient similarity between the decedent’s wills that would have given rise to the doctrine of dependent relative revocation? (ii) If so, were there sufficient record facts to overcome that presumption so that the tainted will’s revocation clause could be upheld; and (iii)

If not, if the presumption remained intact, which, if any, will or residuary devise in the decedent’s prior wills reflected her true testamentary intention?

In addressing the first step, whether the prior revoked wills were substantially similar, the court adopted the view that, in the context of undue

influence, a broader review is appropriate. The court also determined that extrinsic evidence is allowed and may be essential. (In this regard, the court parted from (and certified conflict with) Wehrheim, which excludes extrinsic evidence to determine whether the doctrine applies in cases involving undue influence.) After comparing the wills, the court concluded that there were sufficient similarities for the doctrine to apply and to support the notion that the decedent would not prefer intestacy. In addressing the second step, the court observed that because undue influence is a burden shifting presumption, in the context of dependent relative revocation, the burden shifts to the party opposing its application. Because the presumption was never rebutted, the revocation clause in the will should have been deemed invalid, since it depended on the “the effectiveness of that will’s invalid residuary clause.” Murphy, 184 So. 3d at 1234. In addressing the final step, the court examined the two wills that remained after stripping away the undue influence. The court concluded that it was bound to “honor the last uninfluenced residuary devise,” i.e., it honored the residuary clause in the will favoring the decedent’s dear cousin. Id. In Rosoff v. Harding, 901 So. 2d 1006 (Fla. 4th DCA 2005), when a general power of appointment was ineffectively exercised in the last will, but correctly exercised in the penultimate will, the court declined to apply dependent relative revocation to substitute the power of appointment provision from the earlier will. For additional discussion of the doctrine of dependent relative revocation, see LITIGATION UNDER FLORIDA PROBATE CODE § 3.2.B.5 (Fla. Bar 13th ed. 2022). « Ch. 21 », « § 21.3 », « B » 1 Practice Under Florida Probate Code § 21.3.B (2022)

B. Will Or Trust Construction « Ch. 21 », « § 21.3 », « B », • 1 » 1 Practice Under Florida Probate Code § 21.3.B.1 (2022)

1. In General The topic of document construction is treated only in summary in this

manual. An excellent and more exhaustive treatment of the subject may be found in LITIGATION UNDER FLORIDA PROBATE CODE Chapter 7 (Fla. Bar 13th ed. 2022). The practitioner should note that in contrast to the wealth of explanation that exists regarding will construction, substantially less exists regarding trust construction. Available procedural statutory authority may be found in F.S. 736.0201 (“Role of court in trust proceedings”) and F.S. 86.041 (“Actions by executors, administrators, trustees, etc.”). The necessity for the construction of a will arises when the estate cannot be administered or disposed of as provided in the will, or when the will is unclear. Fla. Prob. R. 5.025 provides that a proceeding to construe a will is an adversary proceeding to which the Florida Rules of Civil Procedure apply. Any interested person may obtain a construction of a will or part of the will by filing a petition in the probate proceeding or in a separate proceeding in circuit court for a declaratory judgment under the provisions of F.S. Chapter 86. Several counties large enough to have separate divisions established for probate and general civil litigation matters also have administrative orders in place setting forth which types of cases should be filed in the probate division. Therefore, practitioners should look at local rules and administrative orders whenever filing any new matters relating to probate or trust proceedings. Although there are some circumstances in which there is a right to a jury trial in a probate proceeding (see § 21.4.J.), generally there is no such right, being inherently within the equity jurisdiction of the court, but it is not reversible error if the trial judge decides to submit any factual questions to an advisory jury. In re Estate of Fanelli, 336 So. 2d 631 (Fla. 2d DCA 1976). « Ch. 21 », « § 21.3 », « B », « 2 » 1 Practice Under Florida Probate Code § 21.3.B.2 (2022)

2. Construction By Statute Some rules for will construction are provided by statute, and are conclusive in the absence of a contrary indication in the will. These are found, mostly, in the Florida Probate Code, F.S. Chapter 732, and include 732.301 Pretermitted spouse;

732.302 Pretermitted children; 732.507 Effect of subsequent marriage, birth, adoption, or dissolution of marriage; 732.517 Penalty clause for contest; 732.601 Simultaneous Death Law; 732.603 Antilapse; deceased devisee; class gifts; 732.604 Failure of testamentary provision; 732.605 Change in securities; accessions; nonademption; 732.606 Nonademption of specific devises in certain cases; 732.607 Exercise of power of appointment; 732.608 Construction of terms; 732.609 Ademption by satisfaction; 732.611 Devises to multigeneration classes to be per stirpes; 732.802 Killer not entitled to receive property or other benefits by reason of victim’s death; and 732.8031 Forfeiture for abuse, neglect, exploitation, or aggravated manslaughter of an elderly person or a disabled adult. An example of this statutory construction as it relates to the effect of subsequent dissolution of marriage under F.S. 732.507 is found in Carroll v. Israelson, 169 So. 3d 239 (Fla. 4th DCA 2015). In this case, the former husband died a month after the divorce and before he changed his will. That will devised his estate to his wife, but if she didn’t survive, devised his estate to two irrevocable trusts created under the former wife’s revocable trust upon her death for the benefit of her niece and nephew. The court quoted former F.S. 732.507(2), which provided that “[a]ny provision of a will executed by a married person that affects the spouse of that person shall become void upon the divorce of that person or upon the dissolution or annulment of the marriage. After the dissolution, divorce, or annulment, the will shall be administered and

construed as if the former spouse had died at the time of the dissolution, divorce, or annulment of the marriage.” Although the statute considered the former wife to be deceased as to the former husband’s will, because she was still actually living, the two irrevocable trusts to be created under her revocable trust did not yet exist. As a result, the mother of the former husband asked the court to rule that the devise failed and that as her son’s only heir at law, she was entitled to the entire estate. The former wife asked that she be permitted to amend her revocable trust to create the irrevocable trusts for her niece and nephew presently to receive the devise from the former husband. The trial court acceded to the request of the former wife, but the appellate court found that the devise was void under the statute because it “affected” the former spouse. The decedent’s mother therefore inherited by intestacy. In 2021, F.S. 732.507(2) was amended and now provides: Any provision of a will that affects the testator’s spouse is void upon dissolution of the marriage of the testator and the spouse, whether the marriage occurred before or after the execution of such will. Upon dissolution of marriage, the will shall be construed as if the spouse died at the time of the dissolution of marriage. (a) Dissolution of marriage occurs at the time the decedent’s marriage is judicially dissolved or declared invalid by court order. (b) This subsection does not invalidate a provision of a will: 1. Executed by the testator after the dissolution of the marriage; 2. If there is a specific intention to the contrary stated in the will; or 3. If the dissolution of marriage judgment expressly provides otherwise. The 2021 Amendments include F.S. 732.507(3), which states that the statute “applies to wills of decedents who die on or after June 29, 2021.” These changes were made as a result of the Second District Court of Appeal’s holding in Gordon v. Fishman, 253 So. 3d 1218 (Fla. 2d DCA 2018), in

which the court discussed the statutory language “executed by a married person” in the former version of F.S. 732.507(2). In Gordon, the court upheld provisions in a will for the decedent’s then fiancé, even though following execution of the will, they married and later divorced. The court explained that “[t]he legislature’s use of the adjective ‘married’ to modify ‘person’ is a clear indication that it intended the ‘person’ executing the will to be ‘married’ at the time of execution.” Id. at 1220–1221. Thus, F.S. 732.507(2) (2020) applies only when the marriage predates the will. As a result of the 2021 legislation, the Gordon ruling will only apply to wills of decedents who died before June 29, 2021, and the will of any decedent who dies on or after June 29, 2021 will be governed by the new law. Another example of statutory construction involves the allocation of receipts and disbursements in an estate or a trust between principal and income under the Florida Uniform Principal and Income Act, F.S. Chapter 738. In In re Estate of Katz, 528 So. 2d 422 (Fla. 4th DCA 1988), the court held that the mortmain statute, F.S. 732.803 (which invalidated charitable bequests in wills executed within six months of the testator’s death and was later repealed, see § 21.3.A.1.e.vi), did not apply to a revocable living trust, even one that was added to by a pour-over will. Subsequently, many lawyers became concerned that, in similar fashion, Part VI (“Rules of Construction”) of F.S. Chapter 732 would not apply to trusts. Beginning in 1993, more statutory rules of construction were made applicable to trusts. With the adoption of the Florida Trust Code, effective July 1, 2007, construction rules between wills and the testamentary aspects of trusts are approximately parallel. (The antilapse provisions of a trust, whether testamentary or inter vivos, apply to all beneficiaries of the trust, not only those who are descendants of grandparents, as is the case of antilapse as it applies to an outright devise in a will. See F.S. 736.1106, 732.603.) If the probate assets are insufficient to fund a family allowance or pretermitted share (and charges with a higher priority, such as creditors’ claims), the trustee’s obligation under F.S. 736.05053(1) to fund these amounts is uncertain. The uncertainty arises because it is unknown whether these items fall within the meaning of “obligations of the settlor’s estate” under F.S. 736.05053, which is the limitation on the trustee’s contribution

requirement, and in addition, because F.S. 733.607(2), the statute authorizing the personal representative to call on the trustee for payment, is phrased differently and more expansively. Arguably, F.S. 733.805(4) resolves this issue by treating the estate and trust beneficiaries as if they were taking under a common instrument for purposes of paying expenses, but the statute could be clearer. F.S. Chapter 736, Part XI “Rules of Construction,” includes 736.1101 Rules of construction; general provisions; 736.1102 Construction of terms; 736.1103 Gifts to multigeneration classes to be per stirpes; 736.1104 Person not entitled to receive property or other benefits by reason of victim’s death; 736.1105 Effect of subsequent marriage, birth, adoption, or dissolution of marriage; 736.1106 Antilapse; survivorship with respect to future interests under terms of inter vivos and testamentary trusts; substitute takers; 736.1107 Change in securities; accessions; nonademption; 736.1108 Penalty clause for contest; and 736.1109 Testamentary and revocable trusts; homestead protections. Portions of the Trust Code (for example, antilapse) also apply to testamentary trusts of decedents dying on or after July 1, 2007. In most instances, the rules of construction and statutory determinations may be varied by specific provision in the will or trust. A situation in which this would not be allowed would involve the statutory prohibition against a penalty clause, commonly referred to as an “in terrorem” clause. This applies to trusts of decedents dying on or after October 1, 1993. F.S. 736.1108 (formerly 737.207). For extensive discussion of the rules of lapse and antilapse in the trust context, see ADMINISTRATION OF TRUSTS IN FLORIDA Chapter 7 (Fla. Bar 10th ed. 2019).

« Ch. 21 », « § 21.3 », « B », « 3 » 1 Practice Under Florida Probate Code § 21.3.B.3 (2022)

3. Rules Of Construction Most frequently, either through evidence offered or rules of construction, the purpose of the probate proceeding is to determine the intent of the testator. Throughout the proceeding, courts attempt adherence to the general rule that they will not rewrite the will for the testator. Floyd v. Smith, 59 Fla. 485, 51 So. 537 (1910); In re Estate of Guess, 213 So. 2d 638 (Fla. 3d DCA 1968). A will is to be construed, if possible, to give effect to the document as a whole, harmonizing all of the parts together. In re Estate of Smith, 75 So. 2d 686 (Fla. 1954); First National Bank of Florida v. Moffett, 479 So. 2d 312 (Fla. 5th DCA 1985). If various clauses cannot be harmonized after examining the entire will and the apparent plan contained in it, the latter of the clauses will prevail over the former on the assumption that the latter clause is the last expression of the testator’s intention. In re Estate of Smith. See Jureski v. Scaduto, 882 So. 2d 1061 (Fla. 4th DCA 2004). This rule, however, is not necessarily always followed in practice. In Bourgeois v. Eberhart, 472 So. 2d 1274 (Fla. 4th DCA 1985), the court gave greater weight to the stated words of the testator as opposed to the later silence on the part of the testator. In interpreting contracts in general, when courts conduct construction proceedings, the words and phrases “ ‘should be given a natural meaning or the meaning most commonly understood in relation to the subject matter and the circumstances; and a reasonable construction is preferred to one that is unreasonable’ ” [internal citations omitted]. Baldwin v. Harris, 309 So. 3d 293, 294–295 (Fla. 5th DCA 2021). Another common rule of construction is that of ejusdem generis. Under this rule, if a will contains a list of specific items followed by a general description, the general description will be construed to be limited to things of a like nature to those in the preceding list. This rule is abated, however, when the will does not contain a residuary clause, because there is a greater presumption against partial intestacy. In In re Estate of Horne, 171 So. 2d 14, 15 (Fla. 2d DCA 1965), when a specific devise of a diamond ring to a legatee included “any other personal property” not otherwise disposed of, the general

description did not include intangible personal property; the intangibles instead passed under the residuary clause. However, as explained by the Florida Supreme Court, “[i]t has been well established that ‘in construing a will the intention of the testator is the controlling factor and it should be gleaned from the four corners of the will unless the language employed by the testator is ambiguous.’ ” Aldrich v. Basile, 136 So. 3d 530, 535 (Fla. 2014), quoting Adams v. Vidal, 60 So. 2d 545, 547 (Fla. 1952). See also In re Estate of Dickson, 590 So. 2d 471, 472 (Fla. 3d DCA 1991) (“where words indicating an intent to revoke are written upon the will and, in addition to such circumstance there is some other act of cancellation, the words are competent evidence and may be introduced to show the intent with which the other act was performed”). Thus, before there can be construction, there must be inconsistency or ambiguity. See also In re Estate of Bovee, 626 So. 2d 1096 (Fla. 1st DCA 1993) (distinguishing between ambiguous provisions in will and “merely ineffectual” provisions). Rules of construction, such as ascertaining the intent of the testator, are similar for trusts. See Barrett v. Kapoor, 278 So. 3d 876, 879 (Fla. 3d DCA 2019) (“ ‘one of the basic tenets for the construction of trusts is to ascertain the intent of the settlor and to give effect to his intent’ ” [internal citations omitted]). « Ch. 21 », « § 21.3 », « B », « 4 » 1 Practice Under Florida Probate Code § 21.3.B.4 (2022)

4. Evidence One issue that often arises concerns the admissibility of extrinsic evidence to construe an ambiguity within the will. “A latent ambiguity arises when it is sought to apply the words of the will to the subject or object of the devise or bequest, and it is found that the words of the will apply to and fit without ambiguity indifferently to each of several things or persons. In such cases evidence will be received to prove [what] was intended by the testator.” Perkins v. O’Donald, 77 Fla. 710, 82 So. 401, 404–405 (1919). An example is found in Kernkamp v. Bolthouse, 714 So. 2d 655 (Fla. 5th DCA 1998), where a reference to a brokerage account in a codicil was ambiguous as to whether it included all assets under the account “umbrella,” and the court found this to be a latent ambiguity.

Thus, a latent ambiguity is not obvious from the language of the document. Fine Arts Museums Foundation v. First National in Palm Beach, a Division of First Union National Bank of Florida, 633 So. 2d 1179 (Fla. 4th DCA 1994). Because the ambiguity is made apparent by reference to facts that do not appear within the will itself, extrinsic evidence is admissible to resolve the ambiguity. Harbie v. Falk, 907 So. 2d 566 (Fla. 3d DCA 2005). A patent ambiguity, on the other hand, is an ambiguity that is obvious from the face of the will. An example of a patent ambiguity is a devise of “one third of my partnership interest to A and B.” It is unclear on the face of the document whether A and B are each to receive a one-third interest or are to share a one-third interest. Campbell v. Campbell, 489 So. 2d 774 (Fla. 3d DCA 1986). The traditional view is that extrinsic evidence is not admissible to resolve a patent ambiguity because “[t]he intention of the testator must be gathered from the words of his [or her] will.” Perkins at 404. A modern trend against that view is stated by Campbell, which held that the “clearly-preferable view … ascribes no significance to the ancient, essentially meaningless distinctions between kinds of ambiguity.” Campbell at 778. Case law from other circuits is in conflict on this point. See Crown Management Corp. v. Goodman, 452 So. 2d 49 (Fla. 2d DCA 1984) (extrinsic evidence is inadmissible to resolve a patent ambiguity in a contract, as it would amount to rewriting the contract). However, in another case, the District Court of Appeal, Second District, also indicated that “in case of ambiguity, extrinsic evidence is admissible to explain the intent of the testator.” Wilson v. First Florida Bank, 498 So. 2d 1289, 1291 (Fla. 2d DCA 1986). Some courts disregard the distinctions between latent and patent ambiguities in will construction cases, and receive extrinsic evidence, with the trial judge affording it such weight as the circumstances would indicate. Dutcher v. Estate of Dutcher, 437 So. 2d 788 (Fla. 2d DCA 1983). The reason is to make it technically easier for the court to hear and consider all available evidence, because these matters are decided by a judge, not a jury. Parol evidence is given such weight as it may deserve under the circumstances, to reach the ultimate goal of determining the intent of the testator. See, e.g., Perkins (parol evidence may be received if will is in some way ambiguous to ascertain testator’s intent); Garcia v. Celestron, 2 So. 3d

1061 (Fla. 3d DCA 2009) (allowing parol evidence to construe ambiguous devise of real property); Harbie v. Falk, 907 So. 2d 566 (Fla. 3d DCA 2005) (existence of older child when will stated there was one child created latent ambiguity, so parol evidence was admissible to determine testator’s intent). « Ch. 21 », « § 21.3 », « B », « 5 • 1 Practice Under Florida Probate Code § 21.3.B.5 (2022)

5. Reformation To Correct Mistakes; Modification To Achieve Testator’s Tax Objectives Before 2011, the court had no authority to alter or reconstruct a will. See In re Estate of Barker, 448 So. 2d 28, 31–32 (Fla. 1st DCA 1984). Although confirming that a will may not be reformed to reflect the testator’s intent, in In re Estate of Robinson, 720 So. 2d 540, 543 (Fla. 4th DCA 1998), the court held that “a trust with testamentary aspects may be reformed after the death of the settlor for a unilateral drafting mistake so long as the reformation is not contrary to the interest of the settlor.” In 2006, Robinson was codified and extended with the adoption of F.S. 736.0415 and 736.0416, which amended the Florida Trust Code to permit reformation of “the terms of a trust, even if unambiguous, to conform … to the settlor’s intent if it is proved by clear and convincing evidence that both the accomplishment of the settlor’s intent and the terms of the trust were affected by a mistake of fact or law, whether in expression or inducement.” F.S. 736.0415. Also, the terms of a trust may be modified in a manner that is not contrary to the settlor’s probable intent to achieve the settlor’s tax objectives, and that modification may have retroactive effect. Other broad rights of modification of trusts are provided in Part IV of the Florida Trust Code. These trust code provisions also apply to testamentary trusts. In 2011, existing provisions related to modification and reformation of trusts were brought into the Florida Probate Code and made applicable to wills. The corresponding provisions of F.S. 736.0415 and F.S. 736.0416 were adopted as F.S. 732.615 and F.S. 732.616, respectively. Therefore, under F.S. 732.615 a “court may reform the terms of a will, even if unambiguous, to conform the terms to the testator’s intent if it is proved by clear and convincing evidence that both the accomplishment of the testator’s intent and the terms of the will were affected by a mistake of fact or

law, whether in expression or inducement.” See Eisenpresser v. Koenig, 239 So. 3d 90 (Fla. 4th DCA 2018) (denying reformation of will where only arguments of counsel were presented to reform bequest). The statute makes clear that, “[i]n determining the testator’s original intent, the court may consider evidence relevant to the testator’s intent even though the evidence contradicts an apparent plain meaning of the will.” F.S. 732.615. Since reformation is an equitable remedy, it has been held to be more broadly applicable than merely for the correction of simple scrivener’s errors. As long as the evidentiary burden is met, this remedial statute, F.S. 736.0415, “should be liberally construed in favor of granting access to the remedy.” Megiel-Rollo v. Megiel, 162 So. 3d 1088, 1098 (Fla. 2d DCA 2015) (allowing addition of document that drafter neglected to incorporate at trust execution). The court in Kelly v. Lindenau, 223 So. 3d 1074 (Fla. 2d DCA 2017), held that reformation is not available to reform an invalidly executed trust amendment. The court’s reasoning was that the reformation statute focuses on the terms of the trust, not the execution of it, and denied reformation to fix the execution invalidity. « Ch. 21 », « § 21.3 », « C » 1 Practice Under Florida Probate Code § 21.3.C (2022)

C. Creditors’ Claims « Ch. 21 », « § 21.3 », « C », • 1 » 1 Practice Under Florida Probate Code § 21.3.C.1 (2022)

1. In General Issues related to creditors’ claims have generally been strictly construed by the courts. See United Bank v. Estate of Frazee, 197 So. 3d 1190 (Fla. 4th DCA 2016) (claim time barred due to failure of counsel to electronically file claim even though paper copy was timely filed). Litigated matters in an estate relating to the procedure for enforcement of creditors’ claims generally involve one of three situations: A late or nonfiled claim. A late or nonfiled objection to a claim. A late or nonfiled independent action.

Most often, these situations arise in the context of a motion to extend the time for accomplishing the tardy act, or a motion to strike the offending claim. F.S. 733.702(3) provides that no objection is necessary to a claim that is not timely filed. However, a claim is not late-filed if filed “on or before the later of the date that is 3 months after the time of the first publication of the notice to creditors or, as to any [reasonably ascertainable creditor] required to be served with a copy of the notice to creditors, 30 days after the date of service on the creditor.” F.S. 733.702(1). Except as to the two-year bar, it is not possible to know if a claim is late-filed until other facts are determined. To allow the creditor to claim timeliness under one of the exceptions, the claim cannot practically be stricken or ignored without notice of that action to the creditor and the opportunity to present proof that the claim is not late. The court may not strike a claim simply because there are no funds in the estate to pay the claim. Chase Manhattan Bank, USA, N.A. v. Estate of Silveira, 815 So. 2d 770 (Fla. 4th DCA 2002). The personal representative is required to make a diligent search to determine the name and address of each of the decedent’s creditors. After making that determination, the personal representative must serve a copy of the notice to creditors on them. F.S. 733.2121. In Strulowitz v. Cadle Co., II, Inc., 839 So. 2d 876 (Fla. 4th DCA 2003), there were four recurring payments in an identical amount made to a company over the previous year, and an attorney ad litem was able to locate the company and confirm the debt with two phone calls. The court found that these facts indicated that the company was a reasonably ascertainable creditor and therefore entitled to notice. The company’s motion to extend the time for filing its claim when it had insufficient notice of the claims period was granted. This case can be argued for the proposition that one of the duties of the personal representative in conducting a diligent search is to review the decedent’s checkbook or other bill pay records such as bank statements, at least for the year preceding death, and that this failure will provide grounds for late filing of a claim if the claimant could have been found by that action. An independent action may not be brought on a late-filed claim unless the claimant has been granted an extension of time to file the claim. F.S. 733.705(5). F.S. 733.710 (the two-year statute of limitations on claims against estates)

has been determined to be a jurisdictional statute of nonclaim, which cannot be waived or extended. F.S. 733.702 is a statute of limitations (three months from publication of notice or 30 days from service of notice, whichever is later, on presentation of claims) that must be pled as an affirmative defense in an action to enforce the claim, failing which that defense is waived. See § 21.3.C.2. It is not necessary, however, to object to the late-filed claim to plead the defense of the F.S. 733.702 bar. May v. Illinois National Insurance Co., 771 So. 2d 1143 (Fla. 2000). If a claim is filed more than two years after death, it is barred regardless of whether a notice to creditors was published or served upon the creditor. It may be stricken without notice. F.S. 733.710. With regard to objections to claims, it is advisable to faithfully follow the procedures set forth in F.S. 733.705 and Fla. Prob. R. 5.496, which require an objection to be served according to specific requirements. These include filing within a specified time period, personal service on the claimant, and a statement notifying the claimant of the time period limiting the claimant’s right to assert an independent action. Fernandez-Fox v. Estate of Lindsay, 972 So. 2d 281, 284 (Fla. 5th DCA 2008) (“An objection must comply with the statutory requirements of [F.S.] 733.705 and Rule 5.496. Because the motion to strike did not meet the requirements for an objection, the trial court erred by treating the two as the same.”). In addition, Florida law does not recognize “partial” objections to claims under F.S. 733.705. In re Estate of Cadgene, 938 So. 2d 581 (Fla. 2d DCA 2006) (since creditor did not timely file action in response to partial objection to claim, trial court properly granted motion to strike entire claim). « Ch. 21 », « § 21.3 », « C », « 2 » 1 Practice Under Florida Probate Code § 21.3.C.2 (2022)

2. Due Process Issues And Notice To Creditors Due process issues have, historically, been resolved in favor of creditors. See Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 108 S. Ct. 1340, 99 L. Ed. 2d 565 (1988). In response to this, significant amendments were made to F.S. 733.212, 733.2121, 733.702, and 733.705 to address the due process issues. These events are treated in more depth in Chapter 8 of this manual, but are highlighted briefly here.

There was some confusion, resulting from several statutory amendments, as to whether F.S. 733.702 and 733.710 were statutes of limitations, which must be affirmatively pled or are waived, or statutes of nonclaim, which are self-effectuating. See Barnett Bank of Palm Beach County v. Estate of Read, 493 So. 2d 447 (Fla. 1986); In re Estate of Parson, 570 So. 2d 1125 (Fla. 1st DCA 1990). The issue was resolved in May v. Illinois National Insurance Co., 771 So. 2d 1143, 1145 (Fla. 2000), in which the Florida Supreme Court held F.S. 733.702 to be “a statute of limitations that cannot be waived in a probate proceeding by failure to object to a claim on timelessness grounds,” and F.S. 733.710 to be “a jurisdictional statute of nonclaim [or repose] that is not subject to waiver or extension in a probate proceeding.” In Pope, the United States Supreme Court determined that if a creditor is known or reasonably ascertainable, that creditor’s claim may not be barred merely by publication of notice of administration (now notice to creditors) as was the practice before 1988; notice by mail or other means as certain to ensure actual notice is required. Claims of unascertainable creditors may be barred by publication alone. Unfortunately, the opinion does not specify what information the notice must contain. In response to the Court’s decision in Pope, the Florida Supreme Court adopted emergency rules that amended Fla. Prob. R. 5.240 to add an obligation to mail notice to all known or reasonably ascertainable creditors. and added Rule 5.495 regarding an extension of time to file a claim. (Subsequently, Rule 5.495 was repealed, effective October 1, 1991, presumably in response to similar provisions added to F.S. 733.702(3), and the last part of Rule 5.240(a), requiring service on reasonably ascertainable creditors, was also deleted, presumably because similar provisions were added to F.S. 733.212, now F.S. 733.2121.) A personal representative who fails to notify a known or reasonably ascertainable creditor is liable to that creditor for damage or loss resulting from the breach of this duty. That may include damages both for any right to enforce the claim that is lost because the required notice was not given and also for costs and attorneys’ fees incurred. F.S. 733.609(1). It is relatively clear that “notice” or “knowledge” of the creditor’s bar date is one of the due process requirements. “Notice” or “knowledge” of the death, the probate proceeding, or that publication has commenced is not

sufficient, without notice of the bar date for claims. Any less would fail the due process test. Rule 5.241(b). Another statutory response to Pope was the 1989 Amendment to F.S. 733.710, which shortened the latest time for filing a claim to two years from three years and extended its application to administered estates. The statute is specifically inapplicable to outstanding claims that were timely filed in an estate and not paid or otherwise disposed of. Under this statute, no notice to creditors is required to bar their rights. When a creditor is reasonably ascertainable and thereby required to be promptly served with notice to creditors (under F.S. 733.2121(3)(a)), but is not so served, then the deadline for that creditor to file a claim has not begun to run. Under F.S. 733.702(1), a claim is not binding on the estate “unless filed in the probate proceeding … as to any creditor required to be served with a copy of the notice to creditors, 30 days after the date of service on the creditor.” Thus, if a known creditor is not served, it seems clear that no time limitation runs against that creditor other than the two-year nonclaim statute of repose, because it is the service that triggers the running of the time period. Assuming the known creditor who is not served with notice to creditors files a claim more than three months after the first publication (and within 2 years of the date of death) and takes no further action with regard to the claim, that claim should be a timely filed claim. Under F.S. 733.702(3), “[a]ny claim not timely filed as provided in this [statute] is barred even though no objection to the claim is filed unless the court extends the time in which the claim may be filed” [emphasis added]. Without a triggering event, there is no deadline and any filed claim is timely, in which case, subsection (3) has no application to the known or reasonably ascertainable creditor. However, the District Court Appeal, Second District, in Morgenthau v. Estate of Andzel, 26 So. 3d 628 (Fla. 1st DCA 2009), and Lubee v. Adams, 77 So. 3d 882 (Fla. 2d DCA 2012), held to the contrary. Subsequently, the Fourth District held that an alleged reasonably ascertainable creditor’s claim should not be automatically stricken as untimely when filed outside of the three-month period. The court reasoned that if a known or reasonably ascertainable creditor is never served with a

copy of the notice to creditors, the statute of limitations in F.S. 733.702 never begins to run and the creditor’s claim is timely if filed within two years of the decedent’s death. Golden v. Jones, 126 So. 3d 390 (Fla. 4th DCA 2013). That court certified conflict with Morgenthau and Lubee. The Florida Supreme Court resolved the conflict in Jones v. Golden, 176 So. 3d 242, 249 (Fla. 2015), agreeing with the Fourth District’s holding that “claims of known or reasonably ascertainable creditors of an estate who were not served with a copy of the notice to creditors are timely if filed within two years of the decedent’s death.” Thus, “the limitations periods prescribed in [F.S.] 733.702(1) are not applicable to known or reasonably ascertainable creditors who are never served with a copy of the notice to creditors.” Id. As a practical matter, claims that are filed after the publication period are still subject to motions to strike. However, if the creditor objects or responds to the motion to strike, the creditor gets the opportunity in court to show it was reasonably ascertainable and entitled to actual notice. The creditor is not barred for mere failure to request an extension of publication time limit. It is the creditor’s burden, however, to show that it was a known or reasonably ascertainable creditor entitled to notice. Soriano v. Estate of Manes, 177 So. 3d 677 (Fla. 3d DCA 2015). If the creditor does demonstrate it was reasonably ascertainable, then no extension of time is required and its statement of claim is timely if filed before the two-year nonclaim period. « Ch. 21 », « § 21.3 », « C », « 3 » 1 Practice Under Florida Probate Code § 21.3.C.3 (2022)

3. Extension Of Time To File F.S. 733.702(1) defines the timely filing of a claim against a decedent’s estate as filing “on or before the later of the date that is 3 months after the time of the first publication of the notice to creditors or, as to any [reasonably ascertainable creditor] required to be served with a copy of the notice to creditors, 30 days after the date of service on the creditor.” It is well settled that the filing of an independent action within the claim period without filing a claim against the estate is ineffectual and is a basis for dismissal of the action. Spohr v. Berryman, 589 So. 2d 225 (Fla. 1991), superseded by statute 33 So. 3d 130. Also, F.S. 733.702(2) specifically requires a creditor to file a claim even when litigation is pending against the decedent before death.

The claim procedures contemplate three potential actions: (1) the filing of the claim, (2) objection to the claim, and (3) the filing of the independent action. Requests for an extension of time for performing those tasks, after the time has expired, are governed by different considerations. As previously stated, F.S. 733.702 is a statute of limitations that cannot be waived unless excused because of fraud, estoppel or insufficient notice, not merely by the other party’s failure to object to an untimely claim. May v. Illinois National Insurance Co., 771 So. 2d 1143, 1145 (Fla. 2000). If it were not a statute of limitations, and were, instead, a statute of nonclaim, the time for filing a claim could not be extended as permitted by F.S. 733.702(3). See May, 771 So. 2d at 1157 (“[F.S.] 733.710 is a jurisdictional statute of nonclaim that automatically bars untimely claims and is not subject to waiver or extension in the probate proceedings”); Barnett Bank of Palm Beach County v. Estate of Read, 493 So. 2d 447 (Fla. 1986) (“[a]n untimely claim filed pursuant to a jurisdictional statute of nonclaim is automatically barred”); Comerica Bank & Trust, F.S.B. v. SDI Operating Partners, L.P., 673 So. 2d 163 (Fla. 4th DCA 1996) (“jurisdictional statutes of nonclaim operate to bar untimely claims without any action by the opponent and deprive the court of the power to adjudicate them”). It is the potential for extension of time that distinguishes F.S. 733.702 from a self-executing statute of nonclaim. “An extension may be granted only upon grounds of fraud, estoppel, or insufficient notice of the claims period.” Id. The last-stated ground, insufficient notice of the claims period, relates to due process. See § 21.3.C.2. Regarding an extension of time to object to a claim or to bring an independent action, the rule is and has been that the time may be extended, even after it has expired, for good cause shown. See F.S. 733.705(2) and (5), respectively. The time to bring an independent action may be extended, without court order, in writing by the personal representative before the time for bringing the action expires. F.S. 733.705(5). “Good cause shown” is the same standard that is applied to setting aside a default. It must be an excuse of substance; “good cause … must be a substantial reason, one that affords a legal excuse or cause.” Golden v. Atlantic National Bank of Jacksonville, 481 So. 2d 16, 18 (Fla. 1st DCA 1986), disapproved on other grounds 537 So. 2d 1370. In Williams v. Estate of Williams, 493 So. 2d 44 (Fla. 5th DCA 1986), when an independent action

was inadvertently filed with the probate caption in the probate proceeding, and therefore subsequently dismissed without prejudice, and the plaintiffs promptly applied for an extension of time to file the independent action, the court found good cause for extending the time. Although other examples of good cause to allow the extension of time to file an independent action or object to a claim exist in the case law, the example most often cited is that of being lulled into a false sense of security by the opposing party. Black v. Brammer, 440 So. 2d 24 (Fla. 4th DCA 1983). What constitutes “good cause” seems to yield little uniformity of interpretation. For example, in In re Estate of Oxford, 372 So. 2d 1129 (Fla. 2d DCA 1979), when the claimant simply forgot to advise his lawyers that the claim had been objected to, a fact they did not discover until 19 days after the time had expired for filing an independent action, the court found good cause for an extension. In In re Estate of Dudley, 374 So. 2d 1111 (Fla. 4th DCA 1979), the court held that a personal representative who was ignorant of the deadline for filing objections and who relied on the advice of her out-ofstate lawyer did not show good cause to extend the time for objecting to a claim. In another case, in which a clerical error was found to be good cause, the court found substantial diversity in the reported opinions on what constitutes good cause and certified the question to the Florida Supreme Court. Dohnal v. Syndicated Offices Systems, 506 So. 2d 1138 (Fla. 2d DCA 1987). The Florida Supreme Court answered by stating that clerical error justifies an extension when the estate is not prejudiced, explaining: The determination of good cause is based on the peculiar facts and circumstances of each case. Obviously the trial court is in the best position to weigh the equities involved, and his exercise of discretion will be overruled only upon a showing of abuse. We find none in the instant case. The court found good cause to grant the extension after considering the clerical error, the creditor’s diligence, and the lack of prejudice to the estate. Dohnal v. Syndicated Offices Systems, 529 So. 2d 267, 269 (Fla. 1988). In United Bank v. Estate of Frazee, 197 So. 3d 1190 (Fla. 4th DCA

2016), the court declined to grant an extension of the deadline for filing a claim where the creditor’s counsel did not timely electronically file the claim but had timely filed a paper copy. The court noted that e-filing was mandatory under Fla. R. Gen. Prac. & Jud. Admin. 2.520 and 2.525 and the timely, but improperly filed, paper copy of the claim was disregarded. For a further discussion of extension of time for filing and good cause, see LITIGATION UNDER FLORIDA PROBATE CODE § 6.5.D.2 (Fla. Bar 13th ed. 2022). « Ch. 21 », « § 21.3 », « C », « 4 • 1 Practice Under Florida Probate Code § 21.3.C.4 (2022)

4. Claims Of The Sovereign It appears that claims by the State of Florida, State v. Estate of Moore, 153 So. 2d 819 (Fla. 1963), and state agencies, In re Estate of Smith, 132 So. 2d 426 (Fla. 2d DCA 1961), are barred by the two-year nonclaim period under F.S. 733.710. In some instances, the federal Supremacy Clause preempts state law in this regard, United States v. Summerlin, 310 U.S. 414, 60 S. Ct. 1019, 84 L. Ed. 1283 (1940); Agency for Health Care Administration v. Estate of Johnson, 743 So. 2d 83 (Fla. 3d DCA 1999) (Nesbitt, J. dissenting and concurring), and, in some instances, it may not, U.S. Borax, Inc. v. Forster, 764 So. 2d 24 (Fla. 4th DCA 1999). See also Annot., Claim of Government or Subdivision Thereof as Within Provision of Nonclaim Statute, 34 A.L.R. 2d 1003. If federal law is preeminent, the operation of a state “statute of repose” or “nonclaim statute” may bar the United States, like other creditors, from collecting the debt through regular probate procedure, but does not extinguish the debt, which may be collected through other means allowed by federal law. Summerlin. « Ch. 21 », « § 21.3 », « D » 1 Practice Under Florida Probate Code § 21.3.D (2022)

D. Elective Share And Other Entitlements An elective share is defined as “[t]he percentage of a deceased spouse’s estate, set by statute, that a surviving spouse … may choose to receive instead of taking under a will or in the event of being unjustifiably disinherited.”

BLACK’S LAW DICTIONARY (11th ed. 2019). An election to take the Florida elective share available under F.S. 732.201 et seq. is personal to the surviving spouse. The election may be exercised only by the surviving spouse, a guardian of the property of the surviving spouse, or an attorney in fact for the surviving spouse. F.S. 732.2125. See F.S. 732.2135(1) (providing time limits for filing). An election by a guardian or agent under a power of attorney may be approved only if the court determines the election to be “in the best interests of the surviving spouse during the spouse’s probable lifetime.” F.S. 732.2125. See also In re Estate of Schriver, 441 So. 2d 1105 (Fla. 5th DCA 1983), approved 615 So. 2d 681 (power of attorney authorizing agent to sign documents securing and protecting any legal interest of principal includes authority to make election). The election may not be exercised by the personal representative of the second deceased spouse, on behalf of that spouse’s estate. Smail v. Hutchins, 491 So. 2d 301 (Fla. 3d DCA 1986). However, if the surviving spouse dies after validly exercising the right but before the petition for determination of the elective share is filed, the personal representative of that spouse may file the petition. Estate of Heid v. Heid, 863 So. 2d 1259 (Fla. 5th DCA 2004); Smail. A lawyer does not have the same agency authority of a person with a power of attorney, and an election to take elective share may not be signed by a lawyer on behalf of the client, absent further authority. Harmon v. Williams, 615 So. 2d 681 (Fla. 1993). For decedents dying on or after July 1, 2017, property entering into the elective share includes the decedent’s protected homestead interest. F.S. 732.2035(2). The amount of the elective share is determined after subtracting mortgages, liens, security interests, and claims, but not expenses of administration and attorneys’ fees. F.S. 732.2055(6). See Blackburn v. Boulis, 184 So. 3d 565 (Fla. 4th DCA 2016). In In re Estate of Tensfeldt, 839 So. 2d 720 (Fla. 2d DCA 2003), when a claim was filed by the decedent’s children from a prior marriage based on breach of a property settlement agreement incident to divorce in which the decedent agreed to devise two thirds of his estate to them, their claim was not deductible from the elective estate to determine the surviving spouse’s share. The effect of the decision was to place the children in the same position they would have occupied if

the decedent had complied with his contractual obligations. A specific timeframe is provided for making the election, although an extension of time may be sought. F.S. 732.2135(1)–(2). Any extension of time to elect must be by court order (for good cause shown), F.S. 732.2135(2), although the filing of the petition for an extension of the time for making the election or for approval to make the election tolls the time for making the election. F.S. 732.2135(4). However, it may be that there is no disadvantage to a surviving spouse in making the election. After valuing all of the interests otherwise provided for the surviving spouse, including his or her interests under the will or a living trust, if the elective share is the greater share, the electing spouse will receive that; if it is not, the spouse will still receive those entitlements under the will and revocable trust rather than the elective share. An electing spouse may receive all devises and other transfers he or she would otherwise receive. F.S. 732.2075(1)(a) provides that the first source for funding is property otherwise passing to the surviving spouse. This includes devises provided in the will that have been elected against. This was not as clear as it might have been until the 2016 Florida Legislature’s amendment of F.S. 732.201, which provides that “[t]he election does not reduce what the spouse receives if the election were not made and the spouse is not treated as having predeceased the decedent.” This 2016 Amendment clarified existing law, thereby giving it retroactive application. The first source for funding also includes “interests that are contingent upon making the election.” F.S. 732.2075(1)(a). For example, if a decedent provides a life income trust, if the surviving spouse takes the elective share, that trust is part of the elective share calculation. Devises under the will are credited and valued as distributions in satisfaction of the elective share. A trust interest may be valued at between 50% and 100% of the face value of the trust in satisfaction of the elective share, depending on the extent of the spouse’s interest in that trust. F.S. 732.2095(2)(d). Valuation and funding are difficult concepts because they are a “moving target.” The elective share is not charged with any part of the attorneys’ fees or other administration expense and, as other pecuniary amounts, assets

distributed in kind are valued at the date or dates of distribution. Therefore, in a falling market, the elective share is a “floor” under valuation of the spouse’s share, but in a rising market, the devises provided in the will or trust (first used to satisfy the elective share amount) may be greater than the value of the elective share amount when they are funded after a delay. Although many elective share issues involving statutory construction, entitlement, funding, valuation, and contribution remain unresolved, the following appellate opinions address some of these issues: A Massachusetts nominee trust was deemed not to be an elective share trust in Janien v. Janien, 939 So. 2d 264 (Fla. 4th DCA 2006). Determination of entitlement to the elective share under Fla. Prob. R. 5.360(c) without determination of the amount of the elective share, contribution, or the assets to be distributed in satisfaction is not a final order from which there is a right of appeal. Dempsey v. Dempsey, 899 So. 2d 1272 (Fla. 2d DCA 2005). See also Fla. R. App. P. 9.170(b)(16) to the effect that an order determining the amount of, or contribution required to, the elective share is a final order. See § 21.4.K of this manual. The elective share does not violate the Due Process Clause of the United States Constitution nor Article I, § 2, of the Florida Constitution (right to own and possess property). In re Estate of Magee, 988 So. 2d 1 (Fla. 2d DCA 2007), discussed in § 7.9 of this manual. An unresolved issue is the electing spouse’s entitlement to share in the income of the estate. The elective share, itself, is properly characterized as a pecuniary share not in trust. Unless the governing instrument provides to the contrary, the general rule under the provisions of F.S. 738.201 and 738.202 is that a pecuniary devise not in trust does not share in fiduciary accounting income. See Kelley & Bronner, THE FLORIDA BAR PROBATE SYSTEM (Fla. Bar 5th ed. 2018). However, this does not preclude the surviving spouse from receiving the same share of fiduciary accounting income he or she would have received pursuant to the devises provided under the terms of the governing instrument, if any, in the absence of the election, and the payment of that income does not count in satisfaction of the elective share amount. Any part of the elective

share paid or payable from assets other than those provided for the surviving spouse under the terms of the governing instrument would not include a share in fiduciary accounting income. The surviving spouse will receive the share of distributable net income (and a form K-1 from the estate) as he or she would have received if no election had been made. Funding of the elective share in excess of other assets that pass or have passed to the surviving spouse, or the share of fiduciary accounting income on those assets, is considered for purposes of income tax reporting as a distribution of a specific sum and is not income taxable to the spouse. IRC § 663(a)(1). See Chapter 7 of this manual for further discussion of the elective share. « Ch. 21 », « § 21.3 », « E » 1 Practice Under Florida Probate Code § 21.3.E (2022)

E. Joint And Survivorship Property Litigation The area of joint account litigation is one of the most interesting and challenging for the probate lawyer. It is an area that should be more frequently examined in a probate context. For example, the personal representative should determine whether there is any survivorship property, the details regarding the creation of that interest, and the details of the property. This is of lesser importance when the estate is solvent and nontaxable and the beneficiaries of the estate are also the surviving tenants of the joint property; however, if the estate is taxable, this joint and survivorship property must be reported by the personal representative on the federal estate tax return (IRS Form 706). IRC §§ 6018, 2040. This inquiry is frequently not made or not thoroughly pursued. Upon inquiry, it may be determined that property is recoverable for the estate, its beneficiaries, or its creditors, if the estate is insolvent. There have been important and relatively recent changes in the case law and statutory law relating to survivorship accounts. These changes are discussed herein and also are examined in § 1.2.E.3 of this manual. Under early case law, for a joint account to validly have survivorship rights, it was required that there be a completed inter vivos gift. Spark v. Canny, 88 So. 2d 307 (Fla. 1956), superseded by statute 601 So. 2d 1165; Chase Federal Savings & Loan Ass’n v. Sullivan, 127 So. 2d 112 (Fla. 1961),

superseded by statute 601 So. 2d 1165. The requirement (under the common law of gift) for delivery was satisfied by delivery of a passbook or actual withdrawals from the account. This was in the nature of a feoffment (a conveyance of property in fee simple). It was intended to avoid the application of the statute of wills, requiring that testamentary transfers occur by will or by a document executed with the formalities of a will. Obviously, a signature card agreement did not meet those standards and, therefore, it was necessary to prove a completed inter vivos gift in order for the survivorship aspects to be effective upon death. That was a fiction because, under nearly all circumstances, the depositor/joint tenant intended to retain the right to withdraw all the funds at any time. Although the account agreements provided for the right of either party alone to withdraw, most depositor/joint tenants would have been severely distressed if the non-depositor/tenant had withdrawn and retained the funds during the depositor’s lifetime. The law has changed substantially over the years, both by statutory enactment and significant decisions, some of which have subsequently been disapproved, at least in part. In many instances, it is incorrect to assume that early cases, even supreme court decisions, are still good law. Until July 3, 1992, applicable statutes (former F.S. 658.56 (banks), 665.063 (savings and loan associations), and 657.036 (credit unions)) provided that when the account agreement (card) stated that the proceeds were payable to the survivor, survivorship was presumed. The presumption of intended survivorship was irrebuttable in the case of the savings and loan association, but rebuttable in the case of a bank or credit union account on clear and convincing evidence of a contrary intent. In all instances, the presumption could be overcome by proof of fraud or undue influence by the greater weight of the evidence. Effective July 3, 1992, F.S. 655.79 was created and provides that an account in two or more names presumes that survivorship was intended unless a contrary intent is expressed in the account agreement. This changes the prior law that specific survivorship language was required in the account agreement. This statute applies to any state or national bank, state or federal association, or state or federal credit union. Id. The statute also overcomes prior common-law gift and statute of wills problems by providing that survivorship prevails even in “the absence of proof of any donative intent or

delivery, possession, dominion, control, or acceptance on the part of any person.” F.S. 655.79(2). The presumption of intended survivorship may be overcome by clear and convincing evidence of a contrary intent or by proof of fraud or undue influence. Id. See Davis v. Foulkrod, 642 So. 2d 1129 (Fla. 4th DCA 1994). The evidence of contrary intent may be parol, even in the absence of any ambiguity in the survivorship agreement. In re Estate of Combee, 601 So. 2d 1165 (Fla. 1992); Caputo v. Nouskhajian, 871 So. 2d 266 (Fla. 5th DCA 2004); In re Guardianship of Medley, 573 So. 2d 892 (Fla. 2d DCA 1991), overruled on other grounds 780 So. 2d 45. The question of survivorship rights is particularly pertinent in the factual context in which the nondepositor withdraws the funds before (potentially just hours before) the death of the depositor. The argument is then made that no survivorship entitlement (at least as to the withdrawn funds) existed upon death because there were no funds in the account. The survivor did not succeed to the ownership by survivorship. In fact, so the argument goes, the withdrawer destroyed the survivorship rights by the withdrawal. Wexler v. Rich, 80 So. 3d 1097 (Fla. 4th DCA 2012); Wiggins v. Parson, 446 So. 2d 169 (Fla. 5th DCA 1984). The court in Sitomer v. Orlan, 660 So. 2d 1111 (Fla. 4th DCA 1995), agreed with the Wiggins analysis that withdrawal of funds from a joint account with rights of survivorship (JTWROS) destroys the survivorship aspect, but points out that the result is opposite if the funds are held in a tenancy by the entireties. The contrary argument as to JTWROS is that, because no lifetime gift of ownership of the funds was intended, if the depositing joint tenant had lived, he or she could have required the withdrawing joint tenant to account. Therefore, the exercise of the right to withdraw did not effect a change in ownership of the funds or the nature of the account, but merely changed the possession of the funds, and all aspects of the account, including survivorship, continued. This theory is utilized in In re Guardianship of Medley. Before the enactment of F.S. 655.79, effective July 3, 1992, which resolved the issue of the presumption of survivorship, there were two cases that addressed the issue regarding pre-death withdrawal by the noncontributing joint tenant. The first was Medley, in which the bank was

guardian of the property of a wife who was deemed incompetent. She had $260,000 in joint accounts with her husband and in Totten trust accounts in which she and her husband were designated as trustees for others. The husband withdrew all of the funds, with the knowledge of the bank/guardian, and created a revocable living trust on his own behalf naming the bank as trustee. Subsequently, after the withdrawal, the husband died and the bank/guardian, as his trustee, distributed the funds (coming initially from these accounts) to the incompetent’s beneficiaries, who were not the same persons as the beneficiaries of the incompetent’s estate or as the designated Totten trust beneficiaries. The Medley court held that although the right of withdrawal in favor of the husband existed, the fact of his exercise of that right during the lifetime of his wife did not change the ownership of the funds. The opinion did not state that the funds were initially deposited by the wife. The court found that the bank, as the incompetent’s guardian, should have taken steps to determine the ownership, then to prevent the withdrawal. In this instance, the complaint was found to state a cause of action and was remanded for further proceedings. The next case was In re Estate of Combee, which addressed the issue of the survivor’s entitlement (in this case, when the funds had not been withdrawn) and the operation of the rebuttable presumption of intended survivorship to funds in a commercial bank. The evidence required to overcome that presumption was clear and convincing, and the court found that burden had not been met. The survivorship interest was allowed to stand. The same legal concepts that apply to procuring a will by undue influence also apply to undue influence as it relates to creation of a survivorship account and to a revocable trust. Davis v. Foulkrod, 642 So. 2d 1129 (Fla. 4th DCA 1994). It has previously been impossible to allege the torts of (1) conversion, (2) civil theft, and (3) interference with an expected inheritance against a spouse who has wrongfully withdrawn joint bank account funds before his or her spouse’s death. This was the basis of the unsuccessful claim in McAdam v. Thom, 610 So. 2d 510 (Fla. 3d DCA 1993), in which the attempt to recover in tort was denied based on the doctrine of spousal immunity from tort. The reasoning was that the husband could not have recovered against his wife in

tort and therefore the estate could not do so following his death. However, the doctrine of interspousal immunity was subsequently abrogated in Waite v. Waite, 618 So. 2d 1360 (Fla. 1993), and the McAdam decision was quashed. See Thom v. McAdam, 626 So. 2d 184 (Fla. 1993). Thus, these actions are now available in such a circumstance. A different, but interesting fact situation involving tort liability of a credit union for “negligent misrepresentation” is found in Baggett v. Electricians Local 915 Credit Union, 620 So. 2d 784 (Fla. 2d DCA 1993). In that case, the plaintiff had a $40,000 CD titled with the plaintiff’s name “ITF” (in trust for) the plaintiff’s son, who was in jail. The plaintiff asked the credit union officer how he could best title the account to avoid his ex-wife having any ability to obtain the funds and ensure that he alone could access the funds. The officer advised that the account be retitled to include “or” between the names of the plaintiff and his son. The wife, using a power of attorney from the beneficiary, withdrew $28,035. The trial court granted a summary judgment to the credit union on the basis that tendered oral testimony regarding the credit union’s (negligent) representations to the plaintiff violated the parol evidence rule in view of the deposit contract, with which the bank had complied. The appellate court reversed summary judgment and remanded, noting that parol testimony regarding negligent misrepresentation or fraud in the inducement could be allowed as an exception to the parol evidence rule. In Vaughn v. Batchelder, 633 So. 2d 526 (Fla. 2d DCA 1994), the District Court of Appeal, Second District, held that a power of attorney that did not specifically contain the power to make gifts could not be used to create accounts in joint tenancy status with the principal and the attorney-in-fact. The fact that such transfers were made using the power of attorney was also sufficient to remove the attorney-in-fact as personal representative because of the conflict of interest: “To protect the estate interests as personal representative, [he] would be required to sue himself, an obvious conflict of interest.” Vaughn, 633 So. 2d at 529. « Ch. 21 », « § 21.3 », « F » 1 Practice Under Florida Probate Code § 21.3.F (2022)

F. Totten Trust Or Pay-On-Death Accounts A Totten trust is a tentative trust, revocable at will, until the death of the

owner or grantor of the fund. Seymour v. Seymour, 85 So. 2d 726 (Fla. 1956). The concept was set forth in F.S. 655.81, but the statute was repealed effective July 1, 2001, and thereafter any account created after December 31, 1994, that was governed by F.S. 665.81 is governed by F.S. 665.82 as a payon-death account. F.S. 655.825. Ordinarily the “owner or grantor” is also a trustee. When there are two trustees (referred to in F.S. 655.82 as “parties”), following the death of the settlor-trustee, there may be a question whether the surviving trustee has ownership rights over the trust corpus as against the competing rights of the beneficiary. If the second trustee is a co-grantor and a co-owner (by virtue of the account agreements) as well as a co-trustee, especially when the account agreements expressly gave to both trustees the right to revoke the trust, the surviving (noncontributing) trustee may withdraw the funds on the death of the other trustee. Barnard v. Gunter, 625 So. 2d 56 (Fla. 3d DCA 1993). This result is particularly harsh in the instance in which there are trustees of an account for a child, and on the death of one trustee, such as the child’s natural parent, the other trustee, such as a stepparent, withdraws the funds for his or her personal use. If, on the other hand, the second trustee is not a co-grantor and did not deal with the account in a manner that would imply ownership or coownership, the death of one trustee does not vest ownership by survivorship in the second trustee and does not authorize the surviving trustee to withdraw the funds on deposit. Abbale v. Lopez, 511 So. 2d 340 (Fla. 3d DCA 1987). The issue seems to be the extent of participation in the initial creation of the account and whether the account agreements specifically authorize either trustee acting independently to revoke. However, this area of the law will require substantial further clarification. The suggested form of account agreement in F.S. 655.82 is intended to offer the depositor the opportunity to designate specific intentions among alternatives, but the form itself is less than clear and may not be understood by the depositor. The result in Abbale may have been reversed by adoption of F.S. 655.82(3)(a), effective January 1, 1995, which provides “On the death of one of two or more parties, sums on deposit in the account belong to the surviving party or parties.” The statute makes it clear that the institution must pay the balance in the account to the surviving trustee (party), but does not purport to

determine ownership of the funds. F.S. 655.82(3)(a) was briefly mentioned by the District Court of Appeal, First Circuit, in Brown v. Brown, 149 So. 3d 108 (Fla. 1st DCA 2014) (application of improper statute to pay-on-death account), and Keul v. Hodges Blvd. Presbyterian Church, 180 So. 3d 1074 (Fla. 1st DCA 2015) (undue influence in creation of pay-on-death account). In Bayuk v. Prisiajniouk, 2019 U.S. Dist. LEXIS 222331, 2019 WL 7293591, at *4–5 (M.D. Fla. 2019), the court reviewed F.S. 655.82(3)(a) and the signature card for the account in question, and determined that the surviving spouse was a “party” to the account, and therefore her step-daughter (the beneficiary under the pay-on-death account) could not establish a legally cognizable interest over the account at her father’s death. In Ullman v. Garcia, 645 So. 2d 168 (Fla. 3d DCA 1994), the Third Circuit refused to allow a guardian of the property to cancel various Totten trust accounts allegedly established through undue influence exerted on the ward before the declaration of incapacity. The court held that a Totten trust was a temporary trust that might be canceled by the ward (assuming she regained capacity) and that no action to cancel the trust could be brought during the trustor’s lifetime, citing as authority Florida National Bank of Palm Beach County v. Genova, 460 So. 2d 895 (Fla. 1985), and former F.S. 737.206 (the operative portion of which was later transferred to F.S. 737.2065, now F.S. 736.0207), which provides that [a]n action to contest the validity of all or part of a revocable trust, or the revocation of part of a revocable trust, may not be commenced until the trust becomes irrevocable by its terms or by the settlor’s death. If all of a revocable trust has been revoked, an action to contest the revocation may not be commenced until after the settlor’s death. An exception is provided by the statute for actions by a guardian of the property of an incapacitated person if the requirements of F.S. 744.441(1)(k) are met. The court in Ullman further admonished the guardian that such an action was beyond the authority of the guardian, who was supposed to be protecting the ward rather than being concerned about the ultimate beneficiaries of the ward’s estate. The court thus denied an award of attorneys’ fees to the guardian.

F.S. 736.0207, as of 2011, also proscribes an action to contest the revocation of a revocable trust, and presumably a pay-on-death or Totten Trust account, until after the settlor’s death. Pay-on-death accounts are discussed further in § 1.2.E.3 of this manual. « Ch. 21 », « § 21.3 », « G » 1 Practice Under Florida Probate Code § 21.3.G (2022)

G. Determination Of Beneficiaries Under Fla. Prob. R. 5.385(a), “[i]f a personal representative or other interested person is in doubt or is unable to determine with certainty [the] beneficiaries entitled to [all or part of the] estate … the personal representative or other interested person may petition the court to determine beneficiaries.” A determination of beneficiaries often arises in situations such as when a decedent dies intestate survived by unknown or unascertained heirs, with questions of paternity, questions regarding the validity of a marriage or dissolution of marriage, pretermitted spouse or child, and questions regarding the validity of adoptions. Occasionally, when a person dies intestate and has an unadopted child as a family member, the argument has been made that the unadopted child is an intestate heir under the theory of virtual or equitable adoption. See Kupec v. Cooper, 593 So. 2d 1176 (Fla. 5th DCA 1992) (the doctrine of equitable adoption applies “in an intestate estate to give effect to the intent of the decedent to adopt and provide for the child”). However, virtual adoption is a very restrictive theory of law (described in the case law as a “rarity”) that depends on a preexisting (express or implied) contract to adopt. The right is often based on promissory estoppel or breach of an oral contract to adopt. The elements of virtual adoption are an agreement to adopt between the natural parents and alleged adoptive parents; performance by the natural parents of the child in giving up custody; performance by the child by living in the home of the alleged adoptive parents;

partial performance by the alleged adoptive parents in taking the child into their home and treating the child as their own child; and intestacy of the alleged adoptive parents. McMullen v. Bennis, 20 So. 3d 890 (Fla. 3d DCA 2009); Matter of Heirs of Hodge, 470 So. 2d 740 (Fla. 5th DCA 1985); Laney v. Roberts, 409 So. 2d 201 (Fla. 3d DCA 1982). In Urick v. McFarland, 625 So. 2d 1253 (Fla. 2d DCA 1993), the claimant was the stepson of the decedent. The decedent had raised the claimant from age 15 and they maintained a “typical father-son relationship.” Id. at 1254. The claimant’s mother had died intestate and, as a result, the decedent (her surviving spouse) received the majority of his wife’s property through intestacy or joint ownership. The decedent died intestate two months after the death of his wife. The decedent’s only heirs were collaterals. Evidence was replete showing a close family relationship between the claimant and decedent over many years, including photographs and a bible that was a gift from decedent and claimant’s mother to claimant inscribed “Mother and Dad.” The claimant’s wedding announcement described the decedent as his father. However, the court could not find an agreement to adopt and denied the claimant a share of the decedent’s estate, indicating that it was up to the legislature to change the law if such change was desired. This situation was particularly unfortunate because had the decedent died before his wife, the claimant would have inherited through his mother’s estate. A virtually adopted child is an “heir” for purposes of descent of homestead. Williams v. Dorrell, 714 So. 2d 574 (Fla. 3d DCA 1998). However, an equitably adopted child cannot recover under the Florida Wrongful Death Act. Jolley v. Seamco Laboratories, Inc., 828 So. 2d 1050 (Fla. 1st DCA 2002) (holding that an equitably adopted child does not have all of the legal rights of a legally adopted child). The standard of proof for virtual adoption in the District Courts of Appeal, First and Second Districts, is “clear and convincing evidence,” Green v. Boyd, 794 So. 2d 668 (Fla. 1st DCA 2001); Williams v. Estate of Pender, 738 So. 2d 453 (Fla. 1st DCA 1999); In re Estate of Musil, 965 So. 2d 1157 (Fla. 2d DCA 2007). In the Third District, it is a “preponderance of the evidence,” Laney.

Another necessary application requiring determination of beneficiaries involves a pretermitted spouse or child (i.e., someone not named in the will, such as a child born after the will was executed). When there is an apparently pretermitted spouse or child, whether by virtue of virtual adoption or otherwise, a beneficiary determination by the court will be required for the protection of the fiduciary. The reason for this is that the pretermitted beneficiary will receive an intestate share of the estate, altering the will’s dispositive plan, if the pretermitted status is granted by the court. With regard to pretermitted spouse status, for example, that determination requires the court to find that potential pretermitted spouse married the testator after the making of the will and survived the testator, unless the court finds that: (1) provision was made for, or waived by, the spouse under a prenuptial or postnuptial agreement; (2) the spouse was provided for in the will; or (3) the will discloses an intention not to provide for the spouse. See F.S. 732.301. An interesting question in this regard arises when a person is, at the time of death, a surviving spouse and was designated in the last will to receive a bequest, but the will was executed before the marriage. The issue is whether the decedent made provision for this person as a spouse or as a nonspouse. In this instance, it is necessary to determine the intent of the testator in including the person as a beneficiary: was the spouse included with the contemplation that they would later marry (and was thereby included as a spouse) or was the marriage intention formed later? The burden is on the surviving spouse to establish that marriage was not contemplated when the will was drawn, in order to establish the spouse’s claim as a pretermitted spouse. Estate of Ganier v. Estate of Ganier, 418 So. 2d 256 (Fla. 1982). The burden of proof on the surviving spouse is by a preponderance of the evidence. In re Estate of Gaspelin, 542 So. 2d 1023 (Fla. 2d DCA 1989). In any event, the surviving spouse is entitled to an elective share (absent a nuptial agreement), but the pretermitted share may be greater. A question has arisen, but not been fully resolved due to advancements in technology, regarding artificial reproductive technology and rights of afterborn heirs. F.S. 732.106 indicates: “Heirs of the decedent conceived before his or her death, but born thereafter, inherit intestate property as if they had been born in the decedent’s lifetime.” F.S. 742.17 addresses the rights to eggs, sperms, and embryos in the event of divorce or death. Section (4) indicates: “A child conceived from the eggs or sperm of a person or persons

who died before the transfer of their eggs, sperm, or preembryos to a woman’s body shall not be eligible for a claim against the decedent’s estate unless the child has been provided for by the decedent’s will.” While these statutes are a start, there is still much left to be addressed in this area. For example, how do homestead rights work? What if a child is conceived and born after the death of the decedent? In Astrue v. Capato, 566 U.S. 541, 132 S. Ct. 2021, 182 L. Ed. 2d 887 (2021), the United States Supreme Court held that because children conceived through in vitro fertilization after the husband died could not inherit under Florida law, F.S. 732.106, they were not entitled to Social Security benefits. The Real Property, Probate and Trust Law Section of the Florida Bar has established a committee to review these issues, analyze the concerns, and propose a resolution. Finally, F.S. 732.108(2)(b) was amended in 2009 to eliminate a four-year statute of limitations imposed by F.S. 95.11(3)(b) on paternity determinations in probate proceedings to determine intestate succession. However, case law has interpreted this change to be only prospective and not retroactive. White v. Marks, 325 So. 3d 160 (Fla. 5th DCA 2021); Dixon v. Bellamy, 252 So. 3d 349 (Fla. 3d DCA 2018). Thus, the amendment provides no relief to those whose claims had already expired by the time the amendment became law. « Ch. 21 », « § 21.3 », « H • 1 Practice Under Florida Probate Code § 21.3.H (2022)

H. Other Probate Litigation There are many other forms of litigation that are properly classified as probate litigation. These would include recovery of assets into the estate on account of inter vivos gifts; recovery of life insurance proceeds paid to a third party; spousal rights litigation, including prenuptial and postnuptial agreements; fee contests for personal representatives’ or attorneys’ fees; accountings and objections to accountings; breach and surcharge litigation; removal of the personal representative; lawyer malpractice claims; homestead litigation; and many other narrowly specific forms of litigation that involve wills, trusts, estates, gifts, joint assets, and fiduciaries. The scope of this chapter is not sufficiently broad to cover these matters, which are covered in depth in LITIGATION UNDER FLORIDA PROBATE CODE (Fla. Bar 13th ed. 2022).

« Ch. 21 », « § 21.4 » 1 Practice Under Florida Probate Code § 21.4 (2022)

§ 21.4. JURISDICTION AND PROCEDURE « Ch. 21 », « § 21.4 », • A » 1 Practice Under Florida Probate Code § 21.4.A (2022)

A. Subject Matter Jurisdiction Jurisdiction over proceedings “relating to the settlement of the estate of decedents and minors, the granting of letters testamentary, … and other jurisdiction usually pertaining to courts of probate [and] all cases in equity” is vested in the circuit court. Art. V, § 20(c)(3), Fla. Const.; see F.S. 26.012. This is the “subject matter” jurisdiction to administer estates generally and resolve questions involving trusts. The practitioner should note, however, that when the decedent is the subject of a guardianship administration, the guardianship court retains subject matter jurisdiction over the ward’s case and the ward’s assets for certain purposes postdeath. See Lovest v. Mangiero, 279 So. 3d 205 (Fla. 3d DCA 2019); Bivins v. Guardianship of Bivins, 223 So. 3d 1006 (Fla. 4th DCA 2017). Subject matter jurisdiction cannot be waived. Subject matter jurisdiction should be distinguished from jurisdiction over the person, and in rem jurisdiction. See Pastor v. Pastor, 929 So. 2d 576 (Fla. 4th DCA 2006); In re Estate of Dalton, 246 So. 2d 612 (Fla. 3d DCA 1971). See also § 21.4.C, below. « Ch. 21 », « § 21.4 », « B » 1 Practice Under Florida Probate Code § 21.4.B (2022)

B. Proper Forum And Applicable Law Florida courts have jurisdiction to determine the validity of a will as it relates to devise of Florida real property, even if that will has been admitted to probate in another state or country. “[A] will executed in another state by a domiciliary of the other state, and probated in the other state, is subject to the jurisdiction of Florida courts for the determination of the validity of that will when it is presented in Florida for the purpose of devising real property in Florida.” In re Estate of Barteau, 736 So. 2d 57, 58 (Fla. 2d DCA 1999); In re Estate of Hatcher, 439 So. 2d 977 (Fla. 3d DCA 1983); In re Estate of Swanson, 397 So. 2d 465 (Fla. 2d DCA 1981); In re Estate of Roberg, 396

So. 2d 235 (Fla. 2d DCA 1981). But see Saunders v. Saunders, 796 So. 2d 1253 (Fla. 1st DCA 2001), in which a Colorado resident decedent owned real property in Florida and had a pretermitted spouse. Florida’s pretermitted statute provides greater benefits to the spouse than the corresponding Colorado statute which, under some circumstances, provides nothing to an omitted spouse. The spouse argued that under Florida common law, Florida law would apply to control passage of Florida real property upon death. The District Court of Appeal, First District, determined that F.S. 731.106(2) supersedes the Florida common law and requires that Colorado law must apply to determine the amount of the pretermitted spousal share because the decedent had not provided in his will that Florida law was to apply. Sometimes there is probate filed in more than one state as an original domiciliary administration. In that instance, the question arises as to which court should properly make the determination of domicile and proceed. A natural conclusion might be that the court in which the first filing occurred should have priority to make the determination. However, the practice has evolved so that the first court that “ ‘exercises its jurisdiction acquires exclusive jurisdiction to proceed’ ” [internal citations omitted]. Siegel v. Siegel, 575 So. 2d 1267, 1272 (Fla. 1991). This is known as the principle of priority and is a part of the doctrine of comity by which competing jurisdictions sort out their priorities. Parker v. Estate of Bealer, 890 So. 2d 508 (Fla. 4th DCA 2005). The principle of priority is analogous to the federal law doctrine of prior exclusive jurisdiction, which holds that where one court is exercising in rem jurisdiction over a res, a second court will not assume in rem jurisdiction over the same res. See, e.g., Marshall v. Marshall, 547 U.S. 293, 311, 126 S. Ct. 1735, 164 L. Ed. 2d 480 (2006). “Exercising its jurisdiction” for this purpose means entry of an order admitting the will to probate or appointing a personal representative, thereby giving the court jurisdiction over the res. Parker v. Estate of Bealer, 890 So. 2d 508 (Fla. 4th DCA 2005). See also Perelman v. Estate of Perelman, 124 So. 3d 983 (Fla. 4th DCA 2013), in which the court held that when a Pennsylvania court was the first court to exercise jurisdiction over a probate proceeding, the Florida court where a challenge to the will was filed should stay the will challenge as a matter of comity, absent a finding of extraordinary circumstances that would justify refusing to apply the principle of priority. One final note on forum relates to federal jurisdiction. There is a doctrine

called the “probate exception to federal diversity jurisdiction.” The U.S. Supreme Court in 2006 explained the operation of the probate exception in Marshall, in which the Court described the scope of the probate exception as follows: “the probate exception reserves to state probate courts the probate or annulment of a will and the administration of a decedent’s estate; it also precludes federal courts from endeavoring to dispose of property that is in the custody of a state probate court.” Id. at 311–312. The Court also described the limits of the probate exception: “it does not bar federal courts from adjudicating matters outside those confines and otherwise within federal jurisdiction.” Id. at 312. « Ch. 21 », « § 21.4 », « C » 1 Practice Under Florida Probate Code § 21.4.C (2022)

C. In Personam And In Rem Jurisdiction In addition to jurisdiction over the subject matter, the court also must have jurisdiction over either the person or the res. In personam jurisdiction is over the person and in rem jurisdiction is over the res or “thing.” See §§ 3.4.A–3.4.B of this manual. A probate proceeding is an in rem proceeding. F.S. 731.105; In re Estate of Williamson, 95 So. 2d 244 (Fla. 1957), 65 A.L.R. 2d 1195. An in rem proceeding is one in which the court has jurisdiction over the property and, after reasonable notice that complies with due process requirements, the court may decide the rights of persons to that property. Royalty v. Florida Nat. Bank of Jacksonville, 127 Fla. 618, 173 So. 689 (1937). In probate proceedings, the estate being administered is the property (“rem” or “res”) over which the court has jurisdiction. Pitts v. Pitts, 120 Fla. 363, 162 So. 708 (1935). “A probate court has no jurisdiction over property not cognizable in probate, and any judgment is binding only on the rem over which the probate court has jurisdiction.” Warner v. Quicken Loans, Inc., 2020 U.S. Dist. LEXIS 77089, 2020 WL 2097981 (M.D. Fla. 2020), citing Spitzer v. Branning, 135 Fla. 49, 53 (1938). See Carlton Fields, P.A. v. Locascio, 81 So. 3d 611 (Fla. 3d DCA 2012). “It, therefore, follows that if the judgment of the probate court purports to bind the rem over which the court is without jurisdiction the judgment is not binding on such rem and is a nullity in that regard.” Spitzer, 135 Fla. at 53. When a probate court is without jurisdiction

to dispose of property, no party’s conduct can confer jurisdiction. Id. Thus, the “mere inclusion of the description of property in pleadings or orders in probate proceedings cannot confer jurisdiction of the rem.” Id. In Warner, the court applied these concepts to hold that under Florida law, where parents owned certain real property as tenants by the entireties, when the mother died, the property passed to the father automatically, so the property was not an estate asset, and the probate court did not have jurisdiction to change the ownership interest in the property. In addition to in rem jurisdiction, the court may acquire jurisdiction over certain of the parties. The type of jurisdiction acquired or required depends on the particular proceeding within the estate administration and the relief sought. A court will always have in personam jurisdiction over the petitioner and, if a different person, over the appointed personal representative. An adversary proceeding does not otherwise contemplate nor require in personam jurisdiction. See Chapter 3 of this manual and LITIGATION UNDER FLORIDA PROBATE CODE Chapter 1 (Fla. Bar 13th ed. 2022) for further commentary on probate jurisdiction. The nature of a proceeding as adversary merely dictates the method and type of service required, not the type of jurisdiction required. In In re Estate of Stisser, 932 So. 2d 400 (Fla. 2d DCA 2006), a resident of Minnesota executed a revocable living trust, designating two residents of Minnesota as trustees. The settlor later moved to Florida and died. The personal representative asked the Florida probate court to enforce a provision of the trust requiring the trustees to contribute to payment of the estate tax. The Florida court in the probate of the settlor’s estate, as a part of the probate proceeding, did not have jurisdiction over either the res of the trust or the person of either of the trustees, and was therefore without authority to enforce the trust provision. Subsequently, in 2013, the legislature extensively amended F.S. 736.0202 to make it a broad long-arm statute over trustees and trust beneficiaries, which purports to give Florida courts necessary jurisdiction over trustees and beneficiaries to adjudicate issues related to trusts that have a nexus involving the State of Florida. That statute, as amended, provides:

Jurisdiction over trustee and beneficiary.—

(1) IN REM JURISDICTION.— Any beneficiary of a trust having its principal place of administration in this state is subject to the jurisdiction of the courts of this state to the extent of the beneficiary’s interest in the trust. (2) PERSONAL JURISDICTION.— (a) Any trustee, trust beneficiary, or other person, whether or not a citizen or resident of this state, who personally or through an agent does any of the following acts related to a trust, submits to the jurisdiction of the courts of this state involving that trust: 1. Accepts trusteeship of a trust having its principal place of administration in this state at the time of acceptance. 2. Moves the principal place of administration of a trust to this state. 3. Serves as trustee of a trust created by a settlor who was a resident of this state at the time of creation of the trust or serves as trustee of a trust having its principal place of administration in this state. 4. Accepts or exercises a delegation of powers or duties from the trustee of a trust having its principal place of administration in this state. 5. Commits a breach of trust in this state, or commits a breach of trust with respect to a trust having its principal place of administration in this state at the time of the breach. 6. Accepts compensation from a trust having its principal place of administration in this state. 7. Performs any act or service for a trust having its principal place of administration in this state. 8. Accepts a distribution from a trust having its principal place of administration in this state with respect to any matter involving the distribution. (b) A court of this state may exercise personal jurisdiction over a trustee, trust beneficiary, or other person, whether found within

or outside the state, to the maximum extent permitted by the State Constitution or the Federal Constitution. « Ch. 21 », « § 21.4 », « D » 1 Practice Under Florida Probate Code § 21.4.D (2022)

D. Acquiring Jurisdiction In personam jurisdiction in probate may be acquired after service of process, waiver, or voluntary appearance. 12A FLA. JUR. 2d Courts and Judges § 61. It is also acquired over a party asking the court for affirmative relief. Markowitz v. Merson, 869 So. 2d 728 (Fla. 4th DCA 2004). Formal notice, in and of itself, generally is not sufficient service to support in personam jurisdiction, because formal notice is neither issued under the seal of the court nor (typically) served as provided in F.S. Chapter 48. However, a growing number of courts have found in personam jurisdiction based on service of formal (mailed) notice, and in Rogers & Wells v. Winston, 662 So. 2d 1303 (Fla. 4th DCA 1995), based only on informal notice. Overlying this consideration are the due process requirements of notice and minimum contacts, as well as service considerations. In Winston, the court confused the ability to utilize long-arm service of process under F.S. 48.193 for someone doing business in this state to obtain in personam jurisdiction (although no such service was accomplished), with the requirement in a probate proceeding for giving notice by simple mailed notice under Fla. Prob. R. 5.041(b) (2011), although the opinion failed to mention F.S. 48.193 or any long-arm statute. A New York law firm that had performed services for the personal representative mostly in New York, complained about the absence of service of process (of any kind) on it, but the court did not understand the issue: “We disagree with appellant’s assertion that the court lacks jurisdiction because appellee failed to comply with the requisite pleading and service requirements under the Rules of Civil Procedure.” Winston, 662 So. 2d at 1304. Although not stated, the holding in Winston is that any service provider to a Florida estate has submitted himself or herself to in personam jurisdiction of the probate court. Ultimately, in further proceedings in this case, the law firm was ordered to refund part of the fees paid to it for its services.

The Winston court’s mere reliance on mailed notice to support an in personam order (to refund fees paid) is belied by the earlier Florida Supreme Court case of Bedford Computer Corp. v. Graphic Press, Inc., 484 So. 2d 1225, 1227–1228 (Fla. 1986), in which the court stated: There is no statutory provision authorizing [long-arm] service by mail, certified or otherwise, in Florida. We would point out to our legislature that there is no difference as far as defendant’s appraisal of the pending lawsuit between the postal service personally delivering the complaint to the defendant’s door and the sheriff personally doing the same. For this reason, we would suggest that the Florida legislature provide for service upon nonresidents of this state who fall within the jurisdiction of a Florida court by virtue of any of the long-arm statutes by registered or certified mail without the state. Other cases addressing the sufficiency of in personam jurisdiction based on service of formal notice are: Kozinski v. Stabenow, 152 So. 3d 650 (Fla. 4th DCA 2014)—Surcharge against the personal representative individually was dismissed because service was by email on her lawyer rather than by formal notice. Simmons v. Estate of Baranowitz, 189 So. 3d 819, 821 (Fla. 4th DCA 2015)—“[A]s in Kozinski, the remedy sought in the petition against the personal representative’s counsel [disgorgement of excess fee] was against him individually. Therefore, service by formal notice under the Florida probate rules was required for the court to have personal jurisdiction over him.” Hall v. Tungett, 980 So. 2d 1289 (Fla. 2d DCA 2008)—Decedent’s widow, as personal representative of his estate, wrongfully distributed estate assets to herself and her daughter jointly, then died. The successor personal representative served the daughter with formal notice to recover wrongfully distributed estate assets. The court determined that it had personal jurisdiction over the daughter to order return of the assets. Payette v. Clark, 559 So. 2d 630, 633–634 (Fla. 2d DCA 1990) —Although service effected on the appellees by registered mail was insufficient to confer personal jurisdiction in the civil action for money damages, the appellees were interested persons in the estate, had

accepted distribution of the estate assets, and had filed receipts and consents to the discharge of the personal representative, thereby availing themselves of the judicial powers of the Florida court and conferring to it personal jurisdiction with regard to the petition to reopen the estate. Kountze v. Kountze, 20 So. 3d 428 (Fla. 2d DCA 2009)—The court had no jurisdiction after service of formal notice because the respondents had no interest in the estate. An evidentiary hearing would be required to determine whether the nonresident trustee who was served by formal notice had an interest in the estate. Galego v. Robinson, 695 So. 2d 443 (Fla. 2d DCA 1997)—The court had no jurisdiction over a nonresident holder of a power of attorney who was alleged to have mishandled the decedent’s funds, because he had no interest in the estate. In personam jurisdiction may be acquired in probate proceedings by the voluntary general appearance of an interested person or by an interested person asking the court for affirmative relief. The in personam jurisdiction, however, may be limited to that special proceeding within the administration. In personam jurisdiction over the personal representative is acquired by the filing of the petition for administration and is for all purposes related to the administration, including surcharge. Payette. Normally, in a probate administration, the petitioner, the personal representative, and perhaps the lawyer for the personal representative are the only persons over whom the court has in personam jurisdiction, except that in a will contest, the court also has in personam jurisdiction over the challenger by virtue of the affirmative relief requested by that party. In Burden v. Dickman, 547 So. 2d 170 (Fla. 3d DCA 1989), when parents petitioned to be appointed guardians of their minor child who had been awarded a large negligence judgment, the court ordered the parents to account for the child’s part of the award they had received before the filing of the petition for guardianship. The court reasoned that the parents had voluntarily submitted themselves to the personal jurisdiction of the court by filing the petition, citing Palm Beach Towers, Inc. v. Korn, 400 So. 2d 110 (Fla. 4th DCA 1981), for the proposition that the “plaintiff, in bringing [the] action, subjects himself to [the] jurisdiction of [the] court and to subsequent lawful orders entered regarding [the] subject matter of [the] action”

[emphasis added]. Burden, 547 So. 2d at 172. An expanded view, regarding the scope of the in personam jurisdiction, was taken by the District Court of Appeal, Fourth District, in In re Guardianship of Brown, 611 So. 2d 1342 (Fla. 4th DCA 1993). In Brown, the trustee of an inter vivos trust apparently created by the prospective ward, petitioned to be appointed as guardian, and the court ruled that she submitted herself individually to the court’s jurisdiction in her capacity as trustee, and issued an injunction against movement or transfer of any of the trust assets. Those over whom the court does not have in personam jurisdiction may not have a personal judgment entered against them, although a judgment affecting property rights may be entered. For example, a judgment determining that a person is not an heir at law may be entered based on formal (mailed) notice, even though the person never appears or defends. In this instance, the court has jurisdiction over the subject matter (the estate and its assets) and over the person’s interest in the estate (assuming there has been proper formal notice), but the jurisdiction is in rem only. In Payette, which involved an intestate administration, probate was commenced, a personal representative was appointed, distribution was accomplished, and the estate was closed, all without any notice to one of two branches of the family. The omission was intentional. Five years later, the omitted beneficiary learned of the probate and petitioned for subsequent administration under F.S. 733.903. Of the five distributees, only one, the personal representative, was a resident of Florida. In the proceeding to reopen the estate, the nonresident beneficiaries were served by registered mail. The court correctly determined that, as to two counts that stated a cause of action for money damages, the service was inadequate. Two of the nonresidents filed a consent to appointment of the personal representative, requesting that he serve without bond. All of the nonresidents and the one resident accepted their distributions. The court noted that all were “interested persons,” and, additionally, noted the petition’s allegations that all of the nonresidents knew of the existence of the omitted beneficiary and “knowingly appropriated her interest in the estate assets.” Payette, 559 So. 2d at 634. Reading the opinion, one senses that the court was incensed and reaching for an equitable result, despite the lack of a legal underpinning. The court concluded that the participation in the estate process by the appellees was “sufficient to

constitute a voluntary submission to the jurisdiction of the court for the purpose of determination of counts one through four of the petition.” Id. Payette does contain an insightful analysis of the difference between subject matter jurisdiction and personal jurisdiction. It also correctly notes the distinction between quashing service when it is defective and dismissing the cause of action. Except for the cases finding waiver of objection to in personam jurisdiction based on participation in the proceeding, in which case the issue of the effectiveness of formal notice to acquire in personam jurisdiction is irrelevant, especially as it relates to nonresidents, a good argument exists that under the present statutory provisions, formal notice is not adequate to acquire in personam jurisdiction over a person, and entry of a personal judgment or disgorgement order violates that person’s due process rights under the Fourteenth Amendment to the United States Constitution. With that said, many of these cases reached an equitable result, and with the correct statutory provision (and always with the overlay of minimum contacts, which is an unmodifiable requirement), in personam jurisdiction could be based on service of formal notice. In Bedford Computer Corp., 484 So. 2d at 1227– 1228, the Florida Supreme Court stated: Service by publication, even when it is accompanied by certified mail addressed to defendant’s correct out-of-state address (and actually received there by defendant) is not enough to confer in personam jurisdiction over a non-resident corporation. The cases cited above, finding in personam jurisdiction based solely on service of formal notice, mostly rely on F.S. 731.301(2), which states: “In a probate proceeding, formal notice is sufficient to acquire jurisdiction over the person receiving formal notice to the extent of the person’s interest in the estate or in the decedent’s protected homestead.” The statute appears to be intended to provide only in rem jurisdiction to the probate court, not in personam jurisdiction. However, in the absence of any other statutory longarm provision, courts have seized on this nonspecific language to support their attempt to reach an equitable result. In 2020, Fla. Prob. R. 5.040(a)(3)(D) was created, allowing formal notice to be served by first class mail when “only in rem or quasi in rem relief is

sought against a person” if other conditions are present. Specifically, formal notice can be served by first class mail for this type of relief when: service with a signed receipt is unavailable and commercial delivery service with a signed receipt is unavailable, the addressee refuses mail requiring a signed receipt, or delivery with a signed receipt is attempted and unclaimed after notice to the addressee by the delivering entity. The rule, and the underlying legal reasoning behind it, support the argument that F.S. 731.301 was intended to provide only in rem jurisdiction to the probate court. « Ch. 21 », « § 21.4 », « E » 1 Practice Under Florida Probate Code § 21.4.E (2022)

E. Party Petitioner The identity of persons who may petition for revocation of probate is not always abundantly clear. F.S. 733.109(1) provides that “[a]ny interested person, including a beneficiary under a prior will,” unless otherwise barred, may petition to revoke the probate of a will. A statute in effect before the adoption of the Florida Probate Code, F.S. 732.30, allowed “[a]ny heir or distributee of the estate of a decedent, including legatees or devisees under a prior will” (again excepting certain persons who are barred), to bring such an action. F.S. 731.201(23) provides the definition of an “interested person.” Even that statute indicates that the definition may “vary from time to time,” which has been, in context, described by an appellate court as “the amorphous final sentence.” In re Estate of Lewis, 411 So. 2d 368, 370 (Fla. 4th DCA 1982). It is clear that a beneficiary under a prior will is a proper person to bring the petition, and the beneficiary need not be a beneficiary under the immediately prior will to contest that will. The logic of this is that the beneficiary may be successful in setting aside not only the present will but any intervening wills. It is a logical and proper requirement that such a beneficiary allege the grounds of invalidity of any intervening wills and name as respondents those persons interested under prior intervening wills as a precondition to standing. Cates v. Fricker, 529 So. 2d 1253 (Fla. 2d DCA 1988). See In re Pfeiffer’s Will, 34 Fla. Supp. 132 (Dade Co. 1970); In re True’s Will, 31 Fla. Supp. 1 (Dade Co. 1968). Interestingly, this same concept has been applied to a challenge by heirs at law. See Wehrheim v. Golden Pond Assisted Living Facility, 905 So. 2d

1002 (Fla. 5th DCA 2005). Although it is normally considered that the doctrine of dependent relative revocation will reinstate the next prior will if the present will is determined to be invalid, contrary to popular belief, this is not an imperative. Cates. Wehrheim can be read for the proposition that intestate heirs, like beneficiaries of a prior will, must plead (and subsequently prove) the invalidity of intervening wills or inapplicability of the doctrine of dependent relative revocation, to establish standing as interested persons. Dependent relative revocation is discussed in more detail in § 21.3.A.4. The Florida Supreme Court has considered whether a personal representative under a prior will is a proper party to bring the revocation petition, and has determined that, at least when a beneficiary under the next prior will (the penultimate will) has also petitioned, the personal representative is not a proper party. In re Barret’s Estate, 40 So. 2d 125 (Fla. 1949). However, the District Court of Appeal, Fourth District, citing a change to the statutory definition of interested person and a change to F.S. 733.109 identifying who may institute revocation of probate, permitted a personal representative under a prior will to initiate (or be a proper party to) such an action. Engelberg v. Birnbaum, 580 So. 2d 828 (Fla. 4th DCA 1991). The court certified the question as one of great public importance. Unfortunately, this case was not appealed. However, the issue was also addressed in Wheeler v. Powers, 972 So. 2d 285 (Fla. 5th DCA 2008), which favorably cited Engelberg, but noted that the definition of “interested person” varies with the particular proceeding. See also Cruz v. Community Bank & Trust of Florida, 277 So. 3d 1095 (Fla. 5th DCA 2019) (daughter and son had standing as interested persons in breach of trust action due to possibility they would inherit estate under previous will or laws of intestacy). Also, the question of whether the serving personal representative may bring an action to revoke its probate has been decided in the negative. In re Estate of Lewis. Can one who is neither a beneficiary under a prior will nor an heir at law institute will revocation proceedings? For instance, would either the income or remainder beneficiary of a trust under a prior will have standing to bring such an action? The answer is probably yes. In re Estate of Lewis. See In re Estate of Anders, 209 So. 2d 269 (Fla. 1st DCA 1968). A contingent beneficiary under a trust has standing to object to a personal

representative’s final accounting “no matter how remote the possibility may be” that the contingent beneficiary will realize any benefits. Richardson v. Richardson, 524 So. 2d 1126, 1127 (Fla. 5th DCA 1988). In re Estate of Watkins, 572 So. 2d 1014 (Fla. 4th DCA 1991), is a similar case, not involving an accounting issue, in which the life income beneficiary/personal representative was sued by her son, the remainder beneficiary, even though the son’s interest was contingent on surviving his mother. The Richardson situation, involving objection to accounting, may be deemed superseded by F.S. 736.0302(1) (“holder of a power of appointment may represent and bind persons whose interests, as permissible appointees, takers in default, or otherwise, are subject to the power”). However, like many representation statutes, this may be subject to a due process constitutional challenge, especially if the holder attempts to become a party and is denied that right. The basic test of an interest sufficient to support the filing of a petition for the revocation of probate is whether the petitioner has some pecuniary or beneficial interest that is enhanced by defeating the will or some portion of it. In re Estate of Lewis. Practitioners should note that the concept of who is an “interested person” has been extensively litigated in recent years in guardianship matters, which apply the same statutory definition, that of F.S. 731.201, as probate matters. Therefore, the court analysis in guardianship cases may be useful to the probate practitioner as well. See, e.g., Hayes v. Guardianship of Thompson, 952 So. 2d 498 (Fla. 2006); In re Guardianship of Martino, 313 So. 3d 687 (Fla. 2d DCA 2020); In re Guardianship of Trost, 100 So. 3d 1205 (Fla. 2d DCA 2012). « Ch. 21 », « § 21.4 », « F » 1 Practice Under Florida Probate Code § 21.4.F (2022)

F. Party Respondents Who are the necessary party respondents in a will or trust contest? All beneficiaries of a will (and of each intervening will) and, under proper circumstances, all intestate heirs are necessary respondents in a will contest. Simply serving the personal representative (who is a necessary party) is insufficient to determine the rights of beneficiaries. The “service” required to

bind the beneficiaries to the extent of each beneficiary’s interest in the estate, which satisfies due process requirements, may be formal notice or service of process under F.S. Chapter 48 or constructive service under F.S. Chapter 47. See § 21.3.A.2 for a discussion of whether a trust can be challenged if the related will is not also challenged. As stated in § 21.4.E, the definition of an “interested person” under F.S. 731.201(23) is “any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved. In any proceeding affecting the estate or the rights of a beneficiary in the estate, the personal representative of the estate shall be deemed to be an interested person.” A petition to revoke probate is an adversary proceeding, requiring service of formal notice on all interested persons. Fla. Prob. R. 5.025. The personal representative, although an interested person who must be served, does not fully represent the interests of the beneficiaries under the will being attacked. F.S. 731.303(1)(b)3 provides: “Orders binding a personal representative bind persons interested in the undistributed assets of a decedent’s estate, in actions or proceedings by or against the estate.” A will contest is not an action “against the estate.” That statute appears not to apply to a will contest or construction, but rather to an independent action on an objected-to claim, for example, or to an action by the personal representative to recover assets for the estate. Due process considerations suggest that any person whose interest is purported to be affected or whose entitlement claim is sought to be foreclosed by any action (e.g., a beneficiary of a will or trust being challenged) is entitled to notice and the opportunity to defend. In Burns v. Estate of Cobb, 589 So. 2d 413 (Fla. 5th DCA 1991), a case involving a homestead determination, a person who lived in the home with the deceased claimed an ownership interest because of contributions related to the purchase and construction of the homestead property. The court noted that the occupant “was not a party to the judicial proceeding determining homestead [and] was not duly noticed as to it and [therefore] under due process concepts [was] not legally bound by that determination” and could seek equitable relief. Id. at 415. For additional discussion of due process in a probate context, see §§ 19.9.A–19.9.H of this manual. A beneficiary of an estate is not a “party” within the contemplation of the

discovery rules. For example, the estate’s pleadings may not be struck under Fla. R. Civ. P. 1.380 for failure of the estate beneficiary to appear for oral deposition when that person is only noticed and not subpoenaed, even though the estate is the plaintiff and the beneficiary stands to gain if the estate’s action is successful. Benton v. Travelers Insurance Co., 585 So. 2d 434 (Fla. 4th DCA 1991). However, a beneficiary who appears and asks affirmative relief, or actively defends the action, becomes a party for all purposes. Markowitz v. Merson, 869 So. 2d 728 (Fla. 4th DCA 2004). « Ch. 21 », « § 21.4 », « G » 1 Practice Under Florida Probate Code § 21.4.G (2022)

G. Procedure The will contest typically takes one of two forms: either a petition to revoke the probate, or an answer to the petition for administration. The petition to revoke probate is appropriate when the will has been admitted (generally ex parte and self-proved). The contest is raised by an answer in instances in which the contestant has been served with formal notice of the petition for administration under F.S. 733.2123 or has been served with a petition for administration after having filed a caveat (i.e., a notice of interest) under F.S. 731.110. Tactically, there is rarely justification for one offering a will to follow the formal notice procedure under F.S. 733.2123, and one representing a prospective will contestant generally best serves the client’s interest by preventing the early admission of the will to probate through the prompt filing of a caveat. However, formal notice of the petition for administration is required if a caveat has been filed by an interested person other than a creditor or when the petitioner is not entitled to preference in appointment, unless those entitled to preference waive notice in writing. F.S. 731.110(3), 733.2123; Fla. Prob. R. 5.201. As noted at § 21.3.A.1.b.iv of this manual, as a prerequisite to maintaining an action to revoke the probate of a will, one must renounce all rights under the document being attacked, although the renunciation may be conditioned on successful revocation of the probate. In re Estate of Harby, 269 So. 2d 433 (Fla. 2d DCA 1972); In re Estate of Pellicer, 118 So. 2d 59 (Fla. 1st DCA 1960). This is based on the equitable principle that one cannot challenge a document under which one accepts benefits. A corollary is that

one who has previously accepted benefits under a will cannot then challenge it. Counsel should be careful to avoid allowing a client wishing to challenge the will to accept a distribution pursuant to that will, even if a like or greater distribution is due under an earlier will. The requirement of renunciation as a prerequisite to the action has been modified in practice, although not in principle, by later cases. See, e.g., Gossett v. Gossett, 182 So. 3d 694 (Fla. 4th DCA 2016) (renunciation rule did not apply and trust beneficiary did not have to return trust distributions while challenging trust amendments when he was entitled to equal or greater amount under each version of trust). Pleadings that do not include the required renunciation may be amended later to add it. In re Estate of Filion, 353 So. 2d 1180 (Fla. 2d DCA 1977). « Ch. 21 », « § 21.4 », « H » 1 Practice Under Florida Probate Code § 21.4.H (2022)

H. Fees And Costs The statutory authority for fee awards in a will contest is governed by F.S. 733.106. Subsection (2) of that statute specifically provides for costs and attorneys’ fees to be awarded from the estate to a person offering a will for probate, even if probate has been denied or revoked, provided the will is offered in good faith. The good-faith requirement is significant. See In re Estate of Hand, 475 So. 2d 1337 (Fla. 3d DCA 1985). F.S. 733.106(3) provides for the award of reasonable compensation to any lawyer who renders services to the estate. Courts have construed this subsection to require a “benefit” to the estate. Samuels v. Estate of Ahern, 436 So. 2d 1096, 1097 (Fla. 4th DCA 1983). See Duncombe v. Adderly, 991 So. 2d 1013 (Fla. 4th DCA 2008) (benefit to estate may include not only enhancing value of estate or effectuating testamentary intent, but also preventing appointment of personal representative named in will or removing representative). It is also significant to note that subsection (3) contemplates an application directly by the lawyer in the lawyer’s own name, whereas subsection (2) clearly contemplates that the application for reimbursement will be made by the personal representative or other petitioner. See In re Estate of Hand. With regard to will contests, the issue of costs and fee awards arises most

frequently when the will offered for probate has been rejected on grounds of undue influence, lack of testamentary capacity, or perhaps forgery. The law is clear that offering an invalid will for probate does not represent a benefit to the estate. See Id. at 1340 (“a person who offers a will for probate shall not be entitled to recover costs or attorneys’ fees from the decedent’s estate where it is determined that such person has been guilty of wrongdoing which prevents the will from being admitted to probate, and … an unsuccessful effort by attorneys to probate a will is of no benefit to the decedent’s estate and should not be compensated by the estate”). In that instance, attorneys’ fees may not be awarded under subsection (3) of the statute. The costs and fees, if any, of a personal representative or other proponent must be awarded under subsection (2). See id. (“the fact that attorneys are disentitled to fees and costs under subsection three does not mean that a [will] proponent cannot recover fees and costs under subsection two in those instances where the will, although rejected, was offered in good faith”). F.S. 733.106 does not specifically allow the unsuccessful proponent of the will to be awarded personal fees,—just costs and attorneys’ fees. Consider, for instance, whether a nominated personal representative (corporate or individual) offering a will for probate should be awarded fees when the will is denied probate (or probate is revoked) on the grounds of undue influence or lack of testamentary capacity, assuming the personal representative was ignorant of the improper circumstances. The court in In re Hand seemed willing to allow it, construing F.S. 733.106(2) to provide “that the unsuccessful proponent of a will is entitled to fees and costs if [the proponent] was ‘in good faith justified in offering the will in due form for probate.’ ” Should it make a difference whether that person is an estate beneficiary or an independent fiduciary? Based on the language of the statute, the argument would be against such an award, unless the award came within the definition of “costs.” In In re Estate of Reid, 182 So. 2d 54 (Fla. 3d DCA 1966), a personal representative and his lawyer were allowed fees under these circumstances. This is the only Florida case directly addressing this issue. It is interesting to note that the personal representative, who presumably was determined to be innocent of the undue influence, was the drafting lawyer and law partner of the sole beneficiary of the will, and the court found, in an earlier appeal of this same case, that the will was void as having been procured by the undue influence of the sole beneficiary. In re Estate of Reid, 138 So. 2d 342 (Fla. 3d DCA 1962).

The law is settled that a proponent of a will who has been found guilty of wrongdoing, including undue influence, which prevents the will from being admitted, is not entitled to attorneys’ fees and costs for offering the will, even if the lawyer representing the proponent has acted in good faith. “[T]he exposure of an estate to the offer of spurious wills and the attendant claims of personal representatives and beneficiaries named therein is of no more benefit ‘than exposure to contagious disease.’ ” In re Estate of Hand, at 1339–1340, quoting In re Estate of Graham, 156 Fla. 421, 23 So. 2d 485, 490 (Fla. 1945). In 2015, F.S. 733.106(4) was revised to add references to F.S. 733.6171(4), 736.1005, and 736.1006 (which address compensation of the lawyer for the personal representative, lawyer fees for services to the trust, and costs in trust proceedings, respectively), and to clarify that the court has discretion to direct from what part of the estate any costs and fees are to be paid. In addition, subsection (4) now includes the following guidance: (a) If the court directs an assessment against a person’s part of the estate and such part is insufficient to fully pay the assessment, the court may direct payment from the person’s part of a trust, if any, if a pourover will is involved and the matter is interrelated with the trust. (b) All or any part of the costs and attorney fees to be paid from the estate may be assessed against one or more persons’ part of the estate in such proportions as the court finds to be just and proper. (c) In the exercise of its discretion, the court may consider the following factors: 1. The relative impact of an assessment on the estimated value of each person’s part of the estate. 2. The amount of costs and attorney fees to be assessed against a person’s part of the estate. 3. The extent to which a person whose part of the estate is to be assessed, individually or through counsel, actively participated in the proceeding. 4. The potential benefit or detriment to a person’s part of the estate expected from the outcome of the proceeding.

5. The relative strength or weakness of the merits of the claims, defenses, or objections, if any, asserted by a person whose part of the estate is to be assessed. 6. Whether a person whose part of the estate is to be assessed was a prevailing party with respect to one or more claims, defenses, or objections. 7. Whether a person whose part of the estate is to be assessed unjustly caused an increase in the amount of costs and attorney fees incurred by the personal representative or another interested person in connection with the proceeding. 8. Any other relevant fact, circumstance, or equity. (d) The court may assess a person’s part of the estate without finding that the person engaged in bad faith, wrongdoing, or frivolousness. To the extent that a matter is adversarial and the Florida Rules of Civil Procedure apply pursuant to Fla. Prob. R. 5.025, Fla. R. Civ. P. 1.525 provides for an award of attorneys’ fees and costs, and requires the motion to be served within 30 days after the judgment has been filed. In Hays v. Lawrence, 1 So. 3d 1176 (Fla. 5th DCA 2009), a will was unsuccessfully offered for probate. The trial court order refusing admission was appealed and sustained on appeal. The proponent then moved for award of fees under F.S. 733.106(2). The court denied the request under Rule 1.525 because the motion was not filed until after disposition of the appeal, which was seven months after the filing of the judgment. However, effective September 28, 2011, Rule 5.025(d)(2) was amended to eliminate the application of Rule 1.525 to probate proceedings. In re Amendments to Florida Probate Rules, 73 So. 3d 205 (Fla. 2011). This exclusion was also made applicable to trust litigation, albeit on a much more limited scale, by the 2011 Amendment to F.S. 736.0201(6), effective June 21, 2011, providing that Rule 1.525 does not apply to awards of compensation or costs in trust litigation to persons employed by the trustee if the fees and costs are payable from assets of the trust, and will not apply to allocation of fees or costs to a portion of the trust under F.S. 736.1004. The offer of judgment statute, F.S. 768.79, is inapplicable to will or trust

contest proceedings because, by its terms, it is limited to actions “for damages”; however, it would arguably apply to a surcharge or fee disgorgement proceeding. Miller v. Hayman, 766 So. 2d 1116 (Fla. 4th DCA 2000). A more thorough treatment of the subject of fees and costs may be found in Chapter 15 of this manual and also in Chapter 11 of LITIGATION UNDER FLORIDA PROBATE CODE (Fla. Bar 13th ed. 2022). See also Wallace, The Recovery of Attorneys’ Fees and Costs for the Unsuccessful Offer of a Will for Probate, 76 Fla. Bar J. 36 (Jan. 2002). « Ch. 21 », « § 21.4 », « I » 1 Practice Under Florida Probate Code § 21.4.I (2022)

I. Application Of “Dead Person’s Statute” As previously discussed in 21.3.A.1.c.ii, the “Dead Person’s Statute,” F.S. 90.602, once placed strict limits on testimony by an interested person as to oral communication between that person and a decedent. This statute was repealed by the 2005 Florida Legislature, and a specific hearsay exception was created in substitution as F.S. 90.804(2)(e) to permit hearsay testimony on the subject matter of evidence offered and admitted by an adverse party. For example, if a party offers a joint account agreement or a will or trust into evidence, the other party may offer what would otherwise be hearsay testimony regarding that agreement, will, or trust. Further discussion of the statute is beyond the scope of this manual, but is discussed in depth in LITIGATION UNDER FLORIDA PROBATE CODE Chapter 3 (Fla. Bar 13th ed. 2022). See also Ehrhardt, FLORIDA EVIDENCE § 602.1 (West 2004). « Ch. 21 », « § 21.4 », « J » 1 Practice Under Florida Probate Code § 21.4.J (2022)

J. Right To Jury Trial A right to trial by jury does not exist in most probate matters. However, merely because a matter is heard in the probate division does not, itself, exclude the right to a jury trial. In Sitomer v. Orlan, 660 So. 2d 1111 (Fla. 4th DCA 1995), when the litigation involved whether certain survivorship account relationships were valid, a jury trial was conducted.

However, to the extent that the relief requested is equitable in nature, the right does not exist. For example, the right to a jury trial does not exist in a will revocation proceeding on grounds of undue influence, testamentary capacity, or improper execution. In re Estate of Ciccorella, 407 So. 2d 1044 (Fla. 3d DCA 1981); Allen v. Estate of Dutton, 394 So. 2d 132 (Fla. 5th DCA 1981). Also, no such right exists in a will construction proceeding even though each of these actions may contain questions of fact. The use of a jury in an advisory status in a proceeding to revoke probate of a will (although a rarity) does not constitute reversible error. In re Estate of Fanelli, 336 So. 2d 631 (Fla. 2d DCA 1976). Whether an action is commenced in the probate division or the general civil division of the circuit court is not determinative as to whether the right to a jury trial exists. For example, if an action were brought to recover a joint bank account into the estate on the ground that it was created through the exercise of undue influence, there would be a right to a jury trial because a money judgment was being sought. A claim for tortious interference with an expectancy is another claim that a court may submit to trial by jury. See Mulvey v. Stephens, 250 So. 3d 106 (Fla. 4th DCA 2018). If the action were brought in the probate court or even in the probate proceeding, the right would still exist. In some circuits, when local procedure permits resolution of independent actions filed by creditors under F.S. 733.705 in the probate division, such actions normally include the right to a jury trial when one would otherwise exist. It is the action that determines the right, not the division of court. For further discussion of the right to jury trials in probate and trust matters, see LITIGATION UNDER FLORIDA PROBATE CODE Chapter 10 (Fla. Bar 13th ed. 2022). « Ch. 21 », « § 21.4 », « K • 1 Practice Under Florida Probate Code § 21.4.K (2022)

K. Appeals The district courts of appeal have original jurisdiction to hear appeals of most final orders of the circuit court in exercise of its probate and guardianship jurisdiction. Fla. R. App. P. 9.030(b)(1)(A). These courts also have original jurisdiction for issuance of certain writs such as mandamus,

prohibition, quo warranto, and common law certiorari, and all writs necessary to the complete exercise of the courts’ jurisdiction. Rule 9.030(b)(3). They may hear appeals of nonfinal orders that determine venue; grant, continue, modify, deny, or dissolve injunctions, or refuse to modify or dissolve injunctions; or determine the jurisdiction of the person, the right to immediate possession of property, and the issue of forum non conveniens. Rule 9.130(a) (3). The practitioner should note that there is a distinction between appeal of a nonfinal order and review of a nonfinal order by certiorari, including where the document commencing the appeal is filed. For an appeal of a nonfinal order (and also the appeal of a final order), the notice is filed with the clerk of the lower tribunal. Rule 9.130(b). In the case of a petition for certiorari to review a nonfinal order, the petition is filed with the clerk of the appellate court. Rule 9.100(b). “The findings of a probate court present mixed questions of law and fact, and the appellate court decides whether the factual findings are supported by competent substantial evidence and the findings of law are reviewed de novo.” Grant v. Bessemer Trust Company of Florida, Inc., 117 So. 3d 830, 835–836 (Fla. 4th DCA 2013). Appeal proceedings in probate and guardianship cases proceed as in civil cases, except for certain modifications found in Rule 9.170 specific to probate and guardianship appeals. See Rule 9.170(c)–(d). With the exceptions of proceedings under Rule 9.100 (addressing the original jurisdiction of the courts of appeal) and Rule 9.130(a) (addressing appeals of nonfinal orders), appeals in probate and guardianship cases are “limited to orders that finally determine a right or obligation of an interested person, which include, but are not limited to, orders that: (1) determine a petition or motion to revoke letters of administration or letters of guardianship; (2) determine a petition or motion to revoke probate of a will; (3) determine a petition for probate of a lost or destroyed will; (4) grant or deny a petition for administration pursuant to [F.S.] 733.2123;

(5) grant heirship, succession, entitlement, or determine the persons to whom distribution should be made; (6) remove or refuse to remove a fiduciary; (7) refuse to appoint a personal representative or guardian; (8) determine a petition or motion to determine incapacity or to remove rights of an alleged incapacitated person or ward; (9) determine a motion or petition to restore capacity or rights of a ward; (10) determine a petition to approve the settlement of minors’ claims; (11) determine apportionment or contribution of estate taxes; (12) determine an estate’s interest in any property; (13) determine exempt property, family allowance, or the homestead status of real property; (14) authorize or confirm a sale of real or personal property by a personal representative; (15) make distributions to any beneficiary; (16) determine amount and order contribution in satisfaction of elective share; (17) determine a motion or petition for enlargement of time to file a claim against an estate; (18) determine a motion or petition to strike an objection to a claim against an estate; (19) determine a motion or petition to extend the time to file an objection to a claim against an estate; (20) determine a motion or petition to enlarge the time to file an independent action on a claim filed against an estate; (21) settle an account of a personal representative, guardian, or other fiduciary;

(22) discharge a fiduciary or the fiduciary’s surety; (23) grant an award attorneys’ fees or costs; (24) deny entitlement to attorneys’ fees or costs; or (25) approve a settlement agreement on any of the matters listed above in (1)–(24) or authorizing a compromise pursuant to [F.S.] 733.708. Rule 9.170(b). See Northern Trust Co. as trustee of Elizabeth W. Walker Trust v. Abbott, 313 So. 3d 792 (Fla. 2d DCA 2021) (order denying motion to strike claim deemed not to be final, appealable order under Rule 9.170(b), when trial court needed further discovery to determine basis of claim against estate). The right to appeal a final order is lost if a notice of appeal is not filed within 30 days after the order is rendered. Rule 9.110(b). Certain nonfinal orders may be reviewed immediately by appeal or certiorari, but if not immediately reviewed, may be reviewed in conjunction with, but after, the final order is rendered. Rule 9.130(g). An appeal of a specified final order, or a nonfinal order, is commenced by filing a notice with the clerk of the lower tribunal within 30 days of rendition of the order to be reviewed, accompanied by the filing fees prescribed by law. Rule 9.130(b). A petition for certiorari review of a nonfinal order is commenced by filing a petition, accompanied by the filing fees prescribed by law, with the clerk of the appellate court within 30 days of rendition of the order to be reviewed. Rules 9.030(b); 9.100(a), (b). The practitioner should note that these deadlines are keyed to the filing, not service or mailing, of the appropriate documents. The Florida Rules of Appellate Procedure contain numerous filing requirements and time periods, some of which are jurisdictional. This material does not purport to cover them all and, therefore, reference to the appellate rules is required.

« Ch. 21 », « § 21.5 • 1 Practice Under Florida Probate Code § 21.5 (2022)

§

21.5. TAX CONSEQUENCES SETTLEMENT AGREEMENTS

OF

The scope of this chapter does not permit a full examination of the tax effects of probate litigation. However, this consideration is critical in any litigation and especially so in any settlement. Practitioners should be aware that amounts received in settlement of will contests generally are not subject to income and gift tax pursuant to IRC § 102(a). See Lyeth v. Hoey, 305 U.S. 188 (1938) (income tax); Getty v. Commissioner, 913 F.2d 1486 (9th Cir. 1990) (income tax); Priv. Ltr. Rul. 8902045 (gift tax). However, this is a general proposition and the tax situation for each individual case will vary, so each case must be examined as to the tax consequences of any potential settlement. It is possible to settle spousal or charitable litigation so that the settlement qualifies for the marital or charitable deduction, or it may be structured so that what previously would have been payable to the spouse did qualify, but the settlement fails to qualify. A tax-savvy lawyer may achieve a superior result for his or her client (and perhaps all interested parties) by taking into account the tax consequences of a proposed settlement. Ignoring tax consequences, on the other hand, can wreak havoc on a litigation settlement and potentially subject counsel to claims of malpractice. More than one tax-challenged lawyer has been surprised after the settlement and payment when his or her client received a form K-1 from the estate indicating the settlement proceeds to be fully taxable to the client as ordinary income. See, e.g., Williams v. Harrington, 460 So. 2d 533 (Fla. 2d DCA 1984). Negligence may certainly be imputed if the lawyer does not know, or fails to advise the client, of an adverse tax consequence of a settlement. For a discussion of this, see Griffin, Navigating the Minefield of Settlements: A Primer on Tax Issues for the Probate and Trust Litigator, 85 Fla. Bar J. 32 (Jan. 2011). Practitioners who do not give tax advice should consider specifically carving out any tax advice from the scope of their engagement agreement and ensure the client knows to consult other tax experts with respect to this aspect

of any negotiations or settlements. In negotiating and drafting a settlement agreement, one goal should be to create as much certainty about the tax outcome as possible and make sure the parties have agreed on how to allocate among themselves the risks of any uncertainty. If the Internal Revenue Service (IRS) stands to lose potential tax revenue from the settlement agreement, it is advisable that the parties address approval of tax returns or the need for a Private Letter Ruling (a statement of guidance by the IRS in response to a taxpayer request) in the settlement terms or otherwise allocate the risk of an IRS challenge. To avoid a potential IRS challenge, the settlement agreement should reflect that an actual, bona fide dispute exists between the parties. The IRS will not consider a settlement between family members to be a bona fide compromise unless the parties’ claims are (1) bona fide and (2) satisfied on an economically fair basis. See Priv. Ltr. Rul. 8902045 (regarding settlement agreement resolving litigation between trustees and beneficiaries commenced after trustees sold certain trust assets, IRS concluded that “an intrafamily settlement of litigation will not be regarded as a bona fide compromise agreement unless the parties’ claims were bona fide and are satisfied, to the extent feasible, on an economically fair basis”). An outstanding, albeit dated, article on the tax effects of will contests is Kemp, Federal Tax Aspects of Will Contests, 23 U. Miami L. Rev. 72 (1968). Footnotes — Chapter 21: *

J.D. 2010, University of Florida. Ms. Rubel is a member of The Florida Bar. She is also a member of the Elder Law Section and Real Property, Probate & Trust Law Section of The Florida Bar. Ms. Rubel is the Chair of the Guardianship, Power of Attorney, and Advance Directives Committee and a Co-Chair of the Ad Hoc Guardianship Law Revision Committee of the RPPTL Section of The Florida Bar. She is a Vice-Chair of the Probate Rules Committee of The Florida Bar and a former Chair of the Probate & Guardianship Committee of the Dade County Bar Association. Ms. Rubel is a partner at The Virgil Law Firm, in Coral Gables. **

J.D. 1993, University of North Carolina—Chapel Hill. Mr. Virgil is a member of The Florida Bar. He is a former Vice-Chair of the Guardianship, Power of Attorney, and Advance Directives Committee of the Real Property, Probate and Trust Law Section of The Florida Bar and former Chair of the Probate & Guardianship Committee of the Dade County Bar Association. Mr. Virgil is a Fellow of the American College of Trust and Estate Counsel and is the managing partner of The Virgil Law Firm, in Coral Gables. Legal Publications staff updated this chapter in the previous edition of this manual, and Rohan Kelley was the author of this chapter in the 9th edition of this manual.

Licensed to Otis K Pitts, Otis K Pitts

CITATION INDEX [References are to sections] FLORIDA Florida Administrative Code Florida Code of Judicial Conduct Florida Code of Professional Responsibility Florida Constitution Florida Probate Rules Florida Rules of Appellate Procedure Florida Rules of Civil Procedure Florida Rules of General Practice and Judicial Administration Florida Statutes Rules Regulating The Florida Bar FEDERAL STATUTES, RULES, AND REGULATIONS United States Constitution United States Code Code of Federal Regulations Federal Rules of Civil Procedure

FLORIDA Florida Administrative Code Rule . . . . Text Sec. 12C-3.0015 . . . . 6.3.F

Florida Code of Judicial Conduct Rule . . . . Text Sec. 3(D)(2) . . . . 4.4.A.1

Florida Code of Professional Responsibility Canon . . . . Text Sec. 5-6 . . . . 15.2.I.1, 15.2.I.3 6 . . . . 15.2.I.1

Florida Constitution Art.:Sec. . . . . Text Sec. 5:20(c)(3) . . . . 3.6.BB.1 C:4 . . . . 19.2.A I:2 . . . . 7.9, 11.3.B, 21.3.A.1.b.iii.I, 21.3.A.1.b.iii.II, 21.3.D I:22 . . . . 3.6.R I:24(a) . . . . 4.3.A.3.c, 4.4.C, 14.2.B.2, 14.2.C.3 V . . . . 2.1.D V:2 . . . . 2.1.A, 2.1.B V:3 . . . . 2.4 V:5(b) . . . . 3.8.C V:7 . . . . 3.1 V:20(c)(3) . . . . 3.1, 3.4.A, 19.9.B, 21.4.A VII:4 . . . . 19.1, 19.2.A VII:5 . . . . 11.9.B.1 VII:6 . . . . 19.1, 19.2.A VII:6(a) . . . . 19.2.B.4.b X . . . . 19.1, 19.2.B.5 X:1 . . . . 19.2.B.4.b X:4 . . . . 1.2.E.1, 1.2.E.10.b, 4.3.A.3.k.ii, 4.3.A.3.k.v, 8.2.E.2.c, 9.2.F.2, 19.2.B.1, 19.2.B.2, 19.2.B.4.a, 19.2.B.4.b, 19.2.B.5, 19.6.B, 19.7, 19.9.I.1, 19.9.I.2, 19.9.J.1, 19.9.J.2 X:4(a) . . . . 4.3.A.3.k.ii, 19.2.B.1, 19.2.B.3, 19.2.B.4.b, 19.2.C, 19.3.C, 19.6.A.4, 19.7, 19.9.A X:4(a)(1) . . . . 10.3.D.8, 14.3.C.6.b, 19.2.A, 19.2.B.4.a X:4(a)(2) . . . . 18.2.G, 19.4.B, 19.5.A X:4(b) . . . . 10.3.D.8, 19.2.B.1, 19.2.B.2, 19.2.B.4.b, 19.2.B.4.d, 19.2.C, 19.5.B.4, 19.9.I.1, 19.9.I.2, 19.9.J.1, 19.9.J.2

X:4(c) . . . . 4.3.A.3.k.ii, 19.1, 19.2.B.1, 19.2.B.2, 19.2.B.4.b, 19.2.B.4.c, 19.2.C, 19.4.A.2, 19.5.B.1, 19.5.B.3, 19.5.B.4, 19.5.B.5, 19.5.B.8, 19.5.B.9, 19.6.A.1, 19.6.A.2, 19.6.A.3, 19.6.B, 19.9.D, 19.9.I.1, 19.9.I.2, 19.9.J.1, 19.9.J.2

Florida Probate Rules Rule . . . . Text Sec. 5.010 . . . . 2.1.B, 19.9.G 5.020 . . . . 5.3.A.1, 18.2.M 5.020(a) . . . . 2.1.F, 4.4.A.2 5.020(e) . . . . 2.1.G, 5.3.A.1 5.025 . . . . 4.3.C.5.c, 4.3.C.5.f, 21.3.B.1, 21.4.F 5.025(a) . . . . 2.1.B, 5.4.B, 5.6.C.1, 7.7.F, 10.6.E, 11.8.B, 11.8.D, 15.3.J 5.025(b) . . . . 14.3.A.2 5.025(b)–(c) . . . . 2.1.B 5.025(d) . . . . 5.6.C.1, 7.7.F, 10.6.E 5.025(d)(1) . . . . 11.8.B 5.025(d)(2) . . . . 2.1.B, 11.8.D 5.030(a) . . . . 1.2.D.7, 2.1.H, 4.2.A, 4.2.D, 4.3.B.1.a, 15.2.C, 20.4 5.030(b) . . . . 2.1.H, 4.4.A.1 5.030(b)–(c) . . . . 2.1.H 5.030(c) . . . . 2.1.H 5.040 . . . . 1.2.G.2, 3.6.O, 9.2.D.1, 9.2.D.3, 9.2.E.2.a, 9.2.F.2, 9.4.C.2.b.i, 10.3.C.3, 10.5.A.1, 10.5.A.3.a, 12.7.B, 13.3.B.1, 18.2.M 5.040–5.041 . . . . 2.2.A 5.040(a) . . . . 2.2.D.1, 2.3, 3.6.CC, 3.6.O, 5.3.A.2, 11.8.B, 11.8.D 5.040(a)(1) . . . . 1.2.G.2, 2.2.D.1, 5.4.B 5.040(a)(1)–(a)(2) . . . . 2.2.D.1, 16.3.B.3 5.040(a)(2) . . . . 2.2.D.1, 5.4.B 5.040(a)(3) . . . . 2.2.D.2.a, 19.9.D 5.040(a)(3)(A) . . . . 2.2.D.2.b 5.040(a)(3)(D) . . . . 2.2.D.2.b, 21.4.D 5.040(a)(4) . . . . 2.2.D.2.b, 4.3.A.3.c

5.040(a)(6) . . . . 2.2.D.3 5.040(b) . . . . 2.2.E.1, 4.3.A.3.g, 9.4.B.3.b.i, 13.3.C.2.a 5.040(c) . . . . 2.2.E.1, 4.3.A.3.g, 4.4.B.3, 5.2.A.1.a, 8.2.F.2.a, 11.2.A.5, 14.2.B 5.040(d) . . . . 2.2.A, 2.2.D.1, 4.3.C.8, 13.3.B.1, 14.2.B, 14.3.A.2, 15.4.M.6 5.040(e) . . . . 2.2.D.1 5.041 . . . . 2.2.E.1, 2.2.E.2, 2.8.D, 2.9.C, 4.3.A.3.g, 4.3.A.3.h, 4.4.B.3, 6.6.G, 8.2.F.1, 8.2.F.2.a, 10.5.A.3.a, 13.3.B.1, 13.3.C.2.a, 14.2.G, 16.4.A, 18.2.M 5.041(a) . . . . 10.3.C.3 5.041(b) . . . . 21.4.D 5.042 . . . . 8.2.C.2, 8.3.C.1.a 5.042(a) . . . . 2.3 5.042(b) . . . . 2.3 5.042(c) . . . . 2.3 5.042(d) . . . . 2.3 5.050(a) . . . . 3.7.B 5.060 . . . . 16.4.A 5.060(a) . . . . 2.2.G 5.060(b) . . . . 2.2.G 5.065 . . . . 20.3.A.4 5.065(a) . . . . 2.2.H, 8.2.C.2 5.065(b) . . . . 2.2.H 5.065(c) . . . . 2.2.H 5.080 . . . . 2.1.B 5.080(b) . . . . 11.2.B.5 5.100 . . . . 2.4, 3.8.A, 15.4.M.2 5.110 . . . . 4.3.A.10 5.110(a) . . . . 2.1.I, 5.3.H 5.110(a)–(b) . . . . 2.1.I

5.110(b) . . . . 2.1.I, 5.3.G, 5.3.H 5.110(c) . . . . 16.3.B.7 5.110(e) . . . . 5.3.G, 5.3.H 5.110(f) . . . . 2.1.I, 5.3.H 5.110(g) . . . . 2.1.I, 4.3.C.5.b 5.120 . . . . 4.3.C.5.b, 4.3.D.2.a, 11.8.D, 19.9.E 5.120(a) . . . . 2.8.A, 2.8.B, 2.8.C, 2.9.A, 4.3.C.7, 4.3.D.1, 8.3.B.2.a.ix, 11.8.D 5.120(b) . . . . 2.8.A, 11.8.B 5.120(c)–(d) . . . . 2.8.C 5.120(c) . . . . 2.8.B 5.120(d) . . . . 2.8.D 5.120(e) . . . . 2.9.A 5.120(f) . . . . 4.3.C.7 5.120(g) . . . . 2.9.A, 4.3.C.5.b, 4.3.C.7, 4.3.D.1 5.122 . . . . 8.3.E, 16.1, 16.3.B.3, 16.4.A 5.122(a) . . . . 16.3.B.2.a 5.122(b) . . . . 16.3.B.5.a, 16.3.B.7, 16.4.A 5.122(c) . . . . 16.3.B.2.b, 16.3.B.3 5.122(d) . . . . 1.2.H, 16.2, 16.4.B 5.122(e) . . . . 2.6, 14.2.C.1, 16.4.A 5.122(f) . . . . 16.3.B.3 5.122(g) . . . . 16.5 5.150 . . . . 12.2.B 5.150(a) . . . . 2.7 5.150(b) . . . . 2.7, 14.2.C.1, 15.2.H 5.160 . . . . 4.3.A.3.c, 9.1.A 5.170 . . . . 2.1.C, 11.2.A.4 5.180 . . . . 2.7, 5.2.A.2, 10.5.A.1, 12.2.A, 12.2.B, 14.2.B, 14.3.C.5, 15.4.B.3 5.180(a) . . . . 2.2.F, 12.2.B

5.180(b) . . . . 2.2.F, 15.4.I 5.180(b)(3)–(b)(4) . . . . 12.2.B 5.180(b)(4) . . . . 12.2.B, 15.4.K 5.180(c) . . . . 2.2.F, 12.2.B 5.200 . . . . 5.3.A.1, 17.3.C 5.200(b)–(c) . . . . 4.4.C 5.200(c) . . . . 1.2.E.2.a.i 5.200(g) . . . . 1.2.D.6, 5.3.A.1 5.200(h) . . . . 5.3.A.1 5.200(i) . . . . 5.3.A.1 5.200(j) . . . . 5.3.A.1 5.201 . . . . 4.3.C.1, 5.2.B, 21.4.G 5.201(b) . . . . 2.2.C, 5.2.A.2, 5.3.A.3 5.201(c) . . . . 5.4.B 5.205 . . . . 3.5.A, 10.4.H.2, 20.2.B.1 5.205(a) . . . . 5.3.B, 20.2.B.1 5.205(a)(3) . . . . 18.2.K.1 5.205(b) . . . . 5.3.B 5.205(c) . . . . 3.5.A, 20.2.B.1 5.210 . . . . 17.2.E 5.215 . . . . 5.6.D.1 5.216 . . . . 5.6.E 5.230(a) . . . . 5.3.C.5 5.230(b) . . . . 5.3.C.5 5.230(d) . . . . 5.3.C.5 5.235 . . . . 5.3.J 5.235(a)(2) . . . . 5.3.I 5.235(c) . . . . 5.3.I 5.240 . . . . 8.2.A.2.a, 21.3.C.2

5.240(a) . . . . 2.2.A, 2.2.B.2, 4.3.A.9 5.240(a)(3) . . . . 1.2.E.1 5.240(b) . . . . 2.2.B.2, 5.3.K 5.240(b)(2) . . . . 1.2.E.2.a.ii 5.240(c) . . . . 4.3.A.9, 5.3.K 5.240(d) . . . . 5.3.K 5.240(e) . . . . 2.2.B.2, 5.3.K 5.2405 . . . . 2.2.E.2 5.2405(a) . . . . 2.2.B.2, 5.3.K 5.2405(a)(1)–(a)(3) . . . . 7.7.C 5.2405(b) . . . . 2.2.B.3, 5.3.K 5.241 . . . . 8.2.A.1, 8.2.A.2.a 5.241(a) . . . . 2.2.B.3, 4.3.A.6, 5.3.L, 8.2.A.2.e 5.241(b) . . . . 2.2.B.3, 5.3.L, 8.2.B.3.a 5.241(c) . . . . 2.2.B.3, 5.3.L, 8.2.A.2.d 5.241(d) . . . . 2.2.B.3, 5.3.L, 8.2.A.4 5.241(e) . . . . 2.2.B.3, 4.3.A.6 5.260 . . . . 1.2.G.1 5.260(a) . . . . 5.5 5.260(b) . . . . 4.4.C 5.260(e) . . . . 1.2.G.1 5.260(f) . . . . 1.2.G.1, 1.2.G.2, 2.2.C, 5.3.A.3 5.270 . . . . 21.3.A.1.a 5.270(a) . . . . 14.3.D.4 5.270(b) . . . . 14.3.D.4 5.310 . . . . 2.2.B.2 5.320 . . . . 5.3.G 5.330 . . . . 2.1.F, 16.4.A 5.330(a) . . . . 6.6.A

5.330(b) . . . . 12.7.C 5.330(c) . . . . 10.5.A.2.b 5.330(e) . . . . 8.2.F.1 5.340 . . . . 4.3.A.3.k.ii, 6.1, 6.6.G, 6.7, 7.7.E, 12.2.A, 15.2.D 5.340(a) . . . . 1.2.E.1, 2.6, 4.3.A.3.c, 6.5.U, 6.6.B, 12.3.D, 20.3.B 5.340(b) . . . . 2.6, 6.6.E 5.340(c) . . . . 2.6, 6.6.H, 12.3.D 5.340(d) . . . . 2.6, 4.3.A.3.c, 6.6.D, 6.6.E, 6.6.H, 7.7.E 5.340(d)–(f) . . . . 6.6.C 5.340(e) . . . . 2.6, 4.3.A.3.c, 6.6.F 5.340(f) . . . . 2.6 5.340(g) . . . . 6.5.M, 7.7.E 5.340(h) . . . . 2.6, 6.6.A 5.341 . . . . 4.3.A.3.c 5.342 . . . . 1.2.E.2.b 5.342(a) . . . . 1.2.E.2.b, 2.6, 4.3.A.3.a 5.342(a)–(b) . . . . 9.2.B 5.342(b) . . . . 1.2.E.2.b, 2.6, 4.3.A.3.a 5.342(c) . . . . 1.2.E.2.b 5.345 . . . . 12.2.A, 12.7.C 5.345(a) . . . . 2.7, 12.3.C 5.345(a)(1) . . . . 12.2.D 5.345(b) . . . . 12.3.C, 14.2.C.1 5.345(c) . . . . 12.3.C 5.345(h) . . . . 12.7.C 5.346 . . . . 4.4.C, 12.2.A, 12.3.B, 12.3.C, 12.4, 12.6.A, 12.7.C, 14.2.C.1 5.346(a) . . . . 2.7 5.346(a)(1) . . . . 12.3.C, 14.2.C.1 5.346(b) . . . . 2.7, 4.3.A.5

5.346(d) . . . . 12.7.C 5.350 . . . . 1.2.E.12, 6.5.A, 9.2.D.2, 9.4.A, 9.4.B.3.a, 9.4.C.2.a, 13.2.G.6.a 5.350(b) . . . . 9.4.A, 13.2.G.6.a 5.350(c) . . . . 9.4.B.5 5.350(d) . . . . 9.4.A, 13.2.G.6.a 5.355 . . . . 14.2.D, 15.3.J, 15.4.H.1, 15.4.J, 15.4.M.1, 15.4.M.2 5.360 . . . . 7.1.D.2, 7.7.I, 7.10.B 5.360(a)(1) . . . . 7.7.D 5.360(a)(2) . . . . 7.7.A 5.360(a)(2)(A) . . . . 7.7.B 5.360(a)(2)(B) . . . . 7.7.B 5.360(a)(2)(D) . . . . 7.7.D 5.360(b)(2) . . . . 7.7.H 5.360(b)(3) . . . . 7.7.D 5.360(c) . . . . 21.3.D 5.360(d)(1)–(d)(2) . . . . 7.7.F 5.360(d)(2) . . . . 7.7.E 5.360(d)(6) . . . . 7.7.G 5.370 . . . . 4.3.A.3.k.iii, 9.2.F.2, 10.3.C.3, 10.5.A.1 5.370(a) . . . . 10.5.A.2.a, 10.5.A.2.b, 20.2.B.1 5.370(b) . . . . 10.5.A.5.a 5.380 . . . . 13.1, 13.3.B.1 5.380(a) . . . . 13.2.A 5.380(b) . . . . 13.3.B.2.d 5.380(c) . . . . 13.3.B.2.d 5.385 . . . . 5.3.D, 11.8.A, 11.8.C, 11.8.E 5.385(a) . . . . 21.3.G 5.385(b)(1) . . . . 11.8.B, 19.9.D 5.385(b)(2) . . . . 11.8.B

5.385(b)(3) . . . . 11.8.B 5.385(b)(4) . . . . 11.8.B 5.385(c) . . . . 11.8.B 5.386 . . . . 11.2.E 5.386(a) . . . . 11.2.E 5.386(b) . . . . 3.6.K 5.395 . . . . 14.2.B, 14.3.B.2 5.400 . . . . 3.6.G, 4.3.A.5, 4.3.A.7, 12.2.A, 12.7.C, 14.2.B, 15.4.B.3, 15.4.H.3, 17.5 5.400–5.401 . . . . 15.2.B 5.400(a) . . . . 2.7 5.400(b) . . . . 2.7, 14.2.A 5.400(b)(3) . . . . 14.2.B 5.400(b)(4) . . . . 14.2.C.2, 15.3.I, 15.4.I, 15.4.K 5.400(b)(5)(A) . . . . 13.3.A 5.400(b)(6)–(b)(7) . . . . 4.3.B.1.b 5.400(b)(6) . . . . 14.2.B 5.400(b)(7) . . . . 14.2.B 5.400(c) . . . . 2.7, 12.3.C, 14.2.B, 14.3.B.2, 20.2.B.1 5.400(d) . . . . 2.7, 14.2.B 5.400(d)–(e) . . . . 14.3.D.1.a 5.400(e) . . . . 2.7 5.401 . . . . 4.3.A.7, 14.2.B, 14.2.D, 15.3.I, 15.3.J, 15.4.H.3, 15.4.I, 15.4.M.1 5.401(a) . . . . 2.7 5.401(a)–(e) . . . . 4.3.B.1.b 5.401(b) . . . . 15.4.M.1 5.401(d) . . . . 2.7 5.401(f) . . . . 14.2.F, 14.2.G 5.402 . . . . 10.3.D.8, 19.4.A.2

5.402–5.404 . . . . 15.2.A 5.403 . . . . 19.4.A.2 5.404(a) . . . . 4.3.A.3.k.ii, 19.4.A.2 5.404(c) . . . . 19.4.A.2 5.405 . . . . 3.6.BB.1, 9.2.F.2, 19.9.G 5.407 . . . . 8.5.A 5.407(c) . . . . 8.5.A 5.420(a) . . . . 18.3 5.420(b) . . . . 18.3 5.420(c) . . . . 18.3 5.430 . . . . 4.3.C.2 5.430(c) . . . . 4.3.C.2 5.430(g) . . . . 4.3.C.1 5.430(j) . . . . 4.3.C.1 5.440(a) . . . . 4.3.C.5.c 5.440(b) . . . . 4.3.C.5.d 5.440(c) . . . . 4.3.C.5.d 5.440(d) . . . . 4.3.C.5.d 5.460 . . . . 4.4.C, 14.3.D.6 5.460(a) . . . . 3.6.Y 5.460(b) . . . . 14.3.D.6 5.460(c) . . . . 14.3.D.6 5.470 . . . . 10.4.H.1 5.470(a) . . . . 17.3.C 5.470(b) . . . . 17.3.C 5.470(c) . . . . 17.3.C 5.475 . . . . 10.4.H.1 5.475(b) . . . . 10.4.H.1 5.490 . . . . 8.3.B.2.a.xi

5.490(a) . . . . 8.3.A.1 5.490(f) . . . . 2.2.B.3, 4.3.D.1 5.496 . . . . 2.2.B.3, 4.3.C.7, 4.3.D.1, 8.2.C.1, 8.3.A.1, 8.3.C.1.a, 21.3.C.1 5.496(b) . . . . 2.2.B.3, 8.2.C.1, 8.2.C.2 5.496(b)–(c) . . . . 8.2.C.1 5.496(c) . . . . 2.2.B.3, 8.2.C.1 5.498 . . . . 8.2.E.2.b 5.498(b) . . . . 8.2.E.2.b 5.499 . . . . 8.2.E.2.b 5.499(b) . . . . 8.2.C.1 5.510 . . . . 21.3.A.1.e.ii 5.510(a) . . . . 5.6.C.1 5.510(b) . . . . 5.6.C.1 5.510(c) . . . . 5.6.C.1 5.510(d) . . . . 5.6.C.1 5.510(e) . . . . 5.6.C.1 5.530 . . . . 8.2.A.3, 18.2.A, 18.2.K.1, 18.2.M 5.530(a) . . . . 6.3.C 5.530(a)(1) . . . . 18.2.K.1 5.530(a)(2) . . . . 18.2.K.1 5.530(a)(3) . . . . 18.2.K.1 5.530(a)(4) . . . . 18.2.K.1 5.530(a)(5) . . . . 18.2.K.1 5.530(a)(6) . . . . 18.2.K.1 5.530(a)(7) . . . . 18.2.K.1 5.530(a)(8) . . . . 18.2.K.1 5.530(a)(9) . . . . 8.2.A.3, 18.2.J, 18.2.K.1 5.530(a)(9)(B) . . . . 18.2.K.1 5.530(a)(10) . . . . 18.2.K.1

5.530(a)(11) . . . . 18.2.K.1 5.530(a)(12) . . . . 18.2.K.1 5.530(b) . . . . 18.2.C, 18.2.J 5.636 . . . . 8.3.D

Florida Rules of Appellate Procedure Rule . . . . Text Sec. 9.030(b)(1)(A) . . . . 21.4.K 9.110(a)(2) . . . . 3.8.A 9.170 . . . . 2.4, 3.8.B, 4.4.A.2, 7.7.F 9.170(b) . . . . 16.3.A 9.170(b)(6) . . . . 16.3.A 9.170(b)(7) . . . . 16.3.A 9.170(b)(16) . . . . 21.3.D 9.400(b) . . . . 3.8.C

Florida Rules of Civil Procedure Rule . . . . Text Sec. 1.010 . . . . 2.1.B 1.060(b) . . . . 3.7.B 1.110 . . . . 21.3.A.1.a 1.110(h) . . . . 3.6.CC 1.140(b) . . . . 3.7.A 1.170(j) . . . . 3.7.B 1.210(b) . . . . 8.3.D 1.270 . . . . 20.3.A.4 1.270(b) . . . . 3.6.R 1.380 . . . . 21.4.F 1.390(a) . . . . 15.3.J 1.420(e) . . . . 8.3.C.1.b 1.525 . . . . 2.1.B 1.530(g) . . . . 3.8.A 1.540(b) . . . . 3.6.Y, 14.2.G, 14.3.D.4

Florida Rules of General Practice and Judicial Administration Rule . . . . Text Sec. 2.420 . . . . 5.1, 14.2.B.2 2.514 . . . . 2.2.E.2, 8.3.C.1.a 2.514(a)(1) . . . . 2.3 2.514(a)(3) . . . . 2.3 2.514(a)(6)(B) . . . . 2.3 2.514(b) . . . . 2.3 2.515(a) . . . . 4.4.A.2 2.516(a) . . . . 2.2.E.1 2.516(b)(1) . . . . 2.2.E.2 2.516(b)(1)(B) . . . . 2.2.E.2 2.516(b)(1)(C) . . . . 2.2.E.2 2.516(b)(1)(D) . . . . 2.2.E.2 2.516(b)(1)(D)(i) . . . . 2.2.E.2 2.516(b)(1)(D)(ii) . . . . 2.2.E.2 2.516(b)(1)(E) . . . . 2.2.E.2 2.516(b)(2) . . . . 2.2.E.2 2.516(e) . . . . 2.2.E.2, 4.4.A.2 2.516(f) . . . . 2.2.E.3 2.520 . . . . 2.2.E.2 2.525 . . . . 2.2.E.2

Florida Statutes Sec. . . . . Text Sec. 1.01(5) . . . . 5.3.C.3 2.01 . . . . 3.2.A 26.012 . . . . 19.9.B, 21.4.A 26.012(2)(a) . . . . 3.6.BB.2 26.012(2)(b) . . . . 2.1.D, 3.1, 3.6.BB.1, 3.8.C 26.012(2)(f)–(2)(g) . . . . 3.6.BB.1 26.012(2)(g) . . . . 3.6.BB.1 28.222(3)(g) . . . . 3.5.A 28.242 . . . . 3.7.B 34.01(1)(c) . . . . 3.6.BB.2 34.011(2) . . . . 3.6.BB.1 45.011 . . . . 5.3.I, 13.3.B.2.c, 16.3.B.6.a Chapter 48 . . . . 2.2.D.2.b 48.031 . . . . 3.6.O 48.193 . . . . 3.4.B, 7.7.G, 21.4.D 48.193(1)(a) . . . . 7.7.G 49.021 . . . . 2.2.D.2.b 49.08 . . . . 11.8.D 49.10 . . . . 11.8.D 50.051 . . . . 8.2.A.2.d 55.03 . . . . 7.6.D.5, 15.3.C 55.03(1) . . . . 8.2.E.2.a, 13.5 57.105 . . . . 15.4.D.2.h 57.105(1) . . . . 21.3.A.1.a 61.075(6) . . . . 7.5.A.6

61.075(6)(b) . . . . 7.5.A.6 61.079 . . . . 1.2.E.10.b, 7.8.B.2 63.172(2) . . . . 11.2.B.6 63.192 . . . . 11.2.B.6 64.041 . . . . 3.6.U 69.031 . . . . 9.3.J.1, 9.3.J.2.a, 9.3.J.2.b, 15.5.A, 16.3.B.6.a 86.041 . . . . 3.6.E, 3.6.F, 11.8.A, 21.3.B.1 86.041(1) . . . . 3.6.H 90.301–90.304 . . . . 21.3.A.1.b.ii 90.302(1) . . . . 15.3.I, 15.4.M.1 90.303 . . . . 15.3.I, 15.4.M.1 90.502 . . . . 21.2.B 90.502(4)(b) . . . . 21.2.C.1 90.5021 . . . . 1.2.E.2.a.ii, 4.2.B, 4.3.A.9, 4.4.B.1, 16.2, 16.5, 21.2.B 90.5021(1) . . . . 1.2.E.2.a.ii 90.601 . . . . 21.3.A.1.c.ii, 21.3.A.1.d.i 90.602 . . . . 21.3.A.1.c.ii, 21.4.I 90.603 . . . . 21.3.A.1.d.i 90.605(2) . . . . 21.3.A.1.d.i 90.616 . . . . 21.1 90.804(2)(e) . . . . 21.3.A.1.c.ii, 21.4.I 90.901–90.903 . . . . 2.10.A 92.142(1) . . . . 21.3.A.1.b.iii.III 92.52 . . . . 5.3.C.3 95.11(3) . . . . 13.2.D 95.11(3)(b) . . . . 11.2.B.4, 21.3.G 95.231 . . . . 19.9.F 112.1915 . . . . 7.2.D, 8.2.E.2.c, 18.2.G 117.05 . . . . 4.3.A.3.k.v, 16.3.B.5.b

117.05(4) . . . . 5.3.C.4.b, 6.4.E 117.05(5) . . . . 21.3.A.1.d.i 117.05(13) . . . . 5.3.C.4.b, 6.4.E, 21.3.A.1.d.i 117.05(14) . . . . 21.3.A.1.d.i 117.201(12) . . . . 21.3.A.1.d.i 117.265 . . . . 5.3.C.2, 5.3.C.4.a 117.285(5) . . . . 21.3.A.1.d.i 117.285(5)(g) . . . . 21.3.A.1.d.i 119.07(1) . . . . 4.3.A.3.c, 14.2.C.3 119.071(4) . . . . 14.2.B.2 198 . . . . 6.3.F, 10.2.B 198.01(2) . . . . 6.3.F, 11.9.B.2 198.03 . . . . 17.4.B 198.13 . . . . 11.9.B.1 198.13(1) . . . . 4.3.A.10, 17.4.B, 18.5.C 198.13(4) . . . . 4.3.A.7, 4.3.A.10, 10.4.H.2, 10.6.C.1, 14.2.B, 17.4.B, 18.5.C 198.13(4)(a) . . . . 6.3.E 198.14 . . . . 17.4.B 198.155 . . . . 11.9.B.2 198.23 . . . . 11.9.B.2, 13.1 198.24 . . . . 10.2.B 198.26 . . . . 6.3.F, 12.3.C, 14.2.B, 14.3.D.2 198.32 . . . . 14.3.D.2, 18.5.C 198.32(2) . . . . 4.3.A.7, 6.3.F, 17.4.B, 18.5.C 215.28(5) . . . . 1.2.E.10.b, 6.5.P 222.01 . . . . 19.2.B.4.b 222.01(5) . . . . 4.3.A.3.k.ii 222.05 . . . . 19.2.B.4.b 222.11 . . . . 6.5.P

222.13 . . . . 1.2.E.2.a.i, 6.5.Q, 11.7, 13.2.B 222.13(1) . . . . 1.2.E.4.b.i, 1.2.E.4.b.ii, 4.3.A.3.e, 13.2.G.7 222.15 . . . . 1.2.E.10.b, 6.5.P, 18.2.F 222.15–222.16 . . . . 1.2.E.2.a.iv, 1.2.E.10.b 222.15(2) . . . . 6.5.P 222.16 . . . . 1.2.E.10.b, 6.5.P, 18.2.F 222.17 . . . . 1.2.C.2 222.25 . . . . 19.2.C 316.003(21) . . . . 8.2.E.2.c 316.003(43) . . . . 18.2.G 319.28 . . . . 10.6.B.2, 13.2.G.5, 18.4.A 319.28(1)(a) . . . . 10.6.B.2 319.28(1)(b) . . . . 10.6.B.2, 18.4.A 319.28(1)(c) . . . . 10.6.B.2, 18.4.A 382.006(1) . . . . 1.2.A.3 382.006(2) . . . . 1.2.A.3 382.006(2)(a) . . . . 1.2.A.3 382.006(4) . . . . 1.2.A.3 382.007 . . . . 1.2.A.3 382.008–382.012 . . . . 1.2.A.3 382.008(6) . . . . 3.5.A, 5.3.B 382.016(2) . . . . 20.2.B.1 406.11 . . . . 1.2.A.5, 1.2.A.6 406.11(1)–(2)(a) . . . . 1.2.A.8 406.11(1)(a) . . . . 1.2.A.8 406.11(1)(b)–(1)(c) . . . . 1.2.A.8 406.12 . . . . 1.2.A.8 406.50 . . . . 1.2.A.1 406.55–406.56 . . . . 1.2.A.1

406.56 . . . . 1.2.A.5 406.57 . . . . 1.2.A.1 406.58 . . . . 1.2.A.1 406.61 . . . . 1.2.A.5 407.005 . . . . 1.2.A.1 409.9101 . . . . 5.3.L, 8.3.B.2.a.v 409.9101(2) . . . . 8.3.B.2.a.v 409.9101(2)–(4) . . . . 13.2.B 409.9101(3) . . . . 8.3.B.2.a.v 409.9101(4) . . . . 8.3.B.2.a.v 414.28(1) . . . . 8.2.E.2.d 415.102(28) . . . . 21.3.A.1.d.i 440.34 . . . . 15.4.B.2.a, 15.4.M.3.b, 15.4.M.5 440.34(1) . . . . 15.4.M.3.b 443.141 . . . . 8.2.B.4 443.141(3)(a) . . . . 8.3.B.2.a.v 443.141(5) . . . . 8.3.B.2.a.v 470.002(18) . . . . 1.2.A.1 Chapter 497 . . . . 6.5.J 497.005 . . . . 1.2.A.1 497.005(39) . . . . 1.2.A.2 497.005(43) . . . . 1.2.A.1 497.159 . . . . 1.2.A.9 497.169 . . . . 1.2.A.9 497.607 . . . . 1.2.A.7/ 497.607(1) . . . . 1.2.A.7 497.607(3)(a) . . . . 1.2.A.7 517.061(1) . . . . 10.6.B.3 517.301(1) . . . . 10.6.B.3

518.10–518.14 . . . . 4.3.A.8.b, 9.3.A 518.11 . . . . 4.3.A.8.b, 4.3.A.10, 9.3.B, 9.3.F.1, 10.4.C, 15.2.A, 20.2.B.2 518.11(1)(a) . . . . 4.3.A.8.b, 9.3.B 518.11(1)(c) . . . . 4.3.A.8.b 518.11(1)(d) . . . . 4.3.A.8.b 518.11(2) . . . . 4.3.A.8.b 518.112 . . . . 4.3.A.8.b, 15.2.E, 15.2.G 518.112(3) . . . . 4.3.A.8.b 518.112(3)(b) . . . . 9.3.C 518.112(4) . . . . 4.3.A.8.b, 9.3.C 518.15 . . . . 4.3.A.8.b 518.151 . . . . 4.3.A.8.b 620, Part II . . . . 9.4.C.3.a 620.1110 . . . . 13.2.G.6.b 620.1304 . . . . 6.5.A 620.1601(2)(f) . . . . 13.2.G.6.b 620.1602 . . . . 13.2.G.6.b 620.1702 . . . . 6.5.A 620.1704 . . . . 6.5.A, 13.2.G.6.b 620.8601(7)(a) . . . . 9.4.C.3.a, 13.2.G.6.b 620.8701 . . . . 13.2.G.6.b 620.8801 . . . . 9.4.C.3.a 620.8801(2) . . . . 13.2.G.6.b 620.8801(2)(a) . . . . 9.4.C.3.a 620.9001 et seq. . . . . 6.5.B 626.9541(1)(t)2.c . . . . 1.2.A.9 627.615 . . . . 1.2.A.6 632.617–632.619 . . . . 1.2.E.10.b 655.55 . . . . 11.2.B.5

655.769(4) . . . . 1.2.E.3 655.78 . . . . 1.2.E.3, 6.5.S 655.78(1) . . . . 7.5.A.4 655.79 . . . . 1.2.E.3, 6.5.S, 7.5.A.4, 18.2.F, 21.3.E 655.79(2) . . . . 6.5.S, 21.3.E 655.80 . . . . 1.2.E.3 655.81 . . . . 6.5.T, 21.3.F 655.82 . . . . 1.2.E.3, 6.5.T, 21.3.F 655.82(3)(a) . . . . 21.3.F 655.825 . . . . 6.5.T, 21.3.F 655.933 . . . . 4.3.B.2 655.934 . . . . 1.2.E.2.b 655.935 . . . . 1.2.E.2.b, 4.3.A.10, 20.2.B.1 655.935(1)(c) . . . . 20.2.B.1 655.935(2) . . . . 1.2.E.2.b, 20.2.B.1 655.935(3) . . . . 1.2.E.2.b, 20.2.B.1 655.936 . . . . 3.6.M, 20.2.B.1 655.936(1) . . . . 1.2.E.2.b, 9.2.B 655.936(2) . . . . 2.6, 17.2.D 655.937 . . . . 20.2.B.1 655.937(1) . . . . 1.2.E.2.b 655.937(4) . . . . 1.2.E.2.b 655.937(5) . . . . 1.2.E.2.b 658.56 . . . . 21.3.E 658.56(1) . . . . 1.2.E.3 660.41 . . . . 1.2.D.7 665.81 . . . . 21.3.F 665.82 . . . . 21.3.F 678.4011 . . . . 10.6.B.3

678.4021 . . . . 10.6.B.3 689.01 . . . . 21.3.A.1.d.ii.II 689.05 . . . . 21.3.A.1.d.ii.II 689.06 . . . . 21.3.A.1.d.ii.II 689.075 . . . . 1.2.E.1, 21.3.A.1.d.ii.I 689.075(1)(g) . . . . 21.3.A.1.d.ii.I 689.11 . . . . 19.1 689.11(1) . . . . 19.5.B.9 689.115 . . . . 6.5.S 689.21 . . . . 11.10 709.2119(2)(a) . . . . 4.3.A.3.k.v 709.2202 . . . . 21.3.A.1.d.ii.III Chapter 710 . . . . 14.3.C.5 710.106–710.107 . . . . 14.3.C.5 711.50–711.512 . . . . 1.2.E.3 718.106(1) . . . . 19.2.B.4.b 719.102 . . . . 19.2.B.4.b 719.103(25) . . . . 19.2.B.4.b Chapter 726 . . . . 8.2.E.2.c 731.05 . . . . 19.2.B.2 731.011 . . . . 14.3.A.2, 14.3.A.3 731.103 . . . . 11.2.A.4, 19.9.I.2 731.103(1) . . . . 3.5.A 731.103(2)–(3) . . . . 3.5.A 731.103(3) . . . . 3.6.S, 11.8.E, 20.2.B.1 731.1035 . . . . 2.1.C, 11.2.A.4 731.104 . . . . 2.1.G, 4.4.A.2 731.105 . . . . 2.2.D.1, 3.4.A, 3.6.O, 7.7.G, 19.9.D, 21.4.C 731.1055 . . . . 11.3.B, 17.1

731.106 . . . . 11.3.B 731.106(1) . . . . 3.7.A, 17.1 731.106(2) . . . . 3.6.BB.1, 11.3.B, 11.3.H, 17.1, 21.4.B 731.110 . . . . 1.2.G.1, 1.2.G.2, 21.4.G 731.110(1) . . . . 5.5 731.110(2) . . . . 5.5 731.110(3) . . . . 1.2.G.1, 4.3.A.9, 5.3.A.3, 5.5, 21.4.G 731.110(4) . . . . 1.2.G.1, 5.5 731.201 . . . . 4.3.A.3.c, 11.9.C.3, 19.5.B.8, 21.4.E 731.201(1) . . . . 2.10.A, 11.2.A.4 731.201(2) . . . . 5.3.A.1, 11.1, 20.2.B.1 731.201(4) . . . . 1.2.B.6, 4.3.A.6, 8.3.B.2.a.ii, 8.3.B.2.a.v, 8.3.B.2.b.i.III, 15.6 731.201(5) . . . . 2.1.E, 4.4.A.2, 5.3.C.2, 6.6.B 731.201(7) . . . . 2.1.D, 4.4.A.2, 16.2 731.201(8) . . . . 16.2 731.201(9) . . . . 11.2.A.1 731.201(13) . . . . 1.2.C.1 731.201(14) . . . . 6.3.A, 6.3.E, 18.2.F 731.201(15) . . . . 18.2.G 731.201(16) . . . . 6.6.B, 8.2.C.2 731.201(20) . . . . 4.3.A.3.k.ii, 11.3.C 731.201(22) . . . . 8.2.F.2.a 731.201(23) . . . . 2.6, 3.6.CC, 3.6.O, 4.3.C.5.c, 4.4.B.3, 5.5, 8.2.E.2.b, 8.5.C, 9.1.A, 9.2.F.2, 9.4.B.5, 14.2.B, 15.3.J, 21.3.A.1.e.ii, 21.4.E, 21.4.F 731.201(24) . . . . 5.3.J 731.201(28) . . . . 16.4.A 731.201(33) . . . . 3.6.BB.1, 6.3.D, 6.3.E, 14.3.C.6.b, 19.2.A, 19.2.B.1, 19.2.B.4.d, 19.4.A.2, 19.9.J.1, 19.9.J.2 731.201(34) . . . . 1.2.C.1 731.29 . . . . 11.2.B.4

731.301 . . . . 1.2.G.2, 2.2.A, 3.6.O, 8.2.F.2.a, 14.2.B, 16.3.B.3, 16.6, 19.9.I.1, 19.9.I.2, 21.4.D 731.301(1) . . . . 2.2.D.1, 4.4.B.3, 10.3.C.3, 11.8.D 731.301(1)(a) . . . . 3.6.CC, 3.6.O 731.301(2) . . . . 3.6.O, 4.4.B.3, 5.2.A.1.a, 7.7.G, 19.9.D, 19.9.G, 21.4.D 731.301(3) . . . . 2.2.A, 5.2.A.1.a 731.302 . . . . 2.2.F, 2.7, 4.4.B.3, 5.3.K, 7.8.B.1, 7.8.B.2, 7.8.B.4, 12.2.B, 12.4, 14.2.B, 14.2.C.2, 14.2.C.4, 14.3.C.5 731.303 . . . . 2.5, 2.8.D, 11.8.D, 14.2.C.2, 19.9.D, 19.9.E 731.303(1)(a) . . . . 2.5, 14.2.C.2 731.303(1)(b)1 . . . . 2.5 731.303(1)(b)2 . . . . 2.5, 14.2.C.2 731.303(1)(b)3 . . . . 2.5, 21.4.F 731.303(1)(c) . . . . 2.5, 19.9.D 731.303(3)(a) . . . . 2.5 731.303(3)(b) . . . . 2.5 731.303(4) . . . . 2.5, 2.8.A, 19.9.E 731.34 . . . . 7.1.C Chapter 732 . . . . 1.2.E.10.b, 7.2.D, 17.2.C.2 732.101–732.102 . . . . 7.1.D.1 732.101–732.106 . . . . 19.5.B.1 732.101–732.111 . . . . 5.3.D, 11.2.A.1 732.101 . . . . 11.3.G, 14.3.D.5.b 732.101(2) . . . . 3.5.A, 4.3.A.3.k.i, 14.3.C.2, 14.3.C.6.a 732.102 . . . . 5.2.B, 11.2.A.1, 11.12 732.102(1) . . . . 19.9.I.2 732.102(2) . . . . 11.2.A.1 732.102(3) . . . . 11.2.A.1 732.103 . . . . 4.3.A.3.k.ii, 11.2.B.3, 11.12, 19.9.I.1, 19.9.I.2, 19.9.J.1, 19.9.J.2 732.103(1) . . . . 11.2.A.1

732.103(2)–(3) . . . . 11.2.A.1 732.103(4) . . . . 11.2.A.1 732.103(4)(c) . . . . 3.6.K 732.103(5) . . . . 11.2.A.1 732.103(6) . . . . 11.12 732.104 . . . . 11.2.D 732.105 . . . . 11.2.B.1 732.106 . . . . 11.2.B.7, 21.3.G 732.107 . . . . 1.2.E.2.a.i, 11.2.E, 11.8.A 732.107(1) . . . . 3.6.K, 11.2.E 732.107(2) . . . . 11.2.E 732.107(3) . . . . 3.6.K, 11.2.E 732.107(4) . . . . 11.2.E 732.108 . . . . 11.2.B.4, 11.2.B.6, 19.5.B.1 732.108(1) . . . . 1.2.E.2.a.i, 11.2.B.6 732.108(1)(a) . . . . 11.2.B.6 732.108(1)(b) . . . . 11.2.B.6 732.108(1)(c) . . . . 11.2.B.6 732.108(2) . . . . 1.2.E.2.a.i, 11.2.B.4 732.108(2)(a) . . . . 11.2.B.4 732.108(2)(b) . . . . 11.2.B.4, 21.3.G 732.108(2)(c) . . . . 11.2.B.4 732.1081 . . . . 11.2.C 732.1101 . . . . 11.2.B.5, 11.3.B 732.111 . . . . 7.1.A, 7.1.C, 10.3.D.5 732.15 . . . . 3.8.A 732.201–732.2155 . . . . 1.2.E.2.a.i, 6.5.M, 9.2.C 732.201 et seq. . . . . 13.2.B, 14.2.A, 14.3.A.1 732.201 . . . . 3.6.J, 4.3.A.10, 7.1.D.1, 7.2.A, 10.3.D.5, 13.5, 14.3.A.1, 21.3.D

732.201(32) . . . . 1.2.E.1 732.201(33) . . . . 1.2.E.1 732.2025 . . . . 7.4.A 732.2025(1) . . . . 7.6.D.2 732.2025(2) . . . . 7.1.B, 7.4.A, 7.5.A.11, 7.6.C.3, 7.6.C.5 732.2025(2)(a) . . . . 7.4.A 732.2025(7) . . . . 7.5.A.2 732.2025(8) . . . . 7.4.B, 7.6.C.4 732.2025(10) . . . . 7.5.A.11 732.2025(11) . . . . 7.6.C.5 732.2035 . . . . 1.2.E.1, 1.2.E.2.a.iv, 1.2.E.10.b, 6.5.M, 7.5.A.1 732.2035(1) . . . . 7.5.A.2 732.2035(2) . . . . 7.5.A.3, 14.3.A.1, 21.3.D 732.2035(3) . . . . 6.5.T, 7.5.A.4 732.2035(4) . . . . 7.5.A.5 732.2035(5) . . . . 7.5.A.6 732.2035(5)(b)2. . . . . 7.5.A.7.b 732.2035(6) . . . . 1.2.E.4.b.i 732.2035(6)(a) . . . . 7.5.A.7.a, 7.5.A.7.b 732.2035(6)(a)1 . . . . 7.5.A.7.a 732.2035(6)(b)1. . . . . 7.5.A.7.a 732.2035(6)(c) . . . . 7.5.A.7.c 732.2035(7) . . . . 6.5.Q, 7.5.A.8 732.2035(8) . . . . 7.5.A.9, 7.6.B 732.2035(8)(b)2. . . . . 7.5.A.10.a 732.2035(8)(d)1. . . . . 7.5.A.10.b 732.2035(9) . . . . 7.5.A.11 732.2035(9)(a) . . . . 7.5.A.10.b 732.2035(9)(b) . . . . 7.5.A.10.a

732.2035(9)(b)1. . . . . 7.5.A.10.a 732.2035(9)(c)1. . . . . 7.5.A.10.b 732.2045(1)(a) . . . . 7.5.B 732.2045(1)(b) . . . . 7.5.B 732.2045(1)(c) . . . . 7.5.B 732.2045(1)(d) . . . . 7.5.A.8, 7.5.B 732.2045(1)(e) . . . . 7.5.A.8, 7.5.B 732.2045(1)(f) . . . . 7.5.B, 7.6.B 732.2045(1)(g) . . . . 7.4.B, 7.5.B 732.2045(1)(h) . . . . 7.5.B 732.2045(1)(i) . . . . 7.5.A.3, 7.5.B 732.205 . . . . 3.6.J 732.2055(1)(a)1. . . . . 7.5.A.3 732.2055(1)(a)2. . . . . 7.5.A.3 732.2055(1)(b) . . . . 7.5.A.3 732.2055(2) . . . . 7.5.A.8 732.2055(4) . . . . 7.5.A.9 732.2055(5) . . . . 7.5.A.10.a, 7.5.A.10.b, 7.5.A.11, 7.7.G 732.2055(6) . . . . 7.5.A.2, 21.3.D 732.2055(6)(a) . . . . 7.3.B 732.206–732.207 . . . . 7.1.B 732.206 . . . . 7.5.A.1 732.2065 . . . . 1.2.E.1, 7.5.C 732.2075 . . . . 10.3.D.5, 13.5 732.2075(1) . . . . 7.1.B, 7.6.A, 7.7.C, 13.5 732.2075(1)(a) . . . . 7.6.B, 21.3.D 732.2075(1)(b) . . . . 7.6.B 732.2075(1)(c) . . . . 7.6.B 732.2075(1)(d) . . . . 7.6.B

732.2075(1)(e) . . . . 7.4.B, 7.6.B, 7.6.C.4 732.2075(1)(f) . . . . 7.1.B, 7.4.A, 7.6.B 732.2075(2) . . . . 7.6.B, 7.6.D.1, 7.6.D.4 732.2075(3)(a) . . . . 7.6.D.1 732.2075(3)(b) . . . . 7.6.D.1 732.2075(3)(c) . . . . 7.6.D.1 732.2075(4) . . . . 7.6.D.1 732.2075(5) . . . . 7.6.D.1 732.2075(6)–(7) . . . . 7.6.D.1 732.2085 . . . . 7.6.D.4, 7.7.G 732.2085(1) . . . . 7.6.D.2, 7.6.D.6 732.2085(1)(a) . . . . 7.6.D.2 732.2085(1)(b) . . . . 7.6.D.3 732.2085(2) . . . . 7.6.D.4 732.2085(2)(a) . . . . 7.6.D.4 732.2085(3) . . . . 7.6.D.4 732.2085(3)(a) . . . . 7.6.D.4 732.2095 . . . . 7.6.C.1 732.2095(1)(b) . . . . 7.4.A, 7.6.C.3 732.2095(1)(c) . . . . 7.4.A, 7.6.C.3 732.2095(2) . . . . 7.6.C.5 732.2095(2)(a) . . . . 7.6.C.2 732.2095(2)(b)1. . . . . 7.6.C.3 732.2095(2)(b)2. . . . . 7.6.C.3 732.2095(2)(b)3. . . . . 7.6.C.3 732.2095(2)(c) . . . . 7.6.C.4 732.2095(2)(d) . . . . 7.6.C.5, 21.3.D 732.2095(2)(d)1. . . . . 7.4.A 732.2095(2)(d)2. . . . . 7.4.A

732.2095(2)(d)3. . . . . 7.4.A 732.2095(2)(e) . . . . 7.4.B, 7.6.C.6 732.2095(2)(f) . . . . 7.6.C.7 732.2105 . . . . 7.1.D.1, 7.2.A, 7.2.D 732.2105(2) . . . . 7.1.D.1 732.211 . . . . 7.1.D.1, 7.2.A, 7.2.C 732.2115 . . . . 7.6.D.6 732.2125 . . . . 21.3.D 732.2125(1) . . . . 7.7.A 732.2125(2) . . . . 7.7.A, 19.9.D 732.2135(1) . . . . 7.1.B, 7.7.C, 21.3.D 732.2135(1)–(2) . . . . 21.3.D 732.2135(2) . . . . 2.2.B.2, 7.7.C, 21.3.D 732.2135(3) . . . . 7.7.H 732.2135(4) . . . . 7.7.C, 21.3.D 732.2135(5) . . . . 7.1.B, 7.7.H, 7.10.A 732.2145 . . . . 7.7.G 732.2145(1) . . . . 7.6.D.5, 7.6.E, 13.5 732.2145(2) . . . . 7.6.D.5 732.2145(2)(b) . . . . 7.6.D.5, 7.7.G 732.2145(3) . . . . 7.6.D.5, 7.7.G 732.2145(4) . . . . 7.6.D.5, 7.7.G, 7.10.A, 7.10.B 732.215 . . . . 7.2.E.1 732.2151 . . . . 7.1.B, 7.10.A 732.2155(3) . . . . 7.1.D.1, 7.8.B.1 732.2155(4) . . . . 7.5.B 732.2155(6) . . . . 7.5.A.6, 7.5.A.7.a 732.216–732.228 . . . . 1.2.E.2.a.i, 7.2.D, 11.4 732.217 . . . . 7.2.D

732.219 . . . . 7.2.D, 11.4 732.223 . . . . 11.4 732.30 . . . . 21.4.E 732.301–732.302 . . . . 13.2.B 732.301 . . . . 1.2.E.2.a.i, 7.3.B, 11.3.B, 11.3.H, 11.9.C.3, 21.3.A.1.e.ix, 21.3.G 732.302 . . . . 1.2.E.2.a.i, 11.2.B.6, 11.3.H, 11.9.C.3, 21.3.A.1.e.ix 732.401 et seq. . . . . 14.2.A 732.401 . . . . 1.2.E.2.a.i, 1.2.E.10.b, 4.3.A.3.k.ii, 19.2.B.2, 19.4.A.2, 19.5.B.1, 19.5.B.2, 19.5.B.5, 19.5.B.8, 19.9.D, 19.9.I.1, 19.9.I.2, 19.9.J.1, 19.9.J.2 732.401(1) . . . . 4.3.A.3.k.ii, 7.2.D, 19.5.B.5, 19.6.A.2, 19.6.C, 19.9.I.1, 19.9.I.2, 19.9.J.1 732.401(2) . . . . 1.2.E.10.b, 4.3.A.3.k.ii, 7.2.D, 19.2.B.2, 19.5.B.5, 19.9.I.1, 19.9.I.2, 19.9.J.1, 19.9.J.2 732.401(2)(a) . . . . 1.2.E.10.b, 7.2.D 732.401(2)(b) . . . . 1.2.E.10.b, 4.3.A.3.k.ii, 7.2.D, 19.5.B.5 732.401(2)(c) . . . . 1.2.E.10.b, 4.3.A.3.k.ii, 7.7.B, 19.5.B.5 732.401(2)(d) . . . . 1.2.E.10.b, 7.2.D, 19.5.B.5 732.401(2)(e) . . . . 4.3.A.3.k.ii, 4.3.A.3.k.v, 19.5.B.5 732.401(3) . . . . 7.2.D 732.401(4) . . . . 7.2.D, 19.5.B.5 732.401(5) . . . . 19.2.B.4.d, 19.5.B.9 732.4015 . . . . 1.2.E.2.a.i, 1.2.E.10.b, 4.3.A.3.k.ii, 19.2.B.2, 19.5.B.1, 19.5.B.5, 19.5.B.8, 19.6.A.1, 19.6.A.2, 19.9.D 732.4015(1) . . . . 4.3.A.3.k.ii, 7.2.D 732.4015(2) . . . . 4.3.A.3.k.ii 732.4015(2)(a) . . . . 19.6.A.1 732.4015(3) . . . . 7.2.D 732.4017 . . . . 11.2.B.8, 19.5.B.8, 19.5.B.9, 19.6.B 732.4017(1) . . . . 19.5.B.8

732.4017(2) . . . . 19.5.B.8 732.4017(3) . . . . 19.5.B.8 732.4017(3)(a)–(3)(b) . . . . 19.5.B.8 732.402 . . . . 1.2.B.3, 1.2.E.1, 1.2.E.2.a.i, 1.2.E.4.a, 1.2.E.5, 1.2.E.6, 1.2.E.10.b, 1.3.C.1.d, 4.3.A.9, 4.3.A.10, 6.3.C, 8.2.E.2.c, 9.2.F.4, 10.3.D.6, 13.2.B, 13.2.G.3, 13.2.G.5, 18.3, 18.4.A, 19.2.C, 19.5.A 732.402(1) . . . . 7.2.D, 18.2.G 732.402(2) . . . . 19.4.B 732.402(2)(a) . . . . 7.2.D, 18.2.G 732.402(2)(b) . . . . 4.3.A.10, 7.2.D, 18.2.G 732.402(2)(c) . . . . 7.2.D, 18.2.G 732.402(2)(d) . . . . 7.2.D, 18.2.G 732.402(3) . . . . 7.2.D, 10.3.D.6, 19.4.B 732.402(5) . . . . 7.2.D 732.402(6) . . . . 7.2.D, 19.5.A 732.402(7) . . . . 1.2.E.1, 7.2.D 732.403 . . . . 1.2.E.2.a.i, 1.2.E.10.b, 4.3.A.10, 7.2.D, 8.1, 8.3.B.2.a.ii, 8.5.A, 8.5.B, 19.5.A 732.50 . . . . 4.3.B.2 732.501 . . . . 21.3.A.1.a, 21.3.A.1.c.i 732.502 . . . . 5.3.C.1, 5.6.A, 5.6.B, 21.3.A.1.a, 21.3.A.1.d.i 732.502(1) . . . . 5.6.B, 10.4.H.1, 21.3.A.1.d.i 732.502(1)(a)1 . . . . 21.3.A.1.d.i 732.502(1)(a)2 . . . . 21.3.A.1.d.i 732.502(1)(c) . . . . 21.3.A.1.d.i 732.502(2) . . . . 5.6.B, 10.4.H.1, 17.1, 21.3.A.1.d.i, 21.3.A.1.d.ii.I 732.502(3) . . . . 10.4.H.1 732.503 . . . . 5.3.C.1, 21.3.A.1.d.i 732.504(1) . . . . 21.3.A.1.d.i 732.504(2) . . . . 21.3.A.1.c.ii, 21.3.A.1.d.i

732.505 . . . . 21.3.A.1.a 732.505(1) . . . . 21.3.A.1.e.ii 732.505(2) . . . . 21.3.A.1.e.ii, 21.3.A.4 732.506 . . . . 21.3.A.1.a, 21.3.A.1.e.ii 732.507 . . . . 11.3.H, 21.3.B.2 732.507(2) . . . . 1.2.E.2.a.i, 11.6, 13.2.B, 21.3.B.2 732.507(3) . . . . 11.6, 21.3.B.2 732.512(1) . . . . 3.6.E 732.514 . . . . 3.5.A, 4.3.A.3.k.i, 11.3.C, 14.3.C.2, 14.3.C.6.a, 14.3.D.5.b 732.515 . . . . 1.2.D.2, 1.2.E.2.a.i, 5.2.A.1.a, 6.3.D 732.5165 . . . . 21.3.A.1.a, 21.3.A.1.b.i, 21.3.A.1.b.xiii, 21.3.A.1.e.iii, 21.3.A.3 732.518 . . . . 3.5.A 732.522 . . . . 21.3.A.1.d.i 732.523 . . . . 5.3.C.1, 21.3.A.1.d.i 732.524(2)(b) . . . . 5.2.A.1.a 732.524(11) . . . . 5.2.A.1.a 732.526(1) . . . . 5.2.A.1.a 732.526(2) . . . . 5.2.A.1.a 732.6005(1) . . . . 11.3.G 732.601 . . . . 1.2.E.2.a.i, 11.7 732.601(2) . . . . 11.7 732.601(3) . . . . 11.7 732.601(4) . . . . 1.2.E.4.b.i, 11.7 732.603 . . . . 1.2.E.2.a.i, 11.3.C, 11.3.G, 21.3.B.2 732.603(1) . . . . 11.3.G 732.603(2) . . . . 11.3.G 732.603(3) . . . . 11.3.G 732.604 . . . . 1.2.E.2.a.i, 11.3.G

732.605–732.606 . . . . 14.3.A.3 732.605 . . . . 14.3.A.3 732.605(2) . . . . 11.3.F 732.606 . . . . 11.3.F, 13.2.G.5 732.606(1) . . . . 11.3.F, 14.3.A.3 732.606(2) . . . . 11.3.F, 14.3.A.3 732.608 . . . . 11.2.B.4, 11.2.B.6 732.609 . . . . 11.3.F, 14.3.A.3 732.611 . . . . 11.3.G 732.615 . . . . 3.6.E, 3.6.L, 21.3.B.5 732.616 . . . . 3.6.E, 3.6.L, 21.3.B.5 732.701 . . . . 1.2.E.10.b, 8.3.B.2.a.x 732.701(1) . . . . 8.3.B.2.a.x 732.702 . . . . 7.1.D.1, 7.2.E.2, 7.8.B.1, 7.8.B.2, 7.8.B.3, 11.2.B.8, 19.5.B.5, 19.8 732.702(1) . . . . 5.2.B, 7.1.D.1, 7.8.B.1, 7.8.B.3, 11.2.B.8, 19.5.B.5 732.702(2) . . . . 7.1.D.1, 7.8.B.1, 7.8.B.3, 19.5.B.5 732.7025 . . . . 11.2.B.8, 19.5.B.5 732.7025(1) . . . . 19.5.B.5 732.7025(2) . . . . 19.5.B.5 732.703 . . . . 6.5.Q, 11.6 732.703(2) . . . . 6.5.Q 732.703(3) . . . . 6.5.Q 732.703(4) . . . . 6.5.Q 732.703(9) . . . . 6.5.Q 732.801 . . . . 11.10 732.802 . . . . 1.2.E.2.a.i, 3.6.R, 7.8.C.2, 21.3.A.1.e.vii 732.802(1) . . . . 7.8.C.2, 11.2.B.2 732.802(2) . . . . 7.8.C.2, 11.2.B.2

732.802(3) . . . . 7.8.C.2, 11.2.B.2 732.802(4) . . . . 7.8.C.2 732.802(5) . . . . 7.8.C.2, 11.2.B.2 732.802(6) . . . . 11.2.B.2 732.803 . . . . 11.3.A, 21.3.A.1.e.vi, 21.3.B.2 732.8031 . . . . 21.3.A.1.e.viii 732.8031(1)(b) . . . . 21.3.A.1.e.viii 732.8031(2) . . . . 21.3.A.1.e.viii 732.8031(2)(b) . . . . 21.3.A.1.e.viii 732.8031(3) . . . . 21.3.A.1.e.viii 732.8031(3)(b) . . . . 21.3.A.1.e.viii 732.8031(4) . . . . 21.3.A.1.e.viii 732.8031(7) . . . . 21.3.A.1.e.viii 732.804 . . . . 1.2.A.1, 1.2.A.2, 1.2.A.7 732.805 . . . . 7.8.A, 21.3.A.1.b.vi 732.806 . . . . 11.5 732.806(1) . . . . 11.5 732.806(7)(a) . . . . 11.5 732.806(7)(b) . . . . 11.5 732.806(7)(d) . . . . 11.5 732.806(8) . . . . 11.5 732.901 . . . . 1.3.C.1.d, 4.3.A.10, 5.2.A.1.a 732.901(1) . . . . 1.2.D.2, 5.2.A.1.a 732.901(2) . . . . 3.6.W, 5.2.A.1.a 732.901(3) . . . . 5.2.A.1.a 732.901(4) . . . . 5.2.A.1.a 732.901(5) . . . . 1.2.D.2, 5.2.A.1.a Chapter 733 . . . . 18.2.B 733.01(1) . . . . 19.4.A.2

733.101 . . . . 3.1, 5.3.A.1 733.101(1) . . . . 3.7.A 733.101(1)(a)–(1)(c) . . . . 16.3.B.1 733.101(1)(b) . . . . 17.3.B 733.101(1)(c) . . . . 17.3.B 733.101(2) . . . . 3.7.A, 16.3.B.1 733.101(3) . . . . 3.7.B, 17.3.B 733.103 . . . . 11.8.A, 19.4.B 733.103(1) . . . . 4.3.A.3.k.i, 11.2.F, 19.4.A.3 733.104 . . . . 4.3.A.3.f 733.104(1) . . . . 4.3.A.3.f, 8.3.C.1.b 733.104(2) . . . . 8.3.B.1 733.105 . . . . 1.2.E.2.a.i, 3.6.H, 5.3.D, 11.1, 11.8.A, 11.8.C, 11.8.E, 13.2.B 733.105(1) . . . . 11.8.A 733.105(2) . . . . 11.8.E 733.105(3) . . . . 3.6.H, 11.8.A 733.1051 . . . . 3.6.E, 11.9.A 733.106 . . . . 2.8.D, 2.9.C, 4.3.C.5.c, 4.3.C.5.f, 11.2.A.6, 15.3.J, 15.3.L, 15.4.D.2.h, 15.4.H.3, 15.4.L, 15.4.M.4, 15.4.O.4, 21.4.H 733.106(1) . . . . 10.4.E, 19.9.D 733.106(2) . . . . 15.3.L, 15.4.O.4, 21.4.H 733.106(3) . . . . 1.2.B.1, 3.8.C, 4.2.C.1, 4.4.B.2, 8.2.C.1, 8.3.C.1.a, 15.1, 15.4.L, 15.4.O.4, 20.3.A.3, 21.4.H 733.106(4) . . . . 3.6.CC, 3.6.L, 8.2.C.1, 8.3.C.1.a, 15.4.M.4, 15.4.M.6, 15.4.M.7, 21.3.A.1.b.iv, 21.4.H 733.106(4)(c) . . . . 4.3.B.1.c, 4.4.B.2 733.1061 . . . . 3.6.L 733.107 . . . . 21.3.A.1.b.v, 21.3.A.1.b.viii, 21.3.A.1.d.i 733.107(1) . . . . 21.3.A.1.b.vii 733.107(2) . . . . 4.3.A.3.d, 21.3.A.1.b.ii, 21.3.A.1.b.v, 21.3.A.1.b.vii,

21.3.A.1.b.xi 733.109 . . . . 1.2.G.2, 13.2.B, 14.3.D.4, 21.3.A.1.a, 21.4.E 733.109(1) . . . . 3.6.X, 5.3.K, 21.4.E 733.109(2) . . . . 13.3.C.1, 14.3.D.4 733.18 . . . . 8.3.C.1.b 733.201(1) . . . . 5.3.C.1, 5.3.C.2, 5.3.C.4.a 733.201(2) . . . . 5.3.C.2, 5.3.C.4.a, 21.3.A.1.d.i 733.201(3) . . . . 5.3.C.4.a, 20.2.B.1 733.202 . . . . 5.3.A.1, 17.6 733.204(1) . . . . 5.6.E 733.204(2) . . . . 5.6.E 733.205 . . . . 5.6.A 733.205(1) . . . . 5.6.A 733.205(2) . . . . 5.6.A 733.205(3) . . . . 5.6.A 733.206 . . . . 17.2.E 733.206(1) . . . . 5.6.D.1 733.206(2) . . . . 5.6.D.1 733.206(3) . . . . 5.6.D.1 733.207 . . . . 1.2.D.4, 5.6.C.1, 21.3.A.1.e.ii 733.208 . . . . 1.2.D.3, 3.6.X, 11.2.F, 14.3.D.4 733.209 . . . . 3.6.S 733.212 . . . . 2.2.A, 2.2.B.2, 3.6.X, 4.3.A.10, 5.3.K, 8.2.A.2.a, 21.3.C.2 733.212(1) . . . . 1.2.E.2.a.ii, 1.2.G.2, 2.2.B.2, 4.3.A.9, 5.3.K, 5.4.B 733.212(1)(c) . . . . 1.2.E.1, 3.6.CC 733.212(2) . . . . 2.2.B.2, 5.3.K 733.212(2)–(3) . . . . 1.2.G.2 733.212(2)(a)–(2)(b) . . . . 4.3.A.9 733.212(2)(b) . . . . 4.4.B.1

733.212(2)(c) . . . . 4.3.A.9 733.212(2)(d) . . . . 4.3.A.9 733.212(2)(e) . . . . 4.3.A.9 733.212(2)(f) . . . . 4.3.A.9 733.212(3) . . . . 1.2.E.2.a.ii, 2.2.B.2, 3.6.X, 3.7.B, 4.3.A.9, 5.3.K 733.212(4) . . . . 5.3.K 733.212(5) . . . . 5.3.K, 5.3.L 733.212(6) . . . . 5.3.K 733.212(7) . . . . 2.2.B.2, 5.3.K 733.212(8) . . . . 5.3.K 733.2121 . . . . 2.2.A, 2.2.B.1, 2.2.B.3, 4.3.A.10, 5.3.L, 6.3.B, 8.2.A.2.a, 8.2.A.3, 17.2.C.3, 18.2.J, 18.2.M, 21.3.C.1, 21.3.C.2 733.2121(1) . . . . 2.2.B.3, 4.3.A.6, 5.3.L, 8.2.A.2.b, 8.2.A.2.c, 8.2.B.3.a, 8.3.A.1 733.2121(2) . . . . 2.2.B.3, 4.3.A.6, 5.3.L, 18.2.J 733.2121(3) . . . . 1.3.C.1.b.ii, 9.5 733.2121(3)(a) . . . . 1.2.E.2.a.iv, 2.2.B.3, 4.3.A.6, 5.3.L, 8.2.A.1, 8.2.A.2.e, 8.2.B.3.a, 8.3.A.1, 19.9.D, 21.3.C.2 733.2121(3)(b) . . . . 2.2.B.3, 5.3.L 733.2121(3)(c) . . . . 2.2.B.3, 5.3.L 733.2121(3)(d) . . . . 2.2.B.3, 4.3.A.6, 5.3.L, 8.2.A.2.e 733.2121(3)(e) . . . . 2.2.B.3, 4.3.A.6, 5.3.L, 8.3.B.2.a.v 733.2121(4) . . . . 2.2.B.3 733.2123 . . . . 1.2.E.2.a.ii, 1.2.G.1, 1.2.G.2, 2.2.B.2, 2.2.C, 3.6.X, 3.8.B, 4.3.A.9, 5.3.K, 5.4.A, 5.4.B, 21.4.G 733.213 . . . . 3.6.E, 11.8.A 733.22 . . . . 10.3.D.1 733.301–733.305 . . . . 5.2.A.2 733.301 . . . . 4.3.A.10, 4.3.C.4, 4.3.C.6, 5.2.A.2, 5.3.A.1, 5.3.D, 16.3.B.4.a 733.301(1) . . . . 1.3.B.2

733.301(1)(a) . . . . 1.2.D.7, 1.3.B.1, 5.2.A.2 733.301(1)(a)3. . . . . 5.2.A.2 733.301(1)(b) . . . . 1.2.D.8, 5.2.B, 5.3.F, 17.3.A 733.301(1)(b)2. . . . . 5.2.B 733.301(1)(b)2 . . . . 5.2.B 733.301(1)(b)3 . . . . 5.2.B 733.301(3) . . . . 1.2.D.8, 5.2.B, 17.3.A 733.301(4) . . . . 5.3.A.3 733.301(5) . . . . 1.3.B.1, 1.3.B.2 733.302–733.303 . . . . 5.2.B 733.302–733.305 . . . . 5.2.B 733.302 . . . . 1.2.D.7, 4.3.A.10, 7.2.B, 16.3.B.4.a 733.303 . . . . 1.2.D.8, 4.3.C.5.b, 16.3.B.2.b, 16.3.B.4.a 733.303(1) . . . . 1.2.D.7 733.303(1)(a)–(b) . . . . 4.3.C.5.b 733.303(1)(c) . . . . 1.2.D.7, 1.3.B.1 733.303(2) . . . . 5.2.A.2 733.304 . . . . 1.2.D.7, 16.3.B.2.b, 16.3.B.4.a 733.305 . . . . 5.2.B, 16.3.B.2.b 733.305(1) . . . . 1.2.D.7, 16.3.B.4.a 733.306 . . . . 4.3.C.5.b 733.308 . . . . 2.9.A, 4.3.C.5.b, 4.3.C.7, 4.3.D.1, 8.3.B.2.a.ix, 20.3.B 733.309 . . . . 4.3.D.2.d 733.3101 . . . . 1.3.B.2, 2.2.B.2, 4.3.A.10, 4.3.C.1, 5.2.A.2, 15.4.O.4 733.3101(1) . . . . 4.3.C.1, 5.2.A.2 733.3101(2) . . . . 4.3.C.1, 5.2.A.2 733.3101(3) . . . . 4.3.C.1, 5.2.A.2 733.33 . . . . 10.4.D 733.402 . . . . 1.2.D.6, 15.5.A, 16.3.B.6.a, 17.3.C

733.402(1) . . . . 4.3.C.5.e, 4.3.D.2.b, 5.3.I, 16.3.B.6.a 733.402(3) . . . . 1.2.D.6, 5.3.I 733.402(4) . . . . 1.2.D.6, 5.3.I, 16.3.B.6.a, 20.2.B.1 733.403 . . . . 1.2.D.6, 4.3.C.5.e, 5.3.I, 16.3.B.6.a 733.404 . . . . 4.3.D.2.b 733.501 . . . . 1.2.H, 8.3.E, 9.1.A, 16.1, 16.2, 16.4.A 733.501(1) . . . . 16.3.A, 16.3.B.2.a, 16.3.B.2.b, 16.3.B.3, 16.4.B 733.501(2) . . . . 16.3.B.2.a, 16.3.B.6.a 733.501(3) . . . . 16.6 733.501(4) . . . . 16.5 733.502–733.5036 . . . . 1.3.B.3 733.502 . . . . 4.3.C.1, 4.3.C.2 733.503 . . . . 1.3.B.2, 4.3.C.1 733.5035 . . . . 4.3.C.1 733.5036 . . . . 4.3.C.1, 14.2.C.1 733.5036(2) . . . . 4.3.C.1 733.504 . . . . 4.3.C.5.b, 5.2.A.2 733.504(9) . . . . 7.2.B 733.505 . . . . 3.6.X, 4.3.C.5.a 733.506 . . . . 4.3.C.5.c 733.5061 . . . . 1.3.B.2, 4.3.C.5.e 733.508 . . . . 3.6.V, 4.3.C.5.d, 14.2.C.1 733.508(2) . . . . 15.4.O.4 733.509 . . . . 4.3.C.5.d 733.601 . . . . 3.6.C, 4.3.A.1, 4.3.A.6, 4.3.D.2.d, 8.2.A.2.c, 9.1.A, 12.3.D, 15.2.A, 16.4.B 733.602 . . . . 15.2.A, 15.2.G 733.602(1) . . . . 4.3.A.1, 4.3.A.2, 4.3.A.6, 4.3.A.8.b, 4.3.A.10, 9.1.A, 9.3.B, 10.3.A 733.602(2) . . . . 9.2.D.1, 9.4.B.1, 13.1, 13.3.C.1

733.603 . . . . 4.2.C.1, 4.3.A.3.d, 4.3.A.8.b, 4.3.B.1.d, 4.3.B.1.e, 4.3.B.1.g, 9.2.A, 10.3.A, 13.3.C.1, 15.2.B, 15.2.G, 15.4.J, 20.3.A.3 733.604 . . . . 4.4.C, 6.1, 6.6.B, 6.6.G, 12.2.A 733.604(1) . . . . 2.6, 4.3.A.10, 12.3.D 733.604(1)(a) . . . . 4.3.A.3.c, 6.2.A, 6.3.A, 6.6.A, 6.6.B 733.604(1)(b) . . . . 4.3.A.3.c, 6.6.B 733.604(1)(b)3. . . . . 14.2.C.3 733.604(1)(b)4 . . . . 4.3.A.3.c, 6.6.B, 6.6.C 733.604(1)(b)4.d . . . . 6.6.C 733.604(2) . . . . 2.6, 4.3.A.3.c, 6.6.H, 12.3.D 733.604(3) . . . . 2.6, 4.3.A.3.c, 6.6.D, 6.6.F, 15.2.D 733.605 . . . . 15.2.D 733.6065 . . . . 1.2.E.2.b, 4.3.A.10, 20.2.B.1 733.6065(1) . . . . 1.2.E.2.b, 2.6, 4.3.A.3.a, 9.2.B, 20.2.B.1 733.607–733.608 . . . . 14.3.C.6.a 733.607 . . . . 1.3.C.1.a, 2.10.B, 3.6.BB.2, 6.3.D, 9.2.A, 9.2.E.1, 9.2.F.4, 10.6.C.2, 12.3.D, 13.3.C.1, 14.3.C.2, 19.4.A.1, 19.4.A.2, 19.4.A.3, 19.9.J.1 733.607(1) . . . . 3.6.BB.1, 4.3.A.3.c, 4.3.A.3.k.i, 6.3.D, 6.5.V, 9.2.A, 10.3.D.8, 13.3.C.1, 17.2.D, 19.4.A.2 733.607(2) . . . . 4.3.A.3.c, 4.3.A.3.g, 8.2.E.2.c, 9.2.A, 11.3.I, 11.9.C.4.i, 13.2.H, 15.1, 15.8.A, 21.3.B.2 733.608 . . . . 1.3.C.1.a, 10.2.C, 10.3.D.8, 10.6.C.2, 11.9.C.5.a, 14.3.C.6.b, 14.3.C.6.g, 15.2.A, 19.4.A.2, 19.4.A.3, 19.9.J.1 733.608(1) . . . . 4.3.A.3.c, 4.3.A.3.k.i, 4.3.A.10, 6.3.D, 9.2.A, 10.2.B, 13.2.G.8, 15.2.G, 15.5.A, 19.4.A.2 733.608(2) . . . . 3.6.BB.1, 4.3.A.3.k.ii, 6.3.D, 6.5.V, 9.2.A, 10.3.D.8, 19.4.A.2 733.608(3) . . . . 4.3.A.3.k.ii, 10.3.D.8, 19.4.A.2 733.608(3)–(4) . . . . 15.5.C 733.608(4) . . . . 10.3.D.8, 19.9.D

733.608(5) . . . . 10.3.D.8 733.608(12) . . . . 10.3.D.8 733.609 . . . . 4.3.C.5.c, 4.3.C.5.d, 4.3.C.5.f, 4.3.D.2.b, 9.1.A, 9.2.F.3, 9.3.D, 10.4.E, 10.5.A.6, 11.2.A.5 733.609(1) . . . . 4.3.D.2.c, 13.3.C.1, 21.3.C.2 733.610 . . . . 10.3.D.2, 10.5.A.3.a 733.612 . . . . 4.3.A.8.a, 4.3.B.1.e, 9.2.F.3, 13.1, 15.2.A, 15.2.B, 15.2.G 733.612(1) . . . . 4.3.A.8.b, 9.2.A, 9.3.A 733.612(2) . . . . 6.5.H, 6.5.R, 9.2.F.2, 9.4.B.2, 10.4.E 733.612(2)(b) . . . . 10.4.E 733.612(3) . . . . 9.2.A 733.612(4) . . . . 4.3.A.8.b, 9.3.A, 15.2.E 733.612(5) . . . . 9.2.D.1, 9.2.E.1, 10.4.B, 10.4.C 733.612(6) . . . . 4.3.A.8.c, 9.2.E.1, 15.5.C 733.612(7) . . . . 4.3.A.8.a, 9.2.F.2 733.612(7)–(8) . . . . 10.6.F 733.612(9) . . . . 4.3.A.3.i, 6.5.G, 9.2.D.1, 13.2.G.1.a 733.612(12) . . . . 9.2.D.2 733.612(13) . . . . 4.3.A.8.e, 4.3.A.10, 4.3.D.2.c, 9.2.E.1, 15.5.C 733.612(14) . . . . 9.3.G, 9.4.B.1 733.612(16) . . . . 4.3.B.1.b, 15.2.G, 15.5.C 733.612(19) . . . . 1.3.B.4, 4.2.C.1, 4.3.B.1.a, 6.4.A.1, 6.4.C, 9.2.D.2, 9.3.C, 9.4.B.1, 11.2.A.5, 15.2.C, 15.2.D, 15.2.E, 15.2.F, 15.2.G, 15.4.D.2.g, 15.4.O.2 733.612(20) . . . . 4.3.A.3.f 733.612(21) . . . . 9.2.F.4, 10.3.B.1 733.612(22) . . . . 1.2.E.12, 4.3.A.10, 6.5.A, 9.2.D.2, 9.4.A, 9.4.C.2.a, 13.2.G.6.a, 15.5.B 733.612(22)(b) . . . . 9.4.A 733.612(24) . . . . 1.2.B.6, 4.3.A.3.f

733.612(26) . . . . 9.2.D.1, 13.1, 13.2.A, 13.2.G.5, 13.3.C.1 733.6121 . . . . 1.2.E.2.a.iii, 1.2.E.2.a.iv, 4.3.A.10, 4.3.D.3 733.6121(1) . . . . 9.6.B 733.6121(2) . . . . 9.6.B 733.6121(3) . . . . 9.6.C 733.6121(4) . . . . 9.6.C 733.613 . . . . 9.2.F.2, 10.4.B, 20.2.B.1 733.613(1) . . . . 4.3.A.3.k.i, 4.3.A.3.k.iii, 4.3.A.3.k.vi, 10.3.C.3, 10.5.A.1, 10.5.A.2.a, 17.2.C.1, 20.2.B.1 733.613(2) . . . . 4.3.A.3.k.iii, 4.3.A.3.k.vi, 4.3.A.8.a, 9.2.F.2, 10.3.C.1, 10.6.F, 17.2.C.1, 20.3.A.3 733.614 . . . . 4.3.A.3.k.iii, 10.3.D.1 733.615 . . . . 4.3.B.1.f, 4.3.B.2, 13.3.A 733.615(1) . . . . 4.3.B.1.f, 4.3.B.2, 10.3.D.3 733.615(2) . . . . 4.3.B.2 733.616 . . . . 4.3.B.2, 4.3.C.4, 4.3.C.5.e 733.617 . . . . 1.3.C.3, 4.3.B.1.b, 11.2.A.6, 14.2.C.2, 15.2.F, 15.2.I.1, 15.2.I.2, 15.2.I.4, 15.2.I.5, 15.3.B, 15.3.E, 15.3.H, 15.3.I, 15.3.J, 15.4.B.1, 15.4.B.2.b, 15.4.G, 15.4.H.5, 15.4.M.1, 15.4.O.1, 15.4.O.2, 15.4.O.4, 16.6 733.617(1) . . . . 15.3.C, 15.4.B.1, 15.4.J 733.617(2) . . . . 15.3.G, 15.3.I, 15.3.J 733.617(3) . . . . 15.3.B 733.617(4) . . . . 15.3.F, 15.3.G, 15.3.K, 15.4.H.2, 15.4.O.3 733.617(5) . . . . 4.2.C.2, 4.3.B.2, 15.3.E, 15.3.J 733.617(6) . . . . 4.2.D, 4.2.E, 15.3.D, 15.4.O.2, 20.2.B.1, 20.3.B 733.617(7)(g) . . . . 15.2.E, 15.2.G, 15.4.D.2.g, 15.4.O.1, 15.4.O.2 733.617(8) . . . . 4.2.E, 15.2.I.5, 15.3.D 733.617(8)(a)1 . . . . 15.2.I.5 733.617(8)(b) . . . . 15.2.I.5

733.617(8)(c) . . . . 15.2.I.5 733.6171 . . . . 1.3.C.3, 4.2.C.2, 4.3.B.1.b, 4.3.B.1.c, 14.2.C.2, 15.2.F, 15.2.I.5, 15.3.I, 15.4.B.2.a, 15.4.B.2.b, 15.4.B.3, 15.4.D.1, 15.4.D.2.b, 15.4.D.2.d, 15.4.G, 15.4.H.3, 15.4.H.5, 15.4.I, 15.4.K, 15.4.L, 15.4.M.1, 15.4.M.2, 15.4.M.3.b, 15.4.M.6, 15.4.O.1, 15.4.O.2, 15.4.O.4, 20.3.B 733.6171(1) . . . . 4.2.C.1, 4.3.B.1.c, 15.4.J, 20.3.A.3 733.6171(2) . . . . 4.3.B.1.c, 15.4.C, 15.4.I 733.6171(2)(b) . . . . 4.3.B.1.c, 15.4.C, 15.4.H.5, 15.4.M.6 733.6171(2)(c) . . . . 15.4.C 733.6171(2)(c)–(2)(d) . . . . 4.3.B.1.c 733.6171(2)(d) . . . . 15.4.C 733.6171(3) . . . . 4.3.B.1.c, 15.2.I.5, 15.4.B.2.b, 15.4.C, 15.4.M.7 733.6171(3)(a) . . . . 15.4.B.2.b 733.6171(3)(b) . . . . 15.4.B.2.b 733.6171(4) . . . . 15.4.B.2.a, 15.4.E, 15.4.M.4, 21.4.H 733.6171(4)(c) . . . . 15.7.A 733.6171(4)(e) . . . . 4.3.B.1.c, 15.3.B, 15.4.E, 15.4.M.6, 15.4.M.7 733.6171(5) . . . . 4.2.C.1, 15.3.J, 15.4.C, 15.4.D.1, 15.4.D.2.a, 15.4.D.2.c, 15.4.D.2.d, 15.4.D.2.e, 15.4.D.2.f, 15.4.D.2.g, 15.4.D.2.h, 15.4.D.2.i, 15.4.D.2.j, 15.4.E, 15.4.H.3, 15.4.H.5, 15.4.M.1, 15.4.M.3.a, 15.4.M.3.b, 15.4.M.7, 20.3.A.3, 20.3.B 733.6171(5)(a) . . . . 15.4.D.2.a, 15.4.D.2.b 733.6171(5)(a)–(5)(i) . . . . 15.4.D.2.j 733.6171(5)(b) . . . . 15.4.D.2.b 733.6171(5)(c) . . . . 15.4.D.2.c 733.6171(5)(d) . . . . 15.4.D.2.d 733.6171(5)(e) . . . . 15.4.D.2.e 733.6171(5)(f) . . . . 15.4.D.2.f, 15.7.A 733.6171(5)(g) . . . . 15.2.E, 15.4.D.2.g, 15.4.O.1, 15.4.O.2 733.6171(5)(h) . . . . 15.4.D.2.h 733.6171(5)(i) . . . . 15.4.D.2.j

733.6171(6) . . . . 15.4.H.2 733.6175 . . . . 4.2.C.1, 11.2.A.6, 14.2.D, 15.2.D, 15.2.F, 15.2.H, 15.3.I, 15.3.J, 15.4.J, 15.4.M.1, 15.4.M.2 733.6175(1) . . . . 4.3.B.1.b, 15.3.I 733.6175(2) . . . . 4.3.B.1.b, 15.4.M.5, 15.4.M.7 733.6175(3) . . . . 4.2.C.1, 4.3.B.1.b, 15.3.C, 15.3.J, 15.4.H.1 733.6175(4) . . . . 4.3.B.1.b, 15.3.J, 15.4.F, 15.4.L 733.619 . . . . 15.2.G, 15.4.H.3 733.619(1) . . . . 4.3.D.2.c, 15.4.H.3 733.619(2) . . . . 4.3.D.2.c 733.619(3) . . . . 4.3.D.2.c, 15.4.H.3 733.619(4) . . . . 4.3.C.5.d, 4.3.D.2.c 733.620(1)(a) . . . . 4.3.D.2.b 733.620(2) . . . . 4.3.D.2.b 733.701–733.710 . . . . 17.2.C.3 733.701 . . . . 2.2.B.3, 5.3.L 733.702 . . . . 1.2.E.10.b, 2.2.B.3, 3.6.C, 5.3.L, 8.2.A.2.b, 8.2.B.2, 8.2.B.3.a, 8.2.B.3.b, 8.3.A.1, 8.3.A.3, 8.3.B.1, 8.3.B.2.a.ii, 8.3.B.2.b.i.III, 8.3.B.2.b.ii.II, 10.4.E, 11.4, 12.3.D, 14.2.A, 18.2.I, 19.9.D, 21.3.C.1, 21.3.C.2, 21.3.C.3 733.702(1) . . . . 1.2.B.6, 1.3.C.1.b.i, 1.3.C.1.b.ii, 2.2.B.3, 3.6.C, 4.3.A.6, 8.2.B.3.a, 8.2.E.2.b, 8.3.A.1, 8.3.A.2, 8.3.B.2.a.ix, 8.3.B.2.a.v, 8.3.B.2.b.i.III, 15.6, 19.9.D, 21.3.C.1, 21.3.C.2, 21.3.C.3 733.702(1)–(2) . . . . 8.2.B.4, 8.3.B.1 733.702(1)(a) . . . . 8.2.B.3.a 733.702(2) . . . . 1.3.C.1.c, 8.3.A.2, 8.3.B.2.a.vi, 21.3.C.3 733.702(3) . . . . 2.2.B.3, 3.6.C, 8.2.B.1, 8.2.B.3.a, 8.2.B.3.b, 8.2.D, 8.3.A.1, 8.3.B.2.a.vi, 21.3.C.1, 21.3.C.2, 21.3.C.3 733.702(4) . . . . 1.2.E.5, 17.2.C.3 733.702(4)(a) . . . . 8.3.B.2.b.i.I 733.702(4)(a)–(4)(b) . . . . 2.2.B.3

733.702(4)(b) . . . . 8.3.B.2.a.i, 8.3.B.2.a.vi, 8.3.B.2.a.vii, 8.3.B.2.b.i.II 733.702(4)(c) . . . . 2.2.B.3, 8.3.B.2.a.i, 8.3.B.2.a.vii 733.702(5) . . . . 8.2.B.3.b, 8.3.A.1, 8.3.B.2.a.i, 8.3.B.2.a.vi, 8.3.B.2.a.vii, 8.3.B.2.b.i.II 733.702(6) . . . . 8.2.B.3.a 733.702(10) . . . . 8.3.B.2.a.i, 8.3.B.2.b.i.II 733.703 . . . . 1.3.C.1.b.ii, 8.2.E.2.b, 8.3.B.2.a.xi 733.703(1) . . . . 8.3.A.1 733.703(2) . . . . 1.2.B.6, 8.2.E.2.b 733.704 . . . . 8.3.A.1 733.705 . . . . 2.2.B.3, 8.2.B.2, 8.2.B.3.b, 8.2.E.2.b, 8.3.B.2.a.iv, 21.3.C.1, 21.3.C.2, 21.4.J 733.705(1) . . . . 1.3.C.1.b.i, 8.2.E.2.a, 15.4.O.5 733.705(2) . . . . 7.3.B, 8.2.B.3.a, 8.2.C.1, 8.2.C.2, 8.2.C.3, 8.3.B.2.a.iv, 8.3.C.1.a, 8.3.C.2.a, 21.3.C.3 733.705(3) . . . . 8.2.B.3.a, 8.2.C.1, 8.3.C.1.a 733.705(4) . . . . 8.2.C.1, 8.2.E.2.b 733.705(5) . . . . 8.2.C.2, 8.2.D, 8.3.B.2.a.iv, 8.3.C.1.a, 8.3.C.1.b, 21.3.C.1, 21.3.C.3 733.705(6) . . . . 8.2.A.2.c, 8.2.B.3.a, 8.3.A.1 733.705(7) . . . . 8.3.B.2.a.iv 733.705(7)–(8) . . . . 8.3.B.2.a.iv 733.705(8) . . . . 8.3.B.2.a.iv 733.705(9) . . . . 4.3.A.10, 8.2.A.2.c, 8.2.E.2.a 733.705(10) . . . . 3.6.BB.1, 8.2.C.2, 8.3.B.2.a.iv 733.705(11) . . . . 8.2.C.2, 8.2.C.3 733.706 . . . . 1.2.E.5, 8.2.B.4, 8.3.B.1, 8.3.B.2.a.iii 733.707 . . . . 1.2.B.1, 1.3.C.1.b.i, 1.3.C.1.d, 4.3.A.6, 7.3.A, 7.3.B, 8.2.E.2.d, 8.3.A.2, 8.3.B.2.a.i, 8.3.C.1.a, 8.5.C, 9.2.F.1, 15.4.L 733.707(1) . . . . 8.2.E.2.d, 13.4.B

733.707(1)(a) . . . . 1.2.B.1, 15.1, 15.4.L 733.707(1)(b) . . . . 1.2.B.1, 1.2.B.6, 15.6 733.707(1)(g) . . . . 15.5.B 733.707(1)(h) . . . . 1.2.B.6, 8.3.B.2.a.iii, 15.6 733.707(3) . . . . 1.2.E.1, 1.2.E.2.a.ii, 1.2.E.2.a.iv, 1.2.E.11, 2.2.B.2, 3.6.CC, 4.3.A.3.c, 4.3.A.3.g, 4.3.C.5.c, 6.5.M, 8.2.E.2.c, 9.2.A, 9.2.F.1, 11.3.I, 15.3.J, 19.9.I.1, 19.9.I.2, 19.9.J.1, 19.9.J.2 733.708 . . . . 3.8.B, 4.3.A.3.f, 8.2.F.1, 8.2.F.2.a 733.710 . . . . 2.2.B.3, 3.6.C, 4.3.A.6, 5.3.L, 8.2.A.2.b, 8.2.A.2.c, 8.2.A.2.e, 8.2.A.3, 8.2.B.2, 8.2.B.3.a, 8.2.B.3.b, 8.2.D, 8.2.E.2.d, 8.3.A.1, 8.3.B.2.a.i, 8.3.B.2.a.ii, 8.3.B.2.b.ii.II, 8.3.B.2.b.ii.IV, 8.3.E, 11.4, 14.2.A, 16.3.A, 18.2.B, 18.2.I, 18.3, 19.9.D, 19.9.F, 19.9.I.1, 19.9.J.1, 21.3.C.1, 21.3.C.2, 21.3.C.4 733.710(1) . . . . 2.2.B.3, 4.3.A.6, 8.3.B.2.b.ii.II 733.710(3) . . . . 2.2.B.3 733.7171(2)(b) . . . . 15.4.M.7 733.718(4)(j) . . . . 11.9.C.4.h, 11.9.D.3.k 733.801 . . . . 4.3.A.3.k.i, 13.3.B.1 733.801(1) . . . . 13.2.A, 13.2.B, 15.8.F 733.801(2) . . . . 13.2.G.4 733.802 . . . . 4.3.A.3.k.i, 13.1, 13.2.A, 13.3.B.1 733.802(2) . . . . 13.3.B.2.d 733.802(3) . . . . 13.2.C, 13.3.B.1, 13.3.B.2.c, 13.3.B.2.d 733.803 . . . . 1.2.E.5, 10.6.A, 14.3.A.5 733.805 . . . . 4.3.A.3.k.ii, 7.6.D.1, 8.2.E.2.c, 10.3.D.7, 11.3.I, 11.9.C.3, 11.9.C.4.i, 13.2.G.8, 14.3.A.4, 15.1 733.805(1) . . . . 8.2.E.2.c, 9.2.F.1, 14.3.A.4 733.805(2) . . . . 10.3.D.7, 11.3.I, 13.2.B, 13.3.C.1, 14.3.A.4 733.805(3) . . . . 11.3.I, 11.9.C.3, 11.9.C.4.i, 14.3.A.4 733.805(4) . . . . 21.3.B.2 733.806 . . . . 13.2.B, 14.3.A.2

733.808 . . . . 1.2.E.2.a.iv, 1.2.E.4.b.ii, 6.3.E, 13.2.G.7 733.808(4) . . . . 13.2.G.7 733.810 . . . . 10.2.A, 14.3.C.2 733.810(3) . . . . 13.3.A 733.811 . . . . 10.6.C.1, 11.2.F, 13.2.D 733.812 . . . . 3.6.O, 5.6.E, 11.2.F, 13.2.D, 13.3.C.1, 13.3.D 733.813 . . . . 4.3.A.3.k.i, 13.2.D, 13.3.B.2.d 733.814 . . . . 3.6.U, 10.6.E 733.815 . . . . 14.3.D.5.a, 14.3.D.5.b, 18.2.D 733.816 . . . . 3.6.K, 11.2.B.5, 11.2.E, 11.3.G 733.816(3) . . . . 11.2.E 733.817 . . . . 1.2.E.4.b.i, 1.2.E.11, 4.3.A.10, 6.5.K, 6.5.S, 9.2.F.1, 11.3.I, 11.9.C.1, 11.9.C.3, 11.9.C.4.a, 11.9.C.4.b, 11.9.C.4.h, 11.9.C.4.i, 11.9.C.5.b, 11.9.C.5.f, 11.9.D.1, 11.9.D.2, 11.9.D.3.d, 11.9.D.3.e, 11.9.D.3.g, 11.9.D.3.k, 13.2.G.3, 13.2.G.8, 14.3.A.4 733.817(1)(d) . . . . 11.9.C.6 733.817(1)(e) . . . . 11.9.C.4.i, 11.9.C.6 733.817(1)(e)3. . . . . 11.9.D.3.a 733.817(1)(g) . . . . 11.9.C.2 733.817(1)(p) . . . . 11.9.C.3 733.817(1)(r) . . . . 11.9.C.2 733.817(2) . . . . 11.9.C.2 733.817(2)(a) . . . . 11.9.C.2, 11.9.D.3.k 733.817(2)(b) . . . . 11.9.C.2 733.817(2)(c) . . . . 11.9.C.2, 11.9.D.3.k 733.817(2)(d) . . . . 11.9.C.2 733.817(2)(e) . . . . 11.9.C.2 733.817(3) . . . . 4.3.A.3.k.ii, 11.9.C.3, 11.9.D.3.k 733.817(3)(a) . . . . 11.9.C.3 733.817(3)(b) . . . . 11.9.C.3

733.817(3)(b)–(3)(f) . . . . 11.9.C.3 733.817(3)(c) . . . . 11.9.C.3, 11.9.C.4.i, 11.9.C.6 733.817(3)(d) . . . . 11.9.C.3, 11.9.C.6 733.817(3)(e) . . . . 11.9.C.3, 11.9.D.3.b 733.817(3)(e)1.b. . . . . 11.9.C.4.i 733.817(3)(f) . . . . 11.9.C.3 733.817(3)(g) . . . . 11.9.C.3, 11.9.D.3.c 733.817(3)(h) . . . . 11.9.C.3, 11.9.C.4.i 733.817(3)(i)1. . . . . 11.9.C.3 733.817(3)(i)2. . . . . 11.9.C.3 733.817(3)(i)2 . . . . 11.9.D.3.k 733.817(4) . . . . 11.9.C.2, 11.9.C.3, 11.9.C.4.a, 11.9.C.4.b, 11.9.D.3.k 733.817(4)(a) . . . . 11.9.C.4.b 733.817(4)(b) . . . . 11.9.C.4.b, 11.9.C.4.i, 11.9.D.3.d 733.817(4)(c) . . . . 11.9.C.4.b, 11.9.C.4.i, 11.9.D.3.e, 11.9.D.3.f 733.817(4)(d) . . . . 11.9.C.4.b, 11.9.C.4.c, 11.9.D.3.f 733.817(4)(d)1.a . . . . 11.9.C.4.c 733.817(4)(d)1.b . . . . 11.9.C.4.c 733.817(4)(d)1.b. . . . . 11.9.D.3.g 733.817(4)(d)2 . . . . 11.9.C.4.c 733.817(4)(d)3 . . . . 11.9.C.4.c 733.817(4)(d)4 . . . . 11.9.C.4.c 733.817(4)(e) . . . . 11.9.C.2, 11.9.C.4.d, 11.9.D.3.h 733.817(4)(f) . . . . 11.9.C.4.e 733.817(4)(g) . . . . 11.9.C.4.e 733.817(4)(h) . . . . 11.9.C.4.f, 11.9.C.4.i, 11.9.D.3.i 733.817(4)(i) . . . . 11.9.C.4.g, 11.9.C.4.i, 11.9.D.3.k 733.817(4)(j) . . . . 11.9.D.3.k 733.817(5) . . . . 11.9.C.5.a, 13.3.B.1, 13.4.A

733.817(5)(c)2 . . . . 11.9.C.4.i 733.817(5)(h)4 . . . . 11.9.C.4.b, 11.9.C.4.i 733.817(5)(h)5b . . . . 11.9.C.4.i 733.817(6) . . . . 11.9.C.5.a, 11.9.D.3.j 733.817(6)(a) . . . . 11.9.C.5.a 733.817(6)(b) . . . . 11.9.C.5.a 733.817(7)(a) . . . . 11.9.C.5.a, 11.9.C.5.b 733.817(7)(b) . . . . 11.9.C.5.a 733.817(7)(c) . . . . 11.9.C.5.b 733.817(8) . . . . 11.9.C.5.b 733.817(8)(a) . . . . 11.9.C.5.c 733.817(8)(b) . . . . 11.9.C.5.c 733.817(9) . . . . 11.9.C.5.c, 11.9.C.5.d 733.817(10) . . . . 11.9.C.5.d, 11.9.C.5.e 733.817(11) . . . . 11.9.C.5.e, 11.9.C.5.f 733.817(12) . . . . 11.9.C.5.f 733.901 . . . . 2.7, 3.6.G, 11.8.A 733.901(1) . . . . 3.6.V 733.901(2) . . . . 4.3.D.2.b 733.903 . . . . 1.2.D.3, 3.6.X, 3.6.Y, 8.3.B.2.a.iv, 11.2.F, 14.2.G, 14.3.D.4, 21.4.D Chapter 734 . . . . 1.2.E.2.a.iii 734.01 . . . . 15.2.I.2, 15.3.B 734.01(1)(d) . . . . 15.3.E 734.01(2) . . . . 15.2.I.1 734.01–733.617 . . . . 15.2.I.2 734.101 . . . . 17.2.B 734.101(1) . . . . 17.1 734.101(2) . . . . 17.1

734.101(3) . . . . 17.2.B 734.101(4) . . . . 3.6.M, 17.2.B, 17.2.D 734.102 . . . . 3.5.B, 10.4.H.1, 17.2.C.2 734.102(1) . . . . 10.3.D.4, 17.1, 17.3.A 734.102(4) . . . . 17.2.C.3, 17.3.C 734.102(5) . . . . 8.2.A.1 734.102(6) . . . . 17.2.C.1, 17.5 734.102(7) . . . . 10.3.D.4, 10.4.H.1, 17.2.C.1, 17.2.C.3, 17.2.D, 17.4.A 734.1025 . . . . 3.6.N, 8.3.E, 17.2.C.2, 18.2.O 734.1025(1) . . . . 10.4.H.1 734.1025(2) . . . . 8.3.E, 10.4.H.1, 18.2.O 734.104 . . . . 10.4.H.2, 17.2.C.2 734.104(1) . . . . 3.6.N, 17.2.C.2 734.104(1)–(2) . . . . 17.2.C.2 734.104(1)(a) . . . . 17.2.C.2 734.104(2) . . . . 17.2.C.2 734.104(4) . . . . 17.2.C.2 734.201 . . . . 3.6.M 734.202 . . . . 3.6.M 735 . . . . 1.2.E.2.a.iii, 1.2.F, 6.3.C, 10.4.H.1, 15.3.A 735.201–735.2063 . . . . 17.2.C.3, 18.2.A 735.201 et seq. . . . . 19.9.H 735.201 . . . . 4.3.A.10 735.201(1) . . . . 18.2.B 735.201(2) . . . . 6.3.C, 18.2.B, 18.2.F, 18.2.G, 18.2.H, 18.2.I 735.203 . . . . 18.2.K.1 735.203(1) . . . . 18.2.C, 18.2.K.1 735.203(2)(a) . . . . 18.2.C 735.203(2)(b) . . . . 18.2.C

735.203(2)(c) . . . . 18.2.C 735.2055 . . . . 18.2.E 735.206 . . . . 8.2.A.3 735.206(1) . . . . 18.2.D 735.206(2) . . . . 8.2.A.1, 8.2.A.3, 18.2.B, 18.2.J, 18.2.M 735.206(4) . . . . 18.2.L 735.206(4)(b) . . . . 18.2.L 735.206(4)(c) . . . . 18.2.L 735.206(4)(d) . . . . 8.2.A.2.e 735.206(4)(e) . . . . 8.2.A.3, 18.2.M 735.206(4)(f) . . . . 18.2.M 735.206(4)(g) . . . . 18.2.N 735.2063 . . . . 8.2.A.3, 18.2.A, 18.2.J 735.2063(1) . . . . 18.2.M 735.2063(2) . . . . 8.2.A.3, 18.2.J, 18.2.M 735.301 . . . . 4.3.A.10, 8.2.A.2.c, 18.3 735.301(1) . . . . 6.3.C, 18.3 735.301(2) . . . . 18.3 735.302 . . . . 1.2.E.2.a.iv, 1.2.E.10.b, 1.3.C.1.d, 6.5.V, 14.3.D.3 735.302(1) . . . . 18.5.A 735.302(2) . . . . 18.5.A 735.303 . . . . 18.3 735.303(1)(a) . . . . 18.3 735.303(3) . . . . 18.3 735.303(4) . . . . 18.3 735.304 . . . . 18.3 735.304(1) . . . . 18.3 735.304(2) . . . . 18.3 735.304(3)(c) . . . . 18.3

735.304(3)(d) . . . . 18.3 735.304(3)(e) . . . . 18.3 735.304(3)(f) . . . . 18.3 736.0103(16) . . . . 1.2.E.2.a.ii, 11.1, 20.2.B.1 736.0103(19) . . . . 2.2.B.2 736.0201 . . . . 21.3.B.1 736.0201(1) . . . . 3.6.CC 736.0201(6) . . . . 21.4.H 736.0201(7) . . . . 19.9.D 736.0202 . . . . 21.4.C 736.0206 . . . . 15.4.B.3 736.0206(5) . . . . 15.3.J, 15.4.F 736.0207 . . . . 21.3.A.1.b.i, 21.3.A.1.b.xiii, 21.3.F 736.0302(1) . . . . 21.4.E 736.0402 . . . . 21.3.A.1.a 736.0403 . . . . 21.3.A.1.a, 21.3.A.1.d.ii.I 736.0403(2)(b) . . . . 1.2.E.1, 21.3.A.1.d.ii.I 736.0406 . . . . 21.3.A.1.a, 21.3.A.1.b.i, 21.3.A.1.b.xiii 736.0407 . . . . 21.3.A.1.d.ii.II 736.04114 . . . . 11.9.A 736.0415 . . . . 21.3.B.5 736.0416 . . . . 21.3.B.5 736.0505(1)(a) . . . . 19.6.A.4 736.05053 . . . . 1.2.E.1, 1.2.E.2.a.iv, 1.2.E.11, 4.3.A.3.c, 8.2.E.2.c, 9.2.F.1, 11.3.I, 15.1, 15.8.A, 21.3.B.2 736.05053(1) . . . . 3.6.CC, 6.5.M, 8.2.E.2.c, 9.2.A, 13.2.G.7, 21.3.B.2 736.05053(2) . . . . 8.2.E.2.c 736.05053(2)–(3) . . . . 7.6.D.1 736.05053(5) . . . . 11.3.I

736.05055 . . . . 8.2.E.2.c 736.05055(1) . . . . 3.6.CC 736.0602(3)(b)2. . . . . 21.3.A.1.e.ii 736.0708 . . . . 15.2.F 736.0708(1) . . . . 15.2.F 736.0804 . . . . 15.2.A 736.1004 . . . . 21.4.H 736.1005 . . . . 11.6, 15.4.M.4, 21.4.H 736.1006 . . . . 15.4.M.4, 21.4.H 736.1007 . . . . 15.4.B.3, 15.4.H.5 736.1007(1)(b) . . . . 15.4.C 736.1014 . . . . 1.2.E.1, 1.2.E.2.a.iv, 1.2.E.11, 8.2.E.2.c 736.1104 . . . . 7.8.C.2, 21.3.A.1.e.vii 736.1105 . . . . 11.6 736.1106 . . . . 21.3.B.2 736.1108 . . . . 21.3.B.2 736.1109(1) . . . . 19.6.A.1, 19.6.A.2 736.1109(2) . . . . 19.5.B.7 736.1109(3) . . . . 19.5.B.7 736.1501 . . . . 19.6.A.4 736.151 . . . . 19.6.A.4 736.151(1) . . . . 19.6.A.4 737.111 . . . . 1.2.E.1 737.2041 . . . . 15.4.B.3 737.206 . . . . 21.3.F 737.2065 . . . . 21.3.F 737.3061(1) . . . . 8.2.E.2.c 737.625 . . . . 21.3.A.1.e.vii 738 . . . . 12.1.A, 14.2.C.1

738.102 . . . . 12.1.A 738.102(5) . . . . 9.3.H 738.102(11) . . . . 9.3.H 738.103 . . . . 13.5 738.103(1) . . . . 13.2.G.8 738.103(1)(a) . . . . 12.1.B 738.103(1)(a)–(c) . . . . 12.1.A 738.103(1)(c) . . . . 12.1.B 738.103(2) . . . . 12.1.B, 12.5 738.1041 . . . . 12.1.B 738.201 . . . . 12.6.D, 13.2.E.2.a, 21.3.D 738.201(1) . . . . 9.2.F.1, 13.2.G.8, 14.3.C.6.g 738.201(2) . . . . 9.2.F.1 738.201(2)(b) . . . . 12.5 738.201(2)(c) . . . . 12.5 738.201(3) . . . . 13.2.G.8 738.201(4) . . . . 13.2.G.8 738.201(5) . . . . 14.3.C.6.g 738.202 . . . . 13.2.G.8, 21.3.D 738.301–738.303 . . . . 12.4 738.301–738.706 . . . . 14.3.C.6.g 738.301 . . . . 12.5 738.302(1) . . . . 12.5 738.302(2)–(3) . . . . 12.5 738.302(3) . . . . 12.5 738.303(2) . . . . 6.5.N 738.401–738.403 . . . . 9.3.H 738.401(2) . . . . 12.5 738.401(3)(a) . . . . 12.5

738.401(3)(c) . . . . 12.5 738.401(4) . . . . 12.5 738.401(5)(b) . . . . 12.5 738.401(6) . . . . 12.5 738.401(6)(a)–(6)(b) . . . . 12.5 738.401(6)(b) . . . . 12.5 738.401(7)(a) . . . . 12.5 738.401(7)(d) . . . . 12.5 738.401(7)(d)1 . . . . 12.5 738.402 . . . . 12.5 738.403 . . . . 12.5 738.501 . . . . 10.7.B 738.503 . . . . 9.3.H 738.503(1)–(2) . . . . 12.5 738.504(1) . . . . 12.5 738.602(3) . . . . 12.5 738.603(2) . . . . 12.5 738.605(1) . . . . 12.5 738.605(1)(c) . . . . 12.5 738.607(2) . . . . 12.5 738.608(2) . . . . 12.5 738.608(3) . . . . 12.5 738.701 . . . . 9.2.E.1, 14.3.C.6.g 738.701(3) . . . . 4.3.A.8.c, 4.3.A.8.d, 12.5 738.702 . . . . 9.2.E.1, 14.3.C.6.g 738.702(1)(h) . . . . 4.3.A.8.c, 12.5 738.703(2)(b) . . . . 12.5 738.705 . . . . 9.2.E.1 738.705(3)(a) . . . . 12.5

738.705(3)(c) . . . . 12.5 738.706 . . . . 9.2.E.1 738.804 . . . . 9.2.E.1, 12.1.A, 13.2.G.8 739 . . . . 1.2.E.2.a.i, 11.10, 14.3.D.5.b 739.103 . . . . 11.10 739.104(1) . . . . 19.5.B.5 739.201 . . . . 7.2.D 739.402(2)(d) . . . . 19.5.B.5 739.701 . . . . 11.10 740.001 . . . . 6.3.B 740.002(9) . . . . 9.5 740.002(10) . . . . 9.5 740.005–740.007 . . . . 4.3.A.3.b 740.006–740.007 . . . . 4.3.A.3.b 740.006 . . . . 4.3.A.3.b, 9.5 740.007 . . . . 9.5 740.05 . . . . 4.3.A.3.b 740.08 . . . . 9.5 740.08(1)(a)–(1)(b) . . . . 9.5 741.211 . . . . 7.7.A, 13.2.B 742 . . . . 11.2.B.4 742.17 . . . . 21.3.G 743.07 . . . . 19.5.B.8 744.102(1) . . . . 21.3.A.1.b.iii.II 744.301(2) . . . . 13.2.B 744.301(2)(c) . . . . 14.3.C.5 744.3021(1) . . . . 8.3.D 744.3025 . . . . 8.3.D 744.3025(1) . . . . 11.11

744.3215(2)(a) . . . . 21.3.A.1.b.vi 744.3215(3)(b) . . . . 8.3.D 744.345 . . . . 8.3.D 744.387 . . . . 8.3.D 744.387(2) . . . . 8.3.D 744.387(3)(a) . . . . 11.11 744.387(3)(b) . . . . 11.11 744.391 . . . . 2.8.A 744.394 . . . . 8.3.C.1.b 744.441(1)(k) . . . . 8.3.D, 21.3.F 744.441(11) . . . . 21.3.A.1.b.xiii 744.444(2) . . . . 8.3.D 765 . . . . 1.2.A.5 765.101 . . . . 1.2.A.5 765.510 et seq. . . . . 1.2.A.5 765.512(3) . . . . 1.2.A.5 765.513 . . . . 1.2.A.5 765.514 . . . . 1.2.A.2 765.514(1)(e) . . . . 1.2.A.5 765.514(1)(f) . . . . 1.2.A.5 765.5155 . . . . 1.2.A.5 765.517 . . . . 1.2.A.5 765.517(1) . . . . 1.2.A.1 765.5185 . . . . 1.2.A.5, 1.2.A.8 765.519 . . . . 1.2.A.5 765.522(1) . . . . 1.2.A.5 768.16–768.26 . . . . 1.2.E.10.b, 8.3.B.2.a.i, 11.11 768.16 et seq. . . . . 6.5.E 768.20–768.21 . . . . 4.3.C.7

768.20 . . . . 4.3.A.3.f, 8.3.B.2.a.i, 11.11 768.21 . . . . 4.3.A.3.f 768.23 . . . . 11.11 768.25 . . . . 11.11 768.79 . . . . 21.4.H 790.33 . . . . 10.6.B.4 812.014 . . . . 18.3 825.101 . . . . 21.3.A.1.e.viii 837.02 . . . . 2.1.G 872.01 . . . . 1.2.A.5 872.03 . . . . 1.2.A.7 872.04(2) . . . . 1.2.A.6 872.04(3) . . . . 1.2.A.6 872.04(4) . . . . 1.2.A.6 895.02(9) . . . . 19.7 895.05(2)(a) . . . . 19.7 925.09 . . . . 1.2.A.6 936.003 . . . . 1.2.A.6 1009.98 . . . . 8.2.E.2.c, 18.2.G 1009.981 . . . . 8.2.E.2.c, 18.2.G

Rules Regulating The Florida Bar Canon . . . . Text Sec. 2.516(b)(1)(A) . . . . 2.2.E.2 4 . . . . 4.2.A, 21.3.A.1.b.xii 4-1.2(a) . . . . 21.3.A.1.b.iii.II 4-1.3 . . . . 15.4.D.2.a 4-1.4 . . . . 1.3.C.2 4-1.5 . . . . 15.4.B.1, 15.4.K 4-1.5(a) . . . . 15.4.I 4-1.5(b) . . . . 15.2.F 4-1.5(e) . . . . 15.4.H.3, 15.4.K, 15.4.M.6 4-1.6(a) . . . . 21.2.B 4-1.7 . . . . 4.2.B, 15.4.O.2, 21.2.B, 21.2.C.3 4-1.7(a) . . . . 21.2.D 4-1.7(a)(2) . . . . 21.2.D 4-1.7(b) . . . . 21.2.D 4-1.8 . . . . 15.4.H.1, 15.4.O.2, 21.3.A.1.b.xii 4-1.8(c) . . . . 21.3.A.1.b.xii 4-1.9 . . . . 21.2.C.3 4-1.14 . . . . 21.3.A.1.b.iii.II 4-1.15 . . . . 4.3.A.4, 4.4.B.1 4-3.7(a) . . . . 21.2.C.2 4-3.7(b) . . . . 21.2.C.3 4-3.7(b) . . . . 21.2.C.3 4-4.3 . . . . 21.2.B 5-1.1 . . . . 15.4.H.5

FEDERAL STATUTES, RULES, AND REGULATIONS United States Constitution Amend. . . . . Text Sec. amend.:5 . . . . 3.6.V amend.:14 . . . . 21.4.D art.:4:1 . . . . 17.1 art.:6:2 . . . . 21.3.C.4 art.:IV:1 . . . . 3.6.D.2 art.:VI:2 . . . . 19.7

United States Code Title:Sec. . . . . Text Sec. 18:2701(a) . . . . 10.6.B.5 18:5845(e) . . . . 10.6.B.4 26:13.2 . . . . 10.7.A 26:62(a) . . . . 14.3.B.3 26:67 . . . . 14.3.B.3 26:67(3)(1) . . . . 14.3.B.3 26:67(a) . . . . 14.3.B.3 26:102 . . . . 9.2.E.1 26:102(a) . . . . 13.2.E.2.e, 21.5 26:102(b)(2) . . . . 9.2.E.1 26:163 . . . . 9.3.G 26:163(d) . . . . 9.3.G 26:164 . . . . 9.2.E.1 26:164(a)(1) . . . . 9.2.E.1 26:213(a) . . . . 8.2.E.1.b 26:213(c) . . . . 8.2.E.1.b 26:267 . . . . 13.2.E.2.c 26:303 . . . . 4.3.A.7, 15.4.E, 15.4.H.5 26:318(a) . . . . 13.2.E.2.c 26:401(a)(9) . . . . 14.3.B.4 26:401(a)(9)(B)(i) . . . . 14.3.B.4 26:401(a)(9)(B)(ii) . . . . 14.3.B.4 26:401(a)(9)(C) . . . . 14.3.B.4 26:408 . . . . 6.5.Q 26:408A . . . . 6.5.Q

26:441(b) . . . . 4.3.A.7 26:443(a)(2) . . . . 10.7.B 26:446(c) . . . . 10.7.B 26:453 . . . . 10.4.C, 13.2.E.2.c 26:453B . . . . 13.2.E.2.c 26:453B(c) . . . . 13.2.E.2.c 26:529 . . . . 8.2.E.2.c, 11.9.D.3.a, 13.2.G.3, 18.2.G 26:641(a)(3) . . . . 10.7.B 26:642(b) . . . . 14.3.B.3 26:642(g) . . . . 4.3.A.8.c, 9.2.E.1, 15.8.A 26:642(h)(1) . . . . 14.3.B.3 26:642(h)(2) . . . . 14.3.B.3, 15.4.J 26:643 . . . . 13.2.E.1, 13.2.E.2.a 26:643(a)(3) . . . . 13.2.E.1 26:643(b) . . . . 7.4.A 26:643(e) . . . . 13.2.E.1 26:643(e)(2) . . . . 13.2.E.1 26:643(e)(3) . . . . 13.2.E.1 26:643(e)(3)(B) . . . . 13.2.E.1 26:643(g) . . . . 13.2.E.1 26:645 . . . . 10.7.B, 12.2.D, 13.2.G.6.b, 15.4.D.2.f 26:651 . . . . 14.3.B.3 26:661 . . . . 7.2.E.3, 13.2.E.1, 14.3.B.3 26:661–662 . . . . 13.2.E.2.a 26:661(a) . . . . 14.3.B.1 26:662 . . . . 7.2.E.3, 13.2.E.1, 13.2.G.5 26:662(a) . . . . 13.2.E.2.b, 14.3.B.1 26:662(a)(2)(B) . . . . 13.2.E.2.b 26:663 . . . . 7.2.E.3, 9.2.E.1, 13.2.E.1, 13.2.E.2.e

26:663(a)(1) . . . . 9.2.E.1, 13.2.E.2.e, 21.3.D 26:663(b) . . . . 13.2.E.1 26:663(c) . . . . 13.2.E.2.b, 14.3.B.1 26:691 . . . . 10.7.A, 13.2.E.2.c 26:691(a)(3) . . . . 10.7.A 26:691(a)(4) . . . . 10.7.A 26:691(a)(5) . . . . 13.2.E.2.c 26:691(b) . . . . 9.2.E.1, 15.8.A 26:691(c) . . . . 10.7.A 26:706(c) . . . . 13.2.G.6.b 26:742 . . . . 9.4.C.3.a 26:743 . . . . 9.4.C.3.a 26:754 . . . . 6.5.A, 9.4.C.3.a 26:901 . . . . 4.3.C.1 26:1014 . . . . 13.2.E.2.c 26:1014(a) . . . . 9.2.E.1, 9.4.C.3.a, 13.2.E.1 26:1014(a)(1) . . . . 10.7.B 26:1014(b)(1) . . . . 9.2.E.1, 13.2.E.2.e 26:1014(c) . . . . 13.2.E.2.c, 13.2.E.2.e 26:1014(f) . . . . 10.7.B 26:1022 . . . . 1.2.E.11, 10.7.B, 13.2.E.2.e 26:1031 . . . . 10.6.D 26:1223(9) . . . . 13.2.E.2.e 26:1245 . . . . 13.2.E.2.d 26:1250 . . . . 13.2.E.2.d 26:1361 . . . . 13.2.G.6.b 26:1361(b) . . . . 13.2.G.6.b 26:1361(c)(2) . . . . 13.2.G.6.b 26:1361(c)(2)(A) . . . . 9.4.C.1

26:1361(c)–(e) . . . . 9.4.C.1 26:1362(a) . . . . 9.4.C.1 26:1362(d) . . . . 9.4.C.1 26:1362(d)(1)(B) . . . . 9.4.C.1 26:1362(d)(1)(C) . . . . 9.4.C.1 26:1363(a) . . . . 9.4.C.1 26:1366 . . . . 9.4.C.1 26:2002 . . . . 4.3.A.7 26:2010 . . . . 4.3.A.7 26:2010(c) . . . . 4.3.A.10, 15.3.B 26:2010(c)(4) . . . . 15.3.B 26:2010(c)(5)(A) . . . . 4.3.A.7, 14.2.B 26:2031 . . . . 6.3.E, 9.2.D.2, 15.4.H.5 26:2032A . . . . 11.9.B.2 26:2032(c) . . . . 13.2.C 26:2033 . . . . 9.2.E.1, 9.4.C.3.a 26:2035 . . . . 11.9.D.3.a 26:2036 . . . . 11.9.C.4.c 26:2038 . . . . 11.9.C.4.c 26:2040 . . . . 4.3.A.3.d, 21.3.E 26:2041 . . . . 11.9.C.4.c, 11.9.D.3.g 26:2042 . . . . 1.2.E.4.b.i, 7.5.A.8 26:2044 . . . . 11.9.C.2, 11.9.C.4.c, 11.9.D.3.g 26:2046 . . . . 7.2.E.2, 11.10 26:2053 . . . . 1.2.B.4, 4.3.A.8.c, 8.4, 8.5.D, 9.2.E.1, 9.3.G, 15.8.A 26:2053(a) . . . . 15.8.A 26:2053(a)(3) . . . . 9.2.E.1 26:2053(c)(1)(B) . . . . 15.8.A 26:2054 . . . . 4.3.A.8.c, 9.2.E.1

26:2056 . . . . 7.2.E.1, 7.2.E.2 26:2056(c)(3) . . . . 7.2.E.2 26:2056(d) . . . . 7.2.E.2 26:2056(d)(2) . . . . 7.2.E.2 26:2058 . . . . 11.9.C.2, 11.9.D.3.k 26:2203 . . . . 11.9.B.2 26:2204 . . . . 4.3.A.7, 4.3.A.10, 4.3.C.1, 13.2.H 26:2207A . . . . 1.2.E.11, 11.9.C.1, 11.9.C.4.c, 11.9.D.3.f 26:2207B . . . . 11.9.C.1, 11.9.C.4.c, 11.9.D.3.f 26:2503(b) . . . . 7.5.A.10.a 26:2503(c) . . . . 7.5.A.10.a 26:2503(e) . . . . 7.5.A.10.a 26:2512(b) . . . . 14.3.D.5.b 26:2518 . . . . 7.2.E.2, 11.10, 15.3.K 26:2518(a) . . . . 14.3.D.5.b 26:2518(b)(2)(A) . . . . 15.3.K 26:2603 . . . . 11.9.B.2, 11.9.C.1, 11.9.C.3, 11.9.C.4.c, 11.9.D.3.f 26:2703 . . . . 9.4.C.3.a 26:5801–5872 . . . . 10.6.B.4 26:5811 . . . . 10.6.B.4 26:5845(a) . . . . 10.6.B.4 26:6012(a)–(b) . . . . 4.3.A.7 26:6012(b)(1) . . . . 5.7.A 26:6018 . . . . 4.3.A.7, 21.3.E 26:6018(a) . . . . 4.3.A.7 26:6018(a)(2) . . . . 4.3.A.7 26:6018(a)(3) . . . . 4.3.A.7 26:6019 . . . . 4.3.A.7 26:6035 . . . . 10.7.B

26:6061 . . . . 15.8.A 26:6075(a) . . . . 12.2.C, 17.4.B 26:6081 . . . . 4.3.A.7 26:6161 . . . . 4.3.A.7 26:6163 . . . . 4.3.A.7 26:6166 . . . . 4.3.A.7, 15.4.E, 15.4.H.5 26:6324 . . . . 4.3.A.5, 13.4.B 26:6324(a)(2) . . . . 11.9.B.2, 13.2.H 26:6401 . . . . 14.3.D.3 26:6501 . . . . 15.8.A 26:6501(d) . . . . 13.2.H 26:6654(l) . . . . 4.3.A.7, 13.2.E.1 26:6901(h) . . . . 13.2.H 26:6903 . . . . 4.3.A.7, 4.3.A.10, 4.3.C.1 26:6904 . . . . 4.3.C.1 26:6905 . . . . 4.3.A.7, 13.2.H 28:1332 . . . . 3.3 28:1441–1447 . . . . 3.3 28:1738 . . . . 11.2.A.4 31:3713(b) . . . . 4.3.A.7, 13.1, 13.2.H, 13.4.B 31:6325 . . . . 13.4.B 38:2301 . . . . 1.2.A.4 38:5502(e) . . . . 1.2.E.2.a.i, 11.2.E 38:8520–8521 . . . . 1.2.E.2.a.i 42:1983 . . . . 1.2.A.1 42:9601 . . . . 3.6.C, 4.3.D.3, 8.3.B.2.c 42:9601(35) . . . . 4.3.D.3 45:231 . . . . 7.5.A.9, 7.6.B 50:3901 . . . . 11.8.D, 19.9.K

50:3931(b)(1) . . . . 19.9.K Appx. 501 et seq. . . . . 19.9.K

Code of Federal Regulations Title:Sec. . . . . Text Sec. 20:404.502(b) . . . . 1.2.E.9 20.2053-1(c)(2) . . . . 15.8.A 26:1.443-1(a)(2) . . . . 10.7.B 26:1.641(b)-3(a) . . . . 14.3.B.2 26:1.642(h)-3 . . . . 14.3.B.3 26:1.643(a)-3 . . . . 13.2.E.1 26:1.661(a)-2(f) . . . . 9.2.E.1, 13.2.E.1 26:1.662(a)-3 . . . . 13.2.G.5 26:1.663(a)-1(b)(1) . . . . 13.2.E.2.c 26:1.663(c) . . . . 13.2.E.2.b 26:1.663(c)-5 . . . . 7.2.E.3, 13.2.E.2.b 26:1.691(b)-l(a) . . . . 9.2.E.1 26:1.1014-4(a) . . . . 13.2.E.1 26:1.6012-3(a)(3) . . . . 17.4.B 26:20.2002-1 . . . . 11.9.B.2 26:20.2031-1(b) . . . . 6.4.B 26:20.2031-2 . . . . 9.2.D.2 26:20.2031-3 . . . . 9.4.C.3.a 26:20.2031-6(c) . . . . 13.4.B 26:20.2033-1(b) . . . . 4.3.A.3.k.ii, 6.5.J 26:20.2053-1(b)(1) . . . . 15.8.A 26:20.2053-1(c) . . . . 15.8.A, 15.8.B 26:20.2053-1(d) . . . . 15.8.A 26:20.2053-2 . . . . 1.2.B.4, 15.8.B 26:20.2053-3(a) . . . . 15.8.C

26:20.2053-3(c) . . . . 15.8.E 26:20.2053-3(d) . . . . 15.8.F 26:20.2053-3(d)(1) . . . . 9.2.E.1 26:20.2053-4 . . . . 8.4 26:20.2053-6(f) . . . . 8.4 26:20.2053-7 . . . . 8.4 26:20.2053-8 . . . . 15.8.A 26:20.2053-l(a)(1)–1(a)(2) . . . . 15.8.A 26:20.2056(b)-4 . . . . 9.2.F.1 26:20.6018-2 . . . . 4.3.A.7 26:20.6018-4 . . . . 4.3.A.7 26:301.6401-1 et seq. . . . . 14.3.D.3 26:301.6903-1(a) . . . . 5.7.B 26:301.6903-1(c) . . . . 5.7.B 27:479.90a . . . . 10.6.B.4 31:501–598 . . . . 13.2.B 31:515 . . . . 11.2.B.5, 13.2.B 31:515.327 . . . . 11.2.B.5 31:515.407 . . . . 11.2.B.5 31:515.508 . . . . 11.2.B.5 31:515.523 . . . . 11.2.B.5

Federal Rules of Civil Procedure Rule . . . . Text Sec. 8 . . . . 21.3.A.1.a 23 . . . . 8.3.B.2.a.xi 44 . . . . 2.10.A

Licensed to Otis K Pitts, Otis K Pitts

TABLE OF CASES [References are to sections] A B C D E F G H I J K L M N O P Q R S T U V W Y Z

A Abbale v. Lopez, 511 So. 2d 340 (Fla. 3d DCA 1987) . . . . 6.5.T, 21.3.F Acorn Wood Realty v. Old Colony Trust Co., 113 Fla. 320, 151 So. 533 (1933) . . . . 17.1 Adams v. Adams, 147 Fla. 267, 2 So. 2d 855 (1941) . . . . 7.1.C Adams v. Clark, 48 Fla. 205, 37 So. 734 (1904) . . . . 19.5.B.8 Adams v. Vidal, 60 So. 2d 545 (Fla. 1952) . . . . 21.3.B.3 Aetna Insurance Co. v. LaGasse, 223 So. 2d 727 (Fla. 1969) . . . . 19.5.B.2, 19.7 Agency for Health Care Administration v. Estate of Johnson, 743 So. 2d 83 (Fla. 3d DCA 1999) . . . . 21.3.C.4 Agnello, Estate of v. Commissioner, 103 T.C. 605 (1994) . . . . 7.2.E.2 Aguilar v. Aguilar, 15 So. 3d 803 (Fla. 2d DCA 2009) . . . . 3.6.X Ahlman v. Wolf, 483 So. 2d 889 (Fla. 3d DCA 1986) . . . . 21.3.A.1.b.v Albear v. Hillman-Waller, 275 So. 3d 690 (Fla. 3d DCA 2019) . . . . 2.4 Albritton v. Estate of Albritton, 731 So. 2d 154 (Fla. 1st DCA 1999) . . . . 4.3.D.2.d Alcala, In re Estate of, 188 So. 2d 903 (Fla. 2d DCA 1966) . . . . 7.7.A Aldrich v. Basile, 136 So. 3d 530 (Fla. 2014) . . . . 11.3.G, 21.3.B.3 Alexander, In re, 346 B.R. 546 (Bankr. M.D. Fla. 2006) . . . . 19.6.A.4, 19.6.B Alexdex Corp. v. Nachon Enterprises, Inc., 641 So. 2d 858 (Fla. 1994) . . . . 3.6.BB.1 Aliotta, In re, 68 B.R. 281 (Bankr. M.D. Fla. 1986) . . . . 19.2.B.5 Allen v. Dalk, 826 So. 2d 245 (Fla. 2002) . . . . 21.3.A.1.d.i, 21.3.A.1.e.ii Allen v. Estate of Dutton, 394 So. 2d 132 (Fla. 5th DCA 1981) . . . . 3.6.R, 21.4.J Allen v. Montalvan, 201 So. 3d 705 (Fla. 4th DCA 2016) . . . . 11.11 Almazan v. Estate of Aguilera-Valdez, 273 So. 3d 9 (Fla. 4th DCA

2019) . . . . 3.6.L, 3.6.Q American Red Cross v. Estate of Haynsworth, 708 So. 2d 602 (Fla. 3d DCA 1998) . . . . 16.3.A, 21.3.A.1.b.i, 21.3.A.1.c.i, 21.3.A.1.c.ii, 21.3.A.3 AMP Services Ltd. v. Walanpatrias Foundation, 73 So. 3d 346 (Fla. 4th DCA 2011) . . . . 8.2.E.2.c Anders, In re Estate of, 197 So. 2d 837 (Fla. 1st DCA 1967) . . . . 7.8.C.1 Anders, In re Estate of, 209 So. 2d 269 (Fla. 1st DCA 1968) . . . . 21.4.E Anderson v. Letosky, 304 So. 3d 801 (Fla. 2d DCA 2020) . . . . 19.2.B.5 Anderson v. McDonough, 189 So. 3d 266 (Fla. 2d DCA 2016) . . . . 3.6.L, 4.4.B.2, 15.4.M.4 Anderson, In re Estate of, 394 So. 2d 1146 (Fla. 4th DCA 1981) . . . . 7.7.A, 7.8.D.1 Andrews v. McGowan, 739 So. 2d 132 (Fla. 5th DCA 1999) . . . . 1.2.A.1 Angeleri, In re Estate of, 575 So. 2d 794 (Fla. 4th DCA 1991) . . . . 1.2.D.7 Arko Enterprises, Inc. v. Wood, 185 So. 2d 734 (Fla. 1st DCA 1966) . . . . 8.3.B.2.b.ii.II Armour & Co. v. Hulvey, 73 Fla. 294, 74 So. 212 (1917) . . . . 19.2.B.1, 19.2.B.5 Armour & Co. v. Lambdin, 154 Fla. 86, 16 So. 2d 805 (1944) . . . . 4.4.B.1 Aronson v. Aronson, 81 So. 3d 515 (Fla. 3d DCA 2012) . . . . 4.3.A.3.k.ii, 19.2.B.1, 19.2.B.4.a, 19.5.B.7, 19.6.A.2, 19.9.I.1 Arroyo, In re Estate of, 211 So. 3d 240 (Fla. 3d DCA 2017) . . . . 8.2.F.1, 8.3.B.2.a.i, 8.3.B.2.b.i.II Arthur v. Milstein, 949 So. 2d 1163 (Fla. 4th DCA 2007) . . . . 1.2.A.1, 1.2.A.2 Artigas v. Enriquez, 617 So. 2d 423 (Fla. 3d DCA 1993) . . . . 19.5.B.8 Arzuman v. Estate of Bin, 879 So. 2d 675 (Fla. 4th DCA 2004) . . . . 8.3.B.2.a.iv Ashkenazy v. Estate of Ashkenazy, 140 So. 2d 331 (Fla. 3d DCA 1962) . . . . 1.2.E.5 Astor v. Astor, 107 So. 2d 201 (Fla. 3d DCA 1958) . . . . 3.6.D.2 Astrue v. Capato, 566 U.S. 541, 132 S. Ct. 2021, 182 L. Ed. 2d 887

(2021) . . . . 21.3.G Auerbacher’s Estate, In re, 41 So. 2d 659 (Fla. 1949) . . . . 21.3.A.1.b.ix, 21.3.A.1.b.vi

B Babcock v. Estate of Babcock, 995 So. 2d 1044 (Fla. 4th DCA 2008) . . . . 11.3.H Bacardi v. De Lindzon, 728 So. 2d 309 (Fla. 3d DCA 1999) . . . . 3.6.CC Baer, In re Estate of, 446 So. 2d 1128 (Fla. 4th DCA 1984) . . . . 3.6.E Baggett v. Electricians Local 915 Credit Union, 620 So. 2d 784 (Fla. 2d DCA 1993) . . . . 21.3.E Baillargeon v. Sewell, 33 So. 3d 130 (Fla. 2d DCA 2010) . . . . 8.3.B.2.a.xi Bain v. McIntosh, 597 Fed. Appx. 623 (11th Cir. 2015) . . . . 21.2.B Baird, In re Estate of, 343 So. 2d 41 (Fla. 4th DCA 1977) . . . . 5.6.C.1 Baker v. Baker, 622 So. 2d 541 (Fla. 5th DCA 1993) . . . . 7.8.B.2 Baker v. State, 17 Fla. 406 (1879) . . . . 19.4.A.2 Baker, In re Estate of, 339 So. 2d 240 (Fla. 3d DCA 1976) . . . . 4.3.C.5.b, 15.3.J Balboni v. Larocque, 991 So. 2d 993 (Fla. 4th DCA 2008) . . . . 5.6.C.1 Baldwin v. Harris, 309 So. 3d 293 (Fla. 5th DCA 2021) . . . . 21.3.B.3 Ballantine v. Tomlinson, 293 F.2d 311 (5th Cir. 1961) . . . . 9.2.F.1 Ballard v. Pritchard, 332 So. 3d 570 (Fla. 2d DCA 2021) . . . . 19.5.B.5 BankAtlantic v. Estate of Glatzer, 61 So. 3d 1222 (Fla. 3d DCA 2011) . . . . 4.3.A.3.c Baptist Hospital of Miami, Inc. v. Carter, 658 So. 2d 560 (Fla. 3d DCA 1995) . . . . 3.6.C Baptist Hospital of Miami, Inc. v. Carter, 658 So. 2d 560 (Fla. 3d DCA 1995) . . . . 8.2.B.3.b Baptiste v. Commissioner, 29 F.3d 433 (8th Cir. 1994) . . . . 13.2.H Baptiste v. Commissioner, 29 F.3d 1533 (11th Cir. 1994) . . . . 13.2.H Barber v. Parrish, 963 So. 2d 892 (Fla. 1st DCA 2007) . . . . 11.2.B.2 Barfield v. Schmon, 537 So. 2d 1056 (Fla. 4th DCA 1989) . . . . 17.1 Barker, In re Estate of, 448 So. 2d 28 (Fla. 1st DCA 1984) . . . . 21.3.A.4,

21.3.B.5 Barlow v. Barlow, 156 Fla. 458, 23 So. 2d 723 (1945) . . . . 19.8 Barnard v. Gunter, 625 So. 2d 56 (Fla. 3d DCA 1993) . . . . 6.5.T, 21.3.F Barnett v. Barnett, 340 So. 2d 548 (Fla. 1st DCA 1977) . . . . 7.7.I, 11.2.A.2 Barnett Bank of Palm Beach County v. Estate of Read, 493 So. 2d 447 (Fla. 1986) . . . . 3.6.C, 8.2.B.3.a, 8.2.C.3, 8.3.A.1, 21.3.C.2, 21.3.C.3 Barret’s Estate, In re, 40 So. 2d 125 (Fla. 1949) . . . . 21.4.E Barrett v. Kapoor, 278 So. 3d 876 (Fla. 3d DCA 2019) . . . . 21.3.B.3 Barsanti, In re Estate of, 773 So. 2d 1206 (Fla. 3d DCA 2000) . . . . 3.6.Q Barteau, In re Estate of, 736 So. 2d 57 (Fla. 2d DCA 1999) . . . . 3.6.BB.1, 3.6.N, 17.1, 21.4.B Bartelt v. Bartelt, 579 So. 2d 282 (Fla. 3d DCA 1991) . . . . 19.5.B.2, 19.5.B.7 Bartkowiak, In re Estate of, 645 So. 2d 1082 (Fla. 3d DCA 1994) . . . . 8.2.B.2 Barton v. Oculina Bank, 26 So. 3d 640 (Fla. 4th DCA 2010) . . . . 19.2.B.1 Barton, In re Estate of, 631 So. 2d 315 (Fla. 2d DCA 1994) . . . . 11.11 Batzle v. Baraso, 776 So. 2d 1107 (Fla. 5th DCA 2001) . . . . 3.6.P Baumann v. Estate of Blum, 898 So. 2d 1106 (Fla. 2d DCA 2005) . . . . 15.2.G, 15.3.J, 15.4.E, 15.4.F Baxter, In re Estate of, 91 So. 2d 316 (Fla. 1957) . . . . 3.6.A Bayuk v. Prisiajniouk, 2019 U.S. Dist. LEXIS 222331 (M.D. Fla. 2019) . . . . 21.3.F Bayview Loan Servicing, LLC v. Giblin, 9 So. 3d 1276 (Fla. 4th DCA 2009) . . . . 19.2.B.2, 19.5.B.8 Beakes, In re Estate of, 306 So. 2d 99, 71 A.L.R.3d 873 (Fla. 1975) . . . . 21.3.A.1.d.i Beal Bank, SSB v. Almand & Associates, 780 So. 2d 45 (Fla. 2001) . . . . 6.5.S Beal Bank, SSB v. Almand & Associates, 780 So. 2d 45 (Fla. 2001) . . . . 1.2.E.3 Beane v. SunTrust Banks, Inc., 47 So. 3d 922 (Fla. 4th DCA 2010) . . . . 6.5.T

Beaubien v. Cambridge Consolidated, Ltd., 652 So. 2d 936 (Fla. 5th DCA 1995) . . . . 3.6.CC Bechtel v. Estate of Bechtel, 330 So. 2d 217 (Fla. 2d DCA 1976) . . . . 1.2.E.2.b Bechtel, In re Estate of, 348 So. 2d 927 (Fla. 2d DCA 1977) . . . . 1.2.E.2.b, 6.5.S Beck v. Beck, 383 So. 2d 268 (Fla. 3d DCA 1980) . . . . 15.2.A, 15.3.J, 15.4.H.3, 15.5.B Becklund v. Fleming, 869 So. 2d 1 (Fla. 2d DCA 2003) . . . . 8.2.E.2.c Bedford Computer Corp. v. Graphic Press, Inc, 484 So. 2d 1225 (Fla. 1986) . . . . 21.4.D Bedingfield v. Bedingfield, 417 So. 2d 1047 (Fla. 4th DCA 1982) . . . . 3.6.D.4 Beekhuis v. Morris, 89 So. 3d 1114 (Fla. 4th DCA 2012) . . . . 3.6.CC Beeman, In re Estate of, 391 So. 2d 276 (Fla. 4th DCA 1980) . . . . 3.8.A Beke v. Estate of Molnar, 82 So. 2d 595 (Fla. 1955) . . . . 3.6.BB.1 Beltran v. Kalb, 63 So. 3d 783 (Fla. 3d DCA 2011) . . . . 19.2.B.1 Bemis v. Loftin, 127 Fla. 515, 173 So. 683 (1937) . . . . 7.8.C.2 Bendl v. Bendl, 246 So. 2d 574 (Fla. 3d DCA 1971) . . . . 19.2.B.4.d, 19.5.B.9 Bennett v. Bennett, 157 Fla. 627, 26 So. 2d 650 (1946) . . . . 7.1.D.2 Benson, In re Estate of, 548 So. 2d 775 (Fla. 2d DCA 1989) . . . . 7.8.C.2, 11.2.B.2 Bentley, In re Guardianship of, 342 So. 2d 1045 (Fla. 4th DCA 1977) . . . . 3.1 Benton v. Travelers Insurance Co., 585 So. 2d 434 (Fla. 4th DCA 1991) . . . . 21.4.F Berges v. Infinity Insurance Co., 896 So. 2d 665 (Fla. 2005) . . . . 4.3.A.1 Bernard, In re Estate of, 183 So. 2d 715 (Fla. 1st DCA 1966) . . . . 6.5.V, 6.3.C, 18.2.F Bernays' Estate, In re, 150 Fla. 414, 7 So. 2d 444, 140 A.L.R. 830 (1942) . . . . 11.9.E

Bessemer Properties v. Gamble, 27 So. 2d 832, 158 Fla. 38 (Fla. 1946) . . . . 19.9.I.1, 19.9.I.2, 19.9.J.1, 19.9.J.2 Bessemer Properties v. Gamble, 158 Fla. 38, 27 So. 2d 832 (1946) . . . . 19.2.B.4.a, 19.2.B.4.c Beverly Beach Properties, Inc. v. Nelson, 68 So. 2d 604, 41 A.L.R. 2d 1071 (Fla. 1953) . . . . 3.6.I Biederman v. Cheatham, 161 So. 2d 538 (Fla. 2d DCA 1964) . . . . 1.2.C.2, 5.6.D.1 Bierman, In re Estate of, 587 So. 2d 1163 (Fla. 4th DCA 1991) . . . . 2.4, 3.8.A, 16.3.A Binkow, In re Estate of, 120 So. 2d 15, 80 A.L.R. 2d 1100 (Fla. 3d DCA 1960) . . . . 7.10.B Bitetzakis v. Bitetzakis, 264 So. 3d 297 (Fla. 2d DCA 2019) . . . . 5.3.C.1, 21.3.A.1.d.i Bivins v. Guardianship of Bivins, 223 So. 3d 1006 (Fla. 4th DCA 2017) . . . . 21.4.A Bivins v. Rogers, 207 F. Supp. 3d 1321 (S.D. Fla. 2016) . . . . 1.2.E.2.a.ii Black v. Brammer, 440 So. 2d 24 (Fla. 4th DCA 1983) . . . . 21.3.C.3 Black, In re Estate of, 528 So. 2d 1316 (Fla. 2d DCA 1988) . . . . 3.6.CC, 3.6.O, 7.7.G Blackburn v. Boulis, 184 So. 3d 565 (Fla. 4th DCA 2016) . . . . 3.8.B, 7.5.A.2, 7.6.E, 21.3.D Blits v. Blits, 468 So. 2d 320 (Fla. 3d DCA 1985) . . . . 5.3.C.1 Blocker v. Blocker, 103 Fla. 285, 137 So. 249 (1931) . . . . 2.5 Bloom, In re, 227 So. 3d 165 (Fla. 2d DCA 2017) . . . . 3.8.B Bookman v. Davidson, 136 So. 3d 1276 (Fla. 1st DCA 2014) . . . . 3.1, 15.2.B, 15.4.O.4 Borden, Estate of, 9 T.C.M. (CCH) 630, T.C.M. (RIA) P50185 (1950) . . . . 4.3.C.1 Borough of (see name of borough) Bosch, Estate of; Commissioner v., 387 U.S. 456, 87 S.Ct. 1776, 18 L. Ed. 2d 886 (1967) . . . . 15.8.E

Boulis v. Blackburn, 16 So. 3d 186 (Fla. 1st DCA 2009) . . . . 7.2.E.1, 11.9.C.4.i Bourgeois v. Eberhart, 472 So. 2d 1274 (Fla. 4th DCA 1985) . . . . 21.3.B.3 Bovee, In re Estate of, 626 So. 2d 1096 (Fla. 1st DCA 1993) . . . . 21.3.B.3 Bowdoin v. Rinnier, 81 So. 3d 582 (Fla. 2d DCA 2012) . . . . 4.3.C.6 Bowers v. Mozingo, 399 So. 2d 492 (Fla. 3d DCA 1981) . . . . 19.2.A, 19.7 Boyle v. Schmitt, 602 So. 2d 665 (Fla. 3d DCA 1992) . . . . 7.3.B Braden v. Braden, 436 So. 2d 914 (Fla. 2d DCA 1983) . . . . 3.6.D.2 Bradley v. Bradley, 371 So. 2d 168 (Fla. 3d DCA 1979) . . . . 21.3.A.1.d.i Bragg, In re Estate of, 334 So. 2d 271 (Fla. 3d DCA 1976) . . . . 7.7.A Brake v. Murphy, 736 So. 2d 745 (Fla. 3d DCA 1999) . . . . 4.2.C.2 Brake v. Murphy, 749 So. 2d 1278 (Fla. 3d DCA 2000) . . . . 10.3.D.2 Brake v. Swan, 767 So. 2d 500 (Fla. 3d DCA 2000) . . . . 15.3.J, 15.4.F, 15.4.L Braswell v. Braswell, 890 So. 2d 379 (Fla. 3d DCA 2004) . . . . 19.2.B.5 Brennan v. Estate of Brennan, 40 So. 3d 894 (Fla. 5th DCA 2010) . . . . 21.3.A.1.e.ii Brennan v. Honsberger, 101 So. 3d 415 (Fla. 5th DCA 2012) . . . . 21.3.A.1.e.ii Brennan v. Ryter, 339 So. 2d 661 (Fla. 1st DCA 1976) . . . . 8.3.C.1.b Brickell v. McCaskill, 90 Fla. 441, 106 So. 470 (1925) . . . . 4.2.C.1 Bridges, In re Estate of, 282 So. 2d 197 (Fla. 1st DCA 1973) . . . . 3.8.C Briggs, 543 So. 2d 332 (Fla. 4th DCA 1989) . . . . 8.3.B.1 Brigham v. United States, 160 F.3d 759 (1st Cir. 1998) . . . . 7.2.E.3, 13.5 Brigman, The Florida Bar v., 307 So. 2d 161 . . . . 21.2.D Brindle v. Brindle, 994 So. 2d 1174 (Fla. 3d DCA 2008) . . . . 3.4.B Brock v. Brock, 667 So. 2d 310 (Fla. 1st DCA 1995) . . . . 3.6.Q Brock’s Estate, In re, 63 So. 2d 510 (Fla. 1953) . . . . 6.5.F, 7.8.C.1 Brodfuehrer v. Estate of Brodfuehrer, 833 So. 2d 784 (Fla. 3d DCA 2002) . . . . 3.6.C, 8.3.C.1.b

Brooks v. Degler, 712 So. 2d 419 (Fla. 5th DCA 1998) . . . . 15.4.H.3 Brooks v. Federal Land Bank of Columbia, 106 Fla. 412, 143 So. 749 (1932) . . . . 8.3.B.2.a.viii Brown v. Brown, 149 So. 3d 108 (Fla. 1st DCA 2014) . . . . 16.3.A, 21.3.F Brown v. Brown, 169 So. 3d 286 (Fla. 4th DCA 2015) . . . . 3.6.BB.1, 17.1 Brown, In re Estate of, 134 So. 2d 290 (Fla. 2d DCA 1961) . . . . 7.5.B Brown, In re Estate of, 421 So. 2d 752 (Fla. 4th DCA 1982) . . . . 8.3.C.1.a Brown, In re Guardianship of, 611 So. 2d 1342 (Fla. 4th DCA 1993) . . . . 3.6.V, 21.4.D Brugh, In re Estate of, 306 So. 2d 599 (Fla. 2d DCA 1975) . . . . 8.2.C.1 Brumage, In re Estate of, 460 So. 2d 989 (Fla. 4th DCA 1984) . . . . 11.2.B.2 Brundage v. Bank of America, 996 So. 2d 877 (Fla. 4th DCA 2008) . . . . 14.3.A.3 Bryan v. Dethlefs, 959 So. 2d 314 (Fla. 3d DCA 2007) . . . . 3.5.A Buchman, In re Estate of, 270 So. 2d 384 (Fla. 3d DCA 1972) . . . . 15.4.H.3 Buck v. McNab, 139 So. 2d 734 (Fla. 2d DCA 1962) . . . . 8.3.B.2.b.ii.II Budny, In re Estate of, 815 So. 2d 781 (Fla. 2d DCA 2002) . . . . 14.3.A.3 Buettner v. Fass, 21 So. 3d 114 (Fla. 4th DCA 2009) . . . . 19.2.B.5 Burden v. Dickman, 547 So. 2d 170 (Fla. 3d DCA 1989) . . . . 3.6.V, 21.4.D Burden and Finkelstein v. Southeast Bank, N.A., 490 So. 2d 976 (Fla. 4th DCA 1986) . . . . 3.6.V Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L. Ed. 2d 528 (1985) . . . . 7.7.G Burnett v. Starwood Hotels & Resorts Management Co., 251 So. 3d 223 (Fla. 3d DCA 2018) . . . . 3.1 Burns v. Estate of Cobb, 589 So. 2d 413 (Fla. 5th DCA 1991) . . . . 19.9.C, 19.9.D, 19.9.G, 21.4.F Burris, In re Estate of, 361 So. 2d 152 (Fla. 1978) . . . . 11.2.B.4 Busch v. Busch, 68 So. 2d 350 (Fla. 1953) . . . . 7.8.C.2 Bush v. Webb, 939 So. 2d 215 (Fla. 1st DCA 2006) . . . . 8.3.B.1 Butler, In re Estate of, 189 So. 3d 1050 (Fla. 4th DCA 2016) . . . . 4.3.C.5.b

Butterworth v. Caggiano, 605 So. 2d 56, 16 A.L.R.5th 1118 (Fla. 1992) . . . . 19.7

C C.A.T. LLC v. Island Developers, Ltd., 827 So. 2d 373 (Fla. 3d DCA 2002) . . . . 3.6.F, 3.6.O Cadden, Estate of v. Schickedanz, 855 So. 2d 651 (Fla. 4th DCA 2003) . . . . 8.2.E.2.a Cadgene, In re Estate of, 938 So. 2d 581 (Fla. 2d DCA 2006) . . . . 2.2.B.3, 8.2.C.1, 8.3.C.1.a, 21.3.C.1 Cahill v. Chesley, 189 So. 2d 818 (Fla. 2d DCA 1966) . . . . 19.9.F Cain v. Cain, 549 So. 2d 1161 (Fla. 4th DCA 1989) . . . . 19.2.B.4.a Callava v. Feinberg, 864 So. 2d 429 (Fla. 3d DCA 2004) . . . . 19.2.B.4.c, 19.6.A.4 Campbell v. Campbell, 489 So. 2d 774 (Fla. 3d DCA 1986) . . . . 21.3.B.4 Campbell v. Owen, 132 So. 2d 212 (Fla. 2d DCA 1961) . . . . 4.3.A.2 Campbell, State ex rel. v. Chapman, 145 Fla. 647, 1 So. 2d 278 (1941) . . . . 3.5.C Camps Newfound/Owatonna v. Town of Harrison, 520 U.S. 564, 117 S. Ct. 1590, 137 L. Ed. 2d 852 (1997) . . . . 19.2.B.4.b Cantero v. Estate of Caswell, 305 So. 3d 37 (Fla. 3d DCA 2019) . . . . 4.3.A.6, 5.3.L, 8.2.A.2.e Capiello v. Goodnight, 357 So. 2d 225 (Fla. 2d DCA 1978) . . . . 8.3.B.2.a.i Capoccia v. Capoccia, 505 So. 2d 624 (Fla. 3d DCA 1987) . . . . 7.8.C.2, 11.2.B.2 Caputo v. Nouskhajian, 871 So. 2d 266 (Fla. 5th DCA 2004) . . . . 1.2.E.3, 21.3.E Cari v. Erickson, 394 So. 2d 1022 (Fla. 4th DCA 1981) . . . . 3.8.C Carlton v. Carlton, 575 So. 2d 239 (Fla. 2d DCA 1991) . . . . 8.3.B.2.a.iv Carlton v. Carlton, 578 So. 2d 820 (Fla. 2d DCA 1991) . . . . 4.3.A.3.f Carlton v. Zanazzi, 266 So. 3d 243 (Fla. 2d DCA 2019) . . . . 3.1 Carlton Fields, P.A. v. Locascio, 81 So. 3d 611 (Fla. 3d DCA 2012) . . . . 21.4.C

Carlton, In re Estate of, 276 So. 2d 832 (Fla. 1973) . . . . 5.6.C.1 Carman v. Gilbert, 641 So. 2d 1323 (Fla. 1994) . . . . 21.3.A.1.b.iv Carpenter, In re Estate of, 253 So. 2d 697 (Fla. 1971) . . . . 21.2.C.1, 21.3.A.1.b.v, 21.3.A.1.b.vii, 21.3.A.1.b.viii, 21.3.A.1.b.xi, 21.3.A.1.b.xii Carpenter, In re Estate of, 289 So. 2d 410 (Fla. 4th DCA 1974) . . . . 21.3.A.1.b.ii Carraway v. Carraway, 883 So. 2d 834 (Fla. 1st DCA 2004) . . . . 3.6.Y Carrithers v. Cornett’s Spirit of Suwannee, Inc., 93 So. 3d 1240 (Fla. 1st DCA 2012) . . . . 3.8.B, 3.8.C Carroll v. Israelson, 169 So. 3d 239 (Fla. 4th DCA 2015) . . . . 11.6, 21.3.B.2 Carter v. Carter, 526 So. 2d 141 (Fla. 3d DCA 1988) . . . . 21.3.A.1.b.xi Carter’s Administrators v. Carter, 20 Fla. 558 (1884) . . . . 19.5.A Case v. Case, 124 N.E.2d 856, 55 Ohio Op. 317 (Ohio Prob.Ct. 1955) . . . . 19.9.K Castro v. East Pass Enterprises, Inc., 881 So. 2d 699 (Fla. 1st DCA 2004) . . . . 8.3.A.1 Catano v. Capuano, 2020 U.S. Dist. LEXIS 23250 (S.D. Fla. 2020) . . . . 3.3 Cates v. Community Bank & Trust of Fla., 277 So. 3d 1095 (Fla. 5th DCA 2019) . . . . 21.3.A.1.b.iv, 21.4.E Cates v. Fricker, 529 So. 2d 1253 (Fla. 2d DCA 1988) . . . . 21.4.E Catlett v. Chestnut, 100 Fla. 1146, 131 So. 120 (1930) . . . . 7.1.C Cavanaugh v. Cavanaugh, 542 So. 2d 1345 (Fla. 1st DCA 1989) . . . . 3.6.BB.1, 19.4.A.2 Cessac v. Stevens, 127 So. 3d 675 (Fla. 1st DCA 2013) . . . . 3.8.B Chaffin v. Overstreet, 982 So. 2d 11 (Fla. 5th DCA 2008) . . . . 3.6.CC Chames v. DeMayo, 972 So. 2d 850 (Fla. 2007) . . . . 19.7 Chapman v. Campbell, 119 So. 2d 61 (Fla. 2d DCA 1960) . . . . 21.3.A.1.c.ii Charry, In re Estate of, 359 So. 2d 544 (Fla. 4th DCA 1978) . . . . 5.3.C.1, 21.3.A.1.d.i Chase Federal Savings & Loan Ass’n v. Sullivan, 127 So. 2d 112 (Fla. 1961) . . . . 21.3.E

Chase Manhattan Bank, USA, N.A. v. Estate of Patricia Silveira, 815 So. 2d 770 (Fla. 4th DCA 2002) . . . . 3.6.Y, 8.3.B.2.a.iv, 21.3.C.1 Chasteen v. Chasteen, 213 So. 2d 509 (Fla. 1st DCA 1968) . . . . 19.9.F Chereskin v. Branch Banking & Trust Co., 705 So. 2d 955 (Fla. 1st DCA 1998) . . . . 3.6.CC Chiles v. State Emples. Attys. Guild, 734 So. 2d 1030 (Fla. 1999) . . . . 4.2.A Choice Plus, LLC v. Dept. of Financial Services, Bureau of Unclaimed Property, 244 So. 3d 343 (Fla. 1st DCA 2018) . . . . 3.6.DD, 3.6.K Ciccorella, In re Estate of, 407 So. 2d 1044 (Fla. 3d DCA 1981) . . . . 3.6.R, 21.4.J Cioeta v. Estate of Linet, 850 So. 2d 562 (Fla. 4th DCA 2003) . . . . 21.3.A.1.e.ii City National Bank of Florida v. Tescher, 578 So. 2d 701 (Fla. 1991) . . . . 11.2.B.8, 19.4.A.2, 19.5.B.5, 19.9.I.1, 19.9.I.2, 19.9.J.1, 19.9.J.2 City of (see name of city) Claim of (see name of party) Clark v. Squire, Sanders & Dempsey, 495 So. 2d 264 (Fla. 3d DCA 1986) . . . . 15.3.J, 15.4.M.1 Cleeves, In re Estate of, 509 So. 2d 1256 (Fla. 2d DCA 1987) . . . . 19.5.B.3, 19.5.B.4, 19.9.I.1 Clemons v. Thornton, 993 So. 2d 1054 (Fla. 1st DCA 2008) . . . . 19.5.B.9 Clibbon, In re Estate of, 735 So. 2d 487 (Fla. 4th DCA 1998) . . . . 2.2.B.2, 3.6.Y, 14.2.G, 14.3.D.4 Clifton v. Clifton, 54 Fla. 535, 45 So. 458 (1907) . . . . 13.2.D Clifton v. Clifton, 553 So. 2d 192 (Fla. 5th DCA 1989) . . . . 10.3.D.8, 19.4.A.2 Cloer v. Shawver, 177 So. 2d 691 (Fla. 1st DCA 1965) . . . . 8.3.C.1.a Cody v. Cody, 127 So. 3d 753 (Fla. 1st DCA 2013) . . . . 2.4, 3.6.E, 3.8.B Coffey, In re Estate of, 171 So. 2d 568 (Fla. 3d DCA 1965) . . . . 7.8.C.1 Cohen v. Cohen, 246 So. 2d 581 (Fla. 3d DCA 1971) . . . . 8.3.B.2.a.ii Cohen v. Cohen, 567 So. 2d 1015 (Fla. 3d DCA 1990) . . . . 11.2.B.2

Cohen v. Guardianship of Cohen, 896 So. 2d 950 (Fla. 4th DCA 2005) . . . . 1.2.A.2, 1.2.A.4 Cohen v. Majestic Distilling Co., 765 So. 2d 276 (Fla. 4th DCA 2000) . . . . 8.2.C.3 Cohen v. Shushan, 212 So. 3d 1113 (Fla. 2d DCA 2017) . . . . 3.6.AA Coleman v. Estate of Coleman, 439 So. 2d 1016 (Fla. 1st DCA 1983) . . . . 7.8.B.2 Collin, In re Estate of, 279 So. 2d 48 (Fla. 4th DCA 1973) . . . . 20.2.B.1 Collin, In re Estate of, 368 So. 2d 1350 (Fla. 4th DCA 1979) . . . . 11.9.C.4.i Combee, In re Estate of, 601 So. 2d 1165 (Fla. 1992) . . . . 1.2.E.3, 21.3.E Comerica Bank & Trust, F.S.B. v. SDI Operating Partners, L.P., 673 So. 2d 163 (Fla. 4th DCA 1996) . . . . 3.6.C, 8.2.B.3.a, 8.2.B.3.b, 21.3.C.3 Commissioner v. (see name of defendant) Comstock’s Estate, In re, 143 Fla. 500, 197 So. 121 (1940) . . . . 8.3.B.2.b.i.I Cone v. Benjamin, 150 Fla. 419, 8 So. 2d 476 (1942) . . . . 5.3.I Conger, Estate of v. Conger, 414 So. 2d 230 (Fla. 3d DCA 1982) . . . . 3.6.Q Congleton v. Sansom, 664 So. 2d 276 (Fla. 1st DCA 1995) . . . . 7.8.C.2, 11.2.B.2, 21.3.A.1.e.vii Connell v. Connell, 93 So. 3d 1140 (Fla. 2d DCA 2012) . . . . 4.3.A.3.d Connell v. Green, 330 So. 2d 473 (Fla. 1st DCA 1976) . . . . 21.2.C.1 Connor v. Southwest Florida Regional Medical Center, Inc., 668 So. 2d 175 (Fla. 1996) . . . . 8.2.E.1.b Continental National Bank v. Brill, 636 So. 2d 782 (Fla. 3d DCA 1994) . . . . 4.3.C.7, 11.11 Continental National Bank v. Brill, 638 So. 2d 1056 (Fla. 3d DCA 1994) . . . . 4.3.C.7 Cooke, Matter of, 412 So. 2d 340 (Fla. 1982) . . . . 19.2.B.1 Cooper v. Ford & Sinclair, P.A., 888 So. 2d 683 (Fla. 4th DCA 2004) . . . . 4.3.C.5.b, 15.2.A Copeland v. Buswell, 20 So. 3d 867 (Fla. 2d DCA 2009) . . . . 8.3.B.2.a.i Coraci v. Hogan, 515 So. 2d 1064 (Fla. 5th DCA 1987) . . . . 3.6.BB.1

Coral Gables First National Bank v. Colee, 155 Fla. 498, 20 So. 2d 675 (1945) . . . . 8.2.E.1.b Corbin, In re Estate of, 637 So. 2d 51 (Fla. 1st DCA 1994) . . . . 10.5.A.2.a, 20.2.B.1 Cordiner, In re Estate of, 497 So. 2d 920 (Fla. 2d DCA 1986) . . . . 15.3.J, 15.4.J Correa v. Christensen, 780 So. 2d 220 (Fla. 5th DCA 2001) . . . . 3.6.A, 18.2.M Cosman v. Rodriguez, 153 So. 3d 371 (Fla. 2d DCA 2014) . . . . 11.2.B.2 Costello v. Davis, 890 So. 2d 1179 (Fla. 2d DCA 2004) . . . . 4.3.B.1.f, 4.3.B.2 Cox v. Cox, 659 So. 2d 1051 (Fla. 1995) . . . . 7.8.B.3 Coy v. Mango Bay Property & Investments, Inc., 963 So. 2d 873 (Fla. 4th DCA 2007) . . . . 19.2.B.4.c Crain v. Putnam, 687 So. 2d 1325 (Fla. 4th DCA 1997) . . . . 19.2.A, 19.8 Crane v. Commissioner, 331 U.S. 1, 67 S.Ct. 1047, 91 L. Ed. 1301, 1947-1 C.B. 97 (1947) . . . . 4.3.A.7, 13.2.E.1 Crescenze v. Bothe, 4 So. 3d 31 (Fla. 2d DCA 2009) . . . . 8.3.B.2.b.ii.II Crescenzo v. Simpson, 239 So. 3d 213 (Fla. 2d DCA 2018) . . . . 1.2.G.1, 4.3.A.9, 5.5 Cripe v. Atlantic First National Bank of Daytona Beach, 422 So. 2d 820 (Fla. 1982) . . . . 21.3.A.1.b.v, 21.3.A.1.b.viii, 21.3.A.1.b.xiii Crocker v. Pleasant, 778 So. 2d 978 (Fla. 2001) . . . . 1.2.A.1 Crosley, In re Estate of, 384 So. 2d 274 (Fla. 4th DCA 1980) . . . . 3.8.C, 11.2.B.5 Crown Management Corp. v. Goodman, 452 So. 2d 49 (Fla. 2d DCA 1984) . . . . 21.3.B.4 Cuevas v. Kelly, 873 So. 2d 367 (Fla. 2d DCA 2004) . . . . 3.6.I Cuillo v. Cuillo, 621 So. 2d 460 (Fla. 4th DCA 1993) . . . . 7.8.B.2 Cumberland & Liberty Mills v. Keggin, 139 Fla. 133, 190 So. 492 (1939) . . . . 8.3.B.2.a.iii Cushing v. Estate of Reynolds, 489 So. 2d 1204 (Fla. 3d DCA

1986) . . . . 15.4.O.4 Cutler v. Cutler, 32 Fla. L. Weekly D 583 . . . . 19.6.B Cutler v. Cutler, 994 So. 2d 341 (Fla. 3d DCA 2008) . . . . 4.3.A.3.k.ii, 10.3.D.8, 11.3.I, 19.2.B.4.a, 19.5.B.7, 19.6.B

D Dacus v. Blackwell, 90 So. 2d 324 (Fla. 1956) . . . . 4.3.A.2, 4.3.D.2.a Dade County, Public Health Trust of v. Lopez, 531 So. 2d 946 (Fla. 1988) . . . . 19.5.B.2 Dahly v. Dahly, 866 So. 2d 745 (Fla. 5th DCA 2004) . . . . 21.3.A.1.e.ii Dalton, In re Estate of, 246 So. 2d 612 (Fla. 3d DCA 1971) . . . . 21.4.A Danese, In re Estate of, 641 So. 2d 423 (Fla. 1st DCA 1994) . . . . 8.2.A.2.a, 8.3.A.1 Davis v. Davis, 864 So. 2d 458 (Fla. 1st DCA 2004) . . . . 19.2.B.1, 19.2.B.5 Davis v. Evans, 132 So. 2d 476 (Fla. 1st DCA 1961) . . . . 8.3.A.3 Davis v. Foulkrod, 642 So. 2d 1129 (Fla. 4th DCA 1994) . . . . 1.2.E.3, 6.5.S, 21.3.E Davis v. Starling, 799 So. 2d 373 (Fla. 4th DCA 2001) . . . . 8.3.B.2.b.ii.IV Davol, In re Estate of, 100 So. 2d 188 (Fla. 3d DCA 1958) . . . . 11.2.D Day v. Day, 331 So. 2d 335 (Fla. 1st DCA 1976) . . . . 7.7.A Dayton v. Conger, 448 So. 2d 609 (Fla. 3d DCA 1984) . . . . 15.4.M.4 De Bauer, In re, 628 B.R. 355 (Bankr. M.D. Fla. 2021) . . . . 19.2.B.1 De Garcia, Estate of v. Garcia, 399 So. 2d 486 (Fla. 3d DCA 1981) . . . . 7.8.B.2 De La Riva v. Chavez, 303 So. 3d 955 (Fla. 4th DCA 2020) . . . . 16.3.A De Maris v. Asti, 426 So. 2d 1153 (Fla. 3d DCA 1983) . . . . 19.5.B.9 Dean v. Bentley, 848 So. 2d 487 (Fla. 5th DCA 2003) . . . . 4.4.A.1, 11.2.F, 14.3.D.4 Deane, In re Estate of, 153 So. 2d 26 (Fla. 3d DCA 1963) . . . . 5.6.C.1, 21.3.A.1.b.x Deigaard v. Baya, 163 So. 2d 27 (Fla. 3d DCA 1964) . . . . 16.4.B DeJesus v. A.M.J.R.K Corp., 255 So. 3d 879 (Fla. 2d DCA 2018) . . . . 4.3.A.3.k.ii, 19.2.B.4.c Del Vecchio v. Del Vecchio, 143 So. 2d 17 (Fla. 1962) . . . . 7.8.B.2

Delbrouck v. Eberling, 177 So. 3d 66 (Fla. 4th DCA 2015) . . . . 3.6.Q Delgado v. Estate of Garriga, 870 So. 2d 912 (Fla. 3d DCA 2004) . . . . 2.4, 8.2.C.3, 8.3.C.1.b Dempsey v. Dempsey, 899 So. 2d 1272 (Fla. 2d DCA 2005) . . . . 7.7.D, 21.3.D Denham v. Sexton, 48 So. 2d 416 (Fla. 1950) . . . . 19.5.B.9 Dennis v. Kline, 120 So. 3d 11 (Fla. 4th DCA 2013) . . . . 11.2.B.6 Dept. of Revenue v. City of Gainesville, 859 So. 2d 595 (Fla. 1st DCA 2003) . . . . 19.2.B.4.b Depriest v. Greeson, 213 So. 3d 1022 (Fla. 1st DCA 2017) . . . . 4.3.A.1 DePrycker v. Brown, 358 So. 2d 1140 (Fla. 1st DCA 1978) . . . . 11.2.B.6 Derovanesian v. Derovanesian, 857 So. 2d 240 (Fla. 3d DCA 2003) . . . . 21.3.A.1.b.v, 21.3.A.1.b.xi Deutsch v. Commissioner, 74 T.C.M. (CCH) 935, T.C.M. (RIA) P97470 (1997) . . . . 7.2.E.3, 13.5 DeVaughn v. DeVaughn, 840 So. 2d 1128 (Fla. 5th DCA 2003) . . . . 4.2.B DeVaughn v. DeVaughn, 840 So. 2d 1128 (Fla. 5th DCA 2003) . . . . 4.3.C.6 Devine v. Kirkovich, 754 So. 2d 789 (Fla. 3d DCA 2000) . . . . 8.3.C.1.b Devins v. Peitzer, 622 So. 2d 558 (Fla. 3d DCA 1993) . . . . 21.2.C.3 Dew v. Nerreter, 664 So. 2d 1179 (Fla. 5th DCA 1995) . . . . 15.4.L DeWitt v. Duce, 408 So. 2d 216 (Fla. 1981) . . . . 3.6.X, 20.3.A.4, 21.3.A.2 Dezonia, In re, 347 B.R. 920 (Bankr. M.D. Fla. 2006) . . . . 19.2.B.4.e Diaz v. Ashworth, 963 So. 2d 731 (Fla. 3d DCA 2007) . . . . 4.3.A.3.d, 21.3.A.1.b.v Dickson, In re Estate of, 590 So. 2d 471 (Fla. 3d DCA 1991) . . . . 21.3.A.1.e.ii, 21.3.B.3 Dimick v. Estate of Barry, 787 So. 2d 198 (Fla. 4th DCA 2001) . . . . 8.3.C.1.b Dimitroff v. Taylor, 651 So. 2d 131 (Fla. 2d DCA 1995) . . . . 1.2.D.7, 4.2.A Dinkins v. Dinkins, 120 So. 3d 601 (Fla. 5th DCA 2013) . . . . 7.4.A, 7.8.B.4 Dixon v. Bellamy, 252 So. 3d 349 (Fla. 3d DCA 2018) . . . . 11.2.B.4, 21.3.G

Dixon v. Travelers Indemnity Co., 174 So. 2d 53 (Fla. 3d DCA 1965) . . . . 4.3.D.2.b Dobal v. Perez, 809 So. 2d 78 (Fla. 3d DCA 2002) . . . . 3.6.C, 8.2.B.2, 8.2.B.3.a Dobson v. Lawson, 370 So. 2d 1238 (Fla. 1st DCA 1979) . . . . 11.3.F, 14.3.A.3 Doetsch v. Doetsch, 312 F.2d 323 (7th Cir. 1963) . . . . 11.9.E Dohnal v. Syndicated Offices Systems, 506 So. 2d 1138 (Fla. 2d DCA 1987) . . . . 21.3.C.3 Donigan v. Nevins, 785 So. 2d 573 (Fla. 4th DCA 2001) . . . . 1.2.A.1 Donner, In re Estate of, 364 So. 2d 742 (Fla. 3d DCA 1978) . . . . 7.1.C Donovan, In re Estate of, 550 So. 2d 37 (Fla. 2d DCA 1989) . . . . 19.6.A.2 Douglas, In re Estate of, 622 So. 2d 1146 (Fla. 2d DCA 1993) . . . . 16.4.A, 16.5 Dourado v. Chousa, 604 So. 2d 864 (Fla. 5th DCA 1992) . . . . 3.6.L Dozier v. Smith, 446 So. 2d 1107 (Fla. 2d DCA 1984) . . . . 21.3.A.1.e.v Drake, In re, 106 B.R. 741 (Bankr. M.D. Fla. 1989) . . . . 19.2.B.5 Dribin v. Estate of Nolan, 801 So. 2d 249 (Fla. 4th DCA 2001) . . . . 3.6.Y Drummond, In re Estate of, 341 So. 2d 225 (Fla. 1st DCA 1977) . . . . 5.2.A.2 Dubin, In re Estate of, 536 So. 2d 1186 (Fla. 4th DCA 1989) . . . . 6.6.D Dudley, In re Estate of, 374 So. 2d 1111 (Fla. 4th DCA 1979) . . . . 21.3.C.3 Duff-Esformes v. Mukamal, 332 So. 3d 17 (Fla. 3d DCA 2021) . . . . 15.3.J Dunahoo v. Bess, 146 Fla. 182, 200 So. 541 (1941) . . . . 1.2.A.4, 1.2.A.7 Duncombe v. Adderly, 991 So. 2d 1013 (Fla. 4th DCA 2008) . . . . 15.4.L, 21.4.H Dunson, In re Estate of, 141 So. 2d 601 (Fla. 2d DCA 1962) . . . . 21.3.A.1.b.ii, 21.3.A.1.c.i Dutcher v. Estate of Dutcher, 437 So. 2d 788 (Fla. 2d DCA 1983) . . . . 21.3.B.4 DuVal, In re Estate of, 174 So. 2d 580 (Fla. 2d DCA 1965) . . . . 3.6.BB.1, 3.6.R, 15.4.G, 15.4.O.2

E East Rutherford, Borough of v. Sisselman, 97 A.2d 431, 26 N.J. Super. 133 (N.J. Super.Ct.Ch.Div. 1953) . . . . 19.9.K Ebeling v. Voltz, 454 So. 2d 783 (Fla. 4th DCA 1984) . . . . 3.6.X Eccles v. Nelson, 919 So. 2d 658 (Fla. 5th DCA 2006) . . . . 21.2.C.2 Edwards, In re Estate of, 433 So. 2d 1349 (Fla. 5th DCA 1983) . . . . 21.3.A.1.e.iv Eisenpresser v. Koenig, 239 So. 3d 90 (Fla. 4th DCA 2018) . . . . 21.3.B.5 Ellard v. Godwin, 77 So. 2d 617 (Fla. 1955) . . . . 8.2.C.3 Elliott, In re Estate of, 798 So. 2d 13 (Fla. 1st DCA 2001) . . . . 2.4, 8.3.C.1.b Ellis First National Bank of West Pasco v. Downing, 443 So. 2d 337 (Fla. 2d DCA 1983) . . . . 7.8.B.2 Elmowitz v. Estate of Zimmerman, 647 So. 2d 1064, 51 A.L.R.5th 951 (Fla. 3d DCA 1994) . . . . 3.6.Y, 19.6.A.4 Emerson v. Ross' Ex'x, 17 Fla. 122 (1879) . . . . 3.5.A Engel v. Engel, 97 So. 2d 140 (Fla. 2d DCA 1957) . . . . 19.2.B.1 Engelberg v. Birnbaum, 580 So. 2d 828 (Fla. 4th DCA 1991) . . . . 21.4.E Engelke v. Estate of Engelke, 921 So. 2d 693 (Fla. 4th DCA 2006) . . . . 19.2.B.4.a, 19.5.B.7, 19.6.A.4, 19.6.B, 19.9.I.1, 19.9.I.2, 19.9.J.1, 19.9.J.2 Epperson v. Rupp, 157 So. 2d 537 (Fla. 3d DCA 1963) . . . . 8.2.C.1 Epping, Bellas & Co. v. Robinson, 21 Fla. 36 (1884) . . . . 3.5.C Erlandsson v. Erlandsson, 296 So. 3d 431 (Fla. 4th DCA 2020) . . . . 21.3.A.1.b.iii.II Espejo-Norton v. Estate of Merry, 869 So. 2d 1255 (Fla. 3d DCA 2004) . . . . 3.6.Y Estate of (see name of party) Evans v. Tucker, 101 Fla. 688, 135 So. 305 (1931) . . . . 4.3.A.3.f.9, 9.4.B.1 Ex rel. (see name of relator)

Exchange National Bank of Winter Haven v. Field, 338 So. 2d 889 (Fla. 2d DCA 1976) . . . . 8.3.C.1.b Exchange National Bank of Winter Haven v. Smith, 148 Fla. 473, 4 So. 2d 675 (1941) . . . . 7.8.B.4

F Faerber v. D.G., 928 So. 2d 517 (Fla. 2d DCA 2006) . . . . 8.2.A.2.e, 15.3.J, 15.4.M.3.a Fagan v. Cramer, 877 So. 2d 945 (Fla. 4th DCA 2004) . . . . 11.2.B.4 Faile v. Fleming, 763 So. 2d 459 (Fla. 4th DCA 2000) . . . . 7.1.B, 7.5.A.1 Fajardo, In re Estate of, 597 So. 2d 362 (Fla. 3d DCA 1992) . . . . 11.3.B Falkner, State ex rel. v. Blanton, 297 So. 2d 825 (Fla. 1974) . . . . 4.2.A Fanelli, In re Estate of, 336 So. 2d 631 (Fla. 2d DCA 1976) . . . . 3.6.BB.1, 3.6.R, 21.3.B.1, 21.4.J Farish v. Bankers Multiple Line Insurance Co., 425 So. 2d 12 (Fla. 4th DCA 1983) . . . . 21.3.A.1.c.ii Faskowitz, In re Estate of, 941 So. 2d 390 (Fla. 2d DCA 2006) . . . . 3.6.K, 11.2.E Faulkner v. Woodruff, 159 So. 3d 319 (Fla. 2d DCA 2015) . . . . 3.6.L, 4.2.C.1 Feather v. Estate of Sanko, 390 So. 2d 746 (Fla. 5th DCA 1980) . . . . 5.4.B Fernandez, In re Estate of, 335 So. 2d 829 (Fla. 1976) . . . . 1.2.D.7 Fernandez-Fox v. Estate of Lindsay, 972 So. 2d 281 (Fla. 5th DCA 2008) . . . . 8.2.C.1, 8.3.C.1.a, 8.3.C.1.b, 21.3.C.1 Ferrone v. Soffes, 558 So. 2d 146 (Fla. 3d DCA 1990) . . . . 11.9.C.4.i Fiel v. Hoffman, 169 So. 3d 1274 (Fla. 4th DCA 2015) . . . . 11.2.B.2, 21.3.A.1.b.v, 21.3.A.1.e.vii, 21.3.A.3 Field, In re Estate of, 121 So. 2d 46 (Fla. 1st DCA 1960) . . . . 6.4.C Fields, In re Estate of, 581 So. 2d 1387 (Fla. 3d DCA 1991) . . . . 6.5.S Filion, In re Estate of, 353 So. 2d 1180 (Fla. 2d DCA 1977) . . . . 21.3.A.1.b.iv, 21.4.G Finch, In re Estate of, 401 So. 2d 1308 (Fla. 1981) . . . . 7.2.D, 19.5.B.3, 19.5.B.4, 19.9.I.1 Fine Arts Museums Foundation v. First National in Palm Beach, a Division of First Union National Bank of Florida, 633 So. 2d 1179 (Fla. 4th DCA

1994) . . . . 21.3.B.4 Finnegan v. Compton, 154 So. 3d 370 (Fla. 4th DCA 2015) . . . . 2.1.B First Gulf Beach Bank & Trust Co. v. Grubaugh, 330 So. 2d 205 (Fla. 2d DCA 1976) . . . . 8.3.B.2.a.x First Leasing & Funding of Florida, Inc. v. Fiedler, 591 So. 2d 1152 (Fla. 2d DCA 1992) . . . . 19.2.B.5 First National Bank of St. Petersburg v. MacDonald, 100 Fla. 675, 130 So. 596 (1930) . . . . 7.1.C First National Bank in Palm Beach v. Underwood, 499 So. 2d 60 (Fla. 4th DCA 1986) . . . . 3.6.F First National Bank in St. Petersburg v. Cooper, 266 So. 2d 191 (Fla. 2d DCA 1972) . . . . 1.2.E.5 First National Bank of Florida v. Moffett, 479 So. 2d 312 (Fla. 5th DCA 1985) . . . . 21.3.B.3 First National Bank of Miami v. Risolia, 200 So. 2d 260 (Fla. 3d DCA 1967) . . . . 3.6.E First National Bank of Nevada v. Wells, 148 S.E.2d 119, 267 N.C. 276 (N.C. 1966) . . . . 11.9.C.1, 11.9.E First Trust & Savings Bank v. Henderson, 101 Fla. 1437, 136 So. 370 (1931) . . . . 9.4.A First Union National Bank of Florida v. Aftab, 689 So. 2d 1137 (Fla. 4th DCA 1997) . . . . 8.3.A.1 First Union National Bank of Florida v. Whitener, 715 So. 2d 979 (Fla. 5th DCA 1998) . . . . 21.2.B First Union National Bank of Florida, N.A. v. Estate of Mizell, 807 So. 2d 78 (Fla. 5th DCA 2002) . . . . 21.3.A.4 Fisher v. Creamer, 332 So. 2d 50 (Fla. 3d DCA 1976) . . . . 8.3.B.2.b.ii.II, 8.3.E Fisher v. PNC Bank, N.A., 2 F.4th 1352 (11th Cir. 2021) . . . . 3.3 Fisher, In re Estate of, 503 So. 2d 962 (Fla. 1st DCA 1987) . . . . 1.3.B.1 Fleet; United States v., 498 F.3d 1225 (11th Cir. 2007) . . . . 19.7 Fleming, In re Estate of, 786 So. 2d 660 (Fla. 4th DCA 2001) . . . . 8.2.B.2

Fletcher v. State, 506 So. 2d 90 (Fla. 2d DCA 1987) . . . . 21.3.A.1.d.i Flinn v. Van Devere, 502 So. 2d 454 (Fla. 3d DCA 1987) . . . . 3.6.CC Florida Bar v. Betts, 530 So. 2d 928 (Fla. 1988) . . . . 21.3.A.1.b.iii.II, 21.3.A.1.b.iii.III The Florida Bar v. Brigman, 307 So. 2d 161 (Fla. 1975) . . . . 21.2.D The Florida Bar v. Carlon, 820 So. 2d 891 (Fla. 2002) . . . . 15.3.C, 15.4.K The Florida Bar v. Garland, 651 So. 2d 1182 (Fla. 1995) . . . . 15.4.K The Florida Bar v. McKenzie, 442 So. 2d 934 (Fla. 1984) . . . . 21.2.D Florida Dept. of Revenue v. City of Gainesville, 918 So. 2d 250 . . . . 19.2.B.4.b Florida Elks Children’s Hospital v. Stanley, 610 So. 2d 538 (Fla. 5th DCA 1993) . . . . 11.3.A Florida National Bank of Jacksonville v. Tavel, 126 Fla. 415, 171 So. 231 (1936) . . . . 7.8.B.4 Florida National Bank of Palm Beach County v. Genova, 460 So. 2d 895 (Fla. 1985) . . . . 21.3.A.1.b.xiii, 21.3.F Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985) . . . . 15.2.F, 15.4.B.1 Florida Silica Sand Co. v. Parker, 118 So. 2d 2 (Fla. 1960) . . . . 15.4.B.2.a Floyd v. Smith, 59 Fla. 485, 51 So. 537 (1910) . . . . 21.3.B.3 Fong v. Courvoisier Courts Condo. Ass’n, Inc., 81 So. 3d 562 (Fla. 3d DCA 2012) . . . . 3.6.Q Ford v. Ford, 581 So. 2d 203 (Fla. 5th DCA 1991) . . . . 3.6.BB.1, 19.9.G Forsythe v. Spielberger, 86 So. 2d 427 (1956) . . . . 21.3.A.1.e.iii, 21.3.A.1.e.iv Foster v. Cianci, 773 So. 2d 1181 (Fla. 2d DCA 2000) . . . . 8.2.A.2.e, 8.3.B.2.a.vi Foster v. Estate of Gomes, 27 So. 3d 145 (Fla. 5th DCA 2010) . . . . 7.8.B.2 Fouraker v. Carter, 507 So. 2d 749 (Fla. 5th DCA 1987) . . . . 1.3.B.1, 4.3.C.1 Fredericks, In re Estate of, 311 So. 2d 376 (Fla. 2d DCA 1975) . . . . 11.6 Freedman, In re Estate of, 180 So. 2d 370, 14 A.L.R.3d 1029 (Fla. 3d DCA

1965) . . . . 4.3.C.5.b, 4.3.D.2.b Freedman, In re Estate of, 340 So. 2d 1275 (Fla. 3d DCA 1977) . . . . 15.4.L Freeland, In re Estate of, 182 So. 2d 425 (Fla. 1966) . . . . 8.3.B.2.a.ii Freeman v. Lane, 504 So. 2d 1297 (Fla. 5th DCA 1987) . . . . 21.3.A.1.b.xiii Fresia, In re Estate of, 390 So. 2d 176 (Fla. 5th DCA 1980) . . . . 4.2.E Fridenburg v. Wilson, 20 Fla. 359 (1883) . . . . 9.4.A, 9.4.B.2 Friedberg v. SunBank/Miami, N.A., 648 So. 2d 204 (Fla. 3d DCA 1995) . . . . 7.1.B, 7.5.A.1, 7.5.A.6 Friscia v. Friscia, 161 So. 3d 513 (Fla. 2d DCA 2014) . . . . 11.2.B.8, 19.2.B.1, 19.7 Fritsevich v. Estate of Voss, 590 So. 2d 1057 (Fla. 3d DCA 1991) . . . . 3.6.Y Frizzell, In re Estate of, 156 So. 2d 558 (Fla. 2d DCA 1963) . . . . 11.2.B.6 Furlong v. Leybourne, 171 So. 2d 1 (Fla. 1965) . . . . 8.3.B.2.a.iv

G Gaines v. DeWitt, 41 So. 3d 951 (Fla. 2d DCA 2010) . . . . 15.4.M.1, 15.3.J Galego v. Robinson, 695 So. 2d 443 (Fla. 2d DCA 1997) . . . . 3.4.B, 3.6.O, 21.4.D Gamble, In re Estate of, 183 So. 2d 849 (Fla. 1st DCA 1966) . . . . 10.2.A, 10.3.A, 10.3.C.2 Ganier, Estate of v. Estate of Ganier, 418 So. 2d 256 (Fla. 1982) . . . . 11.3.H, 21.3.G Garcia v. Celestron, 2 So. 3d 1061 (Fla. 3d DCA 2009) . . . . 21.3.B.4 Garcia v. Morrow, 954 So. 2d 656 (Fla. 3d DCA 2007) . . . . 4.3.C.6, 5.2.B Gardiner v. Goertner, 110 Fla. 377, 149 So. 186 (1933) . . . . 21.3.A.1.b.ix Garrison v. Vance, 103 So. 3d 1041 (Fla. 1st DCA 2013) . . . . 3.8.B Garrison, In re Estate of, 156 So. 2d 18 (Fla. 1st DCA 1963) . . . . 14.3.A.3 Garvey v. Garvey, 219 So. 2d 685 (Fla. 1969) . . . . 3.8.C Gaspelin, In re Estate of, 542 So. 2d 1023 (Fla. 2d DCA 1989) . . . . 11.3.H, 21.3.G Gates Learjet Corp. v. Moyer, 459 So. 2d 1082 (Fla. 4th DCA 1984) . . . . 8.3.B.2.a.i Gay, In re Estate of, 294 So. 2d 668 (Fla. 4th DCA 1974) . . . . 8.3.B.2.a.xi Geary v. Butzel Long, P.C., 13 So. 3d 149 (Fla. 4th DCA 2009) . . . . 4.3.B.1.b, 15.4.H.3 Geezil v. Savage, 127 So. 3d 867 (Fla. 2d DCA 2013) . . . . 4.3.A.6, 8.2.F.1 Genworth Life Insurance Co. v. Sehorne, 2008 U.S. Dist. LEXIS 30369 (M.D. Fla. 2008) . . . . 11.2.B.2 Gepfrich v. Gepfrich, 582 So. 2d 743 (Fla. 4th DCA 1991) . . . . 19.7 Geraci v. Sunstar EMS, 93 So. 3d 384 (Fla. 2d DCA 2012) . . . . 4.3.A.3.k.ii, 19.2.B.4.b Gerentine v. Coastal Security Systems, 529 So. 2d 1191 (Fla. 5th DCA 1988) . . . . 21.3.A.1.a

Gerlach v. Donnelly, 98 So. 2d 493 (Fla. 1957) . . . . 4.2.A Getty v. Commissioner, 913 F.2d 1486 (9th Cir. 1990) . . . . 21.5 Giat v. SCI Funeral Services of Florida, LLC, 308 So. 3d 642 (Fla. 4th DCA 2020) . . . . 1.2.A.2 Gillen v. United Services Automobile Ass’n, 300 So. 2d 3, 83 A.L.R.3d 313 (Fla. 1974) . . . . 3.6.D.3 Gilpen v. Bower, 152 Fla. 733, 12 So. 2d 884 (1943) . . . . 8.3.B.2.a.iii Gleason, In re Estate of, 631 So. 2d 321 (Fla. 4th DCA 1994) . . . . 3.6.Y, 8.2.A.2.a Gleneagle Ship Management Co. v. Leondakos, 602 So. 2d 1282 (Fla. 1992) . . . . 3.5.D Glickstein v. Sun Bank/Miami, N.A., 922 F.2d 666 (11th Cir. 1991) . . . . 3.3 Glidden v. Gutelius, 96 Fla. 834, 119 So. 140 (1928) . . . . 4.3.D.2.b Glover v. Miller, 947 So. 2d 1254 (Fla. 4th DCA 2007) . . . . 11.2.B.4 Gneiser, 873 So. 2d 573 (Fla. 2d DCA 2004) . . . . 3.6.P, 8.2.E.2.c Godley, Estate of, 508 So. 2d 46 (Fla. 4th DCA 1987) . . . . 3.8.A Godwin v. King, 31 Fla. 525, 13 So. 108 (1893) . . . . 19.3.A Goertner v. Gardiner, 125 Fla. 477, 170 So. 112 (1936) . . . . 21.3.A.1.b.vi Goethel v. Lawrence, 599 So. 2d 232 (Fla. 3d DCA 1992) . . . . 3.6.V Goggin v. Shanley, 81 So. 2d 728 (Fla. 1955) . . . . 3.6.R, 4.3.D.2.b, 8.2.C.3 Gold v. Schwartz, 774 So. 2d 879 (Fla. 4th DCA 2001) . . . . 19.2.B.4.b Golden v. Jones, 126 So. 3d 390 (Fla. 4th DCA 2013) . . . . 14.2.A, 21.3.C.2 Golden v. Jones, 194 So. 3d 1060 (Fla. 4th DCA 2016) . . . . 3.1, 16.3.A Golden v. McCarty, 337 So. 2d 388 (Fla. 1976) . . . . 7.9 Gordon v. Fishman, 253 So. 3d 1218 (Fla. 2d DCA 2018) . . . . 11.6, 21.3.B.2 Gordon, In re Estate of, 134 Misc.2d 247, 510 N.Y.S.2d 815 (N.Y.Sur.Ct. 1986) . . . . 11.9.C.1 Gory, In re Estate of, 570 So. 2d 1381 (Fla. 4th DCA 1990) . . . . 1.3.B.4, 4.2.B, 4.4.B.1, 15.4.H.1, 21.2.B, 21.2.C.3 Gossett v. Gossett, 182 So. 3d 694 (Fla. 4th DCA 2016) . . . . 21.4.G Graham, In re Estate of, 156 Fla. 421, 23 So. 2d 485 (Fla. 1945) . . . . 21.4.H

Graham’s Estate, In re, 23 So. 2d 485, 156 Fla. 421 . . . . 15.4.O.4 Graham’s Estate, In re, 156 Fla. 421, 23 So. 2d 485 (1945) . . . . 15.4.O.4 Grainger v. Wald, 29 So. 3d 1155 (Fla. 1st DCA 2010) . . . . 4.3.A.6, 8.2.A.2.e Granger, In re, 318 So. 2d 509 (Fla. 1st DCA 1975) . . . . 4.3.A.3.k.vi, 10.3.A, 10.3.C.1 Grant v. Bessemer Trust Company of Florida, Inc., 117 So. 3d 830 (Fla. 4th DCA 2013) . . . . 21.4.K Grape Leaf Capital, Inc. v. Lafontant, 316 So. 3d 760 (Fla. 3d DCA 2021) . . . . 4.3.A.3.f Gray, In re Estate of, 626 So. 2d 971 (Fla. 1st DCA 1993) . . . . 3.8.C Great Southern Life Insurance Co. v. Porcaro, 869 So. 2d 585 (Fla. 4th DCA 2004) . . . . 3.6.S Green v. Boyd, 794 So. 2d 668 (Fla. 1st DCA 2001) . . . . 21.3.G Greenberg, In re Estate of, 390 So. 2d 40 (Fla. 1980) . . . . 1.2.D.7, 5.2.A.2 Greensburg Public Library v. Alzheimer’s Lifeliners Ass’n, Inc., 787 So. 2d 947 (Fla. 2d DCA 2001) . . . . 1.2.E.1 Griffis, In re Estate of, 366 So. 2d 80 (Fla. 4th DCA 1978) . . . . 15.4.L Griffis, In re Estate of, 399 So. 2d 1048 (Fla. 4th DCA 1981) . . . . 15.4.O.1 Grijalva v. Gulf Bank, 2011 U.S. Dist. LEXIS 9866 (S.D. Fla. 2011) . . . . 8.3.B.2.b.ii.II Griley v. Griley, 43 So. 2d 350 (Fla. 1949) . . . . 7.8.C.1, 7.8.C.2 Grillo, In re Estate of, 393 So. 2d 578 (Fla. 4th DCA 1981) . . . . 8.2.E.2.d Grimes v. Estate of Stewart, 506 So. 2d 465 (Fla. 5th DCA 1987) . . . . 3.6.Y, 14.2.G, 14.3.D.4 Grisolia, In re, 77 So. 3d 732 (Fla. 3d DCA 2011) . . . . 19.2.B.1 Grooms v. Royce, 638 So. 2d 1019 (Fla. 5th DCA 1994) . . . . 1.2.G.1 Grossman v. Selewacz, 417 So. 2d 728 (Fla. 4th DCA 1982) . . . . 8.3.B.2.b.ii.II, 19.9.B Guardian Life Insurance Co. of Am. v. Lutz, 2013 U.S. Dist. LEXIS 148897 (M.D. Fla. 2013) . . . . 11.2.B.2

Guardianship of (see name of party) Guess, In re Estate of, 213 So. 2d 638 (Fla. 3d DCA 1968) . . . . 11.6, 21.3.B.3 Guidry v. Pinellas Central Bank & Trust Co., 310 So. 2d 386 (Fla. 2d DCA 1975) . . . . 11.9.C.4.i Guthrie v. Guthrie (In re Estate of Guthrie), 478 So. 2d 465 (Fla. 1st DCA 1986) . . . . 2.7

H Hack v. Janes, 878 So. 2d 440 (Fla. 5th DCA 2004) . . . . 4.3.A.3.d, 21.3.A.1.b.ii, 21.3.A.1.b.v, 21.3.A.1.b.viii Hagan v. Laragione, 170 So. 2d 69 (Fla. 2d DCA 1964) . . . . 8.3.B.2.a.x Hagerty v. Hagerty, 52 So. 2d 432 (Fla. 1951) . . . . 11.9.C.4.i Hagmann, Estate of v. Commissioner, 60 T.C. 465 (1973) . . . . 1.2.B.6, 8.4 Hagmann, In re Estate of, 492 F.2d 796 . . . . 1.2.B.6, 8.4 Haig in Miller v. Estate of Baer, 837 So. 2d 448 (Fla. 4th DCA 2003) . . . . 8.2.A.2.e Hall v. Morris, 112 So. 2d 40 (Fla. 2d DCA 1959) . . . . 11.3.E Hall v. Tungett, 980 So. 2d 1289 (Fla. 2d DCA 2008) . . . . 3.6.O, 21.4.D Halstead v. Florence Citrus Growers’ Ass’n, 104 Fla. 21, 139 So. 132 (1932) . . . . 15.4.H.1 Hamel, In re Estate of, 821 So. 2d 1276 (Fla. 2d DCA 2002) . . . . 3.6.BB.1, 4.3.A.3.k.ii, 11.3.D, 11.2.I, 19.2.B.4.e, 19.4.A.2, 19.5.B.7 Hammermann, In re Estate of, 387 So. 2d 409 (Fla. 4th DCA 1980) . . . . 21.3.A.1.b.iii.III, 21.3.A.1.c.ii Hampton v. Estate of Allen, 198 So. 3d 954 (Fla. 5th DCA 2016) . . . . 4.2.C.1, 15.4.L Hand, In re Estate of, 475 So. 2d 1337 (Fla. 3d DCA 1985) . . . . 15.4.O.4, 21.4.H Hannibal v. Navarro, 317 So. 3d 1179 (Fla. 3d DCA 2021) . . . . 21.3.A.1.b.v, 21.3.A.1.b.xi Harbie v. Falk, 907 So. 2d 566 (Fla. 3d DCA 2005) . . . . 21.3.B.4 Harby, In re Estate of, 269 So. 2d 433 (Fla. 2d DCA 1972) . . . . 21.3.A.1.b.iv, 21.4.G Harkness v. United States, 469 F.2d 310, 199 Ct. Cl. 721 (Ct.Cl. 1973) . . . . 13.2.E.2.b Harmon v. Williams, 615 So. 2d 681 (Fla. 1993) . . . . 7.7.A, 21.3.D Harper v. Estate of Harper, 271 So. 2d 40 (Fla. 1st DCA 1973) . . . . 5.2.B

Harrell v. Snyder, 913 So. 2d 749 (Fla. 5th DCA 2005) . . . . 10.3.D.8, 19.4.A.2 Harrell, In re Estate of, 426 So. 2d 63 (Fla. 5th DCA 1983) . . . . 15.3.J Harris v. Estate of Harris, 307 So. 3d 821 (Fla. 3d DCA 2020) . . . . 15.3.J Hartford Accident & Indemnity Co. v. City of Thomasville, Ga., ex rel. Karner, 100 Fla. 748, 130 So. 7 (1930) . . . . 3.6.D.3 Hartman, In re Estate of, 836 So. 2d 1038 (Fla. 2d DCA 2002) . . . . 1.2.G.1 Hartwell v. Blasingame, 584 So. 2d 6 (Fla. 1991) . . . . 19.5.B.5, 19.5.B.8, 19.6.A.3 Hatcher, In re Estate of, 439 So. 2d 977 (Fla. 3d DCA 1983) . . . . 3.6.N, 21.4.B Hatten, In re Estate of, 880 So. 2d 1271 (Fla. 3d DCA 2004) . . . . 21.3.A.1.e.ii Havoco of America, Ltd. v. Hill, 790 So. 2d 1018 (Fla. 2001) . . . . 19.7 Hawkins’ Estate, In re, 63 So. 2d 313 (Fla. 1953) . . . . 19.4.B, 19.5.A Hayes v. Guardianship of Thompson, 952 So. 2d 498 (Fla. 2006) . . . . 21.4.E Hayes v. Thomas, 161 So. 2d 545 (Fla. 2d DCA 1964) . . . . 8.3.B.2.a.i Hays v. Lawrence, 1 So. 3d 1176 (Fla. 5th DCA 2009) . . . . 21.4.H HCA Gulf Coast Hospital v. Estate of Downing, 594 So. 2d 774 (Fla. 1st DCA 1991) . . . . 4.3.A.3.k.ii, 19.6.A.4 HCA New Port Richey Hospital v. Estate of Boschelli, 588 So. 2d 1012 (Fla. 2d DCA 1991) . . . . 8.2.B.3.a, 8.2.D, 8.3.A.1 Heasley v. Evans, 104 So. 2d 854 (Fla. 2d DCA 1958) . . . . 21.3.A.1.c.ii Heid, Estate of v. Heid, 863 So. 2d 1259 (Fla. 5th DCA 2004) . . . . 21.3.D Heid, Estate of v. Heid, 863 So. 2d 1259 (Fla. 5th DCA 2004) . . . . 7.5.A.1 Heirs of Hodge, Matter of, 470 So. 2d 740 (Fla. 5th DCA 1985) . . . . 11.2.B.6, 21.3.G Hendershaw v. Estate of Hendershaw, 763 So. 2d 482 (Fla. 4th DCA 2000) . . . . 21.3.A.1.c.ii Henderson v. Elias, 56 So. 3d 86 (Fla. 4th DCA 2011) . . . . 3.6.Q Henderson v. Ewell, 111 Fla. 324, 149 So. 372 (1933) . . . . 4.3.B.1.f,

4.3.C.5.b Henderson v. Usher, 118 Fla. 688, 160 So. 9 (1935) . . . . 3.6.CC Henderson v. Usher, 125 Fla. 709, 170 So. 846 (1936) . . . . 7.1.C, 7.8.D.2 Herendeen v. Mandelbaum, 232 So. 3d 487 (Fla. 2d DCA 2017) . . . . 3.6.C Heritage Foundation v. Schmid, 291 So. 3d 1018 (Fla. 2d DCA 2020) . . . . 3.6.L Herman v. Bennett, 278 So. 3d 178 (Fla. 1st DCA 2019) . . . . 8.2.B.1 Hernandez v. Hernandez, 230 So. 3d 119 (Fla. 3d DCA 2017) . . . . 4.4.B.3 Hernandez v. Hernandez, 946 So. 2d 124 (Fla. 5th DCA 2007) . . . . 1.2.D.7, 5.2.A.2 Herrilka v. Yates, 13 So. 3d 122 (Fla. 4th DCA 2009) . . . . 4.3.A.3.k.ii, 19.4.A.2 Herring, In re Estate of, 670 So. 2d 145 (Fla. 1st DCA 1996) . . . . 6.5.S Herron v. Passailaigue, 92 Fla. 818, 110 So. 539 (1926) . . . . 3.6.D.2 Herskowitz v. Nesbitt, 419 So. 2d 418 (Fla. 3d DCA 1982) . . . . 3.6.G Herskowitz, In re Estate of, 342 So. 2d 530 (Fla. 3d DCA 1977) . . . . 8.3.C.1.b Hiatt v. Estate of Hiatt, 837 So. 2d 1132 (Fla. 4th DCA 2003) . . . . 21.2.C.3 Hicks, 491 So. 2d 346 (Fla. 4th DCA 1986) . . . . 21.3.A.1.b.xiii Highway 46 Holdings, LLC v. Myers, 114 So. 3d 215 (Fla. 5th DCA 2012) . . . . 3.6.Q Hill v. Davis, 70 So. 3d 572 (Fla. 2011) . . . . 2.2.B.2 Hill v. First National Bank of Marianna, 73 Fla. 1092, 75 So. 614 (1917) . . . . 19.2.B.4.b Hill v. Morris, 85 So. 2d 847 (Fla. 1956) . . . . 7.1.C, 7.1.D.2, 7.8.C.2 Hill, In re Estate of, 552 So. 2d 1133 (Fla. 3d DCA 1989) . . . . 19.5.B.7 Hinson v. Booth, 39 Fla. 333, 22 So. 687 (1897) . . . . 1.2.E.1, 19.4.B, 19.5.A, 19.5.B.1 Hirchert Family Trust v. Hirchert, 65 So. 3d 548 (Fla. 5th DCA 2011) . . . . 19.7 Hodges v. Logan, 82 So. 2d 885 (Fla. 1955) . . . . 8.3.B.2.b.ii.II

Hodtum, In re Estate of, 267 So. 2d 686 (Fla. 2d DCA 1972) . . . . 21.3.A.1.e.iv Hofer v. Caldwell, 53 So. 2d 872 (Fla. 1951) . . . . 8.3.B.2.a.x Hoffman v. Kohns, 385 So. 2d 1064 (Fla. 2d DCA 1980) . . . . 11.3.H, 21.3.A.1.b.vi Hogan v. Howard, 716 So. 2d 286 (Fla. 2d DCA 1998) . . . . 8.3.B.2.a.iii, 8.3.C.1.a Holden v. Estate of Gardner, 420 So. 2d 1082 (Fla. 1982) . . . . 19.2.B.1, 19.2.B.4.b, 19.3.C Hollywood v. Clark, 153 Fla. 501, 15 So. 2d 175 (1943) . . . . 3.1, 3.7.A Holman v. Ford Motor Co., 239 So. 2d 40 (Fla. 1st DCA 1970) . . . . 3.6.X Holmen v. Holmen by Rahn, 697 So. 2d 866 (Fla. 4th DCA 1997) . . . . 11.2.B.4 Hooper v. Stokes, 107 Fla. 607, 145 So. 855, 146 So. 668, 145 So. 607 (1933) . . . . 21.3.A.1.e.iv Horn v. Air Sal, Inc., 519 So. 2d 1106 (Fla. 3d DCA 1988) . . . . 8.3.C.1.b Horne, In re Estate of, 171 So. 2d 14 (Fla. 2d DCA 1965) . . . . 21.3.B.3 Howard, In re Estate of, 542 So. 2d 395 (Fla. 1st DCA 1989) . . . . 3.6.R, 11.2.B.2 Hoyt v. Hoyt, 814 So. 2d 1254 (Fla. 2d DCA 2002) . . . . 8.5.A Hubert v. Hubert, 622 So. 2d 1049 (Fla. 4th DCA 1993) . . . . 4.3.A.3.k.ii, 19.5.B.2, 19.5.B.4 Hubert, Estate of; Commissioner v., 520 U.S. 93, 117 S. Ct. 1124, 137 L. Ed. 2d 235 (1997) . . . . 9.2.F.1, 15.4.D.2.f Hulsh v. Hulsh, 431 So. 2d 658 (Fla. 3d DCA 1983) . . . . 11.2.B.8 Hunter v. Dennies Contracting Co., 693 So. 2d 615 (Fla. 2d DCA 1997) . . . . 3.6.Q

I Iandoli v. Iandoli, 504 So. 2d 426 (Fla. 4th DCA 1987) . . . . 19.5.B.3 Iandoli v. Iandoli, 547 So. 2d 666 (Fla. 4th DCA 1989) . . . . 4.3.A.3.k.vi Idea, Inc. v. Sitko, 505 So. 2d 497 (Fla. 1st DCA 1987) . . . . 15.4.M.3.b In re Estate of (see name of party) In re Guardianship of (see name of party) In re (see name of party) International Shoe Co. v. State of Washington, Office of Unemployment Compensation & Placement, 326 U.S. 310, 66 S.Ct. 154, 90 L. Ed. 95, 161 A.L.R. 1057 (1945) . . . . 7.7.G Isaacson v. Boston Safe Deposit & Trust Co., 16 A.L.R. 2d 1277, 325 Mass. 469, 91 N.E.2d 334 (1951) . . . . 11.9.E ITT Rayonier, Inc. v. Wadsworth, 346 So. 2d 1004 (Fla. 1977) . . . . 19.9.F

J J & S Installation Specialist, Inc. v. Mabry, 857 So. 2d 346 (Fla. 2d DCA 2003) . . . . 3.1, 8.3.C.1.a Jahn v. Purvis, 145 Fla. 354, 199 So. 340 (1940) . . . . 19.9.F Jameson v. Jameson, 387 So. 2d 351 (Fla. 1980) . . . . 19.1, 19.5.B.9, 19.6.B Janien v. Janien, 939 So. 2d 264 (Fla. 4th DCA 2006) . . . . 7.4.A, 7.6.C.5, 21.3.D Jeffress, In re Estate of, 301 So. 2d 25 (Fla. 2d DCA 1974) . . . . 4.2.A Jeffries’ Estate, In re, 136 Fla. 410, 181 So. 833 (1938) . . . . 8.2.C.3, 8.3.C.1.b Jensen v. Estate of Gambidilla, 896 So. 2d 917 (Fla. 4th DCA 2005) . . . . 3.6.V Jerrido, In re Estate of, 339 So. 2d 237 (Fla. 4th DCA 1976) . . . . 11.2.B.4 Johns v. Bowden, 68 Fla. 32, 66 So. 155 (1914) . . . . 19.6.A.2 Johnson v. Girtman, 542 So. 2d 1033 (Fla. 3d DCA 1989) . . . . 7.3.B, 8.3.B.2.a.x Johnson v. Hayes, 52 So. 2d 109 (Fla. 1951) . . . . 7.8.C.2 Johnson v. Johnson, 140 So. 2d 358 (Fla. 2d DCA 1962) . . . . 19.8 Johnson v. Johnson, 676 So. 2d 458 (Fla. 5th DCA 1996) . . . . 3.6.D.3 Johnson v. Lincoln Square Properties, Inc., 571 So. 2d 541 (Fla. 2d DCA 1990) . . . . 13.2.B Johnson v. Townsend, 259 So. 3d 851 (Fla. 4th DCA 2018) . . . . 4.3.A.6, 8.3.B.2.a.ii, 8.2.B.2.b.i.I, 8.3.B.2.b.ii.II, 11.4 Johnson, In re Estate of, 397 So. 2d 970 (Fla. 4th DCA 1981) . . . . 19.6.A.2 Jolley v. Seamco Laboratories, Inc., 828 So. 2d 1050 (Fla. 1st DCA 2002) . . . . 21.3.G Jones v. Barnett Bank of Volusia County, 670 So. 2d 1195 (Fla. 5th DCA 1996) . . . . 7.5.A.4 Jones v. Federal Farm Mortg. Corp., 132 Fla. 807, 182 So. 226 (1938) . . . . 2.10.B, 14.3.C.6.a

Jones v. Golden, 176 So. 3d 242 (Fla. 2015) . . . . 2.2.B.3, 3.6.C, 4.3.A.6, 5.3.L, 8.2.A.2.e, 8.2.D, 8.3.A.1, 14.2.A, 21.3.C.2 Jones v. Sun Bank/Miami, N.A., 609 So. 2d 98 (Fla. 3d DCA 1992) . . . . 8.2.A.2.e Jones, In re Estate of, 352 So. 2d 1182 (Fla. 2d DCA 1977) . . . . 15.4.L, 13.2.B, 21.3.A.4 Jordan v. Fehr, 902 So. 2d 198 (Fla. 1st DCA 2005) . . . . 21.3.A.1.d.i Jordan v. Jordan, 601 So. 2d 287 (Fla. 3d DCA 1992) . . . . 21.3.A.1.b.v Jose, In re Estate of, 164 So. 2d 888 (Fla. 2d DCA 1964) . . . . 5.2.A.2 Juega v. Davidson, 105 So. 3d 575 (Fla. 3d DCA 2012) . . . . 3.6.M Julia v. Russo, 984 So. 2d 1283 (Fla. 4th DCA 2008) . . . . 11.2.B.2 Jureski v. Scaduto, 882 So. 2d 1061 (Fla. 4th DCA 2004) . . . . 21.3.B.3

K Kaplan v. Divosta Homes, L.P., 20 So. 3d 459 (Fla. 2d DCA 2009) . . . . 21.2.B Karasek v. William J. Lamping Trust, 909 So. 2d 552 (Fla. 4th DCA 2005) . . . . 11.3.C Karpo v. Deitsch, 196 So. 2d 180 (Fla. 3d DCA 1967) . . . . 4.3.D.2.b Karr v. Vitry, 135 So. 3d 372 (Fla. 5th DCA 2014) . . . . 3.8.B Kasmer v. Guardianship of Limner, 697 So. 2d 220 (Fla. 3d DCA 1997) . . . . 1.2.A.7 Kata v. Hayden, 544 So. 2d 315 (Fla. 2d DCA 1989) . . . . 8.2.C.1 Katz, In re Estate of, 501 So. 2d 68 (Fla. 3d DCA 1987) . . . . 3.6.Q, 6.3.A, 16.3.A Katz, In re Estate of, 528 So. 2d 422 (Fla. 4th DCA 1988) . . . . 21.3.B.2 Kelley v. Hill, 481 So. 2d 1311 (Fla. 2d DCA 1986) . . . . 7.1.B, 7.5.A.1 Kellogg-Citizens Nat'l Bank v. Felton, 145 Fla. 68, 199 So. 50 (1940) . . . . 3.6.D.1 Kelly v. Lindenau, 223 So. 3d 1074 (Fla. 2d DCA 2017) . . . . 21.3.A.1.d.ii.I, 21.3.B.5 Kelsey v. Pewthers, 685 So. 2d 953 (Fla. 4th DCA 1997) . . . . 7.3.B Kemp & Associates, Inc. v. Chisolm, 162 So. 3d 172 (Fla. 5th DCA 2015) . . . . 11.2.B.6 Kenan v. Commissioner, 114 F.2d 217 (2d Cir. 1940) . . . . 4.3.A.7 Kent Insurance Co. v. Estate of Atwood, 481 So. 2d 1294 (Fla. 1st DCA 1986) . . . . 8.3.B.2.a.i, 8.3.B.2.b.i.II Kenton, Estate of v. Kenton, 423 So. 2d 531 (Fla. 5th DCA 1982) . . . . 5.2.A.2 Kernkamp v. Bolthouse, 714 So. 2d 655 (Fla. 5th DCA 1998) . . . . 21.3.B.4 Kero, In re Estate of, 591 So. 2d 675 (Fla. 4th DCA 1992) . . . . 1.2.D.4 Kester, Estate of v. Rocco, 117 So. 3d 1196 (Fla. 1st DCA 2013) . . . . 21.3.A.1.b.xi

Keul v. Hodges Blvd. Presbyterian Church, 180 So. 3d 1074 (Fla. 1st DCA 2015) . . . . 1.2.E.3, 3.6.V, 21.3.F Key v. All Persons Claiming Any Estate, 160 Fla. 723, 36 So. 2d 366 (1948) . . . . 19.9.C Key West, City of v. Knowles, 948 So. 2d 58 (Fla. 3d DCA 2007) . . . . 1.2.A.1 Kiggins’ Estate, Van Horne and in In re, 67 So. 2d 915 (Fla. 1953) . . . . 21.3.A.3 Killinger, In re Estate of, 448 So. 2d 1187 (Fla. 2d DCA 1984) . . . . 11.2.F, 14.3.D.4 Kindy, In re Estate of, 310 So. 2d 349 (Fla. 3d DCA 1975) . . . . 15.4.H.1 King v. Ellison, 622 So. 2d 598 (Fla. 4th DCA 1993) . . . . 19.6.C King v. King, 652 So. 2d 1199 (Fla. 4th DCA 1995) . . . . 19.2.B.4.a, 19.2.B.4.b Kinney v. Mosher, 100 So. 2d 644 (Fla. 1st DCA 1958) . . . . 19.2.B.4.d Kinney System, Inc. v. Continental Insurance Co., 674 So. 2d 86 (Fla. 1996) . . . . 3.6.CC Kirker v. Orange County, 519 So. 2d 682 (Fla. 5th DCA 1988) . . . . 1.2.A.5, 1.2.A.8 Kirkland v. Carter, 126 Fla. 773, 171 So. 767 (1937) . . . . 4.3.A.3.d Kirksey v. Jennigan, 45 So. 3d 188 (Fla. 1950) . . . . 1.2.A.1, 1.2.A.7 Klein v. Estate of Klein, 295 So. 3d 793 (Fla. 4th DCA 2020) . . . . 16.3.A Klem v. Espejo-Norton, 983 So. 2d 1235 (Fla. 3d DCA 2008) . . . . 3.6.Y Knadle v. Estate of Knadle, 686 So. 2d 631 (Fla. 1st DCA 1997) . . . . 19.2.B.4.e, 19.5.B.7, 19.6.A.4 Knight, In re Estate of, 108 So. 2d 629 (Fla. 1st DCA 1959) . . . . 21.3.A.1.b.vi Knott v. Genung, 310 So. 3d 990 (Fla. 2d DCA 2020) . . . . 20.3.A.4 Kolb v. Levy, 104 So. 2d 874 (Fla. 3d DCA 1958) . . . . 4.3.C.5.b Korman v. Pond Apple Maintenance Ass’n, Inc., 607 So. 2d 489 (Fla. 4th DCA 1992) . . . . 15.3.J Koschler v. Dean, 642 So. 2d 1119 (Fla. 2d DCA 1994) . . . . 20.3.B

Koshuba, In re Estate of, 993 So. 2d 983 (Fla. 2d DCA 2007) . . . . 8.3.A.1 Kountze v. Kountze, 20 So. 3d 428 (Fla. 2d DCA 2009) . . . . 21.4.D Kozinski v. Stabenow, 152 So. 3d 650 (Fla. 4th DCA 2014) . . . . 3.6.O, 20.3.A.3, 21.4.D Krueger v. Commissioner, 48 T.C. 824 (1967) . . . . 4.3.C.1 Kuehmsted v. Turnwall, 103 Fla. 1180, 138 So. 775 (1932) . . . . 21.3.A.1.b.vi Kunce v. Robinson, 469 So. 2d 874 (Fla. 3d DCA 1985) . . . . 21.3.A.1.b.xiii Kupec v. Cooper, 593 So. 2d 1176 (Fla. 5th DCA 1992) . . . . 21.3.G Kutlesic v. Estate of Mervel, 898 So. 2d 231 (Fla. 3d DCA 2005) . . . . 3.6.BB.2

L Lacy v. Seegers, 445 So. 2d 400 (Fla. 5th DCA 1984) . . . . 21.3.A.1.d.ii.I Lamontagne v. Hunter, 341 So. 2d 1074 (Fla. 2d DCA 1977) . . . . 11.6 Landers v. Sherwin, 261 So. 2d 542 (Fla. 4th DCA 1972) . . . . 8.3.B.2.b.ii.II Lane, In re Estate of, 492 So. 2d 395 (Fla. 4th DCA 1986) . . . . 21.3.A.3 Lane, In re Estate of, 562 So. 2d 352 (Fla. 4th DCA 1990) . . . . 15.4.M.4 Laney v. Roberts, 409 So. 2d 201 (Fla. 3d DCA 1982) . . . . 21.3.G Lanier v. Lanier, 95 Fla. 522, 116 So. 867 (1928) . . . . 19.8 Laramore v. Laramore, 49 So. 2d 517 (Fla. 1951) . . . . 18.2.L Laramore v. Laramore, 64 So. 2d 662 (Fla. 1953) . . . . 4.3.A.3.i, 4.3.D.2.b, 9.2.A, 15.2.C Lauritsen v. Wallace, 67 So. 3d 285 (Fla. 5th DCA 2011) . . . . 4.3.A.6, 6.5.E, 11.3.I Laushway v. Onofrio, 670 So. 2d 1135 (Fla. 5th DCA 1996) . . . . 3.6.V Lavey v. Doig, 25 Fla. 611, 6 So. 259 (1889) . . . . 3.6.R Law v. Law, 738 So. 2d 522 (Fla. 4th DCA 1999) . . . . 19.2.B.3 Lawrence’s Estate, In re, 45 So. 2d 344 (Fla. 1950) . . . . 3.6.J Leadingham v. Wallace, 691 So. 2d 1162 (Fla. 5th DCA 1997) . . . . 16.3.A Lee v. Estate of Payne, 148 So. 3d 776 (Fla. 2d DCA 2013) . . . . 17.1 Lee Engineering & Construction Co. v. Fellows, 209 So. 2d 454 (Fla. 1968) . . . . 15.4.B.2.a Leffler v. Leffler, 151 Fla. 455, 10 So. 2d 799 (1942) . . . . 21.3.A.3 Lefkowitz v. Schwartz, 299 So. 3d 549 (Fla. 5th DCA 2020) . . . . 8.3.B.2.b.ii.II Lehman v. Lucom, 78 So. 3d 592 (Fla. 4th DCA 2011) . . . . 17.4.A Lerma-Fusco v. Smith, 220 So. 3d 562 (Fla. 5th DCA 2017) . . . . 2.2.B.3, 2.4, 3.8.B Leslie v. Leslie, 840 So. 2d 1097 (Fla. 4th DCA 2003) . . . . 3.1

Levey v. Adams, 609 So. 2d 163 (Fla. 4th DCA 1992) . . . . 3.6.V Levin v. Levin, 60 So. 3d 1116 (Fla. 4th DCA 2011) . . . . 21.3.A.1.e.iv Levine v. Hirshon, 980 So. 2d 1053 (Fla. 2008) . . . . 19.2.B.4.b Lewis v. BT Investment Managers, Inc., 447 U.S. 27, 100 S.Ct. 2009, 64 L. Ed. 2d 702 (1980) . . . . 1.2.D.7 Lewis v. Estate of Turcol, 709 So. 2d 186 (Fla. 5th DCA 1998) . . . . 6.5.V Lewis, In re Estate of, 411 So. 2d 368 (Fla. 4th DCA 1982) . . . . 21.4.E Lewis, In re Estate of, 442 So. 2d 290 (Fla. 4th DCA 1984) . . . . 15.4.L Lewsadder v. Estate of Lewsadder, 757 So. 2d 1221 (Fla. 4th DCA 2000) . . . . 8.3.C.1.a Lieber, In re Estate of, 103 So. 2d 192 (Fla. 1958) . . . . 4.2.C.1, 15.2.I.2, 15.2.I.4, 15.3.J, 15.4.B.3, 15.4.F, 15.4.G, 15.4.O.2 Lieberman, In re Estate of, 356 So. 2d 17 (Fla. 4th DCA 1978) . . . . 13.3.B.1 Liechty v. Hall, 687 So. 2d 64 (Fla. 5th DCA 1997) . . . . 3.6.Y Lif v. In re Estate of Lif, 325 So. 3d 968 (Fla. 3d DCA 2021) . . . . 4.3.C.7 Lisowski, In re, 395 B.R. 771 (Bankr. M.D. Fla. 2008) . . . . 19.2.B.4.b Litras, In re Estate of, 608 So. 2d 847 (Fla. 4th DCA 1992) . . . . 14.3.D.5.a Litsey v. First Federal Savings & Loan Ass’n of Tampa, 243 So. 2d 239, 46 A.L.R.3d 477 (Fla. 2d DCA 1971) . . . . 11.9.C.4.i Livingston v. Crickenberger, 141 So. 2d 794 (Fla. 1st DCA 1962) . . . . 14.3.A.2 Livingston, In re Estate of, 161 So. 2d 723 (Fla. 2d DCA 1964) . . . . 1.2.E.1, 19.4.B, 19.5.A Lloyd v. State, 524 So. 2d 396 (Fla. 1988) . . . . 21.3.A.1.d.i Local Door Coupons Franchise, Inc. v. Mayers, 261 So. 3d 726 (Fla. 3d DCA 2018) . . . . 2.4 Loewenthal v. Mandell, 125 Fla. 685, 170 So. 169 (1936) . . . . 3.6.I, 5.6.D.1, 17.2.E Loewy, In re Estate of, 638 So. 2d 144 (Fla. 4th DCA 1994) . . . . 7.7.C Lohr v. Byrd, 522 So. 2d 845 (Fla. 1988) . . . . 3.6.C Long v. Willis, 100 So. 3d 4 (Fla. 2d DCA 2011) . . . . 4.3.C.6

Long v. Willis, 113 So. 3d 80 (Fla. 2d DCA 2013) . . . . 5.2.B Lonstein, In re Estate of, 433 So. 2d 672 (Fla. 4th DCA 1983) . . . . 15.4.H.3, 15.4.M.4 Lopez v. Avery, 66 So. 2d 689 (Fla. 1953) . . . . 3.6.D.2 Lopez v. Hernandez, 291 So. 3d 1007 (Fla. 5th DCA 2020) . . . . 4.4.B.2 Lopez v. Lopez, 90 So. 2d 456 (Fla. 1956) . . . . 1.2.E.5 Lopez v. Rodriguez, 574 So. 2d 249 (Fla. 3d DCA 1991) . . . . 11.2.B.2 Lorenzo v. Medina, 47 So. 3d 927 (Fla. 3d DCA 2010) . . . . 11.3.G Lorraine v. Grover, Ciment, Weinstein & Stauber, P.A., 467 So. 2d 315 (Fla. 3d DCA 1985) . . . . 19.5.B.8, 19.5.B.9 Lot 5, Fox Grove, Alachua County, Florida; United States v., 23 F.3d 359 (11th Cir. 1994) . . . . 19.7 Lovest v. Mangiero, 279 So. 3d 205 (Fla. 3d DCA 2019) . . . . 3.6.P, 4.4.B.3, 21.4.A Lowy v. Kessler, 522 So. 2d 917 (Fla. 3d DCA 1988) . . . . 15.3.G Lubee v. Adams, 77 So. 3d 882 (Fla. 2d DCA 2012) . . . . 3.6.C, 8.3.A.1, 21.3.C.2 Lumbert v. Estate of Carter, 867 So. 2d 1175 (Fla. 5th DCA 2004) . . . . 3.5.A Lunga, In re Estate of, 360 So. 2d 109 (Fla. 3d DCA 1978) . . . . 15.4.D.2.h Lutheran Brotherhood Legal Reserve Fraternal Benefit Society v. Estate of Petz, 744 So. 2d 596 (Fla. 2d DCA 1999) . . . . 8.2.B.3.b Lyeth v. Hoey, 305 U.S. 188, 59 S. Ct. 155, 83 L. Ed. 119, 1938-2 C.B. 208 (1938) . . . . 21.5 Lynagh, In re Estate of, 177 So. 2d 256 (Fla. 2d DCA 1965) . . . . 11.2.A.2, 11.2.A.6, 11.8.E Lyons v. Lyons, 155 So. 3d 1179 (Fla. 4th DCA 2015) . . . . 19.5.B.5

M Mach’s Estate, In re, 118 Fla. 421, 159 So. 519 (1935) . . . . 21.3.A.1.b.i MacIntyre v. Wedell, 12 So. 3d 273 (Fla. 4th DCA 2009) . . . . 21.3.A.1.b.xiii Mack v. Perri, 24 So. 3d 697 (Fla. 1st DCA 2009) . . . . 3.6.C, 8.2.A.2.c, 8.3.A.1 Mackle v. Mackle, 389 So. 2d 1081 (Fla. 3d DCA 1980) . . . . 4.3.A.3.f Maercks v. Maercks, 272 So. 3d 485 (Fla. 3d DCA 2019) . . . . 3.8.B Magee, In re Estate of, 902 So. 2d 909 (Fla. 2d DCA 2005) . . . . 7.7.D Magee, In re Estate of, 988 So. 2d 1 (Fla. 2d DCA 2007) . . . . 7.9, 21.3.D Maher, Estate of v. Iglikova, 138 So. 3d 484 (Fla. 3d DCA 2014) . . . . 11.3.H Malave v. Malave, 178 So. 3d 51 (Fla. 5th DCA 2015) . . . . 3.1 Malleiro v. Mori, 182 So. 3d 5 (Fla. 3d DCA 2016) . . . . 5.6.B, 21.3.A.1.d.i Mangieri, In re, 2021 Bankr. LEXIS 1169 (Bankr. M.D. Fla. 2021) . . . . 19.8 Mann v. Davis, 131 So. 3d 830 (Fla. 1st DCA 2014) . . . . 3.8.B Manufacturers National Bank of Detroit v. Moons, 659 So. 2d 474 (Fla. 4th DCA 1995) . . . . 3.6.CC Marger v. De Rosa, 57 So. 3d 866 (Fla. 2d DCA 2011) . . . . 19.2.B.4.d, 19.5.B.9 Markham v. Allen, 326 U.S. 490, 66 S.Ct. 296, 90 L. Ed. 256 (1946) . . . . 3.3 Markowitz v. Merson, 869 So. 2d 728 (Fla. 4th DCA 2004) . . . . 3.4.B, 21.4.D, 21.4.F Marks, In re Estate of, 83 So. 2d 853 (Fla. 1955) . . . . 4.2.E, 15.4.H.2 Marsh v. Hartley, 109 So. 2d 34 (Fla. 2d DCA 1959) . . . . 19.1, 19.8 Marshall v. Hollywood, Inc., 236 So. 2d 114 (Fla. 1970) . . . . 19.9.F Marshall v. HQM of Winter Park, LLC, 959 So. 2d 1207 (Fla. 5th DCA 2007) . . . . 3.5.A Marshall v. Marshall, 547 U.S. 293, 126 S. Ct. 1735, 164 L. Ed. 2d 480 (2006) . . . . 3.3, 21.4.B Marshall Lodge v. Woodson, 139 Fla. 579, 190 So. 749 (1939) . . . . 8.3.A.3

Martin v. Martin, 687 So. 2d 903 (Fla. 4th DCA 1997) . . . . 3.6.E Martini v. Estate of Conner, 113 So. 3d 147 (Fla. 2d DCA 2013) . . . . 3.8.B Martino, In re, 313 So. 3d 687 (Fla. 2d DCA 2020) . . . . 21.4.E Martz v. Riskamm, 144 So. 2d 83 (Fla. 1st DCA 1962) . . . . 7.8.C.2 Marvin & Kay Lichtman Foundation v. Estate of Lichtman, 773 So. 2d 1232 (Fla. 3d DCA 2000) . . . . 15.3.E Matchett, In re Estate of, 394 So. 2d 437 (Fla. 5th DCA 1981) . . . . 8.3.C.1.b Mathis v. Estate of Mathis, 178 So. 3d 919 (Fla. 3d DCA 2015) . . . . 3.6.Y Matsumoto v. American Burial & Cremation Services, Inc., 949 So. 2d 1054 (Fla. 2d DCA 2007) . . . . 1.2.A.1 Matter of (see name of party) Maugeri v. Plourde, 396 So. 2d 1215 (Fla. 3d DCA 1981) . . . . 11.11 Maxcy, In re Estate of, 178 So. 2d 43 (Fla. 2d DCA 1965) . . . . 8.2.C.1 Maxcy, In re Estate of, 240 So. 2d 93 (Fla. 2d DCA 1970) . . . . 4.2.C.2, 15.4.O.1 May v. Illinois National Insurance Co., 771 So. 2d 1143 (Fla. 2000) . . . . 3.6.C, 8.2.A.2.a, 8.2.B.2, 8.2.B.3.a, 8.2.B.3.b, 8.3.A.1, 8.3.B.2.b.i.II, 8.3.B.2.b.ii.II, 21.3.C.1, 21.3.C.2, 21.3.C.3 Mazza v. Mazza, 475 F.2d 385, 154 U.S. App. D.C. 274 (D.C. Cir. 1973) . . . . 11.9.E McAdam v. Thom, 610 So. 2d 510 (Fla. 3d DCA 1993) . . . . 21.3.E McCabe v. Hanley, 886 So. 2d 1053 (Fla. 4th DCA 2004) . . . . 21.3.A.1.b.vii, 21.3.A.1.e.iv McClaran, In re Estate of, 811 So. 2d 799 (Fla. 2d DCA 2002) . . . . 11.9.C.4.b, 11.9.C.4.g, 11.9.C.4.h, 11.9.C.4.i, 11.9.D.3.k McClaskey v. Leatherman, 261 So. 2d 137 (Fla. 1972) . . . . 3.6.D.3 McClenahen, In re Estate of, 476 So. 2d 1289 (Fla. 2d DCA 1985) . . . . 7.7.A, 7.8.C.2, 7.8.D.2 McCormick v. Cox, 118 So. 3d 980 (Fla. 3d DCA 2013) . . . . 15.3.C McCormick v. McCormick, 991 So. 2d 437 (Fla. 1st DCA 2008) . . . . 1.2.D.7 McCune, In re Estate of, 223 So. 2d 787 (Fla. 4th DCA 1969) . . . . 3.8.C

McDonald v. Johnson, 83 So. 3d 889 (Fla. 2d DCA 2012) . . . . 7.5.A.6 McDougald’s Estate, In re, 149 Fla. 468, 6 So. 2d 274 (1942) . . . . 14.3.A.3 McEnderfer v. Keefe, 921 So. 2d 597 (Fla. 2006) . . . . 4.3.A.3.k.ii McGinty, In re Estate of, 258 So. 2d 450 (Fla. 1972) . . . . 19.2.B.2 McGreevy, State ex rel. v. Dowling, 223 So. 2d 89 (Fla. 3d DCA 1969) . . . . 5.3.A.1 McKean v. Warburton, 919 So. 2d 341 (Fla. 2006) . . . . 4.3.A.3.k.ii, 10.3.D.8, 11.3.I, 15.4.D.2.e, 19.4.A.2, 19.5.B.7, 19.6.A.4 McKenzie v. Hi Rise Crane, Inc., 326 So. 3d 1161 (Fla 1st DCA 2021) . . . . 4.3.A.1 McLaughlin v. Lara, 133 So. 3d 1004 (Fla. 2d DCA 2013) . . . . 3.8.B McMullen v. Bennis, 20 So. 3d 890 (Fla. 3d DCA 2009) . . . . 21.3.G Medley, In re Guardianship of, 573 So. 2d 892 (Fla. 2d DCA 1991) . . . . 21.3.E Megiel-Rollo v. Megiel, 162 So. 3d 1088 (Fla. 2d DCA 2015) . . . . 21.3.B.5 Melican v. Parker, 711 S.E.2d 628, 289 Ga. 420 (Ga. 2011) . . . . 11.3.B Meltzer v. Estate of Norrie, 705 So. 2d 967 (Fla. 5th DCA 1998) . . . . 3.6.C, 8.3.B.2.b.ii.III Menz v. Estate of Menz, 381 So. 2d 375 (Fla. 1st DCA 1980) . . . . 7.10.B Messina v. Scionti, 406 So. 2d 529 (Fla. 2d DCA 1981) . . . . 8.3.B.2.a.ix Meyer v. Meyer, 931 So. 2d 268 (Fla. 5th DCA 2006) . . . . 3.7.A Miami, City of v. St. Joe Paper Co., 364 So. 2d 439 (Fla. 1978) . . . . 19.9.F Miami Country Day School v. Bakst, 641 So. 2d 467 (Fla. 3d DCA 1994) . . . . 19.2.B.4.b Miami Rescue Mission, Inc. v. Roberts, 943 So. 2d 274 (Fla. 3d DCA 2006) . . . . 21.3.A.1.e.iv Michigan Tech Fund v. Century National Bank of Broward, 680 F.2d 736 (11th Cir. 1982) . . . . 3.3 Midland National Bank & Trust v. Comerica Trust Company of Florida, N.A., 616 So. 2d 1081 (Fla. 4th DCA 1993) . . . . 3.6.P Miller v. Finegan, 26 Fla. 29, 7 So. 140 (1890) . . . . 19.5.B.2

Miller v. Hayman, 766 So. 2d 1116 (Fla. 4th DCA 2000) . . . . 21.4.H Miller v. Paczier, 591 So. 2d 321 (Fla. 3d DCA 1991) . . . . 11.2.B.6 Miller, In re Estate of, 301 So. 2d 137 (Fla. 4th DCA 1974) . . . . 11.9.C.3 Miller, In re Estate of, 568 So. 2d 487 (Fla. 1st DCA 1990) . . . . 1.2.D.7, 2.4, 16.3.A Mills v. Hamilton, 121 Fla. 435, 163 So. 857 (1935) . . . . 9.2.A Mindlin, In re Estate of, 571 So. 2d 90 (Fla. 2d DCA 1990) . . . . 1.2.D.7 Minty v. Meister Fin. Grp., Inc., 132 So. 3d 373 (Fla. 4th DCA 2014) . . . . 3.6.Q Miranda v. Pacheco Entertainment Production Enterprises, 220 So. 3d 523 (Fla. 3d DCA 2017) . . . . 3.6.Q Mitchell v. Bogue, 142 Fla. 787, 196 So. 306 (1940) . . . . 11.3.D Monks v. Smith, 609 So. 2d 740 (Fla. 1st DCA 1993) . . . . 19.4.A.1, 19.4.A.2 Montanez, In re Estate of, 687 So. 2d 943 (Fla. 3d DCA 1997) . . . . 1.2.D.7, 4.3.C.1, 4.3.C.5.b, 7.8.C.2, 7.8.D.2, 15.2.F Montgomery v. Cribb, 484 So. 2d 73 (Fla. 2d DCA 1986) . . . . 8.3.B.2.a.iv Moore v. Moore, 237 So. 2d 217 (Fla. 4th DCA 1970) . . . . 19.5.B.9 Moore v. Price, 98 Fla. 276, 123 So. 768 (1929) . . . . 7.1.C Moore, Estate of; State v., 153 So. 2d 819 (Fla. 1963) . . . . 21.3.C.4 Moore, In re Estate of, 65 A.L.R. 2d 715, 210 Or. 23, 307 P.2d 483 (1959) . . . . 19.8 Moore, In re Estate of, 145 So. 2d 293 (Fla. 1st DCA 1962) . . . . 8.3.B.2.a.v Moreno v. Thompson, 456 So. 2d 976 (Fla. 3d DCA 1984) . . . . 18.2.M Morey v. Everbank, 93 So. 3d 482 (Fla. 1st DCA 2012) . . . . 13.2.G.7 Morgenthau v. Estate of Andzel, 26 So. 3d 628 (Fla. 1st DCA 2009) . . . . 3.6.C, 8.3.A.1, 21.3.C.2 Morrow, In re Estate of, 611 So. 2d 80 (Fla. 2d DCA 1992) . . . . 3.6.BB.1, 19.1, 19.6.A.3, 19.6.A.4 Mosley, In re Estate of, 402 So. 2d 594 (Fla. 5th DCA 1981) . . . . 18.2.F Moss v. Estate of Moss, 777 So. 2d 1110 (Fla. 4th DCA 2001) . . . . 19.5.B.2 Mudarri v. Gillespie, 226 So. 2d 808 (Fla. 1969) . . . . 18.2.L, 18.2.M

Mullan v. Bank of Pasco County, 101 Fla. 1097, 133 So. 323 (1931) . . . . 19.9.F Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S. Ct. 652, 94 L. Ed. 865 (1950) . . . . 19.9.C Mullins v. Mullins, 274 So. 3d 513 (Fla. 5th DCA 2019) . . . . 19.9.F Mulvey v. Stephens, 250 So. 3d 106 (Fla. 4th DCA 2018) . . . . 21.4.J Murphy v. Murphy, 125 Fla. 855, 170 So. 856 (1936) . . . . 7.2.B, 7.2.C, 7.8.B.4 Murphy, Estate of, 340 So. 2d 107 (Fla. 1976) . . . . 19.5.B.3 Murphy, In re Estate of, 184 So. 3d 1221 (Fla. 2d DCA 2016) . . . . 21.3.A.4 Murrey v. Barnett National Bank of Jacksonville, 74 So. 2d 647 (Fla. 1954) . . . . 21.3.A.1.c.ii Musil, In re Estate of, 965 So. 2d 1157 (Fla. 2d DCA 2007) . . . . 21.3.G Myers v. Matusek, 98 Fla. 1126, 125 So. 360 (1929) . . . . 4.3.A.4

N Nahar v. Nahar, 656 So. 2d 225 (Fla. 3d DCA 1995) . . . . 3.6.D.3 Nardi v. Nardi, 390 So. 2d 438 (Fla. 3d DCA 1980) . . . . 2.2.A, 5.4.B Nationsbank, N.A. v. Brenner, 756 So. 2d 203 (Fla. 3d DCA 2000) . . . . 11.9.C.4.g, 11.9.C.4.i, 11.9.D.3.k Neil’s Estate, In re, 39 So. 2d 801 (Fla. 1949) . . . . 21.3.A.1.d.i Nelson v. Walden, 186 So. 2d 517 (Fla. 2d DCA 1966) . . . . 21.3.A.1.b.xii Nesmith v. Nesmith, 155 Fla. 823, 21 So. 2d 789 (1945) . . . . 19.2.B.5 Nestor v. Estate of Posner, 260 So. 3d 417 (Fla. 3d DCA 2018) . . . . 16.3.A New York Life Insurance & Annuity Corp. v. Gerth, 2013 U.S. Dist. LEXIS 110556 (M.D. Fla. 2013) . . . . 11.2.B.2 Newman v. Brecher, 887 So. 2d 384 (Fla. 4th DCA 2004) . . . . 21.3.A.1.b.v Newman v. Sathyavaglswaran, 287 F.3d 786 (9th Cir. 2002) . . . . 1.2.A.5 Newman v. Smith, 77 Fla. 633, 82 So. 236 (1919) . . . . 21.3.A.1.b.x, 21.3.A.1.c.i Newman v. Smith, 82 So. 236, 77 Fla. 688 (Fla. 1918) . . . . 21.3.A.1.b.v Nicole Santos, In re Estate of, 648 So. 2d 277 (Fla. 4th DCA 1995) . . . . 3.6.D.3 Niernsee’s Estate, In re, 147 Fla. 388, 2 So. 2d 737 (1941) . . . . 5.6.C.1 Noble’s Estate, In re, 73 So. 2d 873 (Fla. 1954) . . . . 3.6.BB.1, 19.9.D Nolan, In re Estate of, 712 So. 2d 421 (Fla. 2d DCA 1998) . . . . 2.4 Nordman v. McCormick, 715 So. 2d 310 (Fla. 5th DCA 1998) . . . . 19.1 Norem, In re Estate of, 561 So. 2d 434 (Fla. 4th DCA 1990) . . . . 11.3.H Northern Trust Co. v. Abbott, 313 So. 3d 792 (Fla. 2d DCA 2021) . . . . 21.4.K Novoa v. Amerisource Corp., 860 So. 2d 506 (Fla. 3d DCA 2003) . . . . 19.8

O O’Keefe, In re Estate of, 833 So. 2d 157 (Fla. 2d DCA 2002) . . . . 3.6.D.2 Obergefell v. Hodges, 135 S.Ct. 2584, 192 L. Ed. 2d 609, 576 U.S. 644, 192 L. Ed. 2d 609 (2015) . . . . 1.2.A.3 Ogden v. Ogden, 159 Fla. 604, 33 So. 2d 870 (1948) . . . . 3.6.D.3 Old Republic Surety Co. v. Reischmann, 713 So. 2d 434 (Fla. 2d DCA 1998) . . . . 4.3.C.5.d One 1972 Volvo Vehicle, In re, 489 So. 2d 1240 (Fla. 4th DCA 1986) . . . . 15.4.M.1 Onofrio v. Johnston & Sasser, P.A., 782 So. 2d 1019 (Fla. 5th DCA 2001) . . . . 15.4.O.4 Orange Brevard Plumbing & Heating Co. v. La Croix, 137 So. 2d 201 (Fla. 1962) . . . . 19.2.B.4.e, 19.7 Orlando, City of v. Kensington, Ltd., 580 So. 2d 830 (Fla. 5th DCA 1991) . . . . 15.4.B.2.b Ortolano, In re Estate of, 766 So. 2d 330 (Fla. 4th DCA 2000) . . . . 8.2.A.2.e Osborne v. Dumoulin, 55 So. 3d 577 (Fla. 2011) . . . . 19.2.B.1 Osceola v. Estate of Osceola, 744 So. 2d 1251 (Fla. 3d DCA 1999) . . . . 3.6.BB.1 Osceola v. Estate of Osceola, 870 So. 2d 174 (Fla. 3d DCA 2004) . . . . 3.6.BB.1 Osius v. Miami Beach First National Bank, 74 So. 2d 779 (Fla. 1954) . . . . 15.2.I.4 Ostyn v. Olympic, 455 So. 2d 1137 (Fla. 2d DCA 1984) . . . . 19.2.B.4.d, 19.5.B.9 Ott v. Ott, 418 So. 2d 460 (Fla. 4th DCA 1982) . . . . 11.3.F Overly v. Overly, 66 So. 2d 706 (Fla. 1953) . . . . 3.6.D.2 Owens v. Estate of Davis, 930 So. 2d 873 (Fla. 2d DCA 2006) . . . . 7.2.C Oxford, In re Estate of, 372 So. 2d 1129 (Fla. 2d DCA 1979) . . . . 8.3.C.1.b, 21.3.C.3

Oyola, In re, 571 B.R. 874 (Bankr. M.D. Fla. 2017) . . . . 19.2.B.1

P Padgett v. Estate of Gilbert, 676 So. 2d 440 (Fla. 1st DCA 1996) . . . . 1.2.D.7, 5.2.B Padgett, In re Estate of, 547 So. 2d 342 (Fla. 1st DCA 1989) . . . . 11.3.F Paine’s Estate, In re, 128 Fla. 151, 174 So. 430 (1937) . . . . 4.3.D.2.b Pajares v. Donahue, 33 So. 3d 700 (Fla. 4th DCA 2010) . . . . 11.3.I, 19.5.B.7 Palm Beach Towers, Inc. v. Korn, 400 So. 2d 110 (Fla. 4th DCA 1981) . . . . 21.4.D Palmer v. Palmer, 47 Fla. 200, 35 So. 983 (1904) . . . . 19.3.A Palmer, In re Estate of, 600 So. 2d 537 (Fla. 4th DCA 1992) . . . . 7.6.E Pan American Bank of Orlando, N.A. v. O’Malley, 353 So. 2d 856 (Fla. 4th DCA 1978) . . . . 8.3.B.2.a.ii Panzirer v. Deco Purchasing & Distributing Co., 448 So. 2d 1197 (Fla. 5th DCA 1984) . . . . 4.3.A.3.d Paradise of Port Richey v. Estate of Boulis, 810 So. 2d 1044 (Fla. 4th DCA 2002) . . . . 3.6.O, 7.7.G Parker v. Estate of Bealer, 890 So. 2d 508 (Fla. 4th DCA 2005) . . . . 2.2.D.1, 21.4.B Parker v. Shullman, 906 So. 2d 1236 (Fla. 4th DCA 2005) . . . . 15.3.B Parker v. Shullman, 983 So. 2d 643 (Fla. 4th DCA 2008) . . . . 9.3.D Parker, In re Estate of, 110 So. 2d 498 (Fla. 1st DCA 1959) . . . . 14.3.A.3 Parker, In re Estate of, 382 So. 2d 652 (Fla. 1980) . . . . 1.2.D.4, 5.6.C.1, 21.3.A.1.e.ii Parson, In re Estate of, 570 So. 2d 1125 (Fla. 1st DCA 1990) . . . . 21.3.C.2 Parson, In re Estate of, 570 So. 2d 1125 (Fla. 1st DCA 1990) . . . . 8.2.B.3.a Partridge v. Partridge, 790 So. 2d 1280 (Fla. 4th DCA 2001) . . . . 3.1 Pasco v. Harley, 73 Fla. 819, 75 So. 30 (1917) . . . . 19.7 Pasquale v. Loving, 82 So. 3d 1205 (Fla. 4th DCA 2012) . . . . 3.6.E, 21.3.A.1.d.ii.I, 21.3.A.2

Pastor v. Pastor, 929 So. 2d 576 (Fla. 4th DCA 2006) . . . . 2.2.B.2, 21.4.A Paulk, Estate of v. Lindamood, 529 So. 2d 1150 (Fla. 1st DCA 1988) . . . . 3.6.CC, 3.6.L Pawley v. Pawley, 46 So. 2d 464, 28 A.L.R. 2d 1358 (Fla. 1950) . . . . 7.8.C.2 Payette v. Clark, 559 So. 2d 630 (Fla. 2d DCA 1990) . . . . 3.1, 3.6.Y, 21.4.D Paylor v. Hartford Fire Insurance Co., 748 F.3d 1117 (11th Cir. 2014) . . . . 21.3.A.1.a Payne v. Stalley, 672 So. 2d 822 (Fla. 2d DCA 1995) . . . . 8.2.B.3.b, 8.3.A.1 Peacock v. Du Bois, 90 Fla. 162, 105 So. 321 (1925) . . . . 21.3.A.1.b.i Pearce v. Foster, 454 So. 2d 721 (Fla. 4th DCA 1984) . . . . 4.3.B.1.f, 4.3.B.2 Pearce, In re Estate of, 481 So. 2d 69 (Fla. 4th DCA 1986) . . . . 21.3.A.1.d.ii.II Pearce, In re Estate of, 507 So. 2d 729 (Fla. 4th DCA 1987) . . . . 4.3.A.2, 4.3.D.2.b Pearson v. Cobb, 713 So. 2d 1069 (Fla. 5th DCA 1998) . . . . 2.4 Pearson, In re Estate of, 192 So. 2d 89 (Fla. 2d DCA 1966) . . . . 7.7.A Pellicer, In re Estate of, 118 So. 2d 59 (Fla. 1st DCA 1960) . . . . 21.4.G Pennington, In re Estate of, 226 So. 2d 881 (Fla. 2d DCA 1969) . . . . 11.2.A.2 Perelman v. Estate of Perelman, 124 So. 3d 983 (Fla. 4th DCA 2013) . . . . 3.6.D.4, 21.4.B Perez v. Lopez, 454 So. 2d 777 (Fla. 3d DCA 1984) . . . . 6.3.A Perkins v. O’Donald, 77 Fla. 710, 82 So. 401 (1919) . . . . 21.3.B.4 Peterson, In re Estate of, 433 So. 2d 1358 (Fla. 4th DCA 1983) . . . . 8.3.B.2.b.ii.II Pezzi v. Brown, 697 So. 2d 883 (Fla. 4th DCA 1997) . . . . 8.3.B.2.a.i, 8.3.B.2.b.i.II Pfeiffer’s Will, In re, 34 Fla. Supp. 132 (Dade Co. 1970) . . . . 21.4.E Phillips v. Hirshon, 958 So. 2d 425 (Fla. 3d DCA 2007) . . . . 4.3.A.3.k.ii, 19.2.A, 19.2.B.4.b Pierce v. Pierce, 128 So. 3d 204 (Fla. 1st DCA 2013) . . . . 3.8.B

Pierre v. Estate of Pierre, 928 So. 2d 1252 (Fla. 3d DCA 2006) . . . . 5.6.C.1 Piloto v. Lauria, 45 So. 3d 565 (Fla. 4th DCA 2010) . . . . 17.3.A Pinkham v. Central Farmers’ Trust Co., 118 Fla. 253, 159 So. 289 (1935) . . . . 1.2.B.2 Pisciotti v. Stephens, 940 So. 2d 1217 (Fla. 4th DCA 2006) . . . . 3.6.V Pitts v. Pitts, 120 Fla. 363, 162 So. 708 (1935) . . . . 3.4.A, 7.7.G, 21.4.C Planned Parenthood of Greater Orlando, Inc. v. MMB Properties, 211 So. 3d 918 (Fla. 2017) . . . . 3.6.Q Platt v. Osteen, 103 So. 3d 1010 (Fla. 5th DCA 2012) . . . . 4.3.A.9 Platt, In re Estate of, 586 So. 2d 328 (Fla. 1991) . . . . 15.2.I.1, 15.2.I.3, 15.2.I.4, 15.3.H, 15.4.B.1, 15.4.B.2.a, 15.4.B.2.b, 15.4.L Polkowski v. Polkowski, 854 So. 2d 286 (Fla. 4th DCA 2003) . . . . 3.6.BB.1 Pontrello v. Estate of Kepler, 528 So. 2d 441 (Fla. 2d DCA 1988) . . . . 1.2.D.7 Popp v. Bond, 158 Fla. 185, 28 So. 2d 259 (1946) . . . . 2.5 Posner v. Posner, 257 So. 2d 530 (Fla. 1972) . . . . 7.8.B.2 Potter, In re Estate of, 469 So. 2d 957 (Fla. 4th DCA 1985) . . . . 11.3.I, 14.3.A.4 Pounds, Estate of v. Miller & Jacobs, P.A., 336 So. 3d 14 (Fla. 4th DCA 2022) . . . . 15.2.A Pournelle v. Baxter, 151 Fla. 32, 9 So. 2d 162 (1942) . . . . 21.3.A.1.b.iv Powell; State v., 497 So. 2d 1188 (Fla. 1986) . . . . 1.2.A.5 Precision Tune Auto Care, Inc. v. Radcliff, 731 So. 2d 744 (Fla. 4th DCA 1999) . . . . 3.6.Q Prescott v. Stanley, 710 So. 2d 674 (Fla. 5th DCA 1998) . . . . 8.3.B.2.b.ii.III Price v. Abate, 9 So. 3d 37 (Fla. 5th DCA 2009) . . . . 21.3.A.1.d.i Price v. Florida National Bank of Miami, 419 So. 2d 389 (Fla. 3d DCA 1982) . . . . 7.6.E, 13.5 Price, Estate of v. West Florida Hospital, Inc., 513 So. 2d 767 (Fla. 1st DCA 1987) . . . . 11.3.I, 19.2.B.4.e, 19.5.B.2, 19.5.B.7, 19.6.A.4 Prudential Insurance Company of America, Inc. v. Baitinger, 452 So. 2d 140

(Fla. 3d DCA 1984) . . . . 11.2.B.2 Pryor v. First National Bank of Leesburg, 97 So. 2d 143 (Fla. 2d DCA 1957) . . . . 5.2.A.2 Purnell, In re Estate of, 482 So. 2d 438 (Fla. 5th DCA 1986) . . . . 3.6.M Putnam v. Via, 638 So. 2d 981 (Fla. 2d DCA 1994) . . . . 7.3.B

Q Quigley v. Kennedy & Ely Insurance, Inc., 207 So. 2d 431 (Fla. 1968) . . . . 19.2.B.5, 19.7 Quintana v. Ordono, 195 So. 2d 577 (Fla. 3d DCA 1967) . . . . 11.4

R Race v. Moseley, 308 So. 2d 137 (Fla. 2d DCA 1975) . . . . 19.9.F Radon, In re Estate of, 338 So. 2d 256 (Fla. 4th DCA 1976) . . . . 15.3.J, 15.4.L Rainier v. Calhoun, 534 So. 2d 735 (Fla. 3d DCA 1988) . . . . 8.2.A.2.c Ramos v. State, 505 So. 2d 418 (Fla. 1987) . . . . 2.1.B Rasmussen’s Estate, In re, 335 So. 2d 634 (Fla. 1st DCA 1975) . . . . 3.6.V Rayhill, In re Estate of, 489 So. 2d 87 (Fla. 3d DCA 1986) . . . . 15.4.O.4 Raymond, In re Estate of, 237 So. 2d 84 (Fla. 1st DCA 1970) . . . . 5.2.B Reed v. Fain, 145 So. 2d 858 (Fla. 1962) . . . . 19.9.F Reed, In re Estate of, 354 So. 2d 864 (Fla. 1978) . . . . 7.8.B.2 Rehman v. Estate of Frye, 692 So. 2d 956 (Fla. 5th DCA 1997) . . . . 3.6.L Reid v. Barry, 93 Fla. 849, 112 So. 846 (1927) . . . . 21.3.A.1.d.ii.I Reid v. Bradshaw, 302 So. 2d 180 (Fla. 1st DCA 1974) . . . . 19.9.F Reid, Carpenter; In re Estate of, 138 So. 2d 342 (Fla. 3d DCA 1962) . . . . 21.3.A.1.b.v Reid, In re Estate of, 138 So. 2d 342 (Fla. 3d DCA 1962) . . . . 21.3.A.1.b.ix, 21.3.A.1.b.xii, 21.4.H Reid, In re Estate of, 182 So. 2d 54 (Fla. 3d DCA 1966) . . . . 21.4.H Reinhardt v. Reinhardt, 131 So. 2d 509 (Fla. 3d DCA 1961) . . . . 8.3.B.2.a.ii Rentz, In re Estate of, 152 So. 2d 480 (Fla. 3d DCA 1963) . . . . 7.2.C Rhodes, Estate of v. Commissioner, 44 B.T.A. 1315 (1941) . . . . 4.3.C.1 RHS Corp. v. City of Boynton Beach, 736 So. 2d 1211 (Fla. 4th DCA 1999) . . . . 21.3.A.1.a Richard v. Richard, 193 So. 3d 964 (Fla. 3d DCA 2016) . . . . 3.6.C, 4.3.A.1, 4.3.A.6, 8.2.A.2.c, 15.2.A Richardson v. Richardson, 524 So. 2d 1126 (Fla. 5th DCA 1988) . . . . 14.2.D, 21.4.E Rifkin, In re Estate of, 359 So. 2d 1197 (Fla. 3d DCA 1978) . . . . 3.6.D.2

Riggs v. Del Drago, 317 U.S. 95, 63 S.Ct. 109, 87 L. Ed. 106, 142 A.L.R. 1131 (1942) . . . . 11.9.C.1 Riggs National Bank of Washington, D.C. v. Zimmer, 355 A.2d 709 (Del. 1976) . . . . 21.2.B Riley v. New York Trust Co., 315 U.S. 343, 62 S. Ct. 608, 86 L. Ed. 885 (1942) . . . . 3.6.D.2 Rimmer v. Tesla, 201 So. 2d 573 (Fla. 1st DCA 1967) . . . . 11.7 Ringling Bros.--Barnum & Bailey Combined Shows, Inc. v. State, 295 So. 2d 314 (Fla. 1st DCA 1974) . . . . 3.1 Ritter v. Shamas, 452 So. 2d 1057 (Fla. 3d DCA 1984) . . . . 21.3.A.1.b.xii Rizk v. Rizk, 260 So. 3d 467 (Fla. 3d DCA 2018) . . . . 5.6.A Roberg, In re Estate of, 396 So. 2d 235 (Fla. 2d DCA 1981) . . . . 3.6.N, 17.1, 21.4.B Robert Rauschenberg Foundation v. Grutman, 198 So. 3d 685 (Fla. 2d DCA 2016) . . . . 15.2.F Roberts v. Bryant, 201 So. 2d 811 (Fla. 2d DCA 1967) . . . . 21.3.A.1.b.x Roberts v. Seaboard Surety Co., 158 Fla. 686, 29 So. 2d 743 (1947) . . . . 3.1 Roberts, Estate of, 388 So. 2d 216 (Fla. 1980) . . . . 7.8.B.1, 7.8.b.2, 19.5.B.5 Robertson, In re Estate of, 520 So. 2d 99 (Fla. 4th DCA 1988) . . . . 8.3.B.2.b.i.III, 11.2.B.4 Robins, In re Estate of, 463 So. 2d 273 (Fla. 2d DCA 1984) . . . . 8.2.C.1, 8.2.C.2 Robinson v. Robinson, 805 So. 2d 94 (Fla. 4th DCA 2002) . . . . 3.6.L Robinson v. Tootalian, 691 So. 2d 52 (Fla. 4th DCA 1997) . . . . 4.3.B.1.f, 4.3.C.5.b Robinson, In re Estate of, 720 So. 2d 540 (Fla. 4th DCA 1998) . . . . 21.3.B.5 Robison v. Krause, 136 So. 2d 373 (Fla. 2d DCA 1962) . . . . 7.8.D.2 Rocca v. Boyansky, 80 So. 3d 377 (Fla. 3d DCA 2012) . . . . 1.2.G.1, 4.3.A.9 Rogers v. Rogers, 688 So. 2d 421 (Fla. 3d DCA 1997) . . . . 3.7.B Rogers & Wells v. Winston, 662 So. 2d 1303 (Fla. 4th DCA 1995) . . . . 3.6.L, 21.4.D

Romagnoli, In re, 631 B.R. 807 (S.D. Fla. 2021) . . . . 19.6.A.4 Rosenthal, In re Estate of, 189 So. 2d 507 (Fla. 3d DCA 1966) . . . . 4.3.A.2, 4.3.D.2.b, 9.3.C Rosoff v. Harding, 901 So. 2d 1006 (Fla. 4th DCA 2005) . . . . 21.3.A.4 Rowland, In re Estate of, 504 So. 2d 543 (Fla. 4th DCA 1987) . . . . 8.3.B.2.a.iv Royalty v. Florida National Bank of Jacksonville, 127 Fla. 618, 173 So. 689 (1937) . . . . 21.4.C Russell, In re Estate of, 387 So. 2d 487 (Fla. 2d DCA 1980) . . . . 11.3.G Rutherford v. Gascon, 679 So. 2d 329 (Fla. 4th DCA 1996) . . . . 19.5.B.5 Ruza v. Estate of Ruza, 132 So. 2d 308 (Fla. 3d DCA 1961) . . . . 8.3.B.2.b.ii.I Ryecheck, In re Estate of, 323 So. 2d 51 (Fla. 3d DCA 1975) . . . . 15.3.J

S S.

Walls v. Stilwell Corp., 810 So. 2d 566 (Fla. 5th DCA 2002) . . . . 19.2.B.4.b Sacks, In re Estate of, 267 So. 2d 888 (Fla. 3d DCA 1972) . . . . 13.2.G.5 Saffan v. Saffan, 588 So. 2d 684 (Fla. 3d DCA 1991) . . . . 3.6.CC Sage, Estate of v. Sage, 515 So. 2d 1324 (Fla. 2d DCA 1987) . . . . 7.8.B.2 Salathe, In re Estate of, 703 So. 2d 1167 (Fla. 2d DCA 1997) . . . . 3.6.AA Samad v. Pla, 267 So. 3d 476 (Fla. 2d DCA 2019) . . . . 4.3.A.3.k.ii, 19.5.B.5 Sampson Farm Limited Partnership v. Parmenter, 238 So. 3d 387 (Fla. 3d DCA 2018) . . . . 3.4.B Samuels v. Estate of Ahern, 436 So. 2d 1096 (Fla. 4th DCA 1983) . . . . 21.4.H Sanchez v. Sanchez De Davila, 547 So. 2d 943 (Fla. 3d DCA 1989) . . . . 6.5.T, 11.2.B.5 Sanchez v. Solomon, 508 So. 2d 1264 (Fla. 3d DCA 1987) . . . . 3.6.Q Sando v. State, 512 So. 2d 329 (Fla. 3d DCA 1987) . . . . 3.6.K Sangenito, In re Estate of, 631 So. 2d 1125 (Fla. 4th DCA 1994) . . . . 15.4.O.4 Sauey, In re Estate of, 869 So. 2d 664 (Fla. 4th DCA 2004) . . . . 7.1.D.1 Saunders v. Saunders, 796 So. 2d 1253 (Fla. 1st DCA 2001) . . . . 3.6.BB.1, 11.3.B, 11.3.H, 17.1, 21.4.B Saxton v. ACF Indus., 254 F.3d 959 (11th Cir. 2001) . . . . 3.3 Schaefer v. Voyle, 88 Fla. 170, 102 So. 7 (1924) . . . . 21.3.A.1.c.ii Schatz, In re Estate of, 613 So. 2d 591 (Fla. 4th DCA 1993) . . . . 3.8.A Schiele’s Estate, In re, 51 So. 2d 287 (Fla. 1951) . . . . 21.3.A.1.d.i Schilling v. Herrera, 952 So. 2d 1231 (Fla. 3d DCA 2007) . . . . 20.3.A.4 Schleider v. Estate of Schleider, 770 So. 2d 1252 (Fla. 4th DCA 2000) . . . . 1.2.D.7 Scholtz, In re Estate of, 543 So. 2d 219 (Fla. 1989) . . . . 19.8

Schorr, In re Estate of, 409 So. 2d 487 (Fla. 4th DCA 1982) . . . . 19.5.B.9 Schriver, In re Estate of, 441 So. 2d 1105 (Fla. 5th DCA 1983) . . . . 21.3.D Schroeder v. Lawhon, 922 So. 2d 285 (Fla. 2d DCA 2006) . . . . 10.6.E Schultz v. Estate of Roach, 549 So. 2d 1156 (Fla. 3d DCA 1989) . . . . 5.6.C.1 Schwartz, Gold & Cohen, P.A. v. Streicher, 549 So. 2d 1044 (Fla. 4th DCA 1989) . . . . 15.3.J Scott v. Reyes, 913 So. 2d 13 (Fla. 2d DCA 2005) . . . . 8.3.B.2.b.ii.II, 11.4 Scott, In re Estate of, 659 So. 2d 361 (Fla. 1st DCA 1995) . . . . 11.3.G Scutieri v. Estate of Revitz, 510 So. 2d 1003 (Fla. 3d DCA 1987) . . . . 8.3.B.2.a.vi Seashole v. O'Shields, 139 Fla. 839, 191 So. 74 (1939) . . . . 19.5.A Security Insurance Co. v. Estate of Stillson, 397 So. 2d 1206 (Fla. 1st DCA 1981) . . . . 4.3.A.3.f Seidl v. Estate of Michelsen, 487 So. 2d 336 (Fla. 4th DCA 1986) . . . . 6.5.S Senopoulos v. Senopoulos, 253 So. 3d 1228 (Fla. 1st DCA 2018) . . . . 5.2.B Serpa v. North Ridge Bank, 547 So. 2d 199 (Fla. 4th DCA 1989) . . . . 6.5.T Sewell v. Sewell Properties, Inc., 159 Fla. 570, 30 So. 2d 361 (1947) . . . . 8.3.B.2.b.ii.II Seymour v. Seymour, 85 So. 2d 726 (Fla. 1956) . . . . 6.5.T, 21.3.F Shambow v. Shambow, 149 Fla. 278, 5 So. 2d 454 (1942) . . . . 8.3.B.2.a.ix Shands Teaching Hospital & Clinics, Inc. v. Smith, 497 So. 2d 644 (Fla. 1986) . . . . 8.2.E.1.b Shappell v. Williams (In re Jensen), 834 So. 2d 376 (Fla. 2d DCA 2003) . . . . 16.3.A Sharps v. Sharps, 219 So. 2d 735 (Fla. 3d DCA 1969) . . . . 8.3.B.2.a.x Sheets v. Palmer, 917 So. 2d 246 (Fla. 1st DCA 2005) . . . . 11.9.C.4.i Shefer v. Shefer, 440 So. 2d 1319 (Fla. 3d DCA 1983) . . . . 2.2.D.2.b Sheffield v. Dallas, 417 So. 2d 796 (Fla. 5th DCA 1982) . . . . 15.2.H, 15.4.M.1 Sheffield, Estate of v. Estate of Sheffield, 112 So. 3d 652 (Fla. 3d DCA 2013) . . . . 3.8.B

Shefner, Estate of v. Shefner-Holden, 2 So. 3d 1076 (Fla. 3d DCA 2009) . . . . 19.5.B.7, 19.6.A.4 Shessel v. Estate of Calhoun, 573 So. 2d 962 (Fla. 3d DCA 1991) . . . . 8.3.C.1.a Shinn v. Schneider, 549 So. 2d 194 (Fla. 3d DCA 1989) . . . . 11.3.F Shriners Hospital for Crippled Children v. Zrillic, 563 So. 2d 64 (Fla. 1990) . . . . 1.2.D.7, 3.4.A, 5.2.A.2, 7.9, 11.3.A, 21.3.A.1.b.iii.I, 21.3.A.1.e.vi Shuck v. Bank of America, N.A., 862 So. 2d 20 (Fla. 2d DCA 2003) . . . . 8.2.E.2.c, 8.3.B.2.a.x Shuck v. Smalls, 101 So. 3d 924 (Fla. 4th DCA 2012) . . . . 15.4.D.2.h Sibley v. Estate of Sibley, 273 So. 3d 1062 (Fla. 3d DCA 2019) . . . . 3.8.B Siegel v. Siegel, 575 So. 2d 1267 (Fla. 1991) . . . . 3.6.D.4, 21.4.B Sigmund v. Elder, 631 So. 2d 329 (Fla. 1st DCA 1994) . . . . 19.9.F Silianoff v. Silianoff, 399 So. 2d 462 (Fla. 2d DCA 1981) . . . . 8.3.B.2.a.x Silver v. Schroeder, 474 So. 2d 857 (Fla. 3d DCA 1985) . . . . 11.7 Simmons v. Estate of Baranowitz, 189 So. 3d 819 (Fla. 4th DCA 2015) . . . . 2.2.D.1, 3.6.O, 20.3.A.3, 21.4.D Simmons v. Estate of Baranowitz, 189 So. 3d 819 (Fla. 4th DCA 2015) . . . . 2.2.D.1 Simon, In re Estate of, 402 So. 2d 26 (Fla. 3d DCA 1981) . . . . 15.3.J Simons v. Miami Beach First National Bank, 381 U.S. 81, 85 S.Ct. 1315, 14 L. Ed. 2d 232 (1965) . . . . 7.8.C.2 Simpson v. Estate of Simpson, 922 So. 2d 1027 (Fla. 5th DCA 2006) . . . . 4.3.A.6 Simpson v. First National Bank & Trust Company of Lake Worth, 318 So. 2d 209 (Fla. 4th DCA 1975) . . . . 8.3.B.2.a.iv, 10.4.E Simpson v. Williamson, 611 So. 2d 544 (Fla. 5th DCA 1993) . . . . 21.3.A.1.d.i Simpson, In re Estate of, 113 So. 2d 766 (Fla. 2d DCA 1959) . . . . 8.2.E.1.a, 8.3.B.2.b.i.I Sine v. Davidson, 530 So. 2d 506 (Fla. 3d DCA 1988) . . . . 3.6.Q

Sinnes v. Pereno, 629 So. 2d 995 (Fla. 3d DCA 1993) . . . . 16.3.A Sitomer v. Orlan, 660 So. 2d 1111 (Fla. 4th DCA 1995) . . . . 6.5.S, 21.3.E, 21.4.J Skinner, In re Estate of, 397 So. 2d 1193 (Fla. 4th DCA 1981) . . . . 11.3.G Skuro, In re Estate of, 487 So. 2d 1065 (Fla. 1986) . . . . 8.3.B.2.b.ii.II, 11.3.D, 19.2.B.4.e Slater, In re Estate of, 437 So. 2d 1110 (Fla. 5th DCA 1983) . . . . 13.3.A Smail v. Hutchins, 491 So. 2d 301 (Fla. 3d DCA 1986) . . . . 7.7.A, 21.3.D Smith v. DeParry, 86 So. 3d 1228 (Fla. 2d DCA 2012) . . . . 1.2.D.4, 4.4.B.3, 5.6.C.1, 21.3.A.1.e.ii Smith v. Reddish, 113 Fla. 20, 151 So. 273 (1933) . . . . 4.3.A.4 Smith v. Smith, 224 So. 3d 740 (Fla. 2017) . . . . 21.3.A.1.b.vi Smith, In re Estate of, 75 So. 2d 686 (Fla. 1954) . . . . 21.3.B.3 Smith, In re Estate of, 132 So. 2d 426 (Fla. 2d DCA 1961) . . . . 8.3.B.2.a.v, 21.3.C.4 Smith, In re Estate of, 200 So. 2d 547 (Fla. 2d DCA 1967) . . . . 10.2.A, 10.3.A, 14.3.C.2 Smith, In re Estate of, 685 So. 2d 1206 (Fla. 1997) . . . . 11.2.B.4 Smoak v. Graham, 167 So. 2d 559 (Fla. 1964) . . . . 8.2.C.3 Snider v. Metcalfe, 157 So. 3d 422 (Fla. 4th DCA 2015) . . . . 3.4.B Snyder v. Bell, 746 So. 2d 1096 (Fla. 2d DCA 1999) . . . . 3.6.C Snyder v. Bell, 746 So. 2d 1100 (Fla. 2d DCA 1999) . . . . 15.4.O.5 Snyder v. Davis, 699 So. 2d 999 (Fla. 1997) . . . . 4.3.A.3.k.ii, 10.3.D.8, 14.3.C.6.b, 19.1, 19.5.B.2, 19.5.B.7, 19.9.I.1, 19.9.I.2, 19.9.J.1, 19.9.J.2 Snyder, In re Estate of, 333 So. 2d 519 (Fla. 2d DCA 1976) . . . . 1.2.D.8 Sokol v. Moses, 545 So. 2d 950 (Fla. 3d DCA 1989) . . . . 18.2.N Solnik, In re Estate of, 401 So. 2d 896 (Fla. 4th DCA 1981) . . . . 7.1.B, 7.5.A.1 Solomon v. Beatty, 68 So. 2d 881 (Fla. 1953) . . . . 3.6.D.2 Solomon v. Dunlap, 372 So. 2d 218 (Fla. 1st DCA 1979) . . . . 11.2.A.1, 13.2.B

Solomon v. Meyer, 116 So. 2d 37 (Fla. 3d DCA 1959) . . . . 4.4.D Soriano v. Estate of Manes, 177 So. 3d 677 (Fla. 3d DCA 2015) . . . . 2.2.B.3, 4.3.A.6, 8.2.A.2.e, 20.2.B.1, 21.3.C.2 South Brevard Drainage Dist., State ex rel. v. Smith, 126 Fla. 72, 170 So. 440 (1936) . . . . 3.4.A Southern Walls, Inc. v. Stilwell Corp., 810 So. 2d 566 (Fla. 5th DCA 2002) . . . . 4.3.A.3.k.ii, 19.2.A, 19.2.B.4.b Southern Walls, Inc. v. Stilwell Corp., 810 So. 2d 566 (Fla. 5th DCA 2002) . . . . 4.3.A.3.k.ii, 19.2.A Sowden v. Brea, 47 So. 3d 341 (Fla. 5th DCA 2010) . . . . 3.6.CC Spark v. Canny, 88 So. 2d 307 (Fla. 1956) . . . . 21.3.E Spear v. Denmark, 306 So. 3d 224 (Fla. 3d DCA 2020) . . . . 15.2.F Spector v. Spector, 226 So. 3d 256 (Fla. 4th DCA 2017) . . . . 19.7 Spikes v. OneWest Bank FSB, 106 So. 3d 475 (Fla. 4th DCA 2012) . . . . 19.7 Spitzer v. Branning, 135 Fla. 49, 184 So. 770 (1938) . . . . 21.4.C Spohr v. Berryman, 589 So. 2d 225 (Fla. 1991) . . . . 3.6.C, 8.2.B.3.a, 8.3.B.2.a.iv, 8.3.B.2.a.x, 21.3.C.3 Standard Guaranty Insurance Co. v. Quanstrom, 555 So. 2d 828 (Fla. 1990) . . . . 15.4.M.3.b State v. (see name of defendant) State ex rel. (see name of relator) State Farm Mutual Automobile Insurance Co. v. Roach, 945 So. 2d 1160 (Fla. 2006) . . . . 3.6.D.3 State of (see name of state) Staum v. Rubano, 120 So. 3d 109 (Fla. 4th DCA 2013) . . . . 17.2.C.3 Steele v. Brown, 197 So. 3d 106 (Fla. 1st DCA 2016) . . . . 3.6.Y Steffens v. Evans, 70 So. 3d 758 (Fla. 4th DCA 2011) . . . . 11.2.B.8, 19.9.I.1, 19.9.I.2 Steigman v. Danese, 502 So. 2d 463 (Fla. 1st DCA 1987) . . . . 8.3.B.2.b.ii.II Stern v. Marshall, 564 U.S. 462, 131 S. Ct. 2594, 180 L. Ed. 2d 475 (2011) . . . . 3.3

Stewart v. Johnson, 142 Fla. 425, 194 So. 869 (1940) . . . . 5.6.C.1, 21.3.A.4 Stewart v. Mathews, 19 Fla. 752 (1883) . . . . 4.3.B.2 Stilwell v. Estate of Crosby, 519 So. 2d 68 (Fla. 5th DCA 1988) . . . . 4.3.D.1, 8.3.B.2.a.ix Stisser, In re Estate of, 932 So. 2d 400 (Fla. 2d DCA 2006) . . . . 3.6.CC, 21.4.C Stone v. Stone, 157 So. 3d 295 (Fla. 4th DCA 2015) . . . . 11.2.B.8, 19.5.B.5, 19.5.B.8, 19.6.B Stregack v. Moldofsky, 474 So. 2d 206 (Fla. 1985) . . . . 7.8.B.2 Strickland v. Peters, 120 F.2d 53 (5th Cir. 1941) . . . . 3.3 Strohm, In re Estate of, 241 So. 2d 167 (Fla. 4th DCA 1970) . . . . 11.9.C.4.i Strulowitz v. Cadle Co., II, Inc., 839 So. 2d 876 (Fla. 4th DCA 2003) . . . . 4.3.A.6, 8.2.A.1, 20.2.B.1, 21.3.C.1 Sudman v. O’Brien, 218 So. 3d 986 (Fla. 2d DCA 2017) . . . . 3.8.B Sullivan v. McMillan, 26 Fla. 543, 8 So. 450 (1890) . . . . 4.3.B.2 Summerlin; United States v., 310 U.S. 414, 60 S. Ct. 1019, 84 L. Ed. 1283, 1940-2 C.B. 435 (1940) . . . . 21.3.C.4 Sun Bank/Miami, N.A. v. Hogarth, 536 So. 2d 263 (Fla. 3d DCA 1989) . . . . 3.6.CC, 3.6.E Sunstar EMS v. Geraci, 123 So. 3d 559 (Fla. 2013) . . . . 19.2.B.4.b Supplee, In re Estate of, 247 So. 2d 488 (Fla. 2d DCA 1971) . . . . 21.3.A.1.c.ii Sutton v. Stear, 264 So. 2d 838 (Fla. 1972) . . . . 8.2.C.3 Swan v. Trost (In re Trost), 100 So. 3d 1205 (Fla. 2d DCA 2012) . . . . 21.4.E Swanson, In re Estate of, 397 So. 2d 465 (Fla. 2d DCA 1981) . . . . 3.6.N, 21.4.B Swartz v. Lieberman, 712 So. 2d 479 (Fla. 4th DCA 1998) . . . . 2.4, 3.6.L Swartz v. Russell, 481 So. 2d 64 (Fla. 3d DCA 1986) . . . . 3.6.BB.1, 3.6.BB.2 Sweet, In re Estate of, 254 So. 2d 562 (Fla. 2d DCA 1971) . . . . 11.3.D

T Taft v. Zack, 830 So. 2d 881 (Fla. 2d DCA 2002) . . . . 21.3.A.1.e.ii Tallahassee Bank & Trust Co. v. Brooks, 200 So. 2d 251 (Fla. 1st DCA 1967) . . . . 21.3.A.1.b.v Tanner, In re Estate of, 288 So. 2d 578, 70 A.L.R. 3d 778 (Fla. 2d DCA 1974) . . . . 16.4.B Tarbox v. Palmer, 564 So. 2d 1106 (Fla. 4th DCA 1990) . . . . 7.2.E.1 Tarmy, In re Estate of, 518 So. 2d 471 (Fla. 4th DCA 1988) . . . . 3.6.X Tarsagian v. Watt, 402 So. 2d 471 (Fla. 3d DCA 1981) . . . . 21.3.A.1.b.vi Taylor v. Davis' Administratrix, 110 U.S. 330, 4 S. Ct. 147, 28 L. Ed. 163 (1884) . . . . 4.3.D.2.c Taylor v. Maness, 941 So. 2d 559 (Fla. 3d DCA 2006) . . . . 19.2.B.4.c Taylor v. Taylor, 1 So. 3d 348 (Fla. 1st DCA 2009) . . . . 7.8.B.1 Teague v. Estate of Hoskins, 709 So. 2d 1373 (Fla. 1998) . . . . 8.2.E.2.d, 15.4.L Tedder v. Estate of Tedder, 200 So. 3d 123 (Fla. 5th DCA 2016) . . . . 3.6.Y, 3.8.A Tensfeldt, In re Estate of, 839 So. 2d 720 (Fla. 2d DCA 2003) . . . . 7.3.B, 7.7.C, 8.3.B.2.a.x, 21.3.D Thames v. Jackson, 598 So. 2d 121 (Fla. 1st DCA 1992) . . . . 8.2.A.2.a, 8.2.B.3.a Thom v. McAdam, 626 So. 2d 184 (Fla. 1993) . . . . 21.3.E Thompson v. Hodson, 825 So. 2d 941 (Fla. 1st DCA 2002) . . . . 8.2.E.2.d, 11.11 Thompson v. Laney, 766 So. 2d 1087 (Fla. 3d DCA 2000) . . . . 19.5.B.7 Thurston v. Thurston, 777 So. 2d 1001 (Fla. 1st DCA 2001) . . . . 11.2.B.4 Tillman v. Smith, 526 So. 2d 730 (Fla. 5th DCA 1988) . . . . 7.7.I, 7.10.B Tillman v. Smith, 560 So. 2d 344 (Fla. 5th DCA 1990) . . . . 15.4.D.2.d Tim, In re Estate of, 161 So. 2d 40 (Fla. 3d DCA 1964) . . . . 11.8.E

Tim, In re Estate of, 180 So. 2d 161 (Fla. 1965) . . . . 11.2.E Tobin v. Damian, 723 So. 2d 396 (Fla. 4th DCA 1999) . . . . 8.2.E.2.c Tolin, In re Estate of, 622 So. 2d 988 (Fla. 1993) . . . . 21.3.A.1.e.ii Toney v. Adair, 120 So. 2d 622 (Fla. 3d DCA 1960) . . . . 8.3.B.2.a.i Torrey v. Bruner, 60 Fla. 365, 53 So. 337 (1910) . . . . 3.4.A Totten, In re, 71 N.E. 748 (N.Y. 1904) . . . . 6.5.T Town of (see name of town) Traeger v. Credit First National Ass’n, 864 So. 2d 1188 (Fla. 5th DCA 2004) . . . . 19.5.B.2 Trapani v. Gagliardi, 502 So. 2d 957 (Fla. 2d DCA 1987) . . . . 19.8 Traub v. Zlatkiss, 559 So. 2d 443 (Fla. 5th DCA 1990) . . . . 7.1.B, 7.5.A.1 Trenchard v. Estate of Gray, 950 So. 2d 1277 (Fla. 2d DCA 2007) . . . . 7.7.F Trotter v. Van Pelt, 144 Fla. 517, 198 So. 215, 131 A.L.R. 1018 (1940) . . . . 3.6.BB.1, 3.6.D.2, 11.3.D, 17.1 True’s Will, In re, 31 Fla. Supp. 1 (Dade Co. 1968) . . . . 21.4.E Trueman Fertilizer Co. v. Stein, 157 Fla. 769, 26 So. 2d 893 (1946) . . . . 3.5.C Trust Company of Georgia v. Ross, 392 F.2d 694 (5th Cir. 1968) . . . . 10.7.A Trust of (see name of party) Tsuji v. H. Bart Fleet, 326 So. 3d 143 (Fla. 1st DCA 2021) . . . . 8.3.B.2.a.i, 8.3.B.2.a.vi, 8.3.B.2.a.vii, 8.3.B.2.b.i.II Tubbs v. Teeple, 388 So. 2d 239 (Fla. 2d DCA 1980) . . . . 11.3.G Tudhope, In re Estate of, 595 So. 2d 312 (Fla. 2d DCA 1992) . . . . 19.4.A.2, 19.5.B.2, 19.5.B.7, 19.6.A.4 Tufts; Commissioner v., 461 U.S. 300, 103 S.Ct. 1826, 75 L. Ed. 2d 863 (1983) . . . . 13.2.E.1 Tullis v. Tullis, 360 So. 2d 375 (Fla. 1978) . . . . 19.7 Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 108 S.Ct. 1340, 99 L. Ed. 2d 565 (1988) . . . . 1.3.C.1.b.ii, 5.3.L, 8.2.A.2.a, 8.2.A.2.e, 8.2.A.3, 14.2.A, 19.9.E, 21.3.C.2 Turner v. Weeks, 384 So. 2d 193 (Fla. 2d DCA 1980) . . . . 11.2.B.6

293.540 Acres of Land; United States v., 127 F. Supp. 205 (D. Utah 1955) . . . . 19.9.K Twomey v. Clausohm, 234 So. 2d 338 (Fla. 1970) . . . . 15.6 Tyre v. Wright, 144 Fla. 90, 197 So. 846 (1940) . . . . 3.6.G

U U.S. Borax, Inc. v. Forster, 764 So. 2d 24 (Fla. 4th DCA 1999) . . . . 3.6.C, 8.3.B.2.c, 21.3.C.4 U.S. Trust Company of Florida Savings Bank v. Haig, 694 So. 2d 769 (Fla. 4th DCA 1997) . . . . 8.2.A.2.e, 8.2.B.3.a, 8.2.B.3.b Udell and Cari. Bissmeyer v. Southeast Bank, N.A., 596 So. 2d 678 (Fla. 2d DCA 1991) . . . . 3.8.C Udell, In re Estate of, 482 So. 2d 458 (Fla. 4th DCA 1986) . . . . 7.1.C Udell, In re Estate of, 501 So. 2d 1286 (Fla. 4th DCA 1987) . . . . 3.8.C Ullman v. Garcia, 645 So. 2d 168 (Fla. 3d DCA 1994) . . . . 21.3.F Unanue, In re Estate of, 235 So. 3d 1006 (Fla. 2d DCA 2017) . . . . 2.7 United Bank v. Estate of Frazee, 197 So. 3d 1190 (Fla. 4th DCA 2016) . . . . 2.2.B.3, 3.6.C, 21.3.C.1, 21.3.C.3 United Bank v. Estate of Frazee, 197 So. 3d 1190 (Fla. 4th DCA 2016) . . . . 2.2.B.3 United States v. (see name of defendant) University Medical Center v. Zeiler, 625 So. 2d 120 (Fla. 5th DCA 1993) . . . . 11.11

V Vail’s Estate, In re, 67 So. 2d 665 (Fla. 1953) . . . . 14.3.A.3 Valdes v. Estate of Valdes, 913 So. 2d 1229 (Fla. 3d DCA 2005) . . . . 8.5.A Valdivia v. Valdivia, 593 So. 2d 1190 (Fla. 3d DCA 1992) . . . . 8.2.E.2.c, 8.3.B.2.a.ii Valero v. Tri-City Title Co., 445 So. 2d 1116 (Fla. 2d DCA 1984) . . . . 8.3.B.2.a.iii Van Dusen v. Southeast First National Bank of Miami, 478 So. 2d 82 (Fla. 3d DCA 1985) . . . . 4.3.D.2.b Van Horne, In re Estate of, 305 So. 2d 46 (Fla. 3d DCA 1974) . . . . 21.3.A.1.b.v, 21.3.A.3 Van Landingham, In re Estate of, 380 So. 2d 1178 (Fla. 4th DCA 1980) . . . . 10.6.E Van Meter, In re Estate of, 214 So. 2d 639 (Fla. 2d DCA 1968) . . . . 19.8 Van Sciver v. Miami Beach First National Bank, 88 So. 2d 912, 58 A.L.R. 2d 1279 (Fla. 1956) . . . . 1.3.C.1.b.ii Vandiver v. Vincent, 139 So. 2d 704 (Fla. 2d DCA 1962) . . . . 19.8 Vargas v. Vargas, 659 So. 2d 1164 (Fla. 3d DCA 1995) . . . . 6.5.T Vasallo v. Bean, 208 So. 3d 188 (Fla. 3d DCA 2016) . . . . 21.2.C.1, 21.3.A.1.b.iii.II Vaughan v. Boerckel, 963 So. 2d 915 (Fla. 4th DCA 2007) . . . . 11.3.G Vaughn v. Batchelder, 633 So. 2d 526 (Fla. 2d DCA 1994) . . . . 4.3.C.5.b, 21.3.E Vaughn v. Vaughn, 119 So. 2d 391 (Fla. 1st DCA 1960) . . . . 19.9.F Vaughn, In re Estate of, 165 So. 2d 241 (Fla. 1st DCA 1964) . . . . 5.6.B Velde v. Velde, 867 So. 2d 501 (Fla. 4th DCA 2004) . . . . 3.1 Velzy v. Estate of Miller, 502 So. 2d 1297 (Fla. 2d DCA 1987) . . . . 8.3.B.2.b.ii.II Venetian Salami Co. v. Parthenais, 554 So. 2d 499 (Fla. 1989) . . . . 7.7.G

Vernon, In re Estate of, 608 So. 2d 510 (Fla. 4th DCA 1992) . . . . 3.6.O, 7.7.G Vernon, In re Estate of, 609 So. 2d 128 (Fla. 4th DCA 1992) . . . . 3.6.B Vernon, In re Estate of, 637 So. 2d 365 (Fla. 4th DCA 1994) . . . . 13.2.D Via v. Putnam, 656 So. 2d 460 (Fla. 1995) . . . . 7.3.B, 8.3.B.2.a.x, 11.3.H, 21.3.A.1.e.ix Vickers, Dept. of Revenue ex rel. v. Pelsey, 779 So. 2d 629 (Fla. 1st DCA 2001) . . . . 19.2.B.4.e Vickery, In re Estate of, 564 So. 2d 555 (Fla. 4th DCA 1990) . . . . 8.3.B.2.a.iv, 8.3.B.2.a.x Vignes v. Weiskopf, 42 So. 2d 84 (Fla. 1949) . . . . 21.3.A.1.b.iii.II, 21.3.A.1.b.iii.III Voorhees v. Africano, 2016 U.S. Dist. LEXIS 147976 (M.D. Fla. 2016) . . . . 20.3.A.4

W Wagner, In re Estate of, 423 So. 2d 400 (Fla. 2d DCA 1982) . . . . 11.3.C Waite v. Waite, 618 So. 2d 1360 (Fla. 1993) . . . . 21.3.E Walker v. Redding, 40 Fla. 124, 23 So. 565 (1898) . . . . 19.4.A.1 Wallace v. Watkins, 253 So. 3d 1204 (Fla. 5th DCA 2018) . . . . 8.3.B.2.b.i.III Walters v. Agency for Health Care Admin., 2021 Fla. LEXIS 1052 (Fla. 2021) . . . . 19.2.B.4.b Walters v. Agency for Health Care Administration, 288 So. 3d 1215 (Fla. 3d DCA 2019) . . . . 19.2.B.4.b Walters, In re Estate of, 700 So. 2d 434 (Fla. 4th DCA 1997) . . . . 14.3.A.3 Walton v. Estate of Walton, 601 So. 2d 1266 (Fla. 3d DCA 1992) . . . . 21.3.A.1.e.ii Warburton v. McKean, 877 So. 2d 50 (Fla. 4th DCA 2004) . . . . 4.3.A.3.k.ii Warburton in McEnderfer v. Keefe, 921 So. 2d 597 (Fla. 2006) . . . . 19.5.B.7 Warner v. Quicken Loans, Inc., 2020 U.S. Dist. LEXIS 77089 (M.D. Fla. 2020) . . . . 19.2.B.4.d, 19.9.F, 21.4.C Warner’s Estate, In re, 160 Fla. 460, 35 So. 2d 296 (1948) . . . . 3.6.A Wartels, In re Estate of, 357 So. 2d 708 (Fla. 1978) . . . . 4.3.A.3.k.ii, 19.2.B.4.b Wartmann v. Burleson, 139 Fla. 458, 190 So. 789 (1939) . . . . 21.3.A.1.b.x Washington’s Estate, In re, 56 So. 2d 545 (Fla. 1952) . . . . 5.6.C.1, 21.3.A.1.e.ii Waterman v. Canal-Louisiana Bank & Trust Co., 215 U.S. 33, 30 S.Ct. 10, 54 L. Ed. 80 (1909) . . . . 3.3 Watkins, In re Estate of, 572 So. 2d 1014 (Fla. 4th DCA 1991) . . . . 21.4.E Watson v. Collins, 487 So. 2d 419 (Fla. 2d DCA 1986) . . . . 7.7.D Wax v. Wilson, 101 So. 2d 54 (Fla. 3d DCA 1958) . . . . 7.1.C, 7.8.D.2 Webb v. Blue, 243 So. 3d 1054 (Fla. 1st DCA 2018) . . . . 4.3.A.3.k.ii, 19.5.B.2, 19.5.B.3

Webster v. St. Petersburg Federal Savings & Loan Ass’n, 155 Fla. 412, 20 So. 2d 400 (1945) . . . . 21.3.A.1.d.ii.II Weekley v. Knight, 116 Fla. 721, 156 So. 625 (1934) . . . . 4.4.D Wehrheim v. Golden Pond Assisted Living Facility, 905 So. 2d 1002 (Fla. 5th DCA 2005) . . . . 21.3.A.3, 21.3.A.4, 21.4.E Weiland v. Palm Beach County Sheriff’s Office, 792 F.3d 1313 (11th Cir. 2015) . . . . 21.3.A.1.a Weinberg v. Weinberg, 936 So. 2d 707 (Fla. 4th DCA 2006) . . . . 3.7.A Weinstein v. Mackey, 408 So. 2d 849 (Fla. 3d DCA 1982) . . . . 7.2.C Weisfeld-Ladd v. Estate of Ladd, 920 So. 2d 1148 (Fla. 3d DCA 2006) . . . . 7.8.B.1 Weiss v. Courshon, 768 So. 2d 2 (Fla. 3d DCA 2000) . . . . 3.3, 3.6.Z Weiss v. Stone, 220 So. 2d 403 (Fla. 3d DCA 1969) . . . . 19.2.B.4.e, 19.2.B.5 Wejanowski, In re Estate of, 920 So. 2d 190 (Fla. 2d DCA 2006) . . . . 13.1, 15.2.B, 15.4.J, 20.3.A.3 Werner v. Estate of McCloskey, 943 So. 2d 1007 (Fla. 1st DCA 2006) . . . . 1.2.D.7, 5.2.A.2 West v. Coogler, 427 So. 2d 813 (Fla. 5th DCA 1983) . . . . 14.3.A.2 West v. West, 126 So. 3d 437 (Fla. 4th DCA 2013) . . . . 8.3.C.1.a West Coast Hospital Ass’n v. Florida National Bank of Jacksonville, 100 So. 2d 807 (Fla. 1958) . . . . 15.2.F, 15.2.I.4 Wexler v. Rich, 80 So. 3d 1097 (Fla. 4th DCA 2012) . . . . 21.3.E What an Idea, Inc. v. Sitko, 505 So. 2d 497 (Fla. 1st DCA 1987) . . . . 15.4.B.2.a Wheeler v. Powers, 972 So. 2d 285 (Fla. 5th DCA 2008) . . . . 21.4.E White v. Clayton, 323 So. 2d 573 (Fla. 1976) . . . . 8.3.B.2.a.i White v. Posick, 150 So. 2d 263 (Fla. 2d DCA 1963) . . . . 19.2.B.1 White, In re Estate of, 605 So. 2d 1030 (Fla. 4th DCA 1992) . . . . 3.6.O White; United States v., 853 F.2d 107 (2d Cir. 1988) . . . . 15.8.E Whitfield v. Whitfield, 127 Fla. 74, 172 So. 711 (1937) . . . . 4.3.A.2 Wiggins v. Parson, 446 So. 2d 169 (Fla. 5th DCA 1984) . . . . 21.3.E

Wiggins, In re Estate of, 729 So. 2d 523 (Fla. 4th DCA 1999) . . . . 11.11 Williams v. Dorrell, 714 So. 2d 574 (Fla. 3d DCA 1998) . . . . 21.3.G Williams v. Estate of Long, 338 So. 2d 563 (Fla. 1st DCA 1976) . . . . 11.2.B.4 Williams v. Estate of Pender, 738 So. 2d 453 (Fla. 1st DCA 1999) . . . . 21.3.G Williams v. Estate of Williams, 493 So. 2d 44 (Fla. 5th DCA 1986) . . . . 8.3.C.1.b, 21.3.C.3 Williams v. Harrington, 460 So. 2d 533 (Fla. 2d DCA 1984) . . . . 13.5, 21.5 Williams v. Howard Cole & Co., 159 Fla. 151, 31 So. 2d 914 (1947) . . . . 3.4.A, 4.3.B.2 Williams v. Jones, 326 So. 2d 425 (Fla. 1975) . . . . 19.2.B.4.b Williams v. Williams, 255 So. 2d 273 (Fla. 4th DCA 1971) . . . . 6.5.S Williams, In re Estate of, 182 So. 2d 10 (Fla. 1965) . . . . 21.3.A.1.d.i Williamson, In re Estate of, 95 So. 2d 244 (Fla. 1957) . . . . 3.4.A, 16.4.B, 21.4.C Williams-Paris v. Joseph, 329 So. 3d 775 (Fla. 4th DCA 2021) . . . . 7.8.B.2 Wilmott’s Estate, In re, 66 So. 2d 465 (Fla. 1953) . . . . 21.3.A.1.c.i Wilson v. First Florida Bank, 498 So. 2d 1289 (Fla. 2d DCA 1986) . . . . 21.3.B.4 Wilson v. Florida National Bank & Trust Company at Miami, 64 So. 2d 309 (Fla. 1953) . . . . 19.2.B.5 Wilson v. Wilson, 138 So. 3d 1176 (Fla. 4th DCA 2014) . . . . 1.2.A.1, 1.2.A.4, 1.2.A.7 Wilson v. Wilson, as Trustee of Paul C. Wilson Living Trust, 279 So. 3d 160 (Fla. 4th DCA 2019) . . . . 7.8.B.1 Wilson, In re Estate of, 116 So. 2d 440 (Fla. 2d DCA 1959) . . . . 9.4.A Wilson, In re Estate of, 186 So. 2d 283 (Fla. 1st DCA 1966) . . . . 11.2.A.2, 11.8.E Wilson’s Estate, In re, 143 Fla. 812, 197 So. 557 (1940) . . . . 10.3.D.4, 11.3.D, 17.4.A Winslow, In re Estate of v. Patterson, 147 So. 2d 613 (Fla. 2d DCA

1962) . . . . 21.3.A.1.b.v Winston, In re Estate of, 755 So. 2d 690 (Fla. 4th DCA 1999) . . . . 15.2.I.4 Wisekal v. Laboratory Corp. of America Holdings, 182 F. Supp. 3d 1296 (S.D. Fla. 2016) . . . . 11.11 Witco Corp. v. Beekhuis, 38 F.3d 682 (3d Cir. 1994) . . . . 8.3.B.2.c Wohl v. Lewy, 505 So. 2d 525 (Fla. 3d DCA 1987) . . . . 15.2.C Wolf v. Doll, 229 So. 3d 1280 (Fla. 4th DCA 2017) . . . . 18.2.C Wolf Sanitary Wiping Cloth, Inc. v. Wolf, 526 So. 2d 702 (Fla. 3d DCA 1988) . . . . 3.6.F, 3.6.O Wood v. McClellan, 247 So. 2d 77 (Fla. 1st DCA 1971) . . . . 4.3.A.3.d Woods v. Estate of Woods, 681 So. 2d 903 (Fla. 4th DCA 1996) . . . . 3.6.S Woodward, In re Estate of, 978 So. 2d 865 (Fla. 2d DCA 2008) . . . . 14.3.A.5 World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L. Ed. 2d 490 (1980) . . . . 7.7.G Wright, In re, 668 So. 2d 661 (Fla. 4th DCA 1996) . . . . 3.6.V

Y Yawt v. Carlisle, 34 So. 3d 217 (Fla. 4th DCA 2010) . . . . 3.6.CC Yellen v. Long, 387 So. 2d 384 (Fla. 4th DCA 1980) . . . . 18.2.N Yergin v. Georgopolos, 217 So. 3d 155 (Fla. 3d DCA 2017) . . . . 3.6.DD Yoakley v. Raese, 448 So. 2d 632 (Fla. 4th DCA 1984) . . . . 11.9.C.4.i York v. Smith, 385 So. 2d 1110 (Fla. 1st DCA 1980) . . . . 21.3.A.1.c.i, 21.3.A.1.e.iii, 21.3.A.1.e.iv Youngelson v. Estate of Youngelson, 114 So. 2d 642 (Fla. 3d DCA 1959) . . . . 7.8.B.4

Z Zaidman v. Zaidman, 305 So. 3d 330 (Fla. 3d DCA 2020) . . . . 5.6.B, 21.3.A.1.d.i Zinnser v. Gregory, 77 So. 2d 611 (Fla. 1955) . . . . 21.3.A.1.b.xii Zulon v. Peckins, 81 So. 3d 647 (Fla. 3d DCA 2012) . . . . 4.3.C.5.c

Licensed to Otis K Pitts, Otis K Pitts

SUBJECT INDEX [References are to sections.] A B C D E F G H I J K L M N O P Q R S T U V W

A ABATEMENT Jointly owned property . . . . 11.3.I Partial distributions Compulsory partial distribution . . . . 13.3.B.1 Contributions . . . . 14.3.A.4 Estate assets, sales and transfers of . . . . 10.3.D.7 Generally . . . . 13.1 ACCOUNTANTS Authority of personal representative to employ Checklist of duties and procedures . . . . 4.3.A.10 Generally . . . . 4.3.B.1.a; 15.2.E Payment for services . . . . 4.3.B.1.b Prior court approval, necessity for . . . . 4.3.B.1.d Compensation Payment for services . . . . 4.3.B.1.b Personal representative . . . . 15.2.F Petition for hire, form for . . . . 4.3.B.1.e ACCOUNTINGS Annual or interim accountings . . . . 12.2.A–12.2.B; 12.3.C; 14.2.C.1 Bookkeeping methods Establish and keep records, duty to . . . . 4.3.A.5; 12.2.C Separate estate funds, duty to . . . . 4.3.A.3 Curator, duties of . . . . 16.4.A Designation of accounting period . . . . 10.7.B; 12.2.D Fiduciary accountings, types of . . . . 12.3.B Final accounting Curator’s . . . . 16.4.A Format . . . . 12.3.B; 12.6.A–12.6.G; 14.2.C.1 Generally . . . . 12.2.A–12.2.B; 12.3.B; 14.2.C.2 Notice of . . . . 4.4.B.3 Objections . . . . 14.2.D

Purpose . . . . 14.2.C.1 Required fiduciary accountings . . . . 12.2.A Required, when . . . . 12.3.C Final discharge Petition for discharge . . . . 2.7; 14.2.B With final accounting Generally . . . . 14.2.B Order of discharge . . . . 14.2.G Without final accounting . . . . 12.3.B Final distribution (see DISTRIBUTION) Fiscal year, selection of . . . . 10.7.B; 12.2.D Foreign state property, treatment of . . . . 12.3.D Format for Model accounting form . . . . 12.6.A–12.6.G; 14.2.C.1 Types of fiduciary accountings . . . . 12.3.B Forms (see FORMS) General considerations . . . . 12.1.A–12.2.A Interim . . . . 12.2.A–12.2.B; 12.3.C; 14.2.C.1 Inventory as point of beginning for . . . . 12.3.D (see also INVENTORY) Model accounting form, structure of . . . . 12.6.B Partial distribution, accounting for . . . . 13.3.A Partnership, by . . . . 9.4.C.3.a; 13.2.G.6.b Personal representative Bookkeeping methods (see Bookkeeping methods) Duty to file . . . . 2.7; 12.2.A; 12.3.C Liability for costs and expenses . . . . 15.2.H Petition for discharge (see DISTRIBUTION) Point of beginning for . . . . 12.3.D Preparation Fiduciary accountings . . . . 12.3.A Format for . . . . 12.3.B; 12.6.A–12.6.G; 14.2.C.1 Generally . . . . 12.2.C Principal and income . . . . 12.1.B System for accounting, establishing . . . . 12.2.C; 12.3.A Principal and income accountings Allocation, examples of . . . . 12.5

Bookkeeping methods, duty to keep records and establish . . . . 4.3.A.5 Duty to keep estate funds separate . . . . 4.3.A.4 Fiduciary accountings . . . . 12.1.B Florida Uniform Principal and Income Act . . . . 9.3.H Interest and income on devises . . . . 14.3.C.6.g Property maintenance . . . . 9.2.E.1 Simple accountings . . . . 12.4 Property outside Florida, treatment of . . . . 12.3.D Rules governing . . . . 12.2.A; 12.3.B–12.3.C; 12.6.A Sample . . . . 12.7.C Schedules . . . . 12.6.C–12.6.G Simple accountings . . . . 12.4 Tax considerations . . . . 10.7.B Waiver of Generally . . . . 12.2.A–12.2.B; 12.3.B; 14.2.C.2 Notices and copies of pleadings to interested persons . . . . 4.4.B.3 ADEMPTION . . . . 11.3.F; 14.3.A.3 ADJUDICATION BEFORE ISSUANCE OF LETTERS Formal notice, requirement of . . . . 1.2.G.1; 2.2.D.1; 5.4.B Generally . . . . 1.2.G.1; 5.4.A Order admitting will to probate and appointing personal representative, form . . . . 5.4.C.1 Order appointing personal representative, form . . . . 5.4.C.2 ADMINISTRATION Alternatives to formal administration . . . . 1.2.F Ancillary (see ANCILLARY ADMINISTRATION) Costs involved . . . . 15.1 Disposition without administration (see SMALL ESTATES) Domiciliary administration, defined . . . . 17.1 Expenses, administrative Deductibility (see ESTATE TAX; INCOME TAX) Generally . . . . 15.1; 15.5.A–15.6 Power of personal representative to incur . . . . 15.2.A–15.2.F

Sale of assets to pay . . . . 10.2.C Extending time . . . . 12.3.C Family administration (see FAMILY ADMINISTRATION) Jurisdiction (see JURISDICTION) Notice of (see NOTICE OF ADMINISTRATION) Petition for administration Forms (see FORMS) Generally (see WILLS, subhead: Petition for administration) Pitfalls in Generally . . . . 20.1 Judiciary, dealing with (see COURT, subhead: Attorney's responsibilities to) Small estates (see SMALL ESTATES) Summary administration (see SUMMARY ADMINISTRATION) ADMINISTRATION UNNECESSARY SUMMARY ADMINISTRATION)

(see

SMALL

ESTATES;

(see

PERSONAL

ADMINISTRATOR AD LITEM Appointment and qualification Creditor's claims . . . . 8.3.B.2.a.ix Generally . . . . 2.9.A Preferences in . . . . 4.3.C.6 Refusal to appoint . . . . 16.3.A Requirements, generally . . . . 4.3.C.7 Compensation . . . . 2.9.C Discharge . . . . 2.9.C Duties . . . . 2.9.B Petition for appointment, sample . . . . 4.3.C.8 Wrongful death proceeding . . . . 11.11 ADMINISTRATORS AND REPRESENTATIVE)

EXECUTORS

ADOPTED CHILDREN Antilapse statute, applicability . . . . 11.3.G Inheritance by . . . . 11.2.B.6 Virtual adoption . . . . 21.3.G

ADVANCEMENTS . . . . 6.5.L; 13.1; 14.3.A.2 ADVERSARY PROCEEDINGS Adjudication before issuance of letters . . . . 1.2.G.1; 5.4.B Advancements, petition alleging . . . . 14.3.A.2 Construction of will . . . . 21.3.B.1; 21.4.H Determination of beneficiaries, proceedings for . . . . 11.8.D Elective share, proceedings to determine amount of and contribution . . . . 7.7.F Generally . . . . 2.1.B Partition action . . . . 10.6.E Probate of lost or destroyed will, proceedings for . . . . 5.6.C.1 AFFIDAVIT Appraiser’s fee, form . . . . 6.4.E Domicile, of . . . . 14.3.C.6.d Heirs Intestate estate . . . . 5.3.D Methods of proof . . . . 11.2.A.4 No Florida estate tax due (see DEPARTMENT OF REVENUE) Nonmilitary service . . . . 11.8.D; 19.9.K Publication of notice to creditors, proof of . . . . 8.2.A.2.d Witnesses unavailable . . . . 5.3.C.4.a–5.3.C.4.b AGENCY FOR HEALTH CARE ADMINISTRATION, CLAIMS BY Ascertaining against estate . . . . 8.2.A.2.e Notice to creditors . . . . 5.3.K State claims . . . . 8.3.B.2.a.v AGENT, RESIDENT Designation . . . . 2.1.I; 5.3.H Generally . . . . 16.3.B.7 Jurisdiction . . . . 3.6.Z Practice and procedure . . . . 4.3.C.5.b AGREEMENTS AFFECTING DISTRIBUTION (see CONTRACTS) ALIENS

Devises to . . . . 11.3.B Inheritance by . . . . 11.2.B.5 Qualification as personal representative . . . . 1.2.D.7 ALIMONY AND SUPPORT Generally . . . . 8.3.B.2.a.ii Homestead exemption . . . . 19.7 ALTERNATE VALUATION OF ASSETS Appraisal . . . . 6.4.A.1 Distribution before risk period expiration, justification of . . . . 13.2.C Distribution within first six months . . . . 13.2.E.2.f Estate assets . . . . 9.2.E.1 Fiduciary accountings . . . . 12.3.B Specific devise . . . . 13.2.E.2.e ANATOMICAL GIFT (see DEAD BODY) ANCILLARY ADMINISTRATION Admitting foreign will to record . . . . 17.2.C.2 After discharge of foreign personal representative or lapse of two years from decedent’s death . . . . 17.2.C.2 Ancillary representative Management of decedent's property, surcharges . . . . 17.4.A Nonresident decedent with realty in Florida . . . . 10.4.H.1–10.4.H.2; 17.2.C.1 Powers and duties of . . . . 10.3.D.4; 17.4.A Tax filing requirements . . . . 17.4.B Who may serve . . . . 17.3.A Authenticated copies of documents . . . . 2.10.A Claims against estate . . . . 17.2.A; 17.2.C.2 Conclusion of proceedings . . . . 17.5 Defined . . . . 17.1 Generally . . . . 3.5.B; 18.2.O Intangibles, administration of . . . . 17.1 Jurisdiction (see JURISDICTION) Letters of administration, ancillary Persons eligible . . . . 17.3.A

Procedure for issuance . . . . 17.3.A–17.3.C Mortgage or lien, when administration needed to satisfy . . . . 17.2.B Necessity for . . . . 17.1–17.2.C.1 Nonresident decedent Original Florida administration of estate of . . . . 17.6 Safe-deposit box owned by . . . . 17.2.D Will of, validity to pass title to Florida property . . . . 17.1 With Florida debtor . . . . 17.2.B With personalty in Florida . . . . 17.2.D With realty in Florida Creditors, handling claims of . . . . 17.2.C.3 Generally . . . . 10.4.H.1–10.4.H.2; 17.2.C.1 With tangible personal property in Florida . . . . 17.2.B Notice of . . . . 2.2.H Resident decedent whose will is probated in another state . . . . 5.6.D.1– 5.6.D.2.b; 17.2.E Safe-deposit box owned by nonresident, procedure concerning . . . . 17.2.D Sale of property Authority for . . . . 10.3.D.4; 17.4.A Generally . . . . 10.4.H.1–10.4.H.2 Tax filing requirements . . . . 17.4.B Venue . . . . 17.3.B ANNUITIES Elective share, surviving spouse interest . . . . 7.6.C.7 ANTENUPTIAL AGREEMENT Elective share Homestead, waiver of . . . . 11.2.B.8 Generally . . . . 19.5.B.5; 19.8 Personal representative and . . . . 5.2.A.2 ANTILAPSE STATUTE . . . . 11.3.G; 21.3.B.2 ANTIQUES Appraisal (see APPRAISAL) Partial distribution . . . . 13.2.C

Sales . . . . 10.3.B.3 APPEALS Appellate attorneys' fees . . . . 3.8.C Before January 1, 2012 . . . . 3.8.A Final appealable orders . . . . 4.4.A.2 Generally . . . . 2.4 Jurisdiction of, wills and trusts . . . . 21.4.K On and after January 1, 2012 . . . . 3.8.B APPORTIONMENT (see ESTATE TAX) APPRAISAL Alternatives to . . . . 6.4.A.4 Appointment of appraisers not mandatory . . . . 6.4.A.1 Appraiser Affidavit as to fee, form . . . . 6.4.E Appointment not mandatory . . . . 6.4.A.1 Broker for estate . . . . 6.4.A.3 Compensation of . . . . 6.4.C; 15.2.F Corporation as . . . . 6.4.A.7 Form for report of . . . . 6.4.E Impartial appraisal, need for . . . . 6.4.A.2–6.4.A.3; 10.4.B Instructing . . . . 6.4.B Nonresident appraisers . . . . 6.4.A.6 Number of . . . . 6.4.A.1 Personal representative Authority to employ appraiser . . . . 6.4.A.1; 15.2.D Selection of appraisers . . . . 6.4.A.1 Specialized appraisers, use of . . . . 6.4.A.2 Sale of asset to, restrictions on . . . . 6.4.A.5 Selection of . . . . 6.4.A.2 Art objects, jewelry, and personal property of unique nature . . . . 10.3.B.3 Court Filing appraisal with . . . . 6.4.D Leave of not necessary to dispense with appraisal . . . . 6.4.A.1

Power to order appraisal . . . . 10.5.A.4 Final distribution . . . . 14.3.C.1 Generally . . . . 6.4.A.1 Impartial appraisal, need for . . . . 6.4.A.2–6.4.A.3; 10.4.B Inventory (see INVENTORY) Partial distribution . . . . 13.2.C Possession . . . . 6.3.D Sales . . . . 10.3.B.3 Scope of . . . . 6.4.A.1 Valuation of assets . . . . 6.2.B APPRAISERS (see APPRAISAL) ASSETS Accountings (see ACCOUNTINGS) Ancillary administration (see ANCILLARY ADMINISTRATION) Appraisal (see APPRAISAL) Attorneys’ fees, assets from which fees are to be paid . . . . 3.6.L; 15.4.M.4–15.4.M.5 Checklist of . . . . 1.2.E.2.a.iii Curator, powers and duties of . . . . 16.4.A Determination for probate . . . . 1.2.E.1 Digital assets . . . . 9.5 Distribution (see DISTRIBUTION) Elective share (see ELECTIVE SHARE) Final discharge, assets discovered after . . . . 14.3.D.6 (see also DISTRIBUTION) Homestead probatable assets, determination (see HOMESTEAD) Inventory (see INVENTORY) Maintaining estate assets (see ESTATE ASSETS, MAINTAINING) Nonprobate assets, checklist of duties concerning . . . . 1.2.E.11 Partial distribution (see DISTRIBUTION) Payment of claims from (see CREDITORS’ CLAIMS) Personal representative Checklist of duties and procedures . . . . 4.3.A.10 Custody and curator duties . . . . 9.1.A Digital assets . . . . 4.3.A.3.b; 9.5

General duties of . . . . 4.3.A.1 Inventory, duties regarding . . . . 6.2.A Property maintenance, duties of . . . . 9.2.A Property, nature of in determination of assets . . . . 1.2.E.1 Real property (see REAL PROPERTY) Sale of (see ESTATE ASSETS, SALES AND TRANSFERS OF) Small estates (see SMALL ESTATES) Transfer of (see ESTATE ASSETS, SALES AND TRANSFERS OF) Valuation of (see APPRAISAL) Wasting or nonproductive . . . . 9.2.D.3; 13.2.C ATTORNEY Attorney-client relationship Attorneys for personal representative and beneficiaries . . . . 4.4.B.2 Communication in . . . . 1.3.C.2 Generally . . . . 4.2.A–4.2.B Beneficiaries, determination of . . . . 1.2.E.2.a.i Charging lien of, jurisdiction over . . . . 3.6.A Client and beneficiaries, responsibilities to Checklist of practical suggestions . . . . 20.3.B Communicating with Generally . . . . 1.2.E.2.a.ii; 1.3.C.1.c–1.3.C.3 Privileged communication . . . . 1.2.E.2.a.ii Conflicts Fiduciary-client privilege . . . . 21.2.B Multiple parties, representation of . . . . 21.2.D Scope of . . . . 21.2.B Fiduciary attorney-client privilege . . . . 4.2.B; 4.3.A.9 Fiduciary lawyer-client privilege . . . . 21.2.B Generally . . . . 4.4.B.1; 21.2.B Interested parties, duty to . . . . 20.3.A.2 Notices and copies of pleadings to interested persons . . . . 4.4.B.3 Relationship between attorney for personal representative and attorneys for beneficiaries . . . . 4.2.B; 4.4.B.2–4.4.B.3 Selection of attorney . . . . 1.3.B.4 Surviving spouse . . . . 1.2.E.10.a Witness, attorney as (See WITNESS)

Compensation (see ATTORNEYS’ FEES) Conflicts in litigation matters Fiduciary-client privilege . . . . 21.2.B Scope of . . . . 21.2.B Court records, confidentiality of . . . . 4.4.C Court, responsibilities to (see COURT, subhead: Attorney's responsibilities to) Devises to . . . . 11.5 Estate information checklist and information sheet . . . . 1.2.E.2.a.iii Failure to act, liability for . . . . 4.4.D Fees and costs (see ATTORNEYS’ FEES) Formal administration, determining need for . . . . 1.2.F Initial contact with . . . . 1.1; 1.3.C.1.d Inventory, duties concerning . . . . 6.3.A; 6.6.F Jurisdiction . . . . 3.6.B Multiple parties, representation of . . . . 21.2.D Negligent advice, liability for . . . . 4.4.D Opening estate, checklist of possible problems . . . . 1.2.E.2.a.iv Outlining responsibilities to client . . . . 1.3.C.1.c Personal representative Attorney serving as Compensation . . . . 4.2.D; 15.2.I.5; 15.3.D; 15.4.O.2 Generally . . . . 4.2.A; 4.2.D Initial conference (see PERSONAL REPRESENTATIVE, subhead: Initial conference with attorney) Power to employ attorney . . . . 4.2.C.1–4.2.C.2; 4.3.B.2; 15.2.C; 15.2.E Relationship between (see PERSONAL REPRESENTATIVE, subhead: Attorney) Privileged communication . . . . 1.2.E.2.a.ii Problems in opening estate, possible . . . . 1.2.E.2.a.iv Quasi personal representative . . . . 15.4.A; 15.4.G Recordkeeping responsibilities . . . . 12.2.C Records of court, confidentiality of . . . . 4.4.C Small estates, attorney’s role in . . . . 15.4.A; 18.3 Surviving spouse, advising . . . . 1.2.E.10.a Title to property, verifying . . . . 1.2.E.2.a.iii

Wills (See WILLS) Withdrawal from representation . . . . 2.1.H Witness, as (See WITNESS) ATTORNEYS’ FEES “Adjustable” reasonable fee F.S. 733.6171(5), factors considered under Agreement relating to compensation . . . . 15.4.D.2.i Any other relevant factors . . . . 15.4.D.2.j Attorney's participation in tax planning for estate and estate's beneficiaries and tax preparation, review, or approval . . . . 15.4.D.2.f Benefits or detriments resulting to estate or interested persons from attorney's services . . . . 15.4.D.2.d Complexity or simplicity of administration and novelty of issues presented . . . . 15.4.D.2.e Delay in payment of compensation after services furnished . . . . 15.4.D.2.h Disclosures, timeliness of . . . . 15.4.D.2.i Nature and value of assets affected by decedent's death . . . . 15.4.D.2.c Nature of probate, nonprobate, and exempt assets, expenses of administration, liabilities of decedent, and compensation paid to other professionals and fiduciaries . . . . 15.4.D.2.g Promptness, efficiency, and skill . . . . 15.4.D.2.a Responsibilities assumed by and potential liabilities of attorney . . . . 15.4.D.2.b Generally . . . . 15.4.D.1 Adversarial nature of will construction proceeding . . . . 21.4.H Appellate attorneys . . . . 3.8.C Assets from which fees are to be paid . . . . 3.6.L; 15.4.M.4–15.4.M.5 Beneficiaries, agreements with . . . . 15.4.H.1; 15.4.H.4–15.4.H.5 Charging lien, jurisdiction to adjudicate . . . . 3.6.A Contest of will . . . . 21.3.A.1.a; 21.4.H Contract, fee Consent by beneficiaries . . . . 15.4.H.4–15.4.H.5 Generally . . . . 15.4.G

Personal representative, with . . . . 15.4.H.4 Sample contract and consent . . . . 15.4.H.5 Testator, with . . . . 15.4.H.2 Deductibility for estate tax purposes . . . . 15.8.E Disclosure of amount and manner of determining Final accounting . . . . 14.2.C.2 Generally . . . . 15.2.I.5 Joint personal representatives . . . . 4.3.B.2 Notices and copies of pleadings . . . . 4.4.B.3 Payment after full disclosure and absent objection . . . . 15.4.I Personal representative Compensation, review of . . . . 15.3.I Contract . . . . 15.4.H.3 Reasonable statutory schedule, fees presumed . . . . 15.4.C Timeliness of disclosures . . . . 15.4.D.2.i Discovery . . . . 15.2.F Elective share proceedings Before July 1, 2017, commenced . . . . 7.10.B Contribution, enforcement of . . . . 7.7.G Generally . . . . 7.7.G On or before July 1, 2017, commenced . . . . 7.10.A Ethical considerations . . . . 15.4.H.1; 15.4.K; 15.4.O.2 Evolution of law regarding . . . . 15.2.I.1–15.2.I.5 Expert testimony as to Joint personal representatives . . . . 4.3.B.2 Procedure, notice, and hearing . . . . 15.3.J Professionals and others entitled to compensation . . . . 15.2.F Reasonable fees . . . . 15.4.F Extraordinary services “Adjustable” reasonable fee (see “Adjustable” reasonable fee) After June 30, 1995 . . . . 15.4.B.3 Authority to sign check . . . . 4.3.B.2 Basis for determination . . . . 1.3.C.3 Determining fees for . . . . 15.4.E Fiduciary time spent by attorney, segregation of . . . . 15.4.G Postmortem planning . . . . 15.7.A Sample contract and consent . . . . 15.4.H.5

Types of . . . . 15.4.E Fees to determine fees . . . . 15.4.M.5 Forms (See FORMS) Hourly rate . . . . 15.4.H.5 Jurisdiction to assess . . . . 3.6.L Jury trial on issue of . . . . 3.6.R Methodology for determining . . . . 15.4.M.3.b Multiple attorneys for joint personal representatives . . . . 4.2.C.2; 15.4.O.1 Objections to Construction of will . . . . 21.4.H Estate closing procedure . . . . 14.2.D Fee contracts . . . . 15.4.H.1 Fee determination procedure . . . . 15.4.M.1 Nature of proceeding . . . . 15.4.M.2 Nonadversary proceeding . . . . 15.4.M.2 Personal representative contracts . . . . 15.4.H.3 Waivers, use of . . . . 12.2.B Order allowing Content requirements . . . . 15.4.M.3.a; 15.4.M.3.b Required findings . . . . 15.4.M.3.a Sample . . . . 15.4.M.7 Other attorneys rendering services, for . . . . 15.4.L Payment after full disclosure and absent objection Notices and copies of pleadings . . . . 4.4.B.3 Personal representative Compensation, review of . . . . 15.3.I Contract . . . . 15.4.H.3 Procedures for . . . . 15.4.I Personal representative Attorney acting as . . . . 4.2.D; 15.2.I.5; 15.3.D Attorney performing duties of . . . . 15.4.A; 15.4.G Contract . . . . 15.4.H.3 Payment by . . . . 4.2.C.1 Relationship between (see PERSONAL REPRESENTATIVE, subhead: Attorney) Review of compensation . . . . 15.3.I

Petition for Generally . . . . 15.4.M.1 Sample . . . . 15.4.M.6 Postmortem planning . . . . 15.7.A–15.7.B Preclusion of award for actions brought before end of claim period . . . . 15.4.O.5 Reasonable fees “Adjustable” reasonable fee (see “Adjustable” reasonable fee) After June 30 1995 . . . . 15.4.B.3 Before July 1st 1995 . . . . 15.4.B.2.a–15.4.B.2.b Before October 1 1993 . . . . 15.4.B.1 Burden of proof as to . . . . 15.4.M.1 Disclosure requirement for fees based on statutory schedule . . . . 15.4.C Ethical considerations . . . . 15.4.K Expert testimony . . . . 15.4.F Personal representative, attorney for . . . . 4.3.B.1.c Procedure, notice, and hearing . . . . 15.3.J; 15.4.M.1 Professionals and other agents . . . . 15.2.F Renunciation of . . . . 15.4.O.3; 15.7.B Small estates . . . . 15.4.A Successor personal representative, disgorgement action brought by . . . . 15.4.O.4 Testator, contracts with . . . . 15.4.H.2 Timing of payment . . . . 15.4.J Unsuccessfully offering will . . . . 15.3.L; 15.4.O.4 Will contests . . . . 21.3.A.1.a; 21.4.H AUDITORS Authority of personal representative to employ . . . . 15.2.E Compensation of . . . . 15.2.F AUTHENTICATED COPIES Generally . . . . 2.10.A; 11.2.A.4 Real property, use for distribution of . . . . 2.10.B AUTOMOBILES (see MOTOR VEHICLES)

AUTOPSIES . . . . 1.2.A.6; 1.2.A.8

B BANK ACCOUNTS Attorney’s duties regarding status of . . . . 1.2.E.2.a.iii Convenience accounts . . . . 1.2.E.3 Digital assets of decedent . . . . 9.5 Joint bank accounts (see JOINT BANK ACCOUNTS) Pay-on-death accounts . . . . 1.2.E.3; 21.3.F Savings accounts, distribution of funds in . . . . 14.3.C.6.f Totten trust accounts . . . . 1.2.E.3; 21.3.F BENEFICIARIES (see also HEIRS) Abatement Distribution and discharge problems . . . . 14.3.A.4 Partial distributions . . . . 13.1 Testate estates . . . . 11.3.I Testator's tax objectives . . . . 21.3.B.5 Ademption . . . . 11.3.F; 14.3.A.3 Advancements to . . . . 6.5.L; 13.1; 14.3.A.2 Aliens, devises to . . . . 11.3.B Ancillary administration (see ANCILLARY ADMINISTRATION) Attorneys’ duties regarding (see ATTORNEY) Attorneys’ fees, agreements concerning . . . . 15.4.H.4–15.4.H.5 Caveat (see CAVEAT) Charitable devises . . . . 11.3.A; 21.3.A.1.e.vi Claims by beneficiaries . . . . 8.3.B.3.b.i.III Community property . . . . 11.4 Defined . . . . 11.1 Determination of Dissolution of marriage, effect on . . . . 11.6 Escheat to State of Florida . . . . 11.2.E Generally . . . . 1.2.E.2.a.i; 11.1; 19.9.D Investigator for, right to employ . . . . 11.2.A.5 Jurisdiction . . . . 3.6.F; 3.6.H

Methods of proof . . . . 11.2.A.4 Nonadopted family members . . . . 21.3.G Petition for determination (see Petition for determination) Practical method of finding heirs . . . . 11.2.A.3 Procedure governing . . . . 11.8.A–11.8.E Disclaimed benefits (see DISCLAIMED BENEFITS) Dissolution of marriage Effect on designation . . . . 11.6 Life insurance proceeds, special rules for . . . . 6.5.Q Final distribution Agreement affecting . . . . 14.3.D.5.a–14.3.D.5.b Distribution upon consent . . . . 14.3.C.5 (see also DISTRIBUTION) Hearing and order determining . . . . 11.8.E Heirs (see HEIRS) Homestead provisions (see HOMESTEAD) Information to be obtained . . . . 1.2.E.2.a.iii; 4.3.A.3.c Insurance payments to . . . . 1.2.E.4.b.i Jurisdiction (see JURISDICTION) Lapsed devise . . . . 11.3.G; 21.3.B.2 Life insurance payments to . . . . 1.2.E.4.b.i Notice of fiduciary attorney-client privilege . . . . 4.3.A.9 Notice of fiduciary lawyer-client privilege . . . . 1.2.E.2.a.ii Order determining . . . . 11.8.E Personal representative Agreements with for compensation . . . . 15.3.H Communicating with . . . . 1.2.E.2.a.ii Duties regarding . . . . 11.1; 11.2.A.2; 11.8.A; 21.2.A Petition for determination Contents . . . . 11.8.B Form . . . . 11.8.C Generally . . . . 11.8.A Guardian ad litem, appointment of . . . . 11.8.D Notice . . . . 11.8.D Virtual representation . . . . 2.5; 11.8.D Who may file . . . . 11.8.A Pretermitted spouse and children . . . . 11.2.B.6; 11.3.H; 21.3.A.1.e.ix;

21.3.G Receipt Difficulty in obtaining . . . . 14.3.D.1.c Generally . . . . 14.3.D.1.a Particularity of . . . . 14.3.D.1.b Representation by others with similar interest . . . . 2.5; 11.8.D Simultaneous Death Law . . . . 11.7 Substitutionary gifts . . . . 11.3.E Summary administration, rights under . . . . 18.2.N Survivorship, devises conditioned on . . . . 11.7 Survivorship, devises conditioned upon . . . . 11.3.C Unclaimed property . . . . 11.2.E Virtual representation . . . . 2.5; 11.8.D Void devise . . . . 11.3.G BENEVOLENT ASSOCIATIONS . . . . 11.3.A BEQUESTS (see DEVISES) BOAT, SALE OR TRANSFER OF (see ESTATE ASSETS, SALES AND TRANSFERS OF) BODIES (see DEAD BODY) BONDS Investment in . . . . 9.3.A; 9.3.F.3 U.S. Government, requests for reissue or redemption . . . . 14.3.C.6.e BOND, SURETY Business operated by personal representative, effect on size of bond . . . . 9.4.B.4 Curator, bond of Form . . . . 16.3.B.6.b Generally . . . . 16.3.B.6.a Reduction in . . . . 16.3.B.6.a Depository, use in lieu of bond . . . . 9.3.J.1; 15.5.A; 16.3.B.6.a Order of probate, requirements . . . . 5.3.E Partial distribution (see DISTRIBUTION)

Personal representative’s (see PERSONAL REPRESENTATIVE) Premium payment . . . . 15.5.A Requirements for (see WILLS) BUREAU OF VITAL STATISTICS Burial and removal permits . . . . 1.2.A.3 BUSINESS OF DECEDENT Continuing Bond requirements . . . . 9.4.B.4 Borrow money, right to . . . . 9.4.B.5 Contracts charging estate, limitation on authority to make . . . . 9.4.B.2 Generally . . . . 1.2.E.12; 9.4.A; 13.2.G.6.a–13.2.G.6.b; 15.5.B Limited liability companies . . . . 9.4.C.4 Mortgage property, right to . . . . 9.4.B.5 Order authorizing continuation, contents of . . . . 9.4.B.1 Partnerships . . . . 9.4.C.3.a; 13.2.G.6.b Petition requesting continuation, contents of . . . . 9.4.A Records, duty to keep Generally . . . . 9.4.B.3.a Order approving monthly report, form . . . . 9.4.B.3.b.ii Petition for approval of monthly report, form . . . . 9.4.B.3.b.i S corporations . . . . 9.4.C.1; 13.2.G.6.b Sole proprietorships Generally . . . . 9.4.C.2.a Order granting authority to continue, form . . . . 9.4.C.2.b.ii Petition to continue, form . . . . 9.4.C.2.b.i Curator, appointment necessary . . . . 16.3.A Inventory . . . . 6.5.A–6.5.C Will, provisions in . . . . 9.4.A

C CASH Deposit in financial institution for safekeeping Generally . . . . 9.3.J.1; 15.5.A; 16.3.B.6.a Order designating depository, form . . . . 9.3.J.2.b Petition for order designating depository, form . . . . 9.3.J.2.a Inventory . . . . 6.5.F CAVEAT Contest will, effect on right to . . . . 1.2.G.2 Generally . . . . 1.2.G.1; 2.2.C; 4.3.A.9; 5.5; 16.3.A Petition for administration . . . . 1.2.G.1; 1.2.G.2; 4.3.A.9 CEMETERY LOTS (see FUNERAL, MAINTENANCE EXPENSES)

BURIAL,

AND

CERTIFICATE OF DISTRIBUTION Generally . . . . 18.2.D Mechanics of, for real property . . . . 14.3.C.6.a Personal representative, duties regarding . . . . 4.3.A.3.k.i Real property . . . . 2.10.B Transfer of real property . . . . 10.6.C.1–10.6.C.2 CHARITIES Charitable devises . . . . 11.3.A; 21.3.A.1.e.vi Partial distribution (see DISTRIBUTION) CHECKING ACCOUNTS (see BANK ACCOUNTS) CHILDREN Beneficiaries (see BENEFICIARIES) Heirs (see HEIRS) CIRCUIT COURT (see COURT)

GRAVE

CLAIMS AGAINST ESTATE Caveat, filing with court . . . . 5.5 Contingent claim, mortgage . . . . 1.2.E.5 Conversion of assets into cash for payment Determination of need . . . . 9.2.F.1–9.2.F.4 Power to sell assets . . . . 10.2.C Creditors’ claims (see CREDITORS’ CLAIMS) Decedent release of debt, testamentary devise . . . . 6.5.E; 11.3.I Deductibility on federal estate tax return . . . . 8.4 Elective share (see ELECTIVE SHARE) Family allowance, effect of . . . . 8.5.C Funeral expenses (see FUNERAL, BURIAL, AND GRAVE MAINTENANCE EXPENSES) Homestead, claims against (see HOMESTEAD) Interest . . . . 8.2.E.2.a; 8.4 Notice to creditors (see CREDITORS’ CLAIMS) Personal representative Claim by . . . . 4.3.D.1 Estate inventory, duties regarding . . . . 6.5.E; 11.3.I Grounds for removal . . . . 4.3.C.5.b Summary administration (see SUMMARY ADMINISTRATION) CLAIMS OF ESTATES (see PERSONAL REPRESENTATIVE) CLASS ACTIONS . . . . 8.3.B.2.a.xi CLOTHING AND PERSONAL EFFECTS Inventory . . . . 6.5.G Partial distribution of . . . . 13.2.G.2 COLLATERAL KIN, INHERITANCE BY . . . . 11.2.B.1; 11.2.B.3 COMMINGLING OF FUNDS . . . . 4.3.A.4; 4.4.B.1; 9.2.G COMMON-LAW MARRIAGES Jurisdiction . . . . 3.2.B COMMUNITY PROPERTY . . . . 8.3.B.2.a.ii

Generally . . . . 11.4 COMPULSORY PARTIAL DISTRIBUTION (see DISTRIBUTION) CONFIDENTIAL INFORMATION Court records . . . . 4.4.C Final accounting, notice . . . . 14.2.C.3 Generally . . . . 5.1 Petition for discharge, notice . . . . 14.2.B.2 Social Security numbers (see SOCIAL SECURITY, subhead: Social security numbers) CONSENT (see WAIVER AND CONSENT) CONSTRUCTION OF WILLS (see WILLS) CONTESTING WILLS (see WILLS) CONTRACTS Attorneys’ fees (see ATTORNEYS’ FEES) Distribution of assets, affecting . . . . 14.3.D.5.a–14.3.D.5.b Interested persons, among . . . . 14.3.D.5.a–14.3.D.5.b Options and contracts, inventory . . . . 6.5.H Personal representative Duties, checklist . . . . 4.3.A.10 Limitation on authority to make . . . . 9.4.B.2 Property under contract for sale Creditors’ claims . . . . 8.3.B.3.b.ii.II Inventory . . . . 6.5.R Sale of interest . . . . 10.4.E CONTRIBUTION Abatement and . . . . 14.3.A.4 Elective share proceedings . . . . 7.7.G Partial distribution, repayment of . . . . 13.3.D Recovery of assets or their value . . . . 13.2.D Specifically devised assets . . . . 10.3.D.7

CORNEAL TRANSPLANTS . . . . 1.2.A.5; 1.2.A.8 CORPORATE INTERESTS, MANAGEMENT OF Continuing business of decedent (see BUSINESS OF DECEDENT) Generally . . . . 9.2.D.2; 9.2.F.3 S corporations . . . . 9.4.C.1; 13.2.G.6.b COURT Appraisal, filing with . . . . 6.4.D Attorney's responsibilities to Checklist of practical suggestions . . . . 20.3.B Correct litigation filing . . . . 20.3.A.4 Generally . . . . 4.4.A.1–4.4.A.2 Legal advice or instruction, relying on judge for . . . . 20.2.B.3 Malpractice insurance, relying on judge as . . . . 20.2.B.2 Misrepresentation of facts . . . . 20.2.B.1 Notice . . . . 4.4.A.1 Pleadings and orders . . . . 4.4.B.1 Quality over quantity of work . . . . 20.3.A.1 Unnecessary requests for court action, avoidance of . . . . 20.3.A.3 Authenticated copies of documents to be obtained, when . . . . 2.10.A– 2.10.B; 11.2.A.4 Curator (see CURATORS) Duties of probate judges . . . . 20.2.A Jurisdiction (see JURISDICTION) CREDIT BUYING BY PERSONAL REPRESENTATIVE . . . . 9.3.G CREDITORS’ CLAIMS Agency for Health Care Administration, claims by (see AGENCY FOR HEALTH CARE ADMINISTRATION, CLAIMS BY) Agreement to make will . . . . 8.3.B.2.a.x Alimony and support (see ALIMONY AND SUPPORT) Basic law . . . . 3.6.C Beneficiaries, interests and claims by Generally . . . . 8.3.B.3.b.i.III Trust beneficiaries . . . . 8.3.B.3.b.i.II Caveat . . . . 1.2.G.1

Certificate of insufficiency . . . . 4.3.A.3.g Community property, surviving spouse's claim for . . . . 8.3.B.2.a.ii Compromise and settlement Generally . . . . 8.2.F.1 Order authorizing compromise of claim . . . . 8.2.F.2.b Petition to compromise claim . . . . 4.3.A.3.h; 8.2.F.2.a Contingent claims . . . . 1.2.E.5; 8.3.B.2.a.iv Counterclaims . . . . 8.3.B.2.a.i; 8.3.B.2.a.vii Cross-claims . . . . 8.3.B.2.a.i; 8.3.B.2.a.vii Death, actions pending at time of . . . . 8.3.B.2.a.vi Deductibility of claims for estate tax purposes . . . . 8.4 Defensive recoupment . . . . 8.3.B.3.b.ii.IV Department of Revenue, claims by . . . . 8.3.B.2.a.v Distribution, final (see DISTRIBUTION) Due process issues . . . . 21.3.C.2 Equitable title, claims based on . . . . 8.3.B.3.b.i.II Estoppel from asserting nonclaim . . . . 8.2.A.2.a; 8.2.A.2.b; 8.2.B.3.a; 8.3.A.1 Exempt property, payment of claims . . . . 4.3.A.3.k.ii; 8.2.E.2.c; 13.2.G.3 Extension of time Commencing action on claim Effect of filing action . . . . 8.2.C.2 Procedures for . . . . 8.3.C.1.b; 21.3.C.1; 21.3.C.3 Filing claim Contingent or unmatured claim . . . . 8.3.B.2.a.iv Estoppel from asserting nonclaim . . . . 8.2.B.3.a; 8.3.A.1 Fraud, estoppel, or insufficient notice . . . . 8.2.B.3.a–8.2.B.3.b Generally . . . . 8.3.A.1 Late claims . . . . 8.2.D; 8.3.A.3 Procedures for . . . . 21.3.C.3 Objection to claim . . . . 8.2.C.3 Ex-wife, claims for alimony and support . . . . 8.3.B.2.a.ii Family allowance, effect of . . . . 8.5.C Federal right, claims based on . . . . 8.3.B.3.c Filing of claim Alternative procedure . . . . 8.3.A.2

Extension of time (see Extension of time) Generally . . . . 8.3.A.1 Three month/thirty-day period . . . . 8.2.B.1; 8.2.B.4 Two-year period, alternative . . . . 8.2.B.2; 8.2.B.4 Forms (see FORMS) Funeral expenses (see FUNERAL, BURIAL, AND GRAVE MAINTENANCE EXPENSES) Generally . . . . 3.6.C; 8.1–8.2.A.1; 21.3.C.1 Homestead, claims against (see HOMESTEAD) Incapacitated persons Claims by . . . . 8.3.D Extension of time to file action . . . . 8.3.C.1.b Independent action on claim Contingent or unmatured claims . . . . 8.3.B.2.a.iv Creditor's filing statement . . . . 8.3.A.1 Judgment claims . . . . 8.3.B.2.a.iii Procedures Generally . . . . 8.3.C.1.a Payment when no formal claim is made . . . . 8.2.E.2.b Insurance Claims secured by . . . . 8.3.B.3.b.i.II Life insurance proceeds, exemption of . . . . 1.2.E.4.b.i–1.2.E.4.b.ii; 13.2.G.7; 18.2.F Wrongful death action . . . . 8.3.B.2.a.i Judgment claims . . . . 8.3.B.2.a.iii Land contracts, claims arising under . . . . 8.3.B.3.b.i.II Late claims . . . . 8.2.D; 8.3.A.3 Life insurance, exemption of proceeds . . . . 1.2.E.4.b.i–1.2.E.4.b.ii; 13.2.G.7; 18.2.F Minors . . . . 8.3.B.2.a.ii; 8.3.D Mortgages and liens . . . . 1.2.E.5; 8.3.B.3.b.i.I Nonresident decedent, claims against . . . . 8.3.E; 17.2.A; 17.2.C.3 Nonresidents, claims of . . . . 8.3.B.2.a.viii Notice of administration, requirement to publish and serve on creditors . . . . 2.2.B.1–2.2.B.2; 5.3.K–5.3.L Notice to creditors Bifurcation of procedure . . . . 2.2.B.1

Creditors' rights, duty to recognize . . . . 4.3.A.6 Current law . . . . 8.2.A.2.b Direct service on ascertainable creditors . . . . 8.2.A.2.e During five-month period . . . . 1.3.C.1.b.i Failure to serve notice . . . . 4.3.A.6 Generally . . . . 2.2.A; 2.2.B.3; 21.3.C.1-21.3.C.2 History of notice provisions . . . . 8.2.A.2.a Initial conference subjects checklist . . . . 1.3.C.1.d Proof of publication . . . . 8.2.A.2.d Proof of will . . . . 5.3.L Publication of notice . . . . 8.2.A.2.c Service on creditors . . . . 8.2.A.2.e Summary administration Generally . . . . 18.2.A; 18.2.J; 18.2.M Real property sale . . . . 17.2.C.3 When to publish . . . . 2.2.B.3 Objections to claims Action on claim . . . . 8.2.C.2 Attorney, signed by . . . . 8.2.C.1 Copies, delivery . . . . 8.2.C.2 Extension of time to commence action . . . . 8.3.C.1.b Failure to file . . . . 8.3.C.2.a Failure to object . . . . 4.3.D.2.b; 8.2.C.3 Notice . . . . 2.2.B.3 Personal representative . . . . 8.2.C.1 Procedure after filing . . . . 8.3.C.1.a Removal of personal representative, grounds for . . . . 4.3.C.5.b Time limits for filing . . . . 8.2.C.1; 8.2.D Payment of claims Assets from which claims payable . . . . 8.2.E.2.c During five-month period after notice . . . . 1.3.C.1.b.i; 8.2.E.2.a Exempt property . . . . 4.3.A.3.k.ii; 8.2.E.2.c; 13.2.G.3 Generally . . . . 8.2.E.2.a Husband surviving wife, liability . . . . 8.2.E.1.b Interest . . . . 8.2.E.2.a Necessity for examining nature of claims . . . . 8.2.E.1.a No formal claim made, payment when . . . . 8.2.E.2.b

Petition for payment of claims . . . . 8.3.C.2.b Priorities . . . . 4.3.A.6; 8.2.E.2.d Surviving spouse, liability of . . . . 8.2.E.1.b Personal representatives Claims of Ascertainable claims Attorney-client relationship . . . . 4.2.A Checklist . . . . 4.3.A.10 Guardian ad litem, homestead status . . . . 19.9.E Procedural traps . . . . 4.3.A.6 Scope of duties . . . . 4.3.A.1 Generally . . . . 2.9.B; 8.3.B.2.a.ix Compromise and settlement . . . . 8.2.F.1 Diligent search for creditors, duty to make Duty to recognize creditors' rights . . . . 4.3.A.6 Filing statement of claim . . . . 8.3.A.1 Generally . . . . 8.2.A.1; 19.9.D; 20.2.B.1; 21.3.C.1 Inspection of assets . . . . 6.3.B Notice to creditors . . . . 2.2.B.3 Proof of will . . . . 5.3.L Duty to recognize . . . . 4.3.A.6; 21.2.A Nature of claims, necessity to examine . . . . 8.2.E.1.a Nonclaim statute . . . . 8.3.A.1 Objections (see Objections to claims) Personal liability . . . . 4.3.D.2.b; 8.2.E.2.b Proof of claim filed by . . . . 8.3.A.2 Settlement without formal claim . . . . 8.3.A.2 Time limits for payment of claims . . . . 8.2.E.2.a Priorities in payment of . . . . 4.3.A.6; 8.2.E.2.d Proof of claim Objection to . . . . 8.2.C.1 Personal representative . . . . 8.3.A.2 Recoupment, defensive . . . . 8.3.B.3.b.ii.IV Settlement (see Compromise and settlement) State, claims by Generally . . . . 21.3.C.4 Statute of limitations . . . . 8.3.B.2.a.v

Strike, petition to . . . . 4.3.A.6; 8.2.D Summary administration . . . . 18.2.B; 18.2.I–18.2.J; 18.2.M Surviving partners, status as creditors . . . . 8.3.B.3.b.i.III Surviving spouse for claims against decedent, liability of . . . . 8.2.E.1.b Taxes, claim for . . . . 8.3.B.2.a.v Time limitations for filing of claims Extension of time (see Extension of time) Generally . . . . 4.3.A.6 Trust for claims against decedent, liability of . . . . 1.2.E.1; 8.2.E.2.c Unadministered estates . . . . 8.3.E Unemployment Compensation, claims by Division of . . . . 8.2.B.4; 8.3.B.2.a.v United States, claims by . . . . 8.3.B.3.b.ii.I; 21.3.C.4 Unmatured claims . . . . 8.3.B.2.a.iv Wills, agreement to make . . . . 8.3.B.2.a.x Wrongful death action . . . . 8.3.B.2.a.i CREMATION . . . . 1.2.A.7 CURATORS Appointment Bond . . . . 16.3.B.6.a–16.3.B.6.b Generally . . . . 16.2 Hearing . . . . 16.3.B.3 Letters of curatorship . . . . 16.3.B.8.a–16.3.B.8.b Necessity or desirability of . . . . 1.2.C.1 Notice of petition . . . . 16.3.B.3 Oath . . . . 16.3.B.5.a–16.3.B.5.b Occasions for . . . . 16.3.A Order of . . . . 16.3.B.4.a–16.3.B.4.b Petition for . . . . 16.3.B.2.a–16.3.B.2.b Procedure for . . . . 16.3.B.1–16.3.B.2.b Refusal to appoint . . . . 16.3.A Resident agent, designation of . . . . 16.3.B.7 Venue . . . . 16.3.B.1 Authority . . . . 16.2 Bond

Form . . . . 16.3.B.6.b Generally . . . . 16.3.B.6.a Circuit court, appointed by . . . . 16.1–16.2 Compensation of . . . . 16.6 Completing administration . . . . 16.4.C Decedent's property, management of . . . . 9.1.A Defined . . . . 16.2 Domicile . . . . 1.2.C.1 Estate assets . . . . 1.2.H Final accountings . . . . 16.4.A Generally . . . . 16.1 Intestate estate, occasions for appointment in . . . . 16.3.A Inventory, filing of . . . . 2.6; 16.4.A–16.4.B Jurisdiction over . . . . 16.1; 16.2 Letters of curatorship Form . . . . 16.3.B.8.b Generally . . . . 16.3.B.8.a Liabilities of . . . . 16.5 Need for Appointment . . . . 1.2.H Business of decedent . . . . 1.2.E.12 Domicile . . . . 1.2.C.1 Estate tax . . . . 16.3.A Oath Form . . . . 16.3.B.5.b Generally . . . . 16.3.B.5.a Order appointing Form . . . . 16.3.B.4.b Generally . . . . 16.3.B.4.a Petition for appointment Form . . . . 16.3.B.2.b Generally . . . . 16.3.B.2.a Hearing on . . . . 16.3.B.3 Notice of . . . . 16.3.B.3 Powers and duties of Completing administration . . . . 16.4.C Enumerated . . . . 16.4.A

Limitations on . . . . 16.4.B Need for special court authority . . . . 16.4.B Procedure for appointment . . . . 16.3.B.1–16.3.B.2.b Resident agent, designation of . . . . 16.3.B.7 Service of petitions and motions . . . . 16.4.A Special court authority, required . . . . 16.4.B Trust company . . . . 16.3.B.4.a Venue for proceedings . . . . 16.3.B.1 CURTESY (see ELECTIVE SHARE) CUSTODIAN OF WILL . . . . 1.2.D.2; 5.2.A.1.a

D DEAD BODY Anatomical board of state . . . . 1.2.A.1; 1.2.A.5 Autopsies . . . . 1.2.A.6; 1.2.A.8 Burial Instructions . . . . 1.2.A.2; 1.2.D.5 Insurance and contracts . . . . 1.2.A.9 Permits . . . . 1.2.A.3 Plot, selection of . . . . 1.2.A.4 Buying or selling human body . . . . 1.2.A.5 Casket, selection of . . . . 1.2.A.4 Corneal transplants . . . . 1.2.A.5; 1.2.A.8 Cremation . . . . 1.2.A.7 Death certificate . . . . 1.2.A.3; 3.5.A; 5.3.B Decedent, control by . . . . 1.2.A.2; 1.2.A.7; 1.2.D.5 Disinterment . . . . 1.2.A.6 Donation of body or parts of body . . . . 1.2.A.2; 1.2.A.5 Funeral expenses (see FUNERAL, BURIAL, AND GRAVE MAINTENANCE EXPENSES) Medical examiner Cause of death, determination of . . . . 1.2.A.8 Duties . . . . 1.2.A.8 Medical schools, scientific use of bodies by . . . . 1.2.A.1; 1.2.A.5 Organs, donation of . . . . 1.2.A.2; 1.2.A.5 Removal permit . . . . 1.2.A.3 Rights to body . . . . 1.2.A.1 Shipping body, expense of . . . . 1.2.B.5 State health officer, autopsies, requirements . . . . 1.2.A.6 Transit permit . . . . 1.2.A.3 Unclaimed bodies . . . . 1.2.A.1 Withholding of body, unlawful . . . . 1.2.A.1 DEAD PERSON’S STATUTE . . . . 21.4.I

DEATH BENEFITS Social Security lump-sum benefit . . . . 1.2.E.9 Trustees inter vivos or testamentary trusts . . . . 1.2.E.4.b.ii DEATH CERTIFICATE . . . . 1.2.A.3; 3.5.A; 5.3.B DEBTS OF DECEDENT CREDITORS’ CLAIMS)

(see

CLAIMS

AGAINST

ESTATE;

DEED (see REAL PROPERTY) DEPARTMENT OF REVENUE Affidavit of no tax due, filing Checklist of duties . . . . 4.3.A.10 Estate assets . . . . 2.10.B Estate tax return . . . . 17.4.B Final distribution . . . . 14.3.D.5.a Liability for . . . . 4.3.A.7 Limitations on . . . . 16.4.B Nonliability, Florida taxes . . . . 18.5.C Nontaxable certificate, obtaining . . . . 6.3.F Personal representative, duties of . . . . 4.3.A.3.k.i Real property, transfer . . . . 10.6.C.1 Sale of property . . . . 10.4.H.2 Claims by . . . . 8.3.B.2.a.v Estate tax return, filing Affidavit . . . . 4.3.A.7 Inventory . . . . 6.3.E Nonliability . . . . 18.5.C State death tax credit . . . . 17.4.B Inventory, filing . . . . 6.3.E; 6.6.B Nontaxable certificate, obtaining Affidavit of no tax due . . . . 14.2.B Estate assets . . . . 2.10.B Liability . . . . 4.3.A.7 Partial release, securing . . . . 13.4.B Procedures . . . . 6.3.F; 14.3.D.1.c; 14.3.D.5.b Preliminary notice and report, filing of . . . . 4.3.A.7; 14.2.B; 17.4.B

Release of estate tax from . . . . 13.4.A DEPOSITORY FOR CASH ASSETS, DESIGNATED Generally . . . . 9.3.J.1; 15.5.A; 16.3.B.6.a Order designating, form . . . . 9.3.J.2.b Petition for order designating, form . . . . 9.3.J.2.a DESTROYED OR LOST WILL (see WILLS) DEVISES Abatement . . . . 11.3.I; 13.1; 14.3.A.4 Ademption . . . . 11.3.F; 14.3.A.3 Aliens . . . . 11.3.A Attorneys . . . . 11.5 Charitable . . . . 11.3.A; 21.3.A.1.e.vi Disclaimed benefits (see DISCLAIMED BENEFITS) Gifts, substitutionary . . . . 11.3.E Homestead (see HOMESTEAD) Income on specific . . . . 14.3.C.6.g Lapsed . . . . 11.3.G; 21.3.B.2 Missing devise . . . . 11.3.G Partial distribution (see DISTRIBUTION) Per stirpes, devises to be Generally . . . . 11.2.D Homestead . . . . 4.3.A.3.k.ii Pour-over trusts . . . . 11.3.G Substitutionary . . . . 11.3.E Survivorship, conditioned on . . . . 11.7 Survivorship, conditioned upon . . . . 11.3.C Testamentary devise, decedent release of debt . . . . 6.5.E; 11.3.I Void . . . . 11.3.G; 11.5 DIGITAL ASSETS . . . . 4.3.A.3.b; 9.5; 10.6.B.5 DISCHARGE (see DISTRIBUTION) DISCLAIMED BENEFITS Compensation . . . . 15.3.K

Generally . . . . 14.3.D.1.a Homestead . . . . 19.5.B.5 Tax consequences . . . . 11.10 DISPOSITION ESTATES)

WITHOUT

ADMINISTRATION

(see

SMALL

DISSOLUTION OF MARRIAGE, EFFECT OF Beneficiaries, determination of . . . . 1.2.E.2.a.i; 11.6 Generally . . . . 13.2.B Homestead status . . . . 19.2.B.1 Lapsed and void devises . . . . 11.3.G Surviving spouse Effect on . . . . 13.2.B Life insurance proceeds, special rules for . . . . 6.5.Q DISTRIBUTION Final distribution Abatement . . . . 11.3.I; 14.3.A.4 Accounting (see Discharge) Ademption . . . . 11.3.F; 14.3.A.3 Advancements . . . . 14.3.A.2 Assets After-discovered . . . . 14.3.D.6 Considerations as to distribution and transfer of particular . . . . 14.3.C.6.a–14.3.C.6.g Report of distribution . . . . 14.2.F Beneficiaries Contract to alter interests of . . . . 14.3.D.5.a–14.3.D.5.b Distribution on consent of . . . . 14.3.C.5 Receipts from, obtaining . . . . 14.3.D.1.a–14.3.D.1.b Claims, tax refund . . . . 14.3.D.3 Contract affecting Form . . . . 14.3.D.5.b Generally . . . . 14.3.D.5.a Contribution . . . . 10.3.D.7; 14.3.A.4 Creditors’ claims, determination of . . . . 14.2.A

Discharge Final accounting Notice of confidential information . . . . 14.2.C.3 Waiver of . . . . 12.2.B; 14.2.C.2 With Generally . . . . 14.2.C.1 Sample petition for discharge . . . . 12.7.A Without . . . . 12.3.B; 14.2.C.1 Objections to . . . . 14.2.D Petition for Allegations . . . . 14.2.B Final accounting Filing . . . . 14.2.B–14.2.C.1 Objections to . . . . 14.2.D With . . . . 14.2.C.1 Without . . . . 14.2.C.1 Full waiver . . . . 14.2.B.1 Early distribution (see Partial distribution) Elective share . . . . 14.3.A.1 Estate taxes, payment of as condition . . . . 14.3.D.2 Firearms . . . . 10.6.B.4 Full waiver petition for discharge . . . . 14.2.B.1 Generally . . . . 14.1–14.2.A Income on devises, handling of . . . . 14.3.C.6.g In-kind distributions . . . . 10.2.A; 14.3.C.1–14.3.C.2 Legacies or devises, interest and income . . . . 14.3.C.6.g Mechanics of distribution Consent of beneficiaries . . . . 14.3.C.5 Directions in will . . . . 14.3.C.3 Distributions in kind . . . . 14.3.C.1–14.3.C.2 Generally . . . . 14.3.C.1 Minors, distribution to . . . . 14.3.C.5 Trustees, distribution to . . . . 14.3.C.4 Mortgages on devised property, satisfaction of . . . . 1.2.E.5; 14.3.A.5 Nonliquid assets, distributions in kind . . . . 14.3.C.2 Notice of confidential information Final accounting . . . . 14.2.C.3

Petition for discharge . . . . 14.2.B.2 Objections . . . . 14.2.D Order of distribution . . . . 14.2.E Order of final discharge . . . . 14.2.G Personal representative Claims objected to by . . . . 14.2.A Final accounting, filing . . . . 14.2.C.2–14.2.C.4 Order of final discharge . . . . 14.2.G Petition for discharge Accountings and . . . . 2.7 Allegations to contain . . . . 14.2.B Confidential information, notice of . . . . 14.2.B.2 Filing final accounting . . . . 14.2.C.1 Full waiver petition . . . . 14.2.B.1 Requirements for . . . . 14.2.B Preliminary considerations . . . . 14.2.A Proof of publication, absence of . . . . 14.2.A Protected homestead . . . . 14.3.C.6.b Real property Abatement . . . . 14.3.A.4 Certificate of distribution Deed from . . . . 18.2.D Documents and procedures . . . . 2.10.B Mechanics of . . . . 14.3.C.6.a Personal representative, duties regarding . . . . 4.3.A.3.k.i Personal representative's release . . . . 10.6.C.2 Deed of transfer Generally . . . . 2.10.B Mechanics of . . . . 14.3.C.6.a Personal representative's duties regarding . . . . 4.3.A.3.k.i; 10.6.C.1 Summary distribution . . . . 18.2.D Satisfaction of mortgage on . . . . 1.2.E.5; 14.3.A.5 Title, transfer of . . . . 14.3.C.6.a Receipts from heirs and beneficiaries Court to be satisfied . . . . 14.3.D.1.a Obtaining, difficulties in . . . . 14.3.D.1.c

Particularity of receipt . . . . 14.3.D.1.b Report of distribution . . . . 14.2.F Savings accounts . . . . 14.3.C.6.f Securities, reregistration of . . . . 10.6.B.3; 14.3.C.6.d–14.3.C.6.e Tangible personal property . . . . 14.3.C.6.c Tax considerations Apportionment (see ESTATE TAX) Estate, termination of . . . . 14.3.B.2 Excess deductions on termination . . . . 14.3.B.3 Generally . . . . 14.3.B.1 Individual retirement accounts, distributions from . . . . 14.3.B.4 Payment of estate taxes as condition precedent to discharge . . . . 14.3.D.2 Qualified plans, distributions from . . . . 14.3.B.4 Refund claims . . . . 14.3.D.3 Separate share rule . . . . 14.3.B.1 Unused loss carryovers . . . . 14.3.B.3 Trustees, distribution to . . . . 14.3.C.4 Unused loss carryovers and excess deductions on termination . . . . 14.3.B.3 U.S. Government bonds, reissue or redemption of . . . . 14.3.C.6.e Will Distributions pursuant to direction in . . . . 14.3.C.3 Later-discovered . . . . 1.2.D.3; 3.6.X; 11.2.F; 14.3.D.4 Partial distribution Abatement . . . . 11.3.I; 13.1; 14.3.A.4 Accounting for . . . . 13.3.A Ademption . . . . 11.3.F; 14.3.A.3 Advancements . . . . 13.1; 14.3.A.2 Authority . . . . 13.1 Automobiles Distribution before expiration of risk period . . . . 13.2.C; 13.2.G.5 Transfer . . . . 13.2.G.5; 18.4.A–18.4.B Bond Required . . . . 13.2.C; 13.3.B.1 Sample . . . . 13.3.B.2.c Business of decedent . . . . 13.2.G.6.a

Charity, worthless personalty given to Generally . . . . 13.2.G.1.a Waiver and consent, sample . . . . 13.2.G.1.b Clothing and personal effects of decedent . . . . 13.2.G.2 Compulsory Answer to petition, sample . . . . 13.3.B.2.b Bond Required . . . . 13.2.C; 13.3.B.1 Sample . . . . 13.3.B.2.c Order authorizing, sample . . . . 13.3.B.2.d Petition Answer to, sample . . . . 13.3.B.2.b Filing . . . . 13.2.A; 13.3.B.1 Sample . . . . 13.3.B.2.a Procedure, generally . . . . 13.3.B.1 Contribution . . . . 10.3.D.7; 13.2.D; 13.3.D; 14.3.A.3 Defined . . . . 13.1 Distribution before expiration of risk period, circumstances justifying . . . . 13.2.C Elective share . . . . 13.5 Estate, inheritance, or other death tax Effect, generally . . . . 13.2.C; 13.2.H; 13.4.A Release, securing . . . . 13.4.B State death tax credit . . . . 17.4.B Exempt property . . . . 13.2.G.3; 13.2.G.5 Factors for personal representative to consider . . . . 13.2.B Family allowance (see FAMILY ALLOWANCE) Final accounting and petition for discharge, requirements of . . . . 13.3.A Florida estate tax release . . . . 13.4.B Generally . . . . 13.1–13.2.C; 13.3.A; 13.3.C.1 High risk assets . . . . 13.2.C Income tax (see Tax considerations) In-kind distributions . . . . 10.2.A Interest and income on specific devises . . . . 13.2.G.8 Life insurance proceeds . . . . 13.2.G.7 Mortgages on devised property, satisfaction of . . . . 1.2.E.5; 14.3.A.5

Motor vehicles . . . . 13.2.C; 13.2.G.5 Order authorizing, sample . . . . 13.3.B.2.d Partnership interest . . . . 13.2.G.6.b Personal representative Factors to consider . . . . 13.2.B Liability for improper distribution . . . . 13.2.B; 13.2.G.1.a; 13.3.B.2.c Liability for taxes . . . . 13.1; 13.2.H Preliminary considerations . . . . 13.1–13.2.C Procedure . . . . 13.3.A–13.3.D Receipt Generally . . . . 13.2.C; 13.3.B.1 Sample . . . . 13.3.C.2.b Restrictions on . . . . 13.2.A S corporation, considerations regarding . . . . 13.2.G.6.b Specific assets, distribution . . . . 13.2.C; 13.2.G.1.a–13.2.G.8 Specific devises Interest and income . . . . 13.2.G.8 Tax consequences . . . . 13.2.E.2.e Tax considerations Automobile, transfer of . . . . 13.2.G.5 Business of decedent . . . . 13.2.G.6.b Depreciable property . . . . 13.2.E.2.d Distribution within six months . . . . 13.2.C; 13.2.E.2.f Estate tax, effect of Generally . . . . 13.4.A Securing partial release . . . . 13.4.B Generally . . . . 13.2.C; 13.2.E.1 Installment sale obligations . . . . 13.2.E.2.c One beneficiary, distribution to . . . . 13.2.E.2.a Personal representative’s liability . . . . 13.2.H Separate share rule . . . . 13.2.E.2.b; 13.5 Several beneficiaries, distribution to . . . . 13.2.E.2.b Specific devise . . . . 13.2.E.2.e Testamentary trustee, distribution to . . . . 13.2.F; 13.2.G.7 Voluntary Authority . . . . 13.1–13.2.A; 13.3.C.1

Bond Required . . . . 13.2.B–13.2.C; 13.3.B.1 Sample . . . . 13.3.B.2.c Petition, sample . . . . 13.3.C.2.a Procedure, generally . . . . 13.3.C.1 Wasting assets . . . . 13.2.C Worthless personalty given to charity Generally . . . . 13.2.G.1.a Sample waiver of rights . . . . 13.2.G.1.b Per stirpital distribution . . . . 11.2.D; 11.3.C Personal representative’s duties as to Compulsory partial distribution . . . . 13.3.B.1 Creditors' claims, determination of . . . . 14.2.A Generally . . . . 4.3.A.1 Liability for payment . . . . 13.1 Small estates (see SMALL ESTATES) DOCUMENTS Authenticated copies . . . . 2.10.A–2.10.B; 11.2.A.4 Jurisdiction to construe . . . . 3.6.E; 21.3.B.1 Verification of . . . . 2.1.G; 4.4.A.2 DOMICILE Checklist for determination . . . . 1.2.C.2 Defined . . . . 1.2.C.1 Jurisdiction to determine . . . . 3.6.I Personal representative not domiciled in Florida . . . . 1.2.D.7 Residence, checklist for determining . . . . 1.2.C.2 DOWER (see ELECTIVE SHARE)

E EARLY DISTRIBUTION (see DISTRIBUTION) EDUCATIONAL ASSOCIATIONS, DEVISES TO . . . . 11.3.A ELECTIVE SHARE Adversarial proceedings involving . . . . 7.7.F Agent Filing of election by . . . . 7.7.F; 21.3.D Petition for approval of election by . . . . 7.7.B Amount of Computation (see Computation of) Determining, proceedings for . . . . 7.7.F; 7.7.H Antenuptial agreement regarding . . . . 11.2.B.8 Attorneys’ fees Before July 1, 2017, proceedings commenced . . . . 7.10.B Contribution, action to enforce . . . . 7.7.G Electing spouse, for . . . . 7.7.G On or after July 1, 2017, proceedings commenced . . . . 7.10.A Circuit court’s jurisdiction to determine . . . . 3.6.J Computation of New law (pre-2017 legislation) Elective estate, property included in Generally . . . . 6.5.M Inventory of property entering into . . . . 6.5.M Revocable transfers . . . . 6.5.M Valuation of property in elective estate Generally . . . . 9.2.C Old law as to interest earned during administration . . . . 13.5 Consequences of Construction of will . . . . 7.2.C Floor, as . . . . 7.2.A Constitutionality of statutes . . . . 7.9 Curtesy

Generally . . . . 7.1.D.2 Relationship to . . . . 7.1.C Defined . . . . 21.3.D Determination of election, jurisdiction . . . . 3.6J; 7.7.G Dower Computation of . . . . 7.1.C-7.1.D.1 Curtesy . . . . 7.1.D.2 Homestead . . . . 19.3.A Jurisdiction . . . . 3.6.J Relationship to . . . . 7.1.C Effective date of 1999 legislation . . . . 14.2.G Election Form for . . . . 7.7.J Generally . . . . 21.3.A.3 Time of . . . . 7.7.C Where to file . . . . 7.7.G Elective estate Amount of . . . . 7.5.C Amount of, proceedings to determine . . . . 7.7.F Generally . . . . 7.5.A.1 Individual retirement accounts . . . . 7.5.A.9 Inventory of . . . . 7.7.E Joint bank accounts . . . . 7.5.A.4 Life insurance policies . . . . 7.5.A.8 Pay-on-death accounts . . . . 7.5.A.4 Pensions . . . . 7.5.A.9 Probate estate . . . . 7.5.A.2 Property excluded from . . . . 7.5.B Property held in joint tenancy . . . . 7.5.A.5 Property held in tenancy by entireties . . . . 7.5.A.5 Protected homestead . . . . 7.5.A.3 Revocable trusts . . . . 7.5.A.6 Similar arrangements . . . . 7.5.A.4 Totten trusts . . . . 7.5.A.4 Elective share trust (see Trusts) Existence of circumstances, recognizing . . . . 7.1.D.1 Extension of time to file for . . . . 21.3.D

Family allowance, entitlement to . . . . 8.5.A Final distribution . . . . 14.3.A.1 Forms relating to . . . . 7.7.J Generally . . . . 7.1.A Guardian or agent, petition for approval of election by . . . . 7.7.B Interest on assets, spouse’s entitlement to . . . . 7.6.E; 13.5 Inventory of elective estate . . . . 6.5.M Irrevocable transfers by decedent Elective share trust . . . . 7.5.A.11 Not subject to elective share . . . . 7.5.A.7.c Retained right to discretionary principal distributions . . . . 7.5.A.7.b Retained right to income or principal . . . . 7.5.A.7.a Jurisdiction over issues involving . . . . 7.7.G Domiciliary . . . . 3.5.A Generally . . . . 3.6.J Legislative history . . . . 7.1.B Marital agreement regarding . . . . 11.2.B.8 Marital deduction, qualification for . . . . 7.2.E.2 Matters in bar of Generally . . . . 7.8.A Relinquishment of right to elect After death of spouse . . . . 7.8.B.4 Before marriage . . . . 7.8.B.2 During marriage . . . . 7.8.B.3 Generally . . . . 7.8.B.1 Operation of law Facts constituting bar . . . . 7.8.D.1 Facts not constituting bar . . . . 7.8.D.2 Partial distribution . . . . 13.5 (see also DISTRIBUTION) Personal representative Attorney for, role of . . . . 1.2.E.10.a Collection of contributions from recipients of elective estate . . . . 7.7.G Inventory of elective estate, duty to file . . . . 6.5.M Petition for determining amount of elective share, filing of . . . . 7.7.F Role of . . . . 7.7.I

Postnuptial agreement regarding . . . . 11.2.B.8 Preliminary considerations Existence of circumstances, recognizing . . . . 7.1.D.1 Problems, researching . . . . 7.1.D.2 Prenuptial agreement regarding . . . . 11.2.B.8 Priority of payment of Contracts to make will . . . . 7.3.B Debts and administration expenses entitled to priority . . . . 7.3.A Problems, researching . . . . 7.1.D.2 Proceedings to determine entitlement to . . . . 7.7.D Property excluded from elective estate . . . . 7.5.B Qualifying special needs trust (see Trusts) Right barred by action of surviving spouse Facts constituting bar . . . . 7.8.C.2 Facts not constituting bar . . . . 7.8.C.1 Satisfaction of Computation (see Computation of) Generally . . . . 7.6.A Surviving spouse (see Surviving spouse) Valuation (see Computation of) Surviving spouse Attorney's duties regarding . . . . 1.2.E.10.a Elective share trusts . . . . 7.4.A Fiduciary, as . . . . 7.2.B Filing . . . . 7.7.A Interests in addition to election . . . . 7.2.D Property passing to . . . . 7.6.B Valuation of property passing to Annuities . . . . 7.6.C.7 Elective share trust interests . . . . 7.6.C.3 Generally . . . . 7.6.C.1 Interests in other trusts . . . . 7.6.C.5 Life insurance proceeds . . . . 7.6.C.6 Life interests in property . . . . 7.6.C.2 Qualifying special needs trust interests . . . . 7.6.C.4 Tax consequences Generally . . . . 7.2.E.1

Income tax . . . . 7.2.E.3; 13.5 Marital deduction . . . . 7.2.E.2 Time of filing election . . . . 7.7.C Transfers made within one year of decedent's death Gifts . . . . 7.5.A.10.a Otherwise includable rights or interests, termination of . . . . 7.5.A.10.b Trusts Qualifying special needs trust . . . . 7.4.B Surviving spouse, valuation of property passing to . . . . 7.6.C.3 Treatment under, generally . . . . 6.5.M Unsatisfied balance among direct recipients of property, apportionment of Contribution in kind . . . . 7.6.D.4 “Direct recipients,” liability of . . . . 7.6.D.2 Enforcing contribution . . . . 7.6.D.5 Estate and trust beneficiaries, liability of . . . . 7.6.D.3 Order of priority . . . . 7.6.D.1 Sale of proceeds . . . . 7.6.D.4 Third parties for contribution, liability of . . . . 7.6.D.6 Valuation of property (see Computation of) Waiver (see Matters in bar of) Will, construction of . . . . 7.2.C Withdrawal of election . . . . 7.7.H ELISOR, SERVICE OF PROCESS BY . . . . 2.2.D.2.a EMPLOYEES Deceased employees, wages, travel expenses, and unemployment compensation due to . . . . 1.2.E.2.a.iii; 1.2.E.10.b; 6.5.P; 18.2.F Personal representative, of (see PERSONAL REPRESENTATIVE) ENVIRONMENTAL PROBLEMS IN ESTATE PROPERTY Claims, settlement of . . . . 9.5 Generally . . . . 1.2.E.2.a.iii; 9.6.A Investigation, reporting, and remedy . . . . 9.6.B Personal representative, liability of . . . . 1.2.E.2.a.iii; 4.3.D.3; 9.6.C

EQUITABLE ADOPTION . . . . 21.3.G EQUITABLE CONVERSION, DOCTRINE OF . . . . 11.3.D ESCHEATMENT State of Florida, to . . . . 3.6.K; 11.2.E; 11.8.A United States, to . . . . 11.2.E ESTATE TAX Administration expenses, deductibility of Appraisers’ fees . . . . 9.2.D.3; 15.8.F Attorneys’ fees . . . . 15.8.E Claims . . . . 8.4; 15.8.A; 15.8.F Funeral expenses . . . . 1.2.B.4; 1.2.B.6; 15.8.B Generally . . . . 15.1; 15.8.A; 15.8.C Improvements to property . . . . 9.2.E.1 Liability insurance . . . . 4.3.D.2.c Miscellaneous . . . . 4.3.B.1.a; 15.8.F Personal representative’s compensation . . . . 15.8.D Preserving property . . . . 4.3.A.8.c; 9.2.E.1 Property insurance . . . . 9.2.E.1 Property taxes . . . . 9.2.E.1 Selling expenses . . . . 15.8.F Affidavit of nonliability for Florida estate taxes Checklist of duties . . . . 4.3.A.10 Form for contract . . . . 14.3.D.5.b Liability for . . . . 4.3.A.7 Nontaxable certificate . . . . 6.3.F Receipts from beneficiaries . . . . 14.3.D.2 Small estates and summary proceedings . . . . 18.5.C Tax filing requirements . . . . 17.4.B Alternate valuation of assets . . . . 6.4.A.1; 9.2.E.1; 12.3.B; 13.2.C; 13.2.E.2.e–13.2.E.2.f Ancillary administration, filings required under . . . . 17.4.B Apportionment 2015 Amendments to statute, generally . . . . 11.9.D.1-11.9.D.3.k Charitable deduction, effect on . . . . 11.9.C.6

Conflict of laws problem . . . . 11.9.E Exempt property . . . . 11.9.C.6 Generally . . . . 11.9.C.1 Generation-skipping transfer tax . . . . 11.9.A–11.9.C.1 Governing instrument, direction by Case law . . . . 11.9.C.4.i Conflicts between governing documents . . . . 11.9.C.4.f Coordination of will and revocable trust . . . . 11.9.C.4.e Express direction requirement . . . . 11.9.C.4.b Federal rights of recovery specificity requirements . . . . 11.9.C.4.c Generally . . . . 11.9.C.4.a Permission versus direction . . . . 11.9.C.4.g Power of appointment . . . . 11.9.C.4.d Remaining tax . . . . 11.9.C.4.h Homestead property . . . . 4.3.A.3.k.ii; 19.4.A.2 Intestate estate . . . . 11.9.C.3 Jurisdiction, domiciliary . . . . 3.5.A Marital deduction, effect on . . . . 11.9.C.6 Nonprobate assets . . . . 11.9.C.3 Order of apportionment . . . . 11.9.C.5.a Recovery of tax from recipients . . . . 11.9.C.5.a-11.9.C.5.f Contribution . . . . 11.9.C.5.e Deficiency . . . . 11.9.C.5.b Foreign tax . . . . 11.9.C.5.f Relief from duty . . . . 11.9.C.5.c Uncollected tax . . . . 11.9.C.5.d Statutory apportionment . . . . 11.9.C.3 Tax attributable to each interest . . . . 11.9.C.2 Testate estate . . . . 11.9.C.3–11.9.C.4.i Trusts, inter vivos . . . . 11.9.C.3–11.9.C.4.i Appraiser’s fee, deductibility of . . . . 9.2.D.3 Assets, sale of to pay taxes . . . . 10.2.B Attorneys’ fees, deductibility of . . . . 15.8.E Claims, deductibility of . . . . 8.4; 15.8.A; 15.8.F Construction of will or trust, modification for testator's tax objectives . . . . 21.3.B.5

Contributions for, listed on inventory . . . . 6.5.K Curator, appointment to handle . . . . 16.3.A Deductibility from income tax . . . . 10.7.A Disclaimer of interest in estate . . . . 11.10 Elective share, effect . . . . 13.5 Employer identification number Generally . . . . 5.7.C Personal representative's duties regarding . . . . 4.3.A.10 Extension for payment of . . . . 4.3.A.7 Family allowance, nondeductibility of . . . . 8.5.D Florida estate tax (see DEPARTMENT OF REVENUE) Foreign real property taxes, deductibility of . . . . 9.2.E.1 Funeral expenses, deductibility of . . . . 1.2.B.4; 1.2.B.6; 15.8.B Generally . . . . 5.7.D Gifts . . . . 4.3.A.3.d Gross estate, working inventory of . . . . 6.3.E Homestead . . . . 4.3.A.3.k.ii; 19.4.A.2 Improvements to property, nondeductibility of . . . . 9.2.E.1 Income tax, deductibility from . . . . 10.7.A Interest on claims, deductibility of . . . . 8.4 Jointly owned property . . . . 4.3.A.3.d Liability insurance, deductibility of . . . . 4.3.D.2.c Lien of . . . . 4.3.A.5; 13.4.B Life insurance proceeds . . . . 1.2.E.4.b.i–1.2.E.4.b.ii; 4.3.A.3.e Local real property taxes, deductibility of . . . . 9.2.E.1 Marital deduction Apportionment statute, effect of . . . . 11.9.C.6 Distributions in kind . . . . 9.2.D.3 Miscellaneous expenses, deductibility of . . . . 15.8.F Mortgage balance, deductibility of . . . . 15.8.A Notice of fiduciary relationship Generally . . . . 4.3.C.1; 5.7.B Personal representative's duties regarding notice of administration . . . . 4.3.A.9 Termination . . . . 4.3.C.1 Overpayment . . . . 14.3.D.3 Partial distribution

Generally . . . . 13.2.C; 13.2.H; 13.4.A Securing partial release . . . . 13.4.B Partnerships, general . . . . 9.4.C.3.a Personal representative Compensation, deductibility of . . . . 15.8.D Discharge from liability . . . . 4.3.C.1; 13.2.H; 14.3.D.2 Liability for payment Apportionment statute, explanation of 2015 Amendment changes in . . . . 11.9.D.1-11.9.D.3.k Generally . . . . 11.9.B.1 Obligation to file tax returns . . . . 4.3.A.7 Older estates under federal and Florida governments . . . . 11.9.B.2 Partial distributions . . . . 13.1; 13.2.H Payment procedures . . . . 11.9.A Renunciation or resignation . . . . 4.3.C.1 Notice of fiduciary relationship Generally . . . . 4.3.C.1; 5.7.B Notice of administration . . . . 4.3.A.9 Notice of termination of fiduciary relationship . . . . 4.3.C.1 Resignation before payment . . . . 4.3.C.1 Petition for discharge . . . . 14.2.B Pick up tax, replacement of . . . . 6.3.E Postmortem planning . . . . 15.7.A Preliminary notice and report . . . . 4.3.A.7; 4.3.A.10; 14.2.B Preserving property, deductibility of expenses of . . . . 4.3.A.8.c; 9.2.E.1 Property insurance, deductibility of . . . . 9.2.E.1 Property taxes, deductibility of . . . . 9.2.E.1 Refund claim . . . . 14.3.D.3 Sale of property Consequences, generally . . . . 10.7.B Payment of tax, authority to sell property for . . . . 10.2.B Small estates . . . . 18.5.C State estate tax (see DEPARTMENT OF REVENUE) State real property taxes, deductibility of . . . . 9.2.E.1 Stocks and bonds, valuation . . . . 9.2.D.2 Wrongful death recovery . . . . 4.3.A.3.f

ESTATE ASSETS, MAINTAINING Corporate interests . . . . 9.2.D.2; 9.2.F.3 Digital assets . . . . 9.5 Generally . . . . 9.2.A; 9.2.E.1; 15.5.C Insurance, property . . . . 1.2.E.4.a; 4.3.A.8.e; 9.2.E.1 Investments (see INVESTMENT OF ESTATE FUNDS) Maintenance . . . . 4.3.A.8.d Nonproductive assets . . . . 9.2.D.3 Order authorizing expenditure of funds to preserve estate property, form . . . . 9.2.E.2.b Perishables . . . . 9.2.D.1 Petition to expend funds to preserve estate property, form . . . . 9.2.E.2.a Repairs to property . . . . 4.3.A.8.c Valueless property . . . . 9.2.D.1 Wasting assets . . . . 9.2.D.3; 13.2.C ESTATE ASSETS, SALES AND TRANSFERS OF Ancillary administrator, powers of . . . . 10.3.D.4; 10.4.H.1–10.4.H.2; 17.2.C.1–17.2.C.2; 17.4.A Appraisal, requirement of . . . . 10.5.A.4 Appraiser, sale of asset to, restriction on . . . . 6.4.A.5 Art objects . . . . 10.3.B.3 Boats, transfer of . . . . 10.6.B.1–10.6.B.2 Consent to sale, form . . . . 10.5.A.3.b Contracts made by decedent before death, closing of . . . . 10.4.D–10.4.E Court authorization or confirmation Appraisal of property . . . . 10.5.A.4 Generally . . . . 10.3.A; 10.5.A.1; 10.5.B.1–10.5.B.2 Hearing . . . . 10.5.A.1; 10.5.A.4 Order of court Form . . . . 10.5.A.5.b Generally . . . . 10.5.A.5.a; 10.5.B.2 Vacation of . . . . 10.5.A.6 Personal property . . . . 10.3.B.1–10.3.B.2 Petition Form . . . . 4.3.A.3.k.vi; 10.5.A.2.b Generally . . . . 10.5.A.1–10.5.A.2.a; 10.5.B.2; 20.2.B.1

Notice Generally . . . . 10.3.C.3; 10.5.A.3.a Waiver of, form . . . . 10.5.A.3.b Procedure for, generally . . . . 10.5.A.1 Real property . . . . 10.3.C.1–10.3.C.2 Vacation of order authorizing sale . . . . 10.5.A.6 Credit, sales of assets on . . . . 10.4.C Decedent’s contracts, closing of sales under . . . . 10.4.D–10.4.E Digital assets . . . . 10.6.B.5 Dissolution of marriage, life insurance proceeds, special rules for . . . . 6.5.Q Encumbered assets Sale of . . . . 10.4.G Transfer of . . . . 10.6.A Estate taxes, sale of assets for payment of . . . . 10.2.B Exempt property, sale of . . . . 10.3.D.6 Generally . . . . 10.1 Hearing . . . . 10.5.A.4 Installment sales . . . . 10.4.C; 10.5.A.2.a; 10.7.A; 13.2.E.2.c Issues involving . . . . 10.4.A Jewelry . . . . 10.3.B.3; 13.2.G.2 Limited power of sale . . . . 10.3.B.2; 10.3.C.2 Mortgage Sale of property subject to . . . . 10.4.G Sale on terms including . . . . 10.4.C Motor vehicles (see MOTOR VEHICLES) Notice Generally . . . . 10.5.A.3.a Waiver of, form . . . . 10.5.A.3.b Option to purchase, property subject to . . . . 10.4.F Personal property, transfer of . . . . 10.6.B.1; 15.5.D Personal representative Joinder by all joint personal representatives . . . . 10.3.D.3 Power of sale over real property Authority to sell . . . . 10.3.A Duties concerning decedent . . . . 4.3.A.3.k.iii Real property . . . . 10.3.C.1

Transfer of real property . . . . 15.5.D Purchaser, when . . . . 10.3.D.2 Successor, sales by . . . . 4.3.A.3.k.iii; 10.3.D.1 Private sale . . . . 10.4.B Procedure (see Court authorization or confirmation) Public sale . . . . 10.4.B Purchase money financing . . . . 10.4.C Real property Certificate of distribution Consent of beneficiaries . . . . 14.3.C.5 Generally . . . . 4.3.A.3.k.i; 10.6.C.1 Personal representative, duties regarding . . . . 10.6.C.2 Plan of distribution Documents and procedures . . . . 2.10.B Generally . . . . 18.2.D Contract to purchase Sale of . . . . 10.4.D Sale of property subject to . . . . 10.4.E Contract to sell, closing of . . . . 10.4.E Deed from personal representative Consent of beneficiaries . . . . 14.3.C.5 Documents and procedures . . . . 2.10.B Generally . . . . 4.3.A.3.k.i; 10.6.C.1 Plan of distribution . . . . 18.2.D Exchange of properties . . . . 10.6.D Foreign decedent’s real property, sale of Ancillary administrator, sale by . . . . 10.3.D.4 Conveyances after two years of decedent's death . . . . 10.4.H.2 Conveyances within two years of decedent's death . . . . 10.4.H.1 Nonresident decedent with Florida real estate . . . . 17.2.C.1 Notice to creditors . . . . 17.2.C.3 Petition for ancillary administration . . . . 17.4.A Generally . . . . 9.2.F.2; 10.3.A Leases . . . . 9.2.F.2; 10.6.F Mortgage, sale of property subject to . . . . 10.4.G Option to purchase, property subject to . . . . 10.4.F Partition of . . . . 3.6.U; 10.6.E

Power of sale . . . . 4.3.A.3.k.iii; 10.3.A; 10.3.C.1–10.3.C.2 Right of first refusal, property subject to . . . . 10.4.F Securities, requirements for sale . . . . 10.6.B.3; 14.3.C.6.d Specifically devised property, sale of . . . . 10.3.D.7; 14.3.A.3 Successor to named personal representative, sales by . . . . 4.3.A.3.k.iii; 10.3.D.1 Tangible personal property . . . . 9.2.F.4 Tax consequences . . . . 10.7.A–10.7.B Taxes, securing liquidity to meet . . . . 10.2.B Terms, sales upon . . . . 10.4.C; 10.5.A.2.a; 10.7.A; 13.2.E.2.c Vacation of order to sell . . . . 10.5.A.6 Waiver of notice and consent to sale, form . . . . 10.5.A.3.b Widow, testator survived by . . . . 10.3.D.5 Will, power of sale granted in Generally . . . . 10.3.A Limited power . . . . 10.3.B.2; 10.3.C.2 Multiple personal representatives . . . . 10.3.D.3 Personal representative as purchaser . . . . 10.3.D.2 Successor personal representative . . . . 4.3.A.3.k.iii; 10.3.D.1 ESTATES Ancillary administration (see ANCILLARY ADMINISTRATION) Checklists . . . . 1.2.C.2; 1.2.E.2.a.iii–1.2.E.2.a.iv; 1.2.E.10.b; 1.3.C.1.d Curator (see CURATORS) Distribution (see DISTRIBUTION) Investment of estate funds (see INVESTMENT OF ESTATE FUNDS) Jurisdiction over (see JURISDICTION) Life insurance policy payable to . . . . 1.2.E.4.b.ii Motor vehicle, transferring title (see MOTOR VEHICLES) Opening the estate, checklists for attorney . . . . 1.2.E.2.a.iii–1.2.E.2.a.iv Personal representative (see PERSONAL REPRESENTATIVE) Small (see SMALL ESTATES) Summary administration (see SUMMARY ADMINISTRATION) Taxation (see TAXES) EXECUTOR DE SON TORT . . . . 4.3.D.2.d

EXECUTORS AND ADMINISTRATORS REPRESENTATIVE)

(see

PERSONAL

EXEMPT PROPERTY Automobile as . . . . 1.2.E.4.a; 1.2.E.6; 13.2.G.5; 18.4.B Claims, payment of . . . . 8.2.E.2.c; 13.2.G.3 College tuition plans as . . . . 18.2.G Defined . . . . 13.2.G.3; 19.2.C; 19.5.A Elective share, effect of Notice of administration, personal representative's duties regarding . . . . 4.3.A.9 Family allowance, effect of . . . . 8.5.B Forced sale, property exempt from . . . . 19.2.C; 19.5.A Homestead (see HOMESTEAD) Leasehold interests . . . . 19.2.B.4.b Probate property, identification . . . . 1.2.E.1 Sale of . . . . 10.3.D.6 Status as estate asset . . . . 1.2.E.1; 6.5.U; 19.4.B–19.5.A Summary administration, excluded from estate . . . . 18.2.G Surviving spouse, rights of Checklist . . . . 1.2.E.10.b Homestead property . . . . 19.2.C; 19.5.A Testamentary trustee, distribution to . . . . 13.2.G.3 Tax apportionment . . . . 11.9.C.3; 11.9.C.6; 13.2.G.3 EXPENSES Administration of estate, costs involved First priority for payment . . . . 15.1 Generally . . . . 15.1; 15.5.A Conversion of assets into cash for payment . . . . 9.2.F.1–9.2.F.4; 9.3.A Deductibility (see ESTATE TAX; INCOME TAX) Funeral, burial, and grave maintenance expenses (see FUNERAL, BURIAL, AND GRAVE MAINTENANCE EXPENSES) Miscellaneous administrative expenses . . . . 15.5.A–15.5.D EYES, DONATION OF . . . . 1.2.A.5

F FAMILY ADMINISTRATION . . . . 6.3.B FAMILY ALLOWANCE Creditors’ rights, effect on . . . . 8.5.C Elective share, effect on . . . . 8.5.B Generally . . . . 8.5.A Homestead and exempt personal property, effect on . . . . 8.5.B Nondeductibility on federal estate tax return . . . . 8.5.D FEDERAL TAX (see ESTATE TAX; GIFT TAX; INCOME TAX) FINAL ACCOUNTING (see ACCOUNTINGS) FINAL DISTRIBUTION (see DISTRIBUTION) FIREARMS Transfer of personal property, final distribution . . . . 10.6.B.4 FLORIDA UNIFORM PRINCIPAL AND INCOME ACT Generally . . . . 9.3.H FOREIGN LANGUAGE, WILL WRITTEN IN . . . . 5.6.E FOREIGN WILLS JURISDICTION)

(see

ANCILLARY

ADMINISTRATION;

FORMAL NOTICE (see PRACTICE AND PROCEDURE) FORMS Accountant, petition to hire . . . . 4.3.B.1.e Accounting Notice of . . . . 12.7.A Proof of service of notice of . . . . 12.7.B Sample . . . . 12.7.C

Adjudication before issuance of letters Order admitting will to probate and appointing personal representative after formal notice . . . . 5.4.C.1 Order appointing personal representative after formal notice . . . . 5.4.C.2 Administration Order admitting will to probate and appointing personal representative after formal notice . . . . 5.4.C.1 Order appointing personal representative after formal notice . . . . 5.4.C.2 Administrator ad litem, petition for appointment . . . . 4.3.C.8 Agreement among interested persons affecting distribution . . . . 14.3.D.5.b Appraiser, report and affidavit of . . . . 6.4.E Attorneys’ fees Contract for . . . . 15.4.H.5 Order allowing . . . . 15.4.M.7 Petition for . . . . 15.4.M.6 Beneficiaries, petition for determination of . . . . 11.8.C Bond Curator’s . . . . 16.3.B.6.b Partial distribution . . . . 13.3.B.2.c Business of decedent Order approving monthly report . . . . 9.4.B.3.b.ii Petition for approval of monthly report . . . . 9.4.B.3.b.i Ceditors' claims Certificate of insufficiency . . . . 4.3.A.3.g Consents Distribution to charitable institution . . . . 13.2.G.1.b Sale of property . . . . 10.5.A.3.b Contract among interested persons affecting distribution . . . . 14.3.D.5.b Creditors’ claims Abandon claim of estate, petition to . . . . 4.3.A.3.j Compromise claim, order to . . . . 8.2.F.2.b Compromise claim, petition to . . . . 4.3.A.3.h; 8.2.F.2.a Payment of claim, petition for . . . . 8.3.C.2.b Curator

Bond . . . . 16.3.B.6.b Letters of curatorship . . . . 16.3.B.8.b Oath . . . . 16.3.B.5.b Order appointing . . . . 16.3.B.4.b Petition for appointment . . . . 16.3.B.2.b Depository for cash assets, designation of Order . . . . 9.3.J.2.b Petition for . . . . 9.3.J.2.a Determination of beneficiaries, petition for . . . . 11.8.C Disqualification of personal representative, notice of . . . . 4.3.C.3 Elective share . . . . 7.7.J Estate assets, sales and transfers Authorization to sell, petition for . . . . 4.3.A.3.k.vi Consent to sale and waiver of notice . . . . 10.5.A.3.b Order authorizing sale . . . . 10.5.A.5.b Petition for order authorizing sale . . . . 10.5.A.2.b Waiver of notice and consent to sale . . . . 10.5.A.3.b Homestead property, election of surviving spouse to take one-half interest of decedent's interest in . . . . 4.3.A.3.k.v Homestead status Intestate estate Order determining status . . . . 19.9.J.2 Petition to determine status . . . . 19.9.I.2 Order determining Intestate estate . . . . 19.9.J.2 Testate estate . . . . 19.9.J.1 Petition to determine Intestate estate . . . . 19.9.I.2 Testate estate . . . . 19.9.I.1 Testate estate Order determining status . . . . 19.9.J.1 Petition to determine status . . . . 19.9.I.1 Inventory Adoption of appraisal as inventory . . . . 6.4.E Sample . . . . 6.7 Investment of cash assets in designated depository Order . . . . 9.3.J.2.b

Petition . . . . 9.3.J.2.a Letters of curatorship . . . . 16.3.B.8.b Motor vehicle, certificate of title application upon death of owner . . . . 18.4.B Notice Accounting, of . . . . 12.7.A Disqualification of personal representative . . . . 4.3.C.3 Informal, certificate of service . . . . 2.2.E.3 Petition for discharge, of . . . . 12.7.B Proof of service of . . . . 12.7.B Waiver of . . . . 10.5.A.3.b Orders Assets Authorizing expenditure of funds to preserve . . . . 9.2.E.2.b Authorizing sale of . . . . 10.5.A.5.b Depository for cash, designating . . . . 9.3.J.2.b Attorneys’ fees, allowing . . . . 15.4.M.7 Claim, compromising of . . . . 8.2.F.2.b Curator, appointing . . . . 16.3.B.4.b Depository for cash assets, designating . . . . 9.3.J.2.b Distribution, partial . . . . 13.3.B.2.d Homestead status, determination of Intestate estate . . . . 19.9.J.2 Testate estate . . . . 19.9.J.1 Intestate estate, determination of homestead status for . . . . 19.9.J.2 Personal representative, appointing . . . . 5.4.C.1–5.4.C.2 Testate estate, determination of homestead status for . . . . 19.9.J.1 Will Admitting to probate . . . . 5.4.C.1 Foreign probated will, admitting to probate . . . . 5.6.D.2.b Lost or destroyed will, admitting to probate . . . . 5.6.C.2.b Partial distribution Answer to petition . . . . 13.3.B.2.b Bond . . . . 13.3.B.2.c Order authorizing . . . . 13.3.B.2.d Petition for compulsory . . . . 13.3.B.2.a Petition for voluntary . . . . 13.3.C.2.a

Receipt for assets of estate . . . . 13.3.C.2.b Waiver and consent to distribution to charitable institution . . . . 13.2.G.1.b Personal property Order authorizing sale . . . . 10.5.A.5.b Petition to sell . . . . 10.5.A.2.b Personal representative Conflict in hiring, petition on . . . . 4.3.B.1.g Delegation of authority to sign checks . . . . 4.3.B.2 Disqualification of, notice of . . . . 4.3.C.3 Inventory, adoption by . . . . 6.4.E Order appointing . . . . 5.4.C.1–5.4.C.2 Removal, petition for . . . . 4.3.C.5.f Resignation, petition for . . . . 4.3.C.2 Successor personal representative, petition for qualification of . . . . 4.3.C.4 Petitions Abandon claim . . . . 4.3.A.3.j Accountant, authority to hire . . . . 4.3.B.1.e Administrator ad litem, appointment of . . . . 4.3.C.8 Attorneys’ fees . . . . 15.4.M.6 Compromising of claim . . . . 4.3.A.3.h; 8.2.F.2.a Curator, appointment of . . . . 16.3.B.2.b Designation of depository for cash assets . . . . 9.3.J.2.a Determination of beneficiaries . . . . 11.8.C Determination of homestead status Intestate estate . . . . 19.9.I.2 Testate estate . . . . 19.9.I.1 Distribution, partial Compulsory . . . . 13.3.B.2.a Voluntary . . . . 13.3.C.2.a Expending funds to preserve assets . . . . 9.2.E.2.a Foreign will, probated, establishment and probate of . . . . 5.6.D.2.a Hiring conflicts . . . . 4.3.B.1.g Homestead status, determination of Intestate estate . . . . 19.9.I.2 Testate estate . . . . 19.9.I.1

Intestate estate, homestead status for . . . . 19.9.I.2 Lost or destroyed will, establishment and probate of . . . . 5.6.C.2.a Payment of claim . . . . 8.3.C.2.b Production of will . . . . 5.2.A.1.b.i Qualification of successor personal representative . . . . 4.3.C.4 Resignation of personal representative . . . . 4.3.C.2 Sale of estate assets . . . . 4.3.A.3.k.vi; 10.5.A.2.b Successor personal representative, qualification of . . . . 4.3.C.4 Testate estate, homestead status for . . . . 19.9.I.1 Production of will Order requiring . . . . 5.2.A.1.b.ii Petition for . . . . 5.2.A.1.b.i Proof of service of notice of accounting and petition for discharge . . . . 12.7.B Proof of will, affidavit when witnesses unavailable . . . . 5.3.C.4.b Property preservation Order authorizing expenditure of funds . . . . 9.2.E.2.b Petition to expend funds . . . . 9.2.E.2.a Real property Homestead Intestate estate Order determining status . . . . 19.9.J.2 Petition to determine status . . . . 19.9.I.2 Order determining status Intestate estate . . . . 19.9.J.2 Testate estate . . . . 19.9.J.1 Petition to determine status Intestate estate . . . . 19.9.I.2 Testate estate . . . . 19.9.I.1 Testate estate Order determining status . . . . 19.9.J.1 Petition to determine status . . . . 19.9.I.1 Orders Authorizing sale . . . . 10.5.A.5.b Homestead, determining status of Intestate estate . . . . 19.9.J.2 Testate estate . . . . 19.9.J.1

Petition to sell . . . . 10.5.A.2.b Receipt for partial distribution of assets of estate . . . . 13.3.C.2.b Removal of personal representative, petition for . . . . 4.3.C.5.f Resignation of personal representative, petition for . . . . 4.3.C.2 Sign checks, delegation of authority . . . . 4.3.B.2 Sole proprietorship Order granting authority to continue . . . . 9.4.C.4.2.b.ii Petition to continue . . . . 9.4.C.2.b.i Successor personal representative, petition for qualification of . . . . 4.3.C.4 Wills Authenticated copy of Order establishing and admitting to probate . . . . 5.6.D.2.b Petition to establish and probate . . . . 5.6.D.2.a Lost or destroyed Order admitting to probate and appointing personal representative . . . . 5.6.C.2.b Petition for establishment and probate . . . . 5.6.C.2.a Order admitting will to probate . . . . 5.4.C.1 Personal representative, order appointing . . . . 5.4.C.1–5.4.C.2 Probated in another state Order establishing and admitting to probate . . . . 5.6.D.2.b Petition for establishment and probate . . . . 5.6.D.2.a Production of Order requiring . . . . 5.2.A.1.b.ii Petition . . . . 5.2.A.1.b.i Witness to will unavailable, affidavit . . . . 5.3.C.4.b FUNERAL, BURIAL, AND GRAVE MAINTENANCE EXPENSES Abatement of assets of estate . . . . 4.3.A.6 Allowable amounts . . . . 1.2.B.2 Authority to pay . . . . 1.2.B.6 Burial plot, selection of . . . . 1.2.A.4 Cemetery lots, inventory . . . . 6.5.J Claim against estate . . . . 1.2.B.3; 1.2.B.6; 15.6 Creditors' claims . . . . 1.2.B.3 Curator, appointment necessary to make arrangements . . . . 16.3.A;

16.4.B Dead body (see DEAD BODY) Deductibility of expenses . . . . 1.2.B.4; 1.2.B.6; 15.8.B Estate tax deduction . . . . 1.2.B.4; 1.2.B.6; 15.8.B Generally . . . . 8.3.B.1; 15.6 Liability for . . . . 1.2.B.2–1.2.B.3 Personal representative’s duties . . . . 1.2.B.3; 4.3.A.1 Priority of payment . . . . 1.2.B.1; 1.2.B.2; 15.6 Property not subject to claims . . . . 1.2.B.3 Reasonableness of expenses . . . . 1.2.B.2 Reimbursement of expenses . . . . 1.2.B.6 Shipping body . . . . 1.2.B.5 Veterans benefits . . . . 1.2.E.8 Written claim, need for . . . . 1.2.B.6 FURNITURE AND HOUSEHOLD GOODS Generally (see PERSONAL PROPERTY) Inventory . . . . 6.5.I

G GENEALOGICAL CHART . . . . 11.12 GENEALOGIST (see HEIRS) GIFT TAX Liability for . . . . 4.3.A.7 GIFTS MADE BY DECEDENT Personal representative's duties concerning . . . . 4.3.A.3.d Substitutionary gifts . . . . 11.3.E; 11.3.G GRAVE MAINTENANCE (see FUNERAL, BURIAL, AND GRAVE MAINTENANCE EXPENSES) GUARDIAN AD LITEM Appointment and qualification . . . . 2.8.A–2.8.B; 11.8.C; 11.8.D Compensation . . . . 2.8.D Contest of will or trust . . . . 21.3.A.1.e.ii Discharge . . . . 2.8.D Duties . . . . 2.8.C Effect of appointment as to service of process . . . . 2.8.B Homestead determination . . . . 19.9.E Virtual representation . . . . 2.5; 11.8.D

H HEAD OF FAMILY (see HOMESTEAD) HEIRS Adopted children, inheritance by . . . . 11.2.B.6 Advancements . . . . 14.3.A.2 Affidavits Affidavits and certified copies of records, methods of proof . . . . 11.2.A.4 Intestate estate, for . . . . 5.3.D Afterborn heirs . . . . 11.2.B.7 Aliens, inheritance by . . . . 11.2.B.5 Beneficiary (see BENEFICIARIES) Collateral kin, inheritance by . . . . 11.2.B.1; 11.2.B.3 Diligent search for . . . . 11.2.A.3–11.2.A.5; 11.2.E; 11.7; 19.9.D Disclaimed benefits (see DISCLAIMED BENEFITS) Duty to search for . . . . 11.2.A.2 Escheatment (see ESCHEATMENT) Finding potential heirs Duty to search for, personal representative’s . . . . 11.2.A.2 Generally . . . . 11.1; 11.2.A.3 Investigators . . . . 11.2.A.5–11.2.A.6 Practical methods to discover heirs . . . . 11.2.A.3 Proof, methods of . . . . 11.2.A.4 Genealogical chart . . . . 11.12 Genealogists Payment of expense . . . . 11.2.A.6 Right to employ . . . . 11.2.A.5 Half blood, inheritance by . . . . 11.2.B.1 Illegitimates, inheritance by . . . . 11.2.B.4 Investigators Payment of expense . . . . 11.2.A.6 Right to employ . . . . 11.2.A.5 Joint bank accounts . . . . 1.2.E.3

Killers, inheritance by . . . . 3.6.R; 11.2.B.2; 21.3.A.1.e.vii Locating (see Finding potential heirs) Methods of proof . . . . 11.2.A.4 Murderers, inheritance by . . . . 3.6.R; 11.2.B.2; 21.3.A.1.e.vii Order of succession . . . . 11.2.A.1 Per stirpes, inheritance Generally . . . . 11.2.D Homestead . . . . 4.3.A.3.k.ii Personal representative’s duties to and standard of care . . . . 11.2.A.2 Potential heirs, finding . . . . 11.1–11.2.A.6 Proof, methods of . . . . 11.2.A.4 Small estates (see SMALL ESTATES) Termination of parental rights, effect on . . . . 11.2.C Testate estates . . . . 11.3.A–11.3.I Veterans benefits, payment of . . . . 1.2.E.8 Who may inherit . . . . 11.2.B.1–11.2.B.8 Will discovered after administration . . . . 1.2.D.3; 3.6.X; 11.2.F; 14.3.D.4 HOLOGRAPHIC WILLS . . . . 5.6.B HOMESTEAD Abandonment of . . . . 19.8 Agreement for deed . . . . 19.2.B.4.b Alimony and child support obligations . . . . 19.7 Amount of property . . . . 19.2.B.5 Antenuptial agreement, relinquishment of rights under . . . . 19.8 Condominiums . . . . 19.2.B.4.b; 19.2.B.5 Constitutional amendments . . . . 19.3.A–19.3.C Constructive trust over . . . . 19.6.C Contiguity, requirement of . . . . 19.2.B.4.a; 19.2.B.5 Cooperative unit . . . . 19.2.B.4.b; 19.2.B.5 Defined . . . . 19.2.B.1 Descent and devise Disclaimer, effect of . . . . 19.5.B.5 Distinction between descent and devise regarding exemption from claims . . . . 19.5.B.7

Entireties property . . . . 19.5.B.9 Flow chart . . . . 19.5.B.6 Inter vivos alienation . . . . 19.5.B.9 Joint property . . . . 19.5.B.9 Minor child Inter vivos alienation . . . . 19.5.B.9 Not surviving . . . . 19.5.B.2 Surviving . . . . 19.5.B.8 Nuptial agreement, effect of . . . . 19.5.B.5 Personal property . . . . 19.5.A Real property . . . . 1.2.E.10.b; 19.5.B.1–19.5.B.9 Spouse Effect on devise to . . . . 1.2.E.10.b; 19.5.B.7 Not surviving . . . . 19.5.B.2 Surviving spouse . . . . 4.3.A.3.k.ii Waiver, effect of . . . . 19.5.B.5 Determination of homestead status Curative acts as remedy to defective determination . . . . 19.9.F Due process concerns . . . . 19.9.H Generally . . . . 19.9.A Guardian ad litem, necessity for . . . . 19.9.E Intestate estate Order determining status . . . . 19.9.J.2 Petition to determine status . . . . 19.9.I.2 Nonprobate proceeding . . . . 19.9.C Notice considerations . . . . 19.9.G–19.9.H Order determining status Intestate estate . . . . 19.9.J.2 Testate estate . . . . 19.9.J.1 Petition to determine status Generally . . . . 19.9.H Intestate estate . . . . 19.9.I.2 Samples . . . . 19.9.I.1–19.9.I.2 Testate estate . . . . 19.9.I.1 Probate proceeding . . . . 19.9.C–19.9.D Servicemembers Civil Relief Act . . . . 19.9.K Statutes of limitation as remedy to defective determination

. . . . 19.9.F Subject matter jurisdiction . . . . 19.9.B–19.9.C Summary administration proceedings . . . . 19.9.H Testate estate Order determining status . . . . 19.9.J.1 Petition to determine status . . . . 19.9.I.1 Disposition without administration . . . . 18.3 Equitable interests . . . . 19.2.B.4.a; 19.2.B.4.c Exemption from forced sale . . . . 19.2.B.3 Exempt property Condominiums . . . . 19.2.B.4.b Dissolution of marriage and . . . . 19.2.B.1 Equitable liens . . . . 19.7 Leasehold interests . . . . 19.2.B.4.b Lifetime exemption, irrevocable trusts . . . . 19.6.B Personal property . . . . 19.2.C Remainder interest . . . . 19.5.B.2 Flow chart . . . . 19.5.B.6 Generally . . . . 19.1; 19.2.A Head of family requirement, elimination of . . . . 19.3.C; 19.8 Historical evolution . . . . 19.3.A–19.3.C Houseboats . . . . 19.2.B.4.b Improvements to property . . . . 19.2.B.1 Installment land purchase contract . . . . 19.2.B.4.b Inter vivos alienation Generally . . . . 19.1 Title held by entireties or as joint tenants with right of survivorship . . . . 19.5.B.9 Trusts (see Trusts) Inventory Filing of . . . . 2.6 Generally . . . . 6.3.E; 6.5.U; 12.3.D Real property . . . . 4.3.A.3.k.ii Involuntary conversion of property, funds from . . . . 19.2.B.4.e; 19.7 Joint tenancy with survivorship rights Generally . . . . 19.2.A; 19.2.B.4.d Inter vivos alienation . . . . 19.5.B.9

Kelley’s paradigm . . . . 19.5.B.6 Leasehold interest . . . . 19.2.B.4.b Liens that defeat homestead . . . . 19.7 Marital agreements . . . . 11.2.B.8; 19.5.B.5; 19.8 Mobile homes . . . . 19.2.B.4.b Mortgage payments on . . . . 1.2.E.5 Nonresident aliens . . . . 19.2.B.1 Nuptial agreements . . . . 19.5.B.5; 19.8 Personal representative’s duties Generally . . . . 4.3.A.3.k.ii; 15.5.C Lien on property . . . . 10.3.D.8 Possession by Asset management . . . . 6.3.D; 9.2.A Decedent's real property . . . . 4.3.A.3.k.i Probate proceedings . . . . 19.4.A.2 Protection and preservation . . . . 15.5.C Purchaser, personal representative as . . . . 10.3.D.8 Title to property . . . . 3.6.BB.1 Probatable asset, status as Personal property . . . . 19.4.B Real property Devised to heirs . . . . 19.4.A.2 Devised to nonheirs . . . . 19.4.A.3 Generally . . . . 19.4.A.1 Procedure to determine (see Determination of homestead status) Proceeds from sale of property . . . . 10.3.D.8; 19.2.B.4.e Protected Defined . . . . 3.6.BB.1; 19.2.A; 19.4.A.2 Elective estate . . . . 7.5.A.3 Final distribution . . . . 14.3.C.6.b Generally . . . . 9.2.A; 19.2.B.1 Possession of by personal representative Asset management . . . . 6.3.D; 9.2.A Decedent's real property . . . . 4.3.A.3.k.i Generally . . . . 3.6.BB.1 Probate proceedings . . . . 19.4.A.2 Protection and preservation . . . . 15.5.C

Purchaser, personal representative as . . . . 10.3.D.8 Probate proceedings . . . . 19.4.A.1 Testamentary disposition . . . . 19.2.B.2 Quality and quantity of ownership Equitable interest . . . . 19.2.B.4.a; 19.2.B.4.c Involuntary conversion, funds from . . . . 19.2.B.4.e; 19.7 Joint tenancy with survivorship rights . . . . 19.2.A; 19.2.B.4.d Requirements for . . . . 19.2.B.4.a Tenancy by entireties . . . . 19.2.A; 19.2.B.4.d Voluntary sales, funds from . . . . 19.2.B.4.e Rental of property . . . . 19.2.B.5 Restraint on testamentary disposition . . . . 19.2.B.2 Sale of property, funds from voluntary . . . . 19.2.B.4.e Self-executing status . . . . 19.2.B.1 Status before occupancy . . . . 19.6.A.2 Surviving spouse Descent and devise . . . . 4.3.A.3.k.ii Inter vivos alienation . . . . 19.5.B.9 Nuptial agreement, waiver by . . . . 19.5.B.5 Testamentary disposition . . . . 19.2.B.2 Surviving spouse to take one-half interest of decedent's interest in, election of . . . . 4.3.A.3.k.v Taxation of . . . . 4.3.A.3.k.ii; 19.4.A.2 Tenancy by entireties . . . . 19.2.A; 19.2.B.4.d; 19.5.B.9 Trusts Community property trusts . . . . 19.6.A.4 Constructive . . . . 19.6.C Irrevocable . . . . 19.6.B Revocable inter vivos Community property trusts . . . . 19.6.A.4 Generally . . . . 19.6.A.1–19.6.A.4 Nuptial agreement, waiver of . . . . 19.5.B.5 Status, notice requirements . . . . 19.9.G Unimproved property . . . . 19.2.B.6 Use of property . . . . 19.2.B.5 Voluntary sales, funds from . . . . 19.2.B.4.e Waiver of right to . . . . 19.5.B.5; 19.8

I ILLEGITIMATE CHILDREN, INHERITANCE BY . . . . 11.2.B.4 INCHOATE DOWER (see ELECTIVE SHARE) INCOME (see INTEREST AND INCOME; PRINCIPAL AND INCOME LAW) INCOME TAX Accounting period, choice of . . . . 10.7.B Ancillary personal representative, duty to file return . . . . 17.4.B Basis of estate assets Inventory and appraisal . . . . 6.2.B Partial distributions . . . . 13.2.C; 13.2.E.1; 13.2.E.2.c Sales and transfers of assets . . . . 10.7.B Business expenses, deductibility of . . . . 15.8.A Character of income . . . . 10.7.B Deferred payment sale . . . . 10.4.C; 10.7.A; 13.2.E.2.c Elective share . . . . 13.5 Employer identification number . . . . 5.7.C Estate as taxable entity . . . . 5.7.D; 10.7.B Estate tax, deductibility of . . . . 10.7.A Expenses accrued at date of decedent’s death, deductibility of . . . . 15.8.A Final distribution of estate assets Excess deductions . . . . 14.3.B.3 Generally . . . . 14.3.B.1–14.3.B.2 Unused loss carryovers . . . . 14.3.B.3 Final return of decedent . . . . 4.3.A.7; 5.7.A Income in respect of decedent . . . . 9.2.E.1; 10.7.A; 13.2.E.2.c Installment sales . . . . 10.4.C; 10.7.A; 13.2.E.2.c Insurance premiums, deductibility of . . . . 9.2.E.1 Interest paid, deductibility of . . . . 9.3.G; 15.8.A Partial distribution

Beneficiaries, distribution to . . . . 13.2.E.1–13.2.E.2.f Depreciable property . . . . 13.2.E.2.d Distribution within six months . . . . 13.2.C; 13.2.E.2.f Generally . . . . 13.2.C; 13.2.E.1 Installment sale obligations . . . . 13.2.E.2.c Liability of personal representative . . . . 13.2.H Specific devise . . . . 13.2.E.2.e Personal representative, liability of . . . . 4.3.A.7; 13.2.H Refunds Generally . . . . 14.3.D.2 Small estates . . . . 18.5.A Requirement to file return for estate . . . . 5.7.D Sales and transfers . . . . 9.2.F.3; 10.7.A–10.7.B Separate share rule for distributions . . . . 13.2.E.2.b; 13.5; 14.3.B.1 Small estates Refunds . . . . 18.5.A Returns . . . . 18.5.B Specific devises . . . . 9.2.E.1; 13.2.E.2.e Stepped-up basis . . . . 10.7.B; 13.2.E.1; 13.2.E.2.c Taxes, deductibility of . . . . 15.8.A INDIVIDUAL RETIREMENT ACCOUNTS Elective estate . . . . 7.5.A.9 INFORMAL NOTICE (see PRACTICE AND PROCEDURE) INHERITANCE Beneficiaries (see BENEFICIARIES) Heirs (see HEIRS) INSURANCE Automobile . . . . 1.2.E.4.a Burial insurance and contracts . . . . 1.2.A.9 Creditors’ claims (see CREDITORS’ CLAIMS) Curator, duties regarding . . . . 16.4.B Liability insurance (see LIABILITY INSURANCE) Life insurance (see LIFE INSURANCE) Partial distribution (see DISTRIBUTION)

INTEREST AND INCOME Accounting, treatment in (see ACCOUNTINGS) Claims, interest on . . . . 8.2.A.2.c; 8.2.E.2.a; 8.4 Commingling with principal of estate . . . . 9.2.G Elective share, interest on . . . . 13.5 Final distribution of devises . . . . 14.3.C.6.g Partial distribution of devises . . . . 13.2.G.8 Taxation of (see INCOME TAX) INTERMENT (see FUNERAL, BURIAL, AND GRAVE MAINTENANCE EXPENSES) INVENTORY Accountings (see ACCOUNTINGS) Advancements to beneficiaries . . . . 6.5.L Amendments to . . . . 4.3.A.3.c; 6.6.H Appraisal (see APPRAISAL) Attorney, duties of . . . . 6.3.A; 6.6.F Cash . . . . 6.5.F Casualty loss, inventory as basis for establishment of . . . . 6.2.C Cemetery lots . . . . 6.5.J Claims against other parties . . . . 6.5.E Close corporations . . . . 6.5.D Clothing . . . . 6.5.G Condition, assets subject to . . . . 6.5.O Confidentiality of . . . . 6.1; 6.6.B Contract for purchase, property under . . . . 6.5.R Contracts . . . . 6.5.H Contributions for estate taxes . . . . 6.5.K Curator, duty to file . . . . 2.6; 16.4.A–16.4.B Date used to value assets . . . . 6.6.A Deceased employee, wages, travel expenses, and unemployment compensation due . . . . 6.5.P Disposition without administration . . . . 6.3.C Elective estate . . . . 6.5.M Extension of time for filing . . . . 6.6.E Family administration . . . . 6.3.C

Filing of Extensions . . . . 6.6.E Generally . . . . 4.3.A.3.c; 6.6.B; 16.4.A–16.4.B Function of . . . . 6.2.A–6.2.C Furniture . . . . 6.5.I Generally . . . . 2.6; 4.3.A.3.c; 6.1–6.2.A Homestead real and personal property . . . . 4.3.A.3.k.ii; 6.3.E; 6.5.U; 12.3.D Household goods . . . . 6.5.I Inspection of . . . . 6.6.C Jointly owned property . . . . 6.5.S Life insurance proceeds . . . . 6.5.Q Limited liability companies . . . . 6.5.C Living trusts, right to benefits from . . . . 6.5.N Objections to . . . . 6.6.G Options . . . . 6.5.H Partnerships . . . . 6.5.A Personal property Generally . . . . 6.5.V Possession of by personal representative . . . . 6.3.D Personal representative, duties of . . . . 2.6; 4.3.A.10; 6.2.A; 6.6.A–6.6.F; 6.6.H Physical inspection of property . . . . 6.3.B Preparation Generally . . . . 6.2.A; 6.6.A Marshaling assets . . . . 6.3.A–6.3.E Property of the estate, what constitutes . . . . 6.3.A; 6.5.A–6.5.V Property under contract for purchase . . . . 6.5.R Public record, inventory no longer considered as . . . . 6.1; 6.6.B Real and personal property Generally . . . . 6.5.V Homestead . . . . 6.3.E; 6.5.U; 12.3.D Registered limited liability partnerships . . . . 6.5.B Retention of information and documents . . . . 6.6.F Revocable trusts . . . . 6.5.M Safe-deposit box . . . . 1.2.E.2.b; 2.6; 9.2.B Sample inventory . . . . 6.7

Service of copies of . . . . 6.6.D Sole proprietorships . . . . 6.5.D Summary administration . . . . 6.3.C Supplementary inventory . . . . 4.3.A.3.c; 6.6.H Time limits for filing . . . . 2.6; 6.6.E; 16.4.A Travel expenses due deceased employee . . . . 6.5.P Trusts Revocable . . . . 6.5.M Rights to benefits from . . . . 6.5.N Totten . . . . 6.5.T Unemployment compensation due deceased employee . . . . 6.5.P Valuation date for assets . . . . 6.6.A Verification of . . . . 6.6.A Wages due deceased employee . . . . 6.5.P Working inventory . . . . 6.3.E INVESTIGATORS (see HEIRS) INVESTMENT ADVISORS Authority to employ . . . . 15.2.E Compensation . . . . 15.2.F Hiring . . . . 9.3.C INVESTMENT OF ESTATE FUNDS Authorized investments Generally . . . . 9.3.F.1 Mutual funds . . . . 9.3.F.4 Real property . . . . 9.3.F.2 Stocks and bonds . . . . 9.3.A; 9.3.F.3 Counseling, obtaining . . . . 9.3.C Court authorization to invest funds . . . . 9.3.I Credit buying . . . . 9.3.G Depository for cash assets (see DEPOSITORY FOR CASH ASSETS, DESIGNATED) Generally . . . . 4.3.A.8.b; 9.3.A Investment counseling, obtaining . . . . 9.3.C Out-of-state property, investment in . . . . 9.3.F.1

Personal representative Delegation of investment functions . . . . 4.3.A.8.b Liability as to investment of estate funds . . . . 9.3.D Personal representative, liability as to investment of estate funds . . . . 9.3.D Prudent investor rule . . . . 4.3.A.8.b Prudent trustee rule . . . . 9.3.B–9.3.C “Switching” of assets . . . . 9.3.E What funds to invest . . . . 9.3.E

J JEWELRY Appraisal (see APPRAISAL) Distribution in kind . . . . 14.3.C.1 Partial distribution . . . . 13.2.C; 13.2.G.2 Sales . . . . 10.3.B.3 (see also ESTATE ASSETS, SALES AND TRANSFERS OF) JOINT BANK ACCOUNTS Checks, spouse writing on joint account . . . . 1.2.E.3 Elective estate . . . . 7.5.A.4 Heirs . . . . 1.2.E.3 Joint and survivorship accounts Generally . . . . 18.2.F; 21.3.E Simultaneous Death Law . . . . 11.7 Personal representative's duty to claim property in account . . . . 1.2.E.3 JOINTLY OWNED PROPERTY Abatement . . . . 11.3.I Estate tax . . . . 4.3.A.3.d Inventory . . . . 6.5.S Personal property . . . . 4.3.A.3.d Real property (see REAL PROPERTY, subhead: Jointly owned property) JOINT PERSONAL REPRESENTATIVES Compensation . . . . 15.3.E; 15.3.J Death, resignation, or removal of . . . . 4.3.C.6 Employment of attorneys, accountants, and other persons to advise or assist, authority for . . . . 4.2.C.2; 4.3.B.1.f–4.3.B.1.g Form for petition to hire . . . . 4.3.B.1.e Generally . . . . 4.2.C.2; 10.3.D.3 Joinder . . . . 10.3.D.3 Multiple attorneys . . . . 4.2.C.2; 15.4.O.1 Practical problems . . . . 4.3.B.2

JUDGE (see COURT) JURISDICTION Acquiring jurisdiction . . . . 21.4.D Ancillary . . . . 3.5.B Appeals Before January 1, 2012 . . . . 3.8.A On and after January 1, 2012 . . . . 3.8.B Attorney malpractice . . . . 3.6.B Attorney’s charging lien . . . . 3.6.A Beneficiaries, determining . . . . 3.6.F; 3.6.H Claims . . . . 3.6.C (see also CREDITORS’ CLAIMS) Comity . . . . 3.6.D.1; 3.6.D.3 Common-law actions . . . . 3.2.B Construing documents . . . . 3.6.E–3.6.F; 21.3.B.1 Costs . . . . 3.6.L Curatorships . . . . 16.1; 16.2 Declaratory judgments, power of circuit court to render . . . . 3.6.F Delay in closing administration . . . . 3.6.G Discovery on issue of . . . . 3.5.D Documents, construing . . . . 3.6.E–3.6.F; 21.3.B.1 Domicile determination . . . . 3.6.D; 3.6.I Domiciliary . . . . 3.5.A Dower . . . . 3.6.J Elective share . . . . 7.7.G Domiciliary . . . . 3.5.A Generally . . . . 3.6.J Escheat, requirements . . . . 3.6.K Federal . . . . 3.3 Fees . . . . 3.6.L Foreign wills . . . . 3.5.B; 3.6.N Full faith and credit . . . . 3.6.D.1; 3.6.D.2 Further administration . . . . 3.6.Y Generally . . . . 2.1.D; 3.1; 3.4.A Grounds for . . . . 3.5.A–3.5.D Guardianship termination . . . . 3.6.P

History . . . . 3.2.A–3.2.C Homestead determination . . . . 19.9.B–19.9.C Inherent jurisdiction of circuit court . . . . 3.6.Q In personam . . . . 3.4.B; 3.6.V In personam jurisdiction . . . . 21.4.C In rem . . . . 3.4.A; 21.4.C Inter vivos trusts . . . . 3.6.CC Lawyer malpractice . . . . 3.6.B Lawyer’s charging lien . . . . 3.6.A Missing persons, administration of estates of . . . . 3.6.S; 20.2.B.1 Nonresidents of Florida . . . . 3.5.B; 3.6.N; 3.6.T Notice, formal . . . . 3.6.M; 3.6.O Partition of property . . . . 3.6.U Personal representative Compensation of . . . . 3.6.L Foreign . . . . 3.6.M In personam jurisdiction over . . . . 3.4.B; 3.6.V Removal and revocation proceedings . . . . 3.6.X; 4.3.C.5.a Priority, principle of . . . . 3.6.D.1; 3.6.D.4 Proper forum and applicable law . . . . 21.4.B Property Partition of . . . . 3.6.U Personal property, title to . . . . 3.6.BB.2 Real property, title to . . . . 3.6.BB.1; 3.6.H Reopening closed estate . . . . 3.6.Y Resident agent . . . . 3.6.Z Resident decedent’s estate . . . . 3.5.A Single administration in Florida . . . . 3.5.C Subject matter jurisdiction . . . . 21.4.A Surviving spouse status . . . . 3.6.AA Title to property, determination of Personal property . . . . 3.6.BB.2 Real property . . . . 3.6.BB.1; 3.6.H Trusts . . . . 3.6.CC Types of jurisdiction . . . . 21.4.D Unclaimed property . . . . 3.6.DD Venue (see VENUE)

Wills Appeals proceedings . . . . 21.4.K Compelling production of . . . . 3.6.W Construing documents . . . . 3.6.E–3.6.F; 21.3.B.1 Foreign . . . . 3.6.N Proper forum and applicable law . . . . 21.4.B Venue . . . . 3.7.A–3.7.B JURY TRIAL, RIGHT TO . . . . 3.6.R; 21.3.B.1; 21.4.J

K KELLEY’S HOMESTEAD PARADIGM . . . . 19.5.B.6 KILLERS, INHERITANCE BY . . . . 3.6.R; 11.2.B.2; 21.3.A.1.e.vii

L LAPSED DEVISES . . . . 11.3.G; 21.3.B.2 LAWYER (see ATTORNEY) LEASE OF REAL PROPERTY . . . . 4.3.A.8.a; 9.2.F.2; 10.6.F LEGACY Bequests (see DEVISES) Final distribution (see DISTRIBUTION) Lapsed . . . . 11.3.G; 21.3.B.2 LETTERS OF ADMINISTRATION Adjudication before issuance of (see ADJUDICATION BEFORE ISSUANCE OF LETTERS) Ancillary administration (see ANCILLARY ADMINISTRATION) Generally . . . . 5.3.J Wills (see WILLS) LETTERS OF CURATORSHIP (see CURATORS) LIABILITY INSURANCE Estate assets . . . . 1.2.E.4.a; 4.3.A.8.e Maintenance obligations . . . . 9.2.E.1 Multiple beneficiaries, distribution to . . . . 13.2.G.4 Non-estate property, exclusion of . . . . 18.2.F Physical inspection . . . . 6.3.B Torts, negligence, and other acts . . . . 4.3.D.2.c LIENS Ancillary administration . . . . 17.2.B Curator, appointment necessary to handle . . . . 16.3.A Homestead property, on . . . . 10.3.D.8; 19.7 LIFE INSURANCE

Beneficiaries, payable to . . . . 1.2.E.4.b.i; 4.3.A.3.e Elective share, effect of election . . . . 7.5.A.8 Surviving spouse, valuation of property passing to . . . . 7.6.C.6 Estate, payable to . . . . 1.2.E.4.b.ii; 4.3.A.3.e; 13.2.G.7 Exclusion of proceeds from estate . . . . 1.2.E.4.b.i; 13.2.G.7; 18.2.F Exemption from claims of creditors . . . . 1.2.E.4.b.i–1.2.E.4.b.ii; 13.2.G.7; 18.2.F Inventory, special rules for proceeds . . . . 6.5.Q Payment . . . . 1.2.E.4.b.i–1.2.E.4.b.ii; 13.2.G.7 Personal representative, treatment of proceeds . . . . 1.2.E.4.b.i– 1.2.E.4.b.ii; 4.3.A.3.e Simultaneous deaths of insured and beneficiary, effect of . . . . 11.7 Veterans . . . . 1.2.E.8 LIMITATION, STATUTES TOLLED Creditors’ claims (see CREDITORS’ CLAIMS) Generally . . . . 4.3.A.3.f LIMITED LIABILITY COMPANIES Decedent's property, management of . . . . 9.4.C.4 Inventory . . . . 6.5.C LINEAL DESCENDANTS (see HEIRS) LITIGATION Correct filing of litigation, duties regarding . . . . 20.3.A.4 Creditors’ clams (see CREDITORS’ CLAIMS) Duty to enforce claims through . . . . 4.3.A.3.f Pending at death of decedent, continuing . . . . 1.3.C.1.c; 4.3.A.3.f Probate Appeals . . . . 21.4.K Conflicts . . . . 21.2.A–21.2.B Generally . . . . 21.1 Miscellaneous forms . . . . 21.3.H Tax consequences of settlement agreements . . . . 21.5 Will construction (see WILLS) Will contest (see WILLS)

LOST OR DESTROYED WILL (see WILLS)

M MAINTENANCE OF MAINTAINING)

PROPERTY

(see

ESTATE

ASSETS,

MARITAL AGREEMENTS Elective share Prenuptial and postnuptial agreements . . . . 11.2.B.8 Homestead Abandonment . . . . 19.8 Nuptial agreement, waiver, or disclaimer . . . . 19.5.B.5 Probate petition . . . . 5.2.A.2 MEDICAID Provider, claims by . . . . 5.3.L; 8.3.B.2.a.v MEDICAL EXAMINER (see DEAD BODY) MEDICAL SCHOOLS, DONATION OF BODY TO 1.2.A.5

. . . . 1.2.A.1;

MINORS Adopted children (see ADOPTED CHILDREN) Creditors’ claims . . . . 8.3.B.2.a.ii; 8.3.D Custodian, payment to . . . . 14.3.C.5 Deceased parent, support obligation of estate of . . . . 8.3.B.2.a.ii Distribution to, final . . . . 14.3.C.5 Guardian, payment to . . . . 13.2.B; 14.3.C.5 Homestead, right to (see HOMESTEAD) Personal representative Guardians' selection of . . . . 4.3.C.6 Serving as . . . . 1.2.D.7; 1.3.B.1 Personal representative, serving as . . . . 1.2.D.7; 1.3.B.1 Pretermitted children . . . . 11.2.B.6; 11.3.H; 21.3.A.1.e.ix Support obligation of estate of deceased parent . . . . 8.3.B.2.a.ii

Termination of parental rights, effect of . . . . 11.2.C MISSING PERSONS, JURISDICTION OVER ADMINISTRATION OF ESTATES OF . . . . 3.6.G MORTGAGE Contingent claim . . . . 1.2.E.5; 8.3.B.2.a.iv Creditors’ claims . . . . 8.3.B.3.b.i.I Deductibility of unpaid balance . . . . 15.8.A Entireties property . . . . 1.2.E.5 Final distribution . . . . 1.2.E.5; 14.3.A.4 Homestead . . . . 1.2.E.5 Payments . . . . 1.2.E.5 Sale of property subject to . . . . 10.4.G Sale on terms including . . . . 10.4.C Satisfaction executed by foreign personal representative . . . . 17.2.B MOTION PRACTICE . . . . 2.1.F; 4.4.B.3 MOTOR VEHICLES Attorney to check title . . . . 1.2.E.2.a.iii Electronic title . . . . 10.6.B.2 Exempt property, status as . . . . 1.2.E.4.a; 1.2.E.6; 13.2.G.5; 18.4.B Insurance policies . . . . 1.2.E.4.a Joint title . . . . 1.2.E.6; 10.6.B.2 Transferring title to decedent’s motor vehicle Certificate of title application on death of owner of motor vehicle, form . . . . 18.4.B Electronic title . . . . 10.6.B.2 Final distribution . . . . 14.3.C.6.c Partial distributions . . . . 13.2.C; 13.2.G.5 Personal property transfer . . . . 10.6.B.2 Personal representative, custody of assets by . . . . 4.3.A.3.c Title transfer . . . . 18.4.A MURDERERS, INHERITANCE BY . . . . 3.6.R; 11.2.B.2; 21.3.A.1.e.vii MUTUAL

FUNDS,

INVESTMENT

IN

BY

PERSONAL

REPRESENTATIVE . . . . 9.3.F.4

N NONCLAIM, STATUTE OF (see CREDITORS’ CLAIMS) NONRESIDENT OF FLORIDA (see ANCILLARY ADMINISTRATION) NOTARIAL WILLS . . . . 5.6.A NOTICE OF ADMINISTRATION Contents . . . . 2.2.B.2; 4.3.A.9; 5.3.K Generally . . . . 2.2.A–2.2.B.1; 4.3.A.9; 5.3.K Persons receiving . . . . 5.3.K NOTICE TO CREDITORS (see CREDITORS’ CLAIMS) NUNCUPATIVE WILLS . . . . 5.6.B NUPTIAL AGREEMENTS Elective share Homestead Abandonment of . . . . 19.8 Effect of . . . . 19.5.B.5 Intestate estates . . . . 11.2.B.8 Probate procedures . . . . 5.2.A.2

O OATH Curator . . . . 16.3.B.5.a–16.3.B.5.b Guardian ad litem . . . . 2.8.A Personal representative . . . . 5.3.G; 20.2.B.1 Witness to will . . . . 5.3.C.2–5.3.C.3; 5.3.C.5; 20.2.B.1 ORGAN DONATION . . . . 1.2.A.2; 1.2.A.5

P PARTIAL DISTRIBUTION (see DISTRIBUTION) PARTNERSHIPS General Business of decedent, partial distribution . . . . 13.2.G.6.b Generally . . . . 9.4.C.3.a; 13.2.G.6.b Inventory . . . . 6.5.A Surviving partner, claims against deceased partner’s estate by . . . . 8.3.B.3.b.ii.III Tax considerations . . . . 9.4.C.3.a; 13.2.G.6.b Limited Generally . . . . 6.5.A; 9.4.C.3.b; 13.2.G.6.b Tax considerations . . . . 9.4.C.3.b; 13.2.G.6.b Revised Uniform Partnership Act . . . . 9.4.C.3.a PAY-ON-DEATH ACCOUNTS . . . . 1.2.E.3; 21.3.F Elective estate . . . . 7.5.A.4 PENSIONS Elective estate . . . . 7.5.A.9 PER STIRPITAL DISTRIBUTION Generally . . . . 11.2.D; 11.3.C Registered limited liability . . . . 6.5.B PERISHABLES, DISPOSITION OF . . . . 1.2.E.2.a.iii; 4.3.A.3.c; 9.2.D.1 PERMITS, BURIAL AND REMOVAL (see DEAD BODY) PERSONAL COMPENSATION Abbreviated administration, forms of . . . . 15.3.A Reasonableness of fees . . . . 15.3.J PERSONAL PROPERTY

Abatement . . . . 11.3.I; 13.1; 14.3.A.4 Ancillary proceedings involving (see ANCILLARY ADMINISTRATION) Appraisal of (see APPRAISAL) Automobiles (see MOTOR VEHICLES) Conversion of tangible property into cash for payment of expenses . . . . 9.2.F.4 (see also ESTATE ASSETS, SALES AND TRANSFERS OF) Curator, powers and duties of . . . . 16.4.A Disposition without administration . . . . 18.3 Escheat (see ESCHEATMENT) Exempt property (see EXEMPT PROPERTY) Expense of storing, insuring, and shipping . . . . 13.2.G.4 Final distribution (see DISTRIBUTION) Homestead (see HOMESTEAD) Insuring . . . . 13.2.G.4 Inventory (see INVENTORY) Joint bank accounts (see BANK ACCOUNTS) Jointly held property . . . . 4.3.A.3.d Jurisdiction in dower . . . . 3.6.J (see also JURISDICTION) Motor vehicles (see MOTOR VEHICLES) Nature of property, determination of assets of estate . . . . 1.2.E.1 Nuncupative wills . . . . 5.6.B Partial distribution (see DISTRIBUTION) Partition of . . . . 3.6.U Personal representative, duties of . . . . 4.3.A.3.a–4.3.A.3.c; 6.3.B; 6.3.D; 9.2.F.4; 13.2.G.4 Sale or transfer (see ESTATE ASSETS, SALES AND TRANSFERS OF) Shipping of . . . . 13.2.G.4 Small estates (see SMALL ESTATES) Storage of . . . . 13.2.G.4 Wills (see WILLS) PERSONAL REPRESENTATIVE Accountants, authority to employ Generally . . . . 4.3.B.1.a; 15.2.E Necessity for prior court approval . . . . 4.3.B.1.d

Accountings (see ACCOUNTINGS) Address, designation of . . . . 2.1.I Administrator ad litem (see ADMINISTRATOR AD LITEM) Administrator pendente lite . . . . 4.3.C.7 Agents, authority to employ Generally . . . . 4.3.B.1.a; 15.2.E Necessity for prior court approval . . . . 4.3.B.1.d Review of employment . . . . 15.3.I Alien serving as . . . . 1.2.D.7 Alternate . . . . 1.2.D.7; 5.2.A.2 Ancillary, surcharges . . . . 17.4.A Appointment Affidavit of heirs of intestate estate . . . . 5.3.D Conflict of interest . . . . 4.3.C.6 Intestate estate Affidavit of heirs . . . . 5.3.D Order of . . . . 5.3.F Preferences in . . . . 4.3.C.6 Intestate estate, for . . . . 5.3.F Order of Forms . . . . 5.4.C.1–5.4.C.2 Intestate estate . . . . 5.3.F Testate estate . . . . 5.3.E Preferences in . . . . 1.2.D.7; 4.3.C.6; 5.2.A.2–5.2.B Renunciation of . . . . 1.3.B.2–1.3.B.3; 4.3.C.1; 5.2.A.2 Will discovered after . . . . 4.3.C.6 Appraisers, authority to employ . . . . 6.4.A.1; 15.2.D Assets Corporation or professional association . . . . 4.3.A.3.c Custody of assets, duty as to . . . . 4.3.A.3.c; 9.1.A; 9.2.F.4 Digital, duty regarding . . . . 4.3.A.3.b Duty to inquire about . . . . 4.3.A.3.a Protecting and preserving (see ESTATE ASSETS, MAINTAINING) Sale of (see ESTATE ASSETS, SALES AND TRANSFERS OF) Attorney Advice and guidance of . . . . 1.3.C.1.c As personal representative . . . . 2.1.H; 4.2.A; 4.2.D; 15.2.I.5; 15.3.D;

15.4.O.2 Duty to employ . . . . 15.2.C; 15.2.E Fees and costs, agreement concerning Basis for determination . . . . 1.3.C.3 Beneficiaries consent . . . . 15.4.H.4 Disclosures . . . . 15.2.I.5 Generally . . . . 14.2.A; 15.4.H.1; 15.4.H.3 Sample contract . . . . 15.4.H.5 Initial conference (see Initial conference with attorney) Interested parties, attorney's duty to . . . . 20.3.A.2 Multiple parties, representation of . . . . 21.2.D Performance of personal representative’s duties by . . . . 15.3.D Power to hire Generally . . . . 4.2.C.1; 4.3.B.1.f; 15.2.C; 15.2.E Initial conference (see Initial conference with attorney) Joint personal representatives . . . . 4.2.C.2 Preliminary considerations . . . . 14.2.A Qualifications and preferences . . . . 1.2.D.7 Relationship between Communication . . . . 1.3.C.1.c Duties of . . . . 2.1.H Fiduciary attorney-client privilege . . . . 4.2.B; 4.3.A.9 Generally . . . . 15.3.D; 15.4.G Nature of relationship . . . . 4.2.A Professional responsibility . . . . 20.4 Selection of attorney . . . . 1.3.B.4 Withdrawal of . . . . 2.1.H Banking association as . . . . 1.2.D.7 Beneficiaries, duties to (see BENEFICIARIES) Bond Action on . . . . 4.3.C.5.d; 4.3.D.2.b Increase in . . . . 9.4.B.4 Requirements . . . . 5.3.E; 5.3.I; 9.4.B.4 Waiver of . . . . 1.2.D.6; 5.3.I Bookkeeping methods, duty to establish (see ACCOUNTINGS, subhead: Bookkeeping methods) Borrowing by . . . . 9.3.G; 9.4.B.5

Business of decedent, continuing (see BUSINESS OF DECEDENT) Certificate of distribution of real property from Documents and procedures . . . . 2.10.B Generally . . . . 10.6.C.1–10.6.C.2; 14.3.C.6.a; 18.2.D Real property of decedent . . . . 4.3.A.3.k.i Certificate of insufficiency . . . . 4.3.A.3.g Checklist of duties and procedures . . . . 1.2.E.11; 4.3.A.10 Citizenship . . . . 1.2.D.7 Claims Abandon claim Form . . . . 4.3.A.3.j Generally . . . . 4.3.A.3.i Against third parties Abandon claim (see Abandon claim) Compromise claim, petition to . . . . 4.3.A.3.h Duty to enforce through litigation . . . . 4.3.A.3.f Inventory . . . . 6.5.E Compromise claim, petition to . . . . 4.3.A.3.h Creditors' claims (see CREDITORS’ CLAIMS) Diligent search for creditors, duty to make . . . . 21.3.C.1 Of estate against representative, debt owed estate by . . . . 4.3.D.2.a Of representative against estate . . . . 4.3.C.5.a; 4.3.C.5.b; 4.3.D.1 Paying without properly filed claim . . . . 1.3.C.1.b.ii Proof of claim, filing of . . . . 8.3.A.2 Commingling funds Duty to prevent . . . . 4.3.A.4 Generally . . . . 9.2.G Commission (see Compensation) Compensation Attorney as personal representative . . . . 4.2.D; 15.3.D Basis for determining . . . . 1.3.C.3 Beneficiaries, agreements with . . . . 15.3.H Contract with testator . . . . 15.3.G Deductibility . . . . 15.8.D Evidence to support . . . . 15.3.J Evolution of law regarding . . . . 15.2.I.1-15.2.I.5 Extraordinary services . . . . 15.3.B

Generally . . . . 4.3.B.1.a; 15.3.I Joint personal representatives . . . . 15.3.E; 15.3.J Jurisdiction to assess . . . . 3.6.L Multiple personal representatives . . . . 15.3.E; 15.3.J Nonlitigation attorneys . . . . 15.3.J Notice of hearing . . . . 15.3.J Objection to . . . . 15.3.J Order, necessity for . . . . 15.3.C Personal liability for certain services . . . . 4.3.B.1.a–4.3.B.1.b Petition for . . . . 15.3.I Postmortem planning . . . . 15.7.A–15.7.B Presumption of reasonableness . . . . 15.3.I Proceedings for review . . . . 15.3.I Refund of overpayment . . . . 15.3.C; 15.3.J Renunciation of . . . . 15.3.F; 15.3.K; 15.7.B Tax planning . . . . 15.7.A–15.7.B Testator, contract with . . . . 15.3.G Unsuccessful proponent of will, fees for . . . . 15.3.L Will provisions concerning . . . . 15.3.F Contracts charging estate, limitation on authority to make . . . . 9.4.B.2 Corporate interests, management . . . . 9.2.D.2; 9.2.F.3 (see also BUSINESS OF DECEDENT) Corporate personal representative Compensation (see Compensation) Generally . . . . 1.2.D.5 Oath of . . . . 5.3.G Court order Authority to hire and pay professionals, prior approval required from . . . . 4.3.B.1.d; 15.2.D–15.2.E; 15.2.G Duty to proceed without . . . . 15.2.B Sale or transfer of estate assets, authorizing . . . . 10.5.A.1–10.5.A.2.a Credit buying . . . . 9.3.G Creditors’ claims (see CREDITORS’ CLAIMS) Curator (see CURATORS) Death of or failure of will to name . . . . 1.3.B.2; 4.3.C.6; 5.2.A.2 Deed from Certificate of distribution . . . . 2.10.B

Generally . . . . 10.6.C.1; 14.3.C.6.a; 18.2.D Real property of decedent . . . . 4.3.A.3.k.i Designation Personal representative Address of . . . . 2.1.I Will, in . . . . 1.2.D.7 Resident agent, of . . . . 2.1.I; 5.3.H; 16.3.B.7 De son tort executor . . . . 4.3.D.2.d Disqualification of Administrator ad litem, appointment of . . . . 4.3.C.7 Grounds for removal . . . . 4.3.C.5.b Notice of Form . . . . 4.3.C.3 Generally . . . . 4.3.C.1 Domicile . . . . 1.2.D.7 Duties Checklist of duties and procedures . . . . 1.2.E.11; 4.3.A.10 Generally . . . . 1.2.E.11; 4.2.B; 4.3.A.1 Elective share (see ELECTIVE SHARE) Employment of attorneys, accountants, and other persons to advise or assist, authority for Generally . . . . 1.3.C.1.a; 4.2.C.1; 4.3.B.1.a; 11.2.A.5; 15.2.C–15.2.E Joint personal representatives . . . . 4.2.C.2; 4.3.B.1.f–4.3.B.1.g Prior court approval, necessity for . . . . 4.3.B.1.d Review of . . . . 15.3.I Environmental problems General duties as to . . . . 1.2.E.2.a.iii; 9.6.A–9.6.C Liability . . . . 1.2.E.2.a.iii; 4.3.D.3; 9.6.C Estate funds Duty to keep separate . . . . 4.3.A.4; 9.2.G Investment (see INVESTMENT OF ESTATE FUNDS) Estate tax, responsibility to pay Apportionment Explanation of 2015 Amendment changes . . . . 11.9.D.111.9.D.3.k Order of apportionment . . . . 11.9.C.5.a-11.9.C.5.f Generally . . . . 11.8.D

Partial distribution Filing and notice obligations . . . . 4.3.A.7 Generally . . . . 13.1; 13.2.H Nontaxable estate, affidavit filing . . . . 13.4.B Petition for discharge, nontaxable estate . . . . 14.2.B Renunciation or resignation . . . . 4.3.C.1 Recovery of tax from recipients . . . . 11.9.C.5.a-11.9.C.5.f Executor de son tort . . . . 4.3.D.2.d Expenses of administration Court order, prior notice required for . . . . 4.3.B.1.d Generally . . . . 15.2.A–15.2.B; 15.2.G Payment of attorney fees for . . . . 4.3.B.1.c Power to incur . . . . 4.3.A.1; 4.3.B.1.a; 15.2.A Experts, power to hire . . . . 4.3.B.1.a–4.3.B.1.g; 15.2.C–15.2.E Fees Attorneys (see Attorney) Generally (see Compensation) Fiduciary attorney-client privilege Attorney, Relationship between . . . . 4.2.B Conflicts in litigation . . . . 21.2.B Notice of administration . . . . 4.3.A.9 Will procedures, notice of administration . . . . 5.3.K Final distribution (see DISTRIBUTION) Foreign personal representative (see ANCILLARY ADMINISTRATION) Funeral expenses (see FUNERAL, BURIAL, AND GRAVE MAINTENANCE EXPENSES) Genealogist, right to employ . . . . 11.2.A.5–11.2.A.6 Generally . . . . 4.3.A.1 Gifts made by decedent, treatment of . . . . 4.3.A.3.d Guardian ad litem (see GUARDIAN AD LITEM) Heirs, duties to (see HEIRS) Homestead (see HOMESTEAD) Income tax, responsibility to pay Filing obligations . . . . 4.3.A.7 Generally . . . . 5.7.A; 13.2.H Initial conference with attorney Checklist of subjects for conference . . . . 1.3.C.1.d

Generally . . . . 1.1; 1.3.C.1.a Outlining responsibilities to client . . . . 1.3.C.1.c Payment of claims Five-month period after notice to creditors . . . . 1.3.C.1.b.i Improperly filed claims . . . . 1.3.C.1.b.ii Initial contact with attorney . . . . 1.1 Insurance, duties as to Generally . . . . 1.2.E.4.a–1.2.E.4.b.ii; 4.3.A.8.e; 13.2.G.4 Treatment of life insurance proceeds . . . . 4.3.A.3.e Inventory Amendment of . . . . 6.6.H Appraisal function . . . . 6.2.A Disclosure of information concerning . . . . 6.6.C Extension of filing time . . . . 6.6.E Filing of, duties regarding . . . . 2.6 Filing procedures . . . . 6.6.B Inspection . . . . 6.6.C Preparation . . . . 6.6.A Preservation of appraisal and supporting documents . . . . 6.6.F Service of . . . . 6.6.D Investigator, right to employ . . . . 11.2.A.5–11.2.A.6 Investment counseling, obtaining . . . . 9.3.C Investment of estate funds (see INVESTMENT OF ESTATE FUNDS) Joint personal representatives (see JOINT PERSONAL REPRESENTATIVES) Jurisdiction over (see JURISDICTION) Leasing of property . . . . 4.3.A.8.a; 9.2.F.2; 10.6.F Liabilities and rights Claims of estate against representative, debt owed estate by personal representative . . . . 4.3.D.2.a Claims of representative against estate . . . . 4.3.C.5.b; 4.3.D.1 Estate taxes Apportionment, explanation of 2015 Amendment changes . . . . 11.9.D.1-11.9.D.3.k Guardian ad litem, notice; appointment, and virtual representation . . . . 11.8.D Partial distributions . . . . 13.1; 13.2.H; 14.3.D.2

Renunciation or resignation . . . . 4.3.C.1 Tax returns, obligation to file . . . . 4.3.A.7 Income taxes . . . . 4.3.A.7; 5.7.A; 13.2.H Insurance, liability . . . . 4.3.D.2.c Social Security payments . . . . 13.2.H Torts, negligence, and other acts . . . . 4.3.D.2.c Liability for costs and expenses Accountings . . . . 15.2.H Exposure to . . . . 15.2.H Partial distribution . . . . 13.1; 13.2.B–13.2.C; 13.2.H Voluntary distribution . . . . 13.3.C.1 Life insurance proceeds, treatment of . . . . 1.2.E.4.b.i–1.2.E.4.b.ii; 4.3.A.3.e Limited liability companies . . . . 9.4.C.4 Litigation pending at death of decedent, continuing . . . . 1.3.C.1.c; 4.3.A.3.f Maintenance (see ESTATE ASSETS, MAINTAINING) Minor named as . . . . 1.2.D.7; 1.3.B.1 Miscellaneous administrative expenses . . . . 15.5.A–15.5.D Mismanagement, liability for . . . . 4.3.D.2.b Mortgage payments, duty to make . . . . 1.2.E.5 Mortgage property, right to or to borrow money . . . . 9.4.B.5 Multiple attorneys for joint personal representatives . . . . 4.2.C.2; 15.4.O.1 Negligence and other acts, liability for . . . . 4.3.D.2.c Notice of administration (see NOTICE OF ADMINISTRATION) Oath . . . . 5.3.G; 20.2.B.1 Partial distribution (see DISTRIBUTION) Partnerships (see PARTNERSHIPS) Postmortem planning Generally . . . . 15.7.A Renunciation of compensation . . . . 15.3.F; 15.3.K; 15.7.B Preferences in appointment of . . . . 1.2.D.7; 4.3.C.6; 5.2.A.2–5.2.B Presumptive beneficiary, leaving possession or control with . . . . 9.2.A Prior to appointment, expenses incurred . . . . 15.2.A Professionals Authority to employ

Generally . . . . 4.2.C.1; 4.3.B.1.a; 11.2.A.5; 15.2.D–15.2.E Joint personal representatives . . . . 4.2.C.2 Prior court approval, necessity for . . . . 4.3.B.1.d Review of employment . . . . 15.3.I Compensation of . . . . 4.3.B.1.b; 15.2.F–15.2.G Proof of claim, filing of . . . . 8.3.A.2 Property maintenance . . . . 9.2.A–9.2.E.2.b Prudent investor rule . . . . 4.3.A.8.b Prudent trustee rule . . . . 9.3.B–9.3.C; 15.2.A Qualification Aliens . . . . 1.2.D.7 Generally . . . . 1.2.D.7; 1.3.B.2; 5.2.A.2–5.2.B Minors . . . . 1.2.D.7; 1.3.B.1 Objections, deadline for . . . . 4.3.C.1; 4.3.C.5.b Successor, form for petition . . . . 4.3.C.4 Qualification to serve as . . . . 4.3.C.6 Quasi personal representative, attorney as . . . . 15.4.A Real property of decedent Authorization to sell, petition for . . . . 4.3.A.3.k.vi Duties concerning, generally . . . . 4.3.A.3.k.i Foreign real property . . . . 4.3.A.3.k.iv Homestead (see HOMESTEAD) Lease of . . . . 4.3.A.8.a; 9.2.F.2; 10.6.F Maintenance of (see ESTATE ASSETS, MAINTAINING) Petition for authorization to sell, form . . . . 10.5.A.2.b Power of sale . . . . 4.3.A.3.k.iii Records, duty to keep . . . . 4.3.A.5 Reimbursement or credit for compensation paid and other expenses . . . . 15.2.G Removal proceedings Appointments, preferences in . . . . 4.3.C.6 Bond, action on . . . . 4.3.C.5.d Commencement . . . . 4.3.C.5.c Fees and costs . . . . 15.4.O.4 Good faith requirement . . . . 15.4.O.4 Grounds for removal . . . . 4.3.C.5.b Jurisdiction . . . . 3.6.X; 4.3.C.5.a

Petition for removal . . . . 4.3.C.5.f Procedure after removal . . . . 4.3.C.5.d Successor, appointment of . . . . 4.3.C.5.e; 4.3.C.6 Venue . . . . 4.3.C.5.a Rental of property . . . . 4.3.A.8.a; 9.2.F.2; 10.6.F Renunciation of appointment . . . . 1.3.B.2–1.3.B.3; 4.3.C.1; 5.2.A.2 Repairs to real and personal property . . . . 4.3.A.8.c Residence . . . . 1.2.D.7 Resident agent, designation of . . . . 2.1.I; 5.3.H; 16.3.B.7 Resignation of personal representative Debt owed estate, accountability . . . . 4.3.D.2.a Forms (see FORMS) Generally . . . . 1.3.B.3; 4.3.C.1; 4.3.C.6 S corporations . . . . 9.4.C.1; 13.2.G.6.b Safe-deposit box, dealing with (see SAFE-DEPOSIT BOXES) Sale of assets (see ESTATE ASSETS, SALES AND TRANSFERS OF) Social security benefits, duties regarding . . . . 1.2.E.9 Sole proprietorships (see BUSINESS OF DECEDENT) Standard of care . . . . 4.3.A.2; 10.3.A Successor Appointment of . . . . 4.3.C.5.e; 4.3.C.6 Disgorgement of attorneys' fees . . . . 15.4.O.4 Power of sale . . . . 4.3.A.3.k.iii; 10.3.D.1 Taxes, obligations concerning (see ESTATE TAX; GIFT TAX; INCOME TAX) Torts and other acts, liability for . . . . 4.3.D.2.c Trustee of assets of estate for benefit of beneficiaries and creditors of decedent . . . . 4.3.A.2 Unwilling personal representative . . . . 5.2.A.2 Wills (see WILLS) Wrongful death of decedent, duty to bring action for . . . . 4.3.A.3.f; 11.11 PETITIONS (see FORMS; WILLS) PLEADINGS Court records, confidentiality of . . . . 4.4.C

Form of in probate and guardianship matters . . . . 2.1.F Forms (see FORMS) Generally . . . . 4.4.A.2 Notices generally . . . . 4.4.A.1 Orders generally . . . . 4.4.A.2 POSTNUPTIAL AGREEMENT Elective share, waiving . . . . 11.2.B.8 Generally . . . . 11.2.B.8 Homestead, waiving . . . . 19.5.B.5; 19.8 PRACTICE AND PROCEDURE Accountings (see ACCOUNTINGS) Administrator ad litem (see ADMINISTRATOR AD LITEM) Appeals Appellate attorneys' fees . . . . 3.8.C Before January 1, 2012 . . . . 3.8.A Generally . . . . 2.4 On and after January 1, 2012 . . . . 3.8.B Wills and trusts, contested . . . . 21.4.K Attorney (see ATTORNEY) Authenticated copies (see Documents) Circuit court Clerk of court, defined . . . . 2.1.E Jurisdiction (see JURISDICTION) Documents Authenticated copies Defined, purposes . . . . 2.10.A; 11.2.A.4 Distribution of real property, use for . . . . 2.10.B Generally . . . . 2.10.A; 11.2.A.4 Verification of . . . . 2.1.G Evidence, rules applicable . . . . 2.1.C Florida Probate Code, basic substantive law . . . . 2.1.A Florida Probate Rules, applicability of . . . . 2.1.B Guardian ad litem (see GUARDIAN AD LITEM) Interested person defined . . . . 4.4.B.3 Inventory (see INVENTORY)

Jurisdiction (see JURISDICTION) Jury trial, right to . . . . 3.6.R; 21.3.B.1; 21.4.J Motions . . . . 2.1.F Notice Adequacy of notice . . . . 4.4.B.3 Administration (see NOTICE OF ADMINISTRATION) Ancillary administration, commencement of . . . . 2.2.H Civil action instituted by or against personal representative . . . . 2.2.H Classification, contents . . . . 2.2.A Creditors, to (see CREDITORS’ CLAIMS) Formal Delivery, service by . . . . 2.2.D.2.a–2.2.D.2.b Foreign personal representatives . . . . 3.6.M Generally . . . . 3.6.O; 4.4.B.3 Mail, service by . . . . 2.2.D.2.a–2.2.D.2.b Methods of service . . . . 2.2.D.2.a–2.2.D.2.b Proof of service . . . . 2.2.D.3 Required, when . . . . 1.2.G.1; 2.2.D.1; 5.4.B Generally . . . . 2.2.A Informal Certificate of service . . . . 2.2.E.3 Generally . . . . 2.2.E.1; 4.4.B.3 Methods of service . . . . 2.2.E.2 Proof of service . . . . 2.2.E.3 Issuance of letters, notice before . . . . 1.2.G.1; 2.2.C Request for . . . . 2.2.G Waiver of . . . . 2.2.F Pleadings . . . . 2.1.F; 2.2.G Resident agent . . . . 2.1.I; 4.3.C.5.b; 5.3.H; 16.3.B.7 Rules of procedure . . . . 2.1.B Statutes . . . . 2.1.A Time, computation of . . . . 2.3 Verification of documents . . . . 2.1.G Virtual representation . . . . 2.5; 11.8.D Will construction or contest (see WILLS)

PRENUPTIAL AGREEMENT Homestead Abandonment of . . . . 19.8 Effect of . . . . 19.5.B.5 Intestate estates Generally . . . . 11.2.B.8 Probate procedures . . . . 5.2.A.2 PRETERMITTED SPOUSE AND CHILDREN . . . . 11.2.B.6; 11.3.H; 21.3.A.1.e.ix; 21.3.F PRINCIPAL AND INCOME LAW Devises, interest and income on . . . . 14.3.C.6.g Estate asset transfer . . . . 10.6.D Fiduciary accountings . . . . 12.1.B Personal representative, duties regarding . . . . 4.3.A.5 Principal and income allocation examples . . . . 12.5 Property maintenance . . . . 9.2.E.1 PRIVATE AGREEMENTS (see CONTRACTS) PROFESSIONAL ASSOCIATIONS . . . . 4.3.A.3.c PROOF OF CLAIM (see CREDITORS’ CLAIMS) PROPERTY HELD IN JOINT TENANCY Elective estate . . . . 7.5.A.5 PROPERTY HELD IN TENANCY BY ENTIRETIES Elective estate . . . . 7.5.A.5 PRUDENT INVESTOR RULE . . . . 4.3.A.8.b PRUDENT TRUSTEE RULE . . . . 9.3.B–9.3.C; 15.2.A

Q QUALIFYING SPECIAL NEEDS TRUST (see ELECTIVE SHARE) QUASI PERSONAL . . . . 15.4.A; 15.4.G

REPRESENTATIVE,

ATTORNEY

AS

R REAL ESTATE (see REAL PROPERTY) REAL ESTATE BROKERS, LIMITATIONS ON . . . . 6.4.A.3 REAL PROPERTY Abatement . . . . 13.1; 14.3.A.3 Agreement for deed . . . . 6.5.R; 10.4.E; 19.2.B.4.b Authenticated copies of documents, recording with certificate of distribution . . . . 2.10.B Authorized investments . . . . 9.3.F.2 Certificate of distribution . . . . 2.10.B; 4.3.A.3.k.i; 10.6.C.1–10.6.C.2; 14.3.C.6.a; 18.2.D Claims, conversion of property into cash for payment . . . . 9.2.F.2 Deed Agreement for . . . . 6.5.R; 10.4.E; 19.2.B.4.b Authenticated copies of documents for use with . . . . 2.10.B Distributive . . . . 2.10.B; 4.3.A.3.k.i; 10.6.C.1–10.6.C.2; 14.3.C.6.a; 18.2.D Need for personal representative’s deed to beneficiary . . . . 2.10.B; 4.3.A.3.k.i; 10.6.C.1; 14.3.C.5; 18.2.D Environmental problems, liability for . . . . 1.2.E.2.a.iii; 4.3.D.3; 9.6.C Escheat to state . . . . 3.6.K; 11.2.E Exchanges of . . . . 10.6.D Foreign state, real property in . . . . 1.2.E.1; 3.6.BB.1 Homestead (see HOMESTEAD) Inventory to include . . . . 6.5.V Investment in by personal representative . . . . 9.3.F.2 Jointly owned property Inventory . . . . 6.5.S Mortgage, payment of . . . . 1.2.E.5 Simultaneous deaths of joint tenants, effect of . . . . 11.7 Leases of . . . . 4.3.A.8.a; 9.2.F.2; 10.6.F Mortgages (see MORTGAGE)

Nonresident decedent with realty in Florida, conveyances . . . . 10.3.D.4; 10.4.H.1–10.4.H.2; 17.2.C.1–17.2.C.3 Partition of . . . . 3.6.U; 10.6.E Personal representative’s duties (see PERSONAL REPRESENTATIVE) Sale of (see ESTATE ASSETS, SALES AND TRANSFERS OF) Surviving spouse (see ELECTIVE SHARE; HOMESTEAD) Title Attorney’s duty to check . . . . 1.2.E.2.a.iii Generally . . . . 4.3.A.3.k.i; 14.3.C.6.a Jurisdiction to determine . . . . 3.6.E Proof . . . . 2.10.A–2.10.B; 4.3.A.3.k.i Transfer of (see ESTATE ASSETS, SALES AND TRANSFERS OF; HOMESTEAD) RENUNCIATION Appointment as personal representative . . . . 1.3.B.2–1.3.B.3; 4.3.C.1; 5.2.A.2 Compensation Attorney . . . . 15.4.O.3; 15.7.B Personal representative . . . . 15.3.F; 15.3.K; 15.7.B RESIDENCE (see DOMICILE) RESIDENT AGENT Caveat . . . . 5.5 Designation of . . . . 2.1.I; 16.3.B.7 Jurisdiction . . . . 3.6.Z Proof of will . . . . 5.3.H Removal proceedings . . . . 4.3.C.5.b REVOCABLE TRUSTS Elective estate . . . . 7.5.A.6

S SAFE-DEPOSIT BOXES Access to Generally . . . . 1.2.E.2.b; 4.3.A.3.a; 9.2.B Personal representative, duties regarding . . . . 4.3.A.10 Improper removal of contents . . . . 20.2.B.1 Inventory of . . . . 1.2.E.2.b; 2.6; 9.2.B Joint tenants . . . . 1.2.E.2.b–1.2.E.3 Nonresident decedent, box owned by . . . . 17.2.D Securing access to . . . . 1.2.E.2.b; 4.3.A.3.a; 9.2.B SALES AND TRANSFERS OF ESTATE ASSETS (see ESTATE ASSETS, SALES AND TRANSFERS OF) SAVINGS ACCOUNTS (see BANK ACCOUNTS) SAVINGS BONDS . . . . 14.3.C.6.e SECURITIES Authorized investments . . . . 4.3.A.8.b; 9.3.F.3–9.3.F.4 Certificate status, attorney to check . . . . 1.2.E.2.a.iii Dividends on, to whom payable . . . . 14.3.C.6.g Final distribution . . . . 10.6.B.3; 14.3.C.6.d Investment in by personal representative . . . . 4.3.A.8.b; 9.3.F.3–9.3.F.4 Pay-on-death designation . . . . 1.2.E.3 Requirements for sales or transfers . . . . 10.6.B.3; 14.3.C.6.d (see also ESTATE ASSETS, SALES AND TRANSFERS OF) U.S. Government bonds . . . . 14.3.C.6.e SERVICEMEMBERS CIVIL RELIEF ACT . . . . 11.8.D; 19.9.K SIMULTANEOUS DEATH . . . . 11.7 SMALL ESTATES Attorney’s role . . . . 15.4.A

Disposition without administration Generally . . . . 1.2.F; 18.3 Inventory . . . . 6.3.C Verified statement, form . . . . 18.3 Estate tax, liability for . . . . 18.5.C Family administration . . . . 6.3.C Generally . . . . 18.1 Income tax Refunds . . . . 18.5.A Returns, filing . . . . 18.5.B Inventory . . . . 6.3.C Motor vehicles (see MOTOR VEHICLES) Summary administration (see SUMMARY ADMINISTRATION) SOCIAL SECURITY Benefits and claims . . . . 1.2.E.9 Death benefit, lump sum . . . . 1.2.E.9 Locating heirs through . . . . 11.2.A.3 Overpayment, refund of . . . . 1.2.E.9; 13.2.H Personal representative, duties of . . . . 1.2.E.9; 13.2.H Social security numbers Caveat filings, probate proceedings . . . . 5.5 Confidentiality Court documents, redaction in . . . . 4.4.C Petition for administration . . . . 5.3.A.1 Production of will . . . . 5.2.A.1.a Petition for administration, requirement for . . . . 1.2.E.2.a.i; 1.2.E.2.a.iii Redaction in court documents . . . . 4.4.C Will for probate, production required for . . . . 5.2.A.1.a; 5.3.A.1 SOLE PROPRIETORSHIPS (see BUSINESS OF DECEDENT) SPOUSE (see SURVIVING SPOUSE) STATEMENT OF CLAIM (see CREDITORS’ CLAIMS) STILLBORN CHILDREN (see DEAD BODY)

STOCKS AND BONDS (see SECURITIES) SUBSTITUTIONARY GIFTS . . . . 11.3.E SUMMARY ADMINISTRATION Attorneys’ fees . . . . 15.4.A Availability . . . . 18.2.B Available, when . . . . 18.2.B Beneficiaries, rights of . . . . 18.2.N Claims Elimination of claims against real property . . . . 17.2.C.3 Notice to creditors Ascertaining claims against estate . . . . 8.2.A.3 Indebtedness . . . . 18.2.J Necessity for . . . . 17.2.C.3 Publication of notice . . . . 8.2.A.3 Rights of creditors . . . . 18.2.M Converting from ordinary administration . . . . 18.2.E Decedent dead for more than two years . . . . 18.2.B; 18.2.I Distribution, plan of . . . . 18.2.D Exempt property, exclusion of . . . . 18.2.G Fiduciary accountings . . . . 12.2.A Generally . . . . 1.2.F; 18.1-18.2.A Gross as opposed to net value . . . . 18.2.H Hearing . . . . 18.2.K.2 Homestead determination as part of proceeding . . . . 19.9.H Indebtedness of estate . . . . 18.2.B; 18.2.J; 18.2.M Inventory . . . . 6.3.C Non-estate property, exclusion of . . . . 18.2.F Notice to creditors . . . . 17.2.C.3; 18.2.A; 18.2.J; 18.2.M Order Contents . . . . 18.2.K.2 Effect of . . . . 18.2.L Ordinary administration, converting from . . . . 18.2.E Petition Contents of . . . . 18.2.K.1 Persons required to join in . . . . 18.2.C

Tax considerations . . . . 18.5.A–18.5.C Value of estate . . . . 18.2.A; 18.2.H Venue . . . . 18.2.K.1 SURVIVING SPOUSE Attorney for estate, advice to spouse from . . . . 1.2.E.10.a Claims against decedent, liability for . . . . 8.2.E.1.b Community property claims . . . . 8.3.B.2.a.ii Dissolution of marriage Effect of Beneficiary designation . . . . 1.2.E.2.a.i; 11.6 Generally . . . . 13.2.B Lapsed and void devises and . . . . 11.3.G Life insurance proceeds, special rules for . . . . 6.5.Q Dissolution of marriage, effect of . . . . 1.2.E.2.a.i; 13.2.B Elective share (see ELECTIVE SHARE) Extratestamentary rights, checklist of . . . . 1.2.E.10.b Homestead (see HOMESTEAD) Insurance, right to (see ELECTIVE SHARE) Intestate estate, personal representative, entitlements of . . . . 5.2.B Jurisdiction Dower . . . . 3.6.J Status as spouse . . . . 3.6.AA Liability for claims against decedent . . . . 8.2.E.1.b Not subject to administrative proceedings, rights and interests . . . . 1.2.E.10.b Nuptial agreements, homestead waiver in . . . . 19.5.B.5 Prenuptial and postnuptial agreements, effect on . . . . 11.2.B.8 Pretermitted spouse . . . . 11.3.H Rights of, generally . . . . 1.2.E.10.a–1.2.E.10.b Wills (see WILLS) SURVIVORSHIP BANK ACCOUNTS (see BANK ACCOUNTS)

T TANGIBLE PERSONAL PROPERTY (see PERSONAL PROPERTY) TAXES Apportionment (see ESTATE TAX) Curator to pay delinquent taxes . . . . 16.3.A Estate assets, securing liquidity to pay estate taxes . . . . 10.2.B Estate tax (see ESTATE TAX) Generation-skipping transfer tax . . . . 11.9.A–11.9.C.1 Gift tax (see GIFT TAX) Income tax (see INCOME TAX) Personal representative Duties of . . . . 4.3.A.1; 4.3.A.7; 5.7.A–5.7.C Power to hire tax specialist . . . . 4.3.B.1.a–4.3.B.1.f Postmortem planning, generally . . . . 15.7.A–15.7.B Probate litigation, effect of . . . . 21.4.K; 21.5 Refund claims . . . . 14.3.D.3 Settlement agreements . . . . 21.5 Small estates (see SMALL ESTATES) TELEPHONE BILLS, RESPONSIBILITY FOR PAYMENT OF . . . . 1.2.E.7 TITLE Motor vehicles (see MOTOR VEHICLES) Real property (see REAL PROPERTY) TOTTEN TRUSTS Defined . . . . 21.3.F Elective estate . . . . 7.5.A.4 Generally . . . . 1.2.E.3; 6.5.T; 21.3.F Inventory . . . . 6.5.T Killer statute . . . . 11.2.B.2; 21.3.A.1.e.vii

TRANSFERS (see ESTATE ASSETS, SALES AND TRANSFERS OF) TRANSIT OR REMOVAL PERMITS (see DEAD BODY) TRAVEL EXPENSES DUE DECEASED EMPLOYEE 18.2.F

. . . . 6.5.P;

TRUSTS AND TRUSTEES Accounting principles applicable to . . . . 12.1.A Claims Beneficiaries of trust . . . . 8.3.B.3.b.i.II Estate creditors . . . . 1.2.E.3; 8.2.E.2.c Compensation of trustees . . . . 15.2.F Construction proceedings (see WILLS) Constructive trust over homestead property . . . . 19.6.C Contests (see WILLS) Death benefits payable to trustee . . . . 1.2.E.4.b.ii Fees awarded from trust . . . . 3.6.L Final distribution to . . . . 14.3.C.4 Inventory . . . . 6.5.M–6.5.N Irrevocable trusts . . . . 19.6.B Jurisdictional issues . . . . 3.6.CC Partial distribution to . . . . 13.2.F; 13.2.G.7 Pour-over trusts, lapsed and voided devises . . . . 11.3.G Revocable trusts Elective share, effect on computation (see ELECTIVE SHARE) Estate tax, apportionment of . . . . 11.9.C.3–11.9.C.4.i Inventory . . . . 6.5.M Liability for claims of decedent’s creditors . . . . 1.2.E.3; 8.2.E.2.c Totten trusts (see TOTTEN TRUSTS)

U UNCLAIMED PROPERTY . . . . 3.6.DD; 11.2.E UNDUE INFLUENCE (see WILLS) UNEMPLOYMENT COMPENSATION Amounts due deceased employee . . . . 6.5.P; 18.2.F Division of Unemployment Compensation, claims by . . . . 8.2.B.4; 8.3.B.2.a.v U.S. GOVERNMENT BONDS . . . . 14.3.C.6.e UTILITY BILLS, RESPONSIBILITY FOR PAYMENT OF . . . . 1.2.E.7

V VENUE Allegation in petition for administration . . . . 5.3.A.1 Ancillary administration . . . . 17.3.B Curatorship . . . . 16.3.B.1 Defined . . . . 3.1 Generally . . . . 3.7.A Objections to . . . . 3.7.B Personal representative, removal of . . . . 4.3.C.5.a Petition for administration, allegation in . . . . 5.3.A.1 Summary administration . . . . 18.2.K.1 Wills . . . . 3.7.A–3.7.B VERIFICATION . . . . 2.1.G; 4.4.A.2 VERIFIED STATEMENT Creditors, regarding . . . . 8.2.A.4 Disposition without administration . . . . 18.3 Proof of service . . . . 2.2.D.3 VETERANS AFFAIRS, DEPARTMENT OF Benefits, payment . . . . 1.2.E.8 Casket, flag for . . . . 1.2.A.4 Escheatment of personal property . . . . 11.2.E VIRTUAL ADOPTION . . . . 21.3.G VIRTUAL REPRESENTATION . . . . 2.5; 11.8.D VITAL STATISTICS (see BUREAU OF VITAL STATISTICS) VOID DEVISES . . . . 11.3.G VOLUNTARY PARTIAL DISTRIBUTION (see DISTRIBUTION)

W WAGES DUE DECEASED EMPLOYEE . . . . 1.2.E.2.a.iii; 1.2.E.10.b; 6.5.P; 18.2.F WAIVER AND CONSENT Accountings (see ACCOUNTINGS) Appointment of personal representative . . . . 5.2.A.2–5.2.B Charitable institutions, personalty given to, waiver and consent for Generally . . . . 13.2.G.1.a Sample . . . . 13.2.G.1.b Compensation, waiver of disclosure of or manner of determining . . . . 12.2.B; 15.4.I Elective share, waiver of (see ELECTIVE SHARE) Notices . . . . 2.2.F Nuptial agreement, homestead waiver in . . . . 19.5.B.5 Sales of estate property, form for waiver and consent . . . . 10.5.A.3.b WILLS Accounting, waiver of . . . . 12.2.B Adjudication before issuance of letters (see ADJUDICATION BEFORE ISSUANCE OF LETTERS) Agreement to make, claim arising under . . . . 8.3.B.2.a.x Appointment of personal representative in . . . . 1.2.D.7 Attesting witness, oath or affirmation (see Proof of will) Attorneys Fees when representing unsuccessful proponent of will . . . . 21.3.A.1.a Nomination of attorney to handle estate (see ATTORNEY, subhead: Will provision nominating attorney to handle estate) Provision nominating attorney to handle estate . . . . 4.2.E Unsuccessful proponent, fees when representing . . . . 15.4.O.4 Beneficiaries (see BENEFICIARIES; HEIRS) Bond, waiver of . . . . 1.2.D.6 (see also PERSONAL REPRESENTATIVE)

Burial, specific instructions regarding . . . . 1.2.A.2; 1.2.D.5 Business of decedent, provisions in will concerning . . . . 9.4.A Caveat (see CAVEAT) Charitable devises . . . . 11.3.A; 21.3.A.1.e.vi Commission to prove will . . . . 5.3.C.5 Compensation of personal representative, provision for . . . . 15.3.F Construction of will or trust Ambiguity, latent or patent . . . . 21.3.B.4 Elective share, effect of exercise of . . . . 7.2.C Evidentiary considerations . . . . 21.3.B.4 Generally . . . . 3.6.E–3.6.F; 21.3.B.1 Modification to achieve testator's tax objectives . . . . 21.3.B.5 Pour-over trusts Construction by statute . . . . 21.3.B.2 Incorporation by reference . . . . 21.3.A.2 Reformation to correct mistakes . . . . 21.3.B.5 Rules of . . . . 21.3.B.3 Settlor's intent . . . . 21.3.B.5 Statute, by . . . . 21.3.B.2 Contest of will or trust Appeals procedures . . . . 21.4.K Caveat, effect of . . . . 1.2.G.2; 5.5 Fees and costs . . . . 15.4.O.4; 21.3.A.1.a; 21.4.H Grounds Abuse of elderly or disabled person . . . . 21.3.A.1.e.viii Agent under durable power of attorney: power to execute . . . . 21.3.A.1.d.ii.III Aggravated manslaughter of elderly or disabled person . . . . 21.3.A.1.e.viii Capacity, lack of testamentary Burden of proof . . . . 21.3.A.1.c.ii Definition of testamentary capacity . . . . 21.3.A.1.c.i Undue influence . . . . 21.3.A.1.b.iii.III; 21.3.A.1.b.ix Charitable devises . . . . 11.3.A; 21.3.A.1.e.vi Definition of testamentary capacity . . . . 21.3.A.1.c.i Disabled person, abuse, neglect, exploitation or aggravated manslaughter of . . . . 21.3.A.1.e.viii

Elderly person, abuse, neglect, exploitation or aggravated manslaughter of . . . . 21.3.A.1.e.viii Execution Agent under durable power of attorney, power of . . . . 21.3.A.1.d.ii.III Durable power of attorney, power of agent under . . . . 21.3.A.1.d.ii.III Formalities required for . . . . 21.3.A.1.d.ii.I Improper execution . . . . 5.6.B; 21.3.A.1.c.–21.3.A.1.d.ii Pre-October 1, 1995 trusts . . . . 21.3.A.1.d.ii.II Exploitation of elderly or disabled person . . . . 21.3.A.1.e.viii Forgery . . . . 21.3.A.1.e.v Formalities required for execution of trust . . . . 21.3.A.1.d.ii.I Generally . . . . 21.3.A.1.a Improper execution . . . . 5.6.B; 21.3.A.1.c.–21.3.A.1.d.ii Insane delusion . . . . 21.3.A.1.e.iv Mistake . . . . 21.3.A.1.a; 21.3.A.1.c.i; 21.3.A.1.d.i; 21.3.A.1.e.iii– 21.3.A.1.e.iv Murder . . . . 3.6.R; 11.2.B.2; 21.3.A.1.e.ix Neglect of elderly or disabled person . . . . 21.3.A.1.e.viii Nuncupative wills . . . . 5.6.B Pour-over trusts . . . . 11.3.G Pretermitted spouse or child . . . . 11.2.B.6; 11.3.H; 21.3.A.1.e.ix Revocation . . . . 5.6.C.1; 21.3.A.1.e.i–21.3.A.1.e.ii; 21.3.A.4 Undue influence Active procurement . . . . 21.3.A.1.b.v Application of doctrine . . . . 21.3.A.1.b.i; 21.3.A.1.b.xiii Attorney as undue influencer . . . . 21.3.A.1.b.v; 21.3.A.1.b.xii Burden of proof . . . . 21.3.A.1.b.ii; 21.3.A.1.b.v– 21.3.A.1.b.viii; 21.3.A.1.c.ii Conditional renunciation of benefits as conferring standing . . . . 21.3.A.1.b.iv Defined . . . . 21.3.A.1.b.ii Diminished capacity . . . . 21.3.A.1.b.iii.III; 21.3.A.1.b.ix “Dutiful” child . . . . 21.3.A.1.b.xi Ethical considerations Constitutional foundation . . . . 21.3.A.1.b.iii.I

Diminished capacity, suspected . . . . 21.3.A.1.b.iii.III Suspected undue influence . . . . 21.3.A.1.b.iii.II; 21.3.A.1.b.iii.III Marriage procured by . . . . 21.3.A.1.b.vi Naturalness of disposition . . . . 21.3.A.1.b.x Order of trial . . . . 21.3.A.1.b.vii Presumptions Generally . . . . 21.3.A.1.b.ii; 21.3.A.1.b.v–21.3.A.1.b.viii Testamentary capacity . . . . 21.3.A.1.c.ii When spouse is alleged influencer . . . . 21.3.A.1.b.vi Interested person . . . . 21.4.E; 21.4.F Jury trial, right to . . . . 21.4.J Parties to petitioner . . . . 21.4.E Parties to respondent . . . . 21.4.F Pour-over trusts Incorporation by reference . . . . 21.3.A.2 Later-discovered wills . . . . 14.3.D.4 Order of final discharge . . . . 14.2.G Probate litigation Fees and costs . . . . 21.4.H Miscellaneous issues . . . . 21.3.H Procedure . . . . 3.6.R; 21.4.G Proper forum and applicable law . . . . 21.4.B Subject matter jurisdiction . . . . 21.4.A Testamentary capacity Defined . . . . 21.3.A.1.c.i Presumption of . . . . 21.3.A.1.c.ii Curator, appointment necessary in absence of will . . . . 16.3.A Custodian, will left with . . . . 1.2.D.2; 5.2.A.1.a Dead person’s statute, application of . . . . 21.4.I Dependent relative revocation . . . . 21.3.A.4 Depositing with court . . . . 1.2.D.2; 5.2.A.1.a Destroyed will (see Lost or destroyed wills) Devises (see BENEFICIARIES; HEIRS) Digital assets . . . . 9.5 Discovery after administration . . . . 1.2.D.3; 3.6.X; 11.2.F; 14.3.D.4 Dissolution of marriage, effect of

Beneficiary designation . . . . 1.2.E.2.a.i; 11.6 Generally . . . . 13.2.B Lapsed and void devises . . . . 11.3.G Electronic wills . . . . 5.2.A.1.a; 21.3.A.1.d.i Family allowance (see FAMILY ALLOWANCE) Final distribution pursuant to directions in will . . . . 14.3.C.3 Florida resident, will admitted to probate in foreign state, procedure for probate . . . . 5.6.D.1 Foreign language, probate of will in . . . . 5.6.E Foreign wills (see ANCILLARY ADMINISTRATION; JURISDICTION) Forgiveness by testator . . . . 4.3.A.6 Generally . . . . 1.2.D.1 Heirs (see HEIRS) Holographic wills . . . . 5.6.B Incorporation by reference . . . . 21.3.A.2 Involuntary production . . . . 3.6.W; 5.2.A.1.a–5.2.A.1.b.ii Jurisdiction (see JURISDICTION) Later-discovered will . . . . 1.2.D.3; 3.6.X; 11.2.F; 14.3.D.4 Letters of administration Adjudication before (see ADJUDICATION BEFORE ISSUANCE OF LETTERS) Ancillary letters (see ANCILLARY ADMINISTRATION) Form . . . . 5.3.J Generally . . . . 5.3.J Petition for (see Petition for administration) Location of . . . . 1.2.D.1–1.2.D.2 Lost or destroyed wills “Correct copy” . . . . 1.2.D.4; 5.6.C.1 Generally . . . . 1.2.D.4; 5.6.C.1; 21.3.A.1.e.ii Order admitting to probate, form . . . . 5.6.C.2.b Petition for establishment and probate of, form . . . . 5.6.C.2.a Multiple wills . . . . 1.2.D.3; 3.6.X; 11.2.F; 14.3.D.4 Nonresident’s will (see ANCILLARY ADMINISTRATION) Notarial wills . . . . 5.6.A Notice of administration (see NOTICE OF ADMINISTRATION) Nuncupative wills . . . . 5.6.B Oath or affirmation of witness (see Proof of will)

Order admitting will to probate after formal notice, form . . . . 5.4.C.1 Order of probate . . . . 5.1 Partial invalidity . . . . 21.3.A.1.e.ii; 21.3.A.3 Personal representative (see also PERSONAL REPRESENTATIVE) Bond requirements . . . . 1.2.D.6; 5.3.E; 5.3.I Fees, provision regarding . . . . 15.3.F Named in will; qualifying . . . . 1.2.D.7 Renunciation of right to act as . . . . 1.3.B.2–1.3.B.3; 4.3.C.1; 5.2.A.2 Selection in absence of will . . . . 1.2.D.8 Petition for administration Caveats . . . . 1.2.G.1; 1.2.G.2; 4.3.A.9 Contents . . . . 5.3.A.1 Notice . . . . 2.2.A–2.2.B.2; 5.3.A.3 Presentation to court . . . . 5.3.A.2 Qualification of person filing . . . . 5.3.A.1 Requirements . . . . 5.3.A.1 Petition for establishment and probate of will probated in another state, form . . . . 5.6.D.2.a Preliminary inquiry . . . . 1.2.D.1 Pretermitted spouse and children . . . . 11.2.B.6; 11.3.H; 21.3.A.1.e.ix; 21.3.F Production of will Electronic wills . . . . 5.2.A.1.a Generally . . . . 3.6.W; 5.2.A.1.a Notice . . . . 5.2.A.1.a Order requiring, form . . . . 5.2.A.1.b.ii Petition for, form . . . . 5.2.A.1.b.i Proof of will Affiant appears before judge, commissioner, or clerk . . . . 5.3.C.2 Commission to prove will . . . . 5.3.C.5 Oath of witness . . . . 5.3.C.2–5.3.C.3; 5.3.C.5 Self-proved will . . . . 5.3.C.1 Witnesses Oath of . . . . 5.3.C.2–5.3.C.3; 5.3.C.5 Unavailable, affidavit for use when Form . . . . 5.3.C.4.b

Generally . . . . 5.3.C.4.a Resident agent, designation of . . . . 2.1.I; 5.3.H; 16.3.B.7 Revocation Analysis of . . . . 21.3.A.4 Codicil as grounds for . . . . 21.3.A.1.e.ii Dependent relative . . . . 21.3.A.4 Generally . . . . 21.3.A.1.e.i Jurisdiction . . . . 3.5.A Jury trial, right to . . . . 21.4.J Methods . . . . 21.3.A.1.e.ii Parties to petitioner . . . . 21.4.E Self-proved . . . . 5.3.C.1 Simultaneous Death Law, effect of . . . . 11.7 Small estates, disposition without administration . . . . 18.3 Summary administration (see SUMMARY ADMINISTRATION) Undue influence (see Contest of will or trust) Venue (see VENUE) Witnesses to will (see Proof of will) WITNESS Attorney as Advocate, disqualification as . . . . 21.2.C.2; 21.2.C.3 Estate planning lawyer . . . . 21.2.C.1 Law firm, role of . . . . 21.2.C.3 Will, witness to (see WILLS) WRONGFUL DEATH ACTIONS . . . . 4.3.A.3.f; 8.3.B.2.a.i; 11.9.E