Ch. 732 FLORIDA PROBATE LAW, SECOND PART Ch. 732...

Ch. 732 FLORIDA PROBATE LAW, SECOND PART Ch. 732

when he may have letters testamentary as the executor if otherwise qualified. In such case, the letters of administration, if any have been granted, shall be revoked, and the said administrator shall render a true and faithful account of his administration to the county judge's court and surrender the estate to the said executor.

(2) The executor in such cases shall be entitled to all rights and proceedings provided for in this law for compelling an accounting from removed personal representatives.

Hl&tory.-§82, ch. 16103, 1933; CGL 1936 Supp. 6641(25); am. §2, ch. 22783, 1946.

732.47 Nonresidents.-(!) A person who is not an actual bona fide

resident of the state cannot qualify as a personal representative of an estate in Florida, unless such person is a legally adopted child of the decedent, an adoptive parent or is related by lineal consanguinity to the decedent or is a spouse or a brother, sister, uncle, aunt, nephew or niece of the decedent. However, any person who has qualified in Florida as a personal representative prior to the effective date of this law may continue to serve in such capacity.

(2) Before any nonresident of Florida shall be issued letters upon any estate, such nonresident shall have his residence and postofficc address recorded in the ofBce of the county judge of the county in which the administration is pending, and shall designate some resident of said county as his agent or attorney for the service of process, whose name, residence, and postoffice address shall also be likewis., recorded. Such designation, in whatever form it may be, shall be taken to constitute the consent of the person so designating that service of any process upon the designated agent or attorney shall be sufficient to bind the person so designating in any suit or action against such personal representative, either in his representative capacity or personally, provided, that such personal action must have accrued in the administration of such estate. Such designatioii must be in writing and must be filed in the ofB~e of the county judge.

(3) Any qualified personal represe01tative appointed after May 27, 1947, :who becomes disqualified to act as such after his appointment immediately thereupon shall file, in the court where his letters were granted, his petition for J'esignation pursuant to the terms and provi~ions of §734.09, and immediately thereupon 'hall present said petition to said court and do 1.ny and all other things necessary or proper to Jlrocure an order approving such resignation.

( 4) Anything contained in any will of a person who hereafter dies a resident of the state to the contrary notwithstanding, it shall be and constitute a violation of this section for any person or corporation to apply for or act under any letters testamentary or of administration with the will annexed issued in any other state or country for or in respect of personal property of a person who hereafter

dies a resident of the state and which is located elsewhere than in the state, solely because of the fact that the will of such testator purports to name, constitute or appoint such person or corporation as a purported executor or administrator with the will annexed, when such person or corporation is not qualified to receive and act under domiciliary letters testamentary or of administration with the will annexed issued in the state.

(5) Any person who fails to comply with or who acts or continues to act in violation of any of the terms and provisions of this section shall be deemed guilty of a misdemeanor and, on conviction, be fined not to exceed one hundred dollars for each day his appointment as such personal representative remains in effect contrary to any of the terms and provisions of this section.

Hlstory.-§83, ch. 16103, 1933; §1, ch. 196n, 1939; CGL 1940 Supp. 6641(26), 8186(38-a); am. §2, ch. 22783, 1946; §7, ch. 22847, 1945; am. §1, ch. 23819, 1947. fl1, 2, ch. 29981, 19115.

732.48 Married woman.-A married woman may act as personal representative or curator without the consent of her husband.

Hletory.-§84, ch. 18108, 1988; CGL 1988 Supp. 6641(27); am. §2, ch. 22783, 1946.

732.49 Trust companies and other corporations.-

( 1) All trust companies incorporated under the laws of the state and all national banking associations authorized and qualified to exercise fiduciary powers in Florida shall be entitled to act as personal representatives and curators of estates under the laws of the state.

(2) When any such corporation has been named as an executor in a will and thereafter sells its business and assets to, or consolidates or merges with, or is in any manner provided by law succeeded by, another such corporation, the successor corporation may, upon the death of the testator, qualify, and the county judge may issue letters to the successor corporation unless the will provides otherwise.

(3) A corporation authorized and qualified to act as a personal representative resulting from merger or consolidation shall, upon filing proof thereof in the county judge's court and without a new appointment, succeed to the rights and duties of all predecessor corporations as the personal representatives of estates. A purchase of substantially all the assets and the assumption of substantially all the liabilities shall be deemed a merger for the purpose of this section.

Hletory.-§86, ch. 16108, 1933; CGL 1936 Supp. 6641(28); am. §2, ch. 22783, 1946; am. §7, ch. 24337, 1947.

732.50 Joint executors and administrators.If several executors are named in a will, one or more qualifying shall be entitled to execute all the powers and trusts confided to all in the will unless especially prohibited by the will; if more than one qualify, all must join in discharging the functions of executor unless ·the county judge gives special authority to one or more of such executors to discharge such functions. Each

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executor shall be responsible only for his own acts, unless by his own act or gross negligence he has enabled or permitted his coexecutor to waste the estate. The foregoing shall likewise apply to joint administrators.

Hlato17 .-§86, ch. 16103, 1933; CG L 1936 Supp. 6541 (29) ; am. §2, ch. 22783, 1945.

732.51 Effect of appointment of debtor or creditor.-The appointment of a debtor or of a creditor as personal representative shall not. either in law or in equity, be construed to operate as a release or extinguishment of the debt due to or by the decedent. This section shall not be construed to prevent a testator from releasing a debtor by last will and testament.

Hlatory.-§87, ch. 16103, 1933; CGL 1936 Supp. 6641(80); am. §2, ch. 22783, 1945.

732.52 Succession of administration.-No executor of an executor shall, as such, be authorized to administer the estate of the first testator; but, on the death of the sole or surviving executor, the county judge shall appoint an administrator de bonis non to complete the administration of such estate. Hlstory.-~88, ch. 16103, 1933; CGL 1936 Supp. 6541(31):

am. §2, ch. 22783, 1945.

732.53 Executor de son tort.-N o person shall be liable to a creditor of a decedent as executor de son tort, but any person taking, converting or intermeddling with the property of a decedent shall be 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 of the deceased caused by his wrongful action; but this section shall not be construed to prevent a creditor of a deceased person from suing anyone in possession of property fraudently conveyed by such deceased person, for the purpose of setting aside such fraudulent conveyance.

HlstoJ"T.-§89, ch. 16103, 1933; CGL 1936 Supp. 6541(141); am. §2, ch. 22783, 1945.

732.54 Guardian ad litem.-Whenever a legal guardian is appointed or qualified in this state for any infant or person non compos mentis who is interested in the estate of a decedent, such guardian shall represent his ward in all proceedings affecting such estate in the county judge's court, except as to proceedings in which the guardian is interested in his own right. The county judge shall, without notice, appoint a guardian ad litem to represent any infant or person non compos mentis where there is no legal guardian appointed or qualified in this state, or where such guardian is interested in his own right, and to represent any unknown person interested in the estate. A guardian ad litem shall, upon appointment, make and file an oath to discharge his duties faithfully. Whenever a guardian ad litem is appointed, no process need be served upon him, but he shall appear and defend as directed by the county judge.

Hlstory.-§90, ch. 16103, 1933; CGL 1936 Supp. 6641(142); am. §2, ch. 22783, 1946.

732.55 Administrator ad litem.-Whenever,

in any proceeding before the county judge or in equity in the circuit court, it is necessary that the estate of a deceased person be represented and when there is no personal representative of such estate or when the personal representative is interested adversely to said estate or in such proceeding is enforcing his own debt or claim against the estate, the court in which the proceeding is pending shall appoint an adminstrator ad litem without bond for that particular proceeding. Whenever the facts authorizing such appointment appear of record or are otherwise made known to the court, the court shall without notice appoint such administrator ad litem. The administrator ad litem shall, upon appointment, make and file an oath to discharge his duties faithfully, and said proceeding shall then be further maintained, prosecuted or defended, insofar as said estate is concerned, by said administrator ad litem and in his name as such.


732.56 Recovery of judgment; proceedings. -Whenever any such administrator ad litem shall recover any decree or other relief, it shall be enforced as other decrees, except that execucution which shall issue shall be in favor of the administrator ad litem for the use of the estate, and the money collected shall be paid to the personal representative of the estate, or, if there is none, then to the county judge when the proceeding is before him, or into the registry of the circuit court when the proceeding is in that court; and said funds, if paid into court, shall be held to await the further order of the court.

Hlstory.-§92, ch. 16103, 1933; CGL 1936 Supp. 6541(33); am. §2, ch. 22783, 1945. ct.-§732.03, Enforcement ot judgments.

732.57 Judgment in favor of personal representative.-If the personal representative is an adverse party and in a proceeding in equity recovers a judgment or decree against the administrator ad litem, the court may grant him such relief as he may be lawfully entitled to under the provisions of this law.

Hlstory.-§93, ch. 16103, 1933; §4, ch. 17171, 1935; CGL 1936 Supp. 5541(139); am. §2, ch. 22783, 1945.

732.58 Compensation of administrator ad litem.-An administrator ad litem shall be allowed such compensation for his services as the judge in whose court the proceeding is pending deems just and reasonable, and the same shall be taxed as costs in the case unless the court thinks it equitable that the same should be paid out of the assets of the estate without reference to prevailing or losing parties in the cause.

Hlstory.-§94, ch. 16103, 1933; CGL 1936 Supp. 6541(34); am. §2. ch. 22783, 1945; am. § 10, ch. 26484, 1951. cf.-734.01, Expenses and compensation ot personal rep

resentatives.

732.59 Oath of personal representative.Before granting letters the county judge shall require the personal representative to make and file an oath in writing that he will faithfully administer the estate of the decedent, pay debts as far as the assets of the decedent will permit,

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make distribution of the estate according to law, and render due accounts of his administration.

HlstorT.-§96, ch. 16103, 1933; CGL 1936 Supp. 6641(86); am. §2, ch. 22783, 1946.

732.60 Oaths and affidavits.-Oaths, verifications, affirmations and affidavits required by law in probate proceedings may be made, either within or without the state, before any officer authorized by the laws of this state to administer oaths.

HlstorT.-§96, ch. 16103, 1933; CGL 1936 Supp. 6641(78); am. §2, ch. 22783, 1946.

732.61 Bond of personal representative.(!) Every person to whom letters testamen

tary or of administration are directed to issue (unless the testator waived such requirement) shall be required by the judge, before such letters issue, to execute and file in his office a bond with two or more sufficient sureties, or an authorized surety company as surety, to be approved by the county judge, in such penal sum as the county judge may deem sufficient, respect being had to the value of the estate. Said bond shall be payable to the governor and his successors in office, conditioned to perform faithfully all duties as such personal representative according to law. In form the bond must be joint and several.

(2) The requirements of this section shall not be applicable to banks and trust companies authorized by law to act as personal representatives.

HlstorT.-§97, ch. 16103, 1933; 15, ch. 17171, 1935; CGL 1936 Supp. 5541 (36); §2, ch. 22783, 1945. cf.-§733.29, Additional bond upon sale of assets.

732.62 Bond by a surety company.-Any surety company authorized to do business in thi8 state may become surety upon the bonds of personal representatives, and in such cases there need be only one surety upon such bonds.

Hlstoey .-§98, ch. 16103, 1933; CG L 1936 Supp. 6641 (37) ; §2, ch. 22783, 1945.

732.63 Bond required of executor.-When any person interested in the estate of a decedent files with the county judge of the county wherein a last will is admitted to probate a petition, from which petition and the evidence adduced thereon it is made to appear to the county judge that there is reasonable ground to apprehend that any such executor holding the assets of such decedent is mismanaging, wasting or diverting, or wili mismanage, waste or divert said assets from their proper administration, the county judge shall require such executor to give a bond with sufficient security conditioned as the law directs; and this bond may be required although the will may exempt said executor from giving the bond. The executor shall have such notice as the county judge may prescribe and the right to appear and defend the proceedings.

Hlstory.-§99, ch. 16103, 1933; CGL 1936 Supp. 6641(38); §2, ch. 22783, 1945.

732.64 Insufficiency of bond.-Wben any person interested in the estate of a decedent files with the county judge of the county wherein

the administration is pending a petition, from which petition and evidence adduced thereon it is made to appear to the county judge that the sureties on any bond given by a personal representative or curator are insolvent or insufficient or that the bond is insufficient in amount, said county judge shall enter an order requiring additional sureties or an additional bond, as the circumstances may require.

Hlstoey.-§100, ch. 16103, 1933; CGL 1936 Supp. 6641(39); §2. ch. 22783, 1945.

732.65 Liability of surety.-No surety for any personal representative or curator shall be charged beyond the assets of an estate by reason of any omission or mistake in pleading or of false pleading of such executor, administrator or curator.


732.66 County judge to act on his own motion.-Whenever it is known to the county judge of a county where administration of any estate has been granted that cause exists which would authorize him upon the application of others to require a personal representative or curator to give bond or to give additional surety, said judge shall, of his own motion, without the application of any other person, make such orders as he may deem proper.

Hlstory.-§102, ch. 16103, 1933; CGL 1936 Supp. 6641(41); §2. ch. 22783, 1945.

732.67 Informality of bond.-No bond executed by any personal representative or curator shall be void or invalid on account of any informality in it, or of informality or illegality in the appointment of such fiduciary. Such bond shall have the same force and effect as if the appointment had been legally made and the bond executed in proper form.

Hlstoey.-§103, ch. 16103, 1933; CGL 1936 Supp. 6641(42); §2, ch. 22783, 1945.

732.68 Release of surety.-(!) The surety or sureties, or the personal

representative of any surety or sureties, upon the bond of any executor, administrator or curator, taken under the provisions of this law, shall be entitled as a matter of right to be released from future liability upon such bond, upon application to the county judge therefor and the giving of five days' written notice of application to the principal named in the bond.

(2) Pending the hearing of such application, the county judge may, in his discretion, restrain the principal from acting in his representativ~ capacity, except to preserve the estate.

(3) Upon the hearing, the county judge shall enter an order prescribing the terms and amount of the new bond for such fiduciary and the date when same shall be filed. If the principal fails to give the new bond, he shall be removed at once and further proceedings be had as in cases of removal.

( 4) The original surety or sureties shall be

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liable for all acts of the fiduciary until he bas given the new bond and after the giving of the new bond shall remain liable for all the fiduciary's acts to the time of the filing and approval of the new bond. The new surety shall be liable for the fiduciary's acts only from and after the filing and approval of the new bond. The costs of the proceeding shall be paid by the surety applying

to be released. HletoJT.-§104, ch. 18103, 1988; CGL 1838 Supp. 15641(48);

§2, ch. 22783, 1945.

732.69 County judge may reduce bond.The county judge may, for good cause shown, reduce the amount of bond of personal representatives of estates.

Hlstory.-§1, ch. 29715, 1955.

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Ch. 733 FLORIDA PROBATE LAW, THIRD PART Ch. 733

CHAPTER 733

FLORIDA PROBATE LAW, THIRD PART

. 733.01 Personal representative to take posses- 733.28 Order of sale. sion of entire estate and application 733.29 Additional bond upon sale. of estate income. 733.30 Sales upon terms.

733.011 Application of uniform principal and 733.31 When personal representative may pur-income law. chase.

733.02 Actions relating to real estate. 733.32 Conveyances pursuant to contracts of 733.03 Inventory. decedent. 733.04 Appraisers. 733.33 Sale of contract to purchase. 733.05 Duties of appraisers. 733.34 Sale of real property subject to contract 733.06 Inventories and appraisals as evidence. to purchase. 733.07 Compensation of appraisers. 733.35 Sale of real property subject to mort-733.08 Continuance of business of decedent. gage. 733.09 Duty to assign dower. 733.36 Sale of stocks and bonds. 733.10 Petition for assignment. 733.361 Stock held in the name of personal rep-733.11 Petition by widow for assignment of resentative.

dower. 733.37 Interest in partnership. 733.12 Proceedings on the petition. 733.38 Lease of real property. 733.13 Commissioners. 733.39 Borrowing money and mortgaging prop-733.14 Final judgment. erty. 733.15 Notice to creditors. 733.40 Power of personal representative to 733.16 Form and manner of presenting claims; execute instruments.

limitation. 733.41 Purchaser protected. 733.17 Amendment of claims. 733.42 Limitation in favor of purchaser from 733.18 Payment of and objections to claims. personal representative. 733.19 Execution and levies prohibited. 733.43 Annual returns. 733.20 Order of payment of expenses of ad- 733.44 Contents of returns.

ministration and claims against the 733.45 Objection to returns. estate; family allowance. 733.46 Trial of objections.

733.21 Compromise and settlement. 733.47 Examination of returns not objected to. 733.211 Claims undisposed of after three years 733.48 Recording settlement.

barred. 733.49 Order requiring returns; contempt of 733.22 Sale pursuant to will. court. 733.23 Sales where no power conferred. 733.50 Compulsory settlements. 733.24 Sale on petition of interested persons. 733.51 Production of assets. 733.25 Sale of real property when widow sur- 733.52 Devastavit.

vives. 733.53 Who may suggest devastavit. 733.26 When notice of sale required. 733.54 Waiver of statute of limitations, inter-733.27 Hearing on application to sell. nal revenue matters.

733.01 Personal representative to take pos- cies, debts, family allowance, estate and insession of entire estate and application of es- heritance taxes, claims, charges and expenses tate income.- of administration, and to enforce contribution

(1) The personal representative shall take and to equalize advancement and for distribupossession of the personal property whereso- tion. ever situate of a person who hereafter dies a (2) The net income earned by the assets of resident of the state, and shall take possession the estate after the death of the testator, and of the real estate (except homestead) within prior to the distribution of the estate, and not the state of such a deceased person, and the used for the purposes set forth in subsection rents, income, issues and profits therefrom (1) above shall in the absence of specific proviwhether accruing before or after the death of sion in the will to the contrary be paid and the decedent, and of the proceeds arising from applied as follows: the sale, lease or mortgage of the same or any (a) To either specific or demonstrative part thereof. The personal representative shall legatees and devisees the net income from the take possession of the real and personal prop- property specifically or demonstratively beerty within the state of a person who hereafter queathed and devised to them respectively; dies a resident of some other state or coun- (b) To general legatees, legal interest on try, and the rents, income, issues and profits their respective legacies from the time fixed by therefrom whether accruing before or after the the county judge in an order of distribution for death of the decedent, and of the proceeds the payment thereof, or if no date is fixed by arising from the sale, lease or mortgage of the the county judge, from and after thirty days same or any part thereof. All such property from the entry of such order of distribution, and the rents, income, issues and profits there- except that where the general legacy provides from shall be assets in the hands of the per- that the net income therefrom shall be paid sonal representative for the payment of lega- to or for the benefit of or accumulated for one

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or more beneficiaries, then such general legatee or legatees shall be entitled to that proportion of the net income which the general legacy at appraised value bears to the appraised value of the entire probate estate, excluding specific and demonstrative legacies and devises, provided, however, that the appraised value shall be the court appraisal unless a United States estate tax return is required to be filed, in which event the appraised value shall be the value finally determined for such tax purposes.

(c) To the residuary legatees and devisees, all the rest and remainder of the net income earned after the death of the testator not hereinabove applied.

(3) If any part of the estate is bequeathed or devised to a trustee the proportion of the net income applied to such bequest or devise shall be paid by the executor to such trustee and shall be held and distributed by the trustee as income.

(4) This section shall apply to estates of all decedents dying on or after July 1, 1953.

Hlstory,-§105, ch. 16103, 1933; CGL 1936 Supp. 5541(87); 1 § 1, 2, ch. 20413, 1941; §3, ch. 22783, 1945; am. §1, ch. 28025, 1953; sub. § (1) am. f1, ch. 29893, 1955. cf.-1734.07, Advancements.

733.011 Application of uniform principal and income law.-

(1) The uniform principal and income law, chapter 690, shall be applicable to principal and income of the estates of decedents entered in probate after July 1, 1965.

(2) Whenever the word "trustee" shall appear in said chapter 690, the words "personal representative" shall be substituted wherever applicable as heretofore provided, to the administration of the estate of a decedent in probate.

Blstory.-§1, ch. 65-231.

733.02 Actions relating to real estate.-Personal representatives may bring and maintain actions or suits for the possession or recovery of real property of the estate, for the purpose of quieting the title thereto, for waste thereof and trespass thereon, and against cotenants of the decedent in real property for the partition thereof. Heirs and devisees of the decedent may themselves, or jointly with the personal representative, bring and maintain actions or suits for the possession or recovery of real property of the estate or for the purpose of quieting title thereto against anyone except the personal representative. In any suit to quiet title brought by an heir or devisee, the possession of the personal representative shall, for the purpose of such suit, be deemed the possession of the heir or devisee. In all actions or suits involving the title to real property, against an estate for the possession or recovery of real property or for the purpose of quieting title thereto, the personal representative and the heirs or devisees of such property shall be made parties.

Hlstory.-§106, ch. 16103, 1933; CGL 1936 Supp. 5541(88); am. §3, ch. 22783, 1945. cf.-§734.21, Survival of actions.

§734.30, Actions by or against foreign representatives.

733.03 Inventory.-The personal representative shall file a complete inventory of the personal property wheresoever situate of a person who hereafter dies a resident of Florida, and of the real estate (except homestead) within the state of the estate of such a decedent. The personal representative shall file a complete inventory of the real and personal property within the state of a person who hereafter dies a resident of some other state or country. The inventory shall be filed within sixty days from the date of the granting of letters unless the time is extended by order of the county judge.

Blstory.-§107, ch. 16103, 1933; CGL 1936 Supp. 5541(79); f3, ch. 22783, 1945; fl. ch. 29894, 1955. cf.-1733.37, Inventories; Interests In partnerships.

733.04 Appraisers.-The county judge on granting letters testamentary or of administration shall appoint two or more competent person& not of kin to the deceased as appraisers of the property of the decedent, and said appraisers shall take oath truly and justly to view and appraise, according to the best of their ability, all the property of the decedent which to them shall oe produced or which shall come to their knowledge. It shall not be necessary to appoint appraisers or to have any appraisement whenever the county judge dispenses with the appraisal of an estate.

Hlstory.-§108, ch. 16103, 1933; CGL 1936 Supp. 5541(80); am. §3, ch. 22783, 1945; §8, ch. 22847, 1945.

733.05 Duties of appraisers.-On the appointment of the appraisers they shall forthwith proceed to appraise all the property which has been produced to them and which has come to their knowledge and file the appraisal in the office of the county judge; and the appraisal thereupon made, if signed by the personal representative, may be considered as an inventory of such part of the estate.


733.06 Inventories and appraisals as evi· dence.-Inventories and appraisals, or certified copies thereof, may be given in evidence in any suit by or against the personal representative; however, they shall not be conclusive, for or against him, as to the real value of the estate or any part thereof, or as to whether it or any part thereof was sold bona fide for more or less than the appraised amount.

History .-§110, ch. 16103, 1933; CG L 1936 Supp. 5541 (82) ; am. §3, ch. 22783, 1946.

733.07 Compensation of appraisers.-Each appraiser shall be entitled to receive for his services reasonable compensation, to be fixed by the county judge and paid by the personal representative. Application therefor shall be accompanied by an affidavit of each appraiser showing the services rendered by him as appraiser and the reasonable value thereof, and such application may be heard upon such notice as the county judge shall fix.

History.-§111, ch. 16103, 1933; CGL 1936 Supp. 6641(811); am. §3, ch. 22783, 1946.

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Ch. 733 FLORIDA PROBATE LAW. THIRD PART Ch. 733

733.08 Continuance of business of decedent.-

(1) In every case where a person has died while engaged in any trade or business, the county judge may authorize the curator or the personal representative of the estate of such deceased person to continue and carry on such trade or business for a reasonable time under thE' supervision of the county judge and require such security or additional security of such curator or personal representative as the county judge may deem proper.

(2) Before any order shall be made authorizing the continuance of the trade or business of the deceased person, the curator or the personal representative of such estate, by a verified petition, shall affirmatively and clearly allege and set forth sufficient facts to make it appear to the county judge that, to prevent great loss to the estate, it is necessary to continue such trade or business of the deceased.

(3) The order of the county judge authorizing the continuance of such trade or business of the deceased may empower the curator or the personal representative of such estate, in his representative capacity, to make such contracts as may be necessary to carry on and conduct such trade or business and to incur debts and to pay out money in the proper conduct of such trade or business, and the net profits of such trade or business only shall be assets of the said estate.

( 4) In the conduct of such trade or business the curator or the personal representative shall keep full and accurate accounts of all receipts and expenditures, he shall make monthly reports thereof to the county judge, and he shall be allowed such compensation as the county judge may deem reasonable for his services in conducting such trade or business.

(5) Any person interested in the said estate at any time may apply to the county judge of the county where such order has been granted for an order requiring the curator or the personal representative of such estate to discontinue and to wind up the said trade or business, and upon due notice to the said curator or personal representative, such application shall be heard, and the county judge shall make such order thereon as he deems for the best interest of said estate.


733.09 Duty to assign dower.-The personal representative shall lay off and assign dower immediately after the widow has exercised her election to take dower.

Hlatol'T.-1113, ch. 16108, 1933; CGL 1936 Supp. 6607(4); am. §3, ch. 22783, 1946.

733.10 Petition for assignment.-For the purpose of enabling the personal representative to lay off and assign dower, he shall file a petition therefor in the county judge's court in which the administration of the estate of the decedent is pending. Citation shall be served upon the widow and the heirs, devisees, legatees and distributees,

or such of them as do not appear and join in the proceedings.

Hl•tor;r.-1114, ch. 16108, 1933; CGL 1986 Supp. 6607(6); am. 18, ch. 22783, 1946.

733.11 Petition by widow for assignment of dower.-

(1) If the personal representative fails to file a petition for the assignment of dower, the widow may file such petition, setting forth her claim, specifying as particularly as may be known to her the property in which she claims dower and praying for the assignment of the same. Citation shall be served upon the personal representative, the heirs, devisees, legatees and distributees, or such of them as do not appear and join in the proceedings.

(2) The widow may in addition file her extraordinary petition or petitions for assignment of dower in the county judge's court of any county or counties in this state where any lands lie which her husband had before conveyed, whereof she had not relinquished her right of dower as provided by law. Citations shall be served upon all persons adversely interested. Proceedings thereupon shall be, as nearly as possible, similar to those for the ordinary assignment of dower.

Hlstor:r.-1116, ch. 16103, 1933; 17, ch. 17171, 1986; CGL 1936 Supp. 6607 (6) : am. 13, ch. 22783, 1946.

733.12 Proceedings on the petition.-(1) The proceedings upon any petition for

assignment of dower shall be informal and summary.

(2) On any petition for assignment of dower, the right of dower as well as the admeasurement thereof, shall be determined, and mesne profits from the date of the death of the decedent shall be included in the judgment. The county judge in whose court the administration of the decedent's estate is pending shall have plenary jurisdiction to assign dower in all property, real or personal, located in any county in the state. But no such judgment shall become effective in any other county until a duly certified copy thereof has been recorded in such other county in the judgment lien record.

(3) (a) Upon written demand of any party filed at least one week before trial, the question of right of dower shall be submitted to a jury of six persons.

(b) If there are not sufficient number of jurors available, the court shall draw from the box to be immediately summoned by the sheriff, or shall direct the sheriff to summon a sufficient number of qualified jurors, to complete the panel for the trial of such cause.

Blatory.-§116, ch. 16103, 1933; CGL 1936 Supp. 5507 (7); §3, ch. 22783, 1945; §1, ch. 67-482.

733.13 Commissioners.-If a judgment for dower is made, the county judge shall select (unless selected by mutual agreement of the parties) and appoint as commissioners three suitable persons who are entirely disinterested and not connected with the parties either by consanguinity or by affinity. Such commissioners may employ a surveyor and shall be al-

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Ch. 733 FLORIDA PROBATE LAW, THIRD PART

lowed such sum as may be deemed reasonable by the county judge to be paid as part of the costs of administration of the estate. They may be removed by the county judge for good cause shown and others appointed in their places. They shall proceed, immediately upon taking oaths faithfully and impartially to execute the trust imposed in them, to allot and set off the widow's dower. All matters of mesne profits shall be decided by the court upon the pleadings and evidence; provided, however, that when the interested parties agree to the allotment of dower, or when the assets are of such value and such a nature that dower may be allotted without the appointment of commissioners, the county judge may, in his discretion, dispense with such appointment and set off and allot dower.

Hlstory.-1117, ch. 16103, 1933; CGL 1986 Supp. 6507(8); §3, ch. 22783, 1945; 11, ch. 29714, 11155.

733.14 Final judgment.-In all cases of assignment of dower, the county judge to whom application is made shall, upon bearing after notice, confirm, reject or modify the allotment or assignment made. Such judgment shall vest in the widow a fee simple estate in the lands and the absolute ownership of the personal property allotted. She shall be entitled to writ of possession if necessary.

Hlator:y.-1118, ch. 16108. 1933; CGL 1986 Supp. 111107(9) ; §3, ch. 22783. 1945.

733.15 Notice to creditors.-Every personal representative, after taking out letters testamentary or of administration, shall cause a notice to be published once a week for four consecutive weeks, four publications being sufficient, in a newspaper published in the county wherein said letters have been granted, notifying all persons having claims or demands against the estate of the decedent to file their claims in the office of the county judge granting such letters, at his office in the courthouse of said county, within six calendar months from the time of the first publication of said notice. If no newspaper conforming to the requirements of law is published in the county of the administration, then such publication shall be made by posting as provided for in this law. Proof of said publication or posting shall be filed with and recorded by the county judge.

Hlstory.-§119, ch. 16103, 1933; CGL 1936 Supp. 6641(91); §3, ch. 22783, 1945 ; §2, ch. 61-394.

733.16 Form and manner of presenting claims; limitation.-

(1) No claim or demand, whether due or not, direct or contingent, liquidated or unliquidated, or claim for personal property in the possession of the personal representative or for damages, including but not limited to actions founded upon fraud or other wrongful act or commission of the decedent, shall be valid or binding upon an estate, or upon the personal representative thereof, or upon any heir, legatee or devisee of the decedent unless the same shall be in writing and contain the place of residence and post-office address of - the claimant, and

shall be sworn to by the claimant, his agent or attorney, and be filed in the office of the county judge granting letters. Any such claim or demand not so filed within six months from the time of the first publication of the notice to creditors shall be void even though the personal representative has recognized such claim or demand by paying a portion thereof or interest thereon or otherwise; and no cause of action, at law or in equity, heretofore or hereafter accruing, including but not limited to actions founded upon fraud or other wrongful act or omission, shall survive the death of the person against whom such claim may be made, whether suit be pending at the time of the death of such person or not, unless such claim be filed in the manner and within the said six months as aforesaid;

(a) Provided, however, that if suit upon any such claim or demand is filed and service of proces!' the:.;ei~ ha!l upon such personal representative w1thm s1x months from the time of th~ first publication of the notice to creditors the claim or demand asserted by such suit shali not be impaired or affected by failure to file in the office of the county judge granting letters a claim or demand in manner and form as hereinabove provided, but such failure shall operate to preclude the plaintiff in such suit from recovering any suit costs or attorneys fees as an incident thereto; and the personal representative shall file in the office of the county judge granting letters a suggestion of the pendency of such suit and the same shall be entered on the claim docket;

(b) Provided further, that the lien of any duly recorded mortgage and the lien of any person in possession of personal property and the right to foreclose and enforce such mortgage or lien shall not be impaired or affected by failure to file claim or demand as hereinabove provided, but such failure shall bar the right to enforce any personal liability against the estate, and the claimant shall be limited to the enforcement of the mortgage or lien against the apecific property so mortgaged or held. Any suit heretofore commenced and in which service of process was bad upon the personal representative within the period hereinabove specified, and which may now be pending in any conrt against the personal representative of any estate which has not been finally closed, shall not be subject to attack upon the ground that the claim or demand upon which such suit is based was not made in manner and form and filed in the office of the county judge granting letters, as otherwise hereinabove provided.

(c) Provided further that a creditor shall deliver a copy of such claims as recorded and filed to the county judge, who shall forthwith mail said copy to the personal representative, and note on the original such fact of mailing.

(d) Provided, further, no claims or demand of any kind or nature shall be impaired or affected by failure to file claim or demand as hereinabove provided, to the extent that such claim or demand is secured by any casualty

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insurance, surety insurance, automobile or pubHe liability insurance, or other similar insurance, but failure to file such claim or demand as hereinabove provided shall bar the right to enforce any personal liability of the deceased against the estate except to the extent of such insurance.

(2) Nothing herein contained shall be construed to require any legatee, devisee or heir at law to file a claim, as provided for in subsection (1), for the share or interest in an estate to which he may be entitled. Nor shall such requirement of filing a claim apply to those items contained in §733.20(1) (a),(b),(d), (i) and (j), but it shall apply to those items contained in §733.20(1) (c),(e),(f),(g) and (h).

(3) Any claim filed in any estate during the period of time between July 1, 1961, and July 1, 1963, which was filed within eight months from the first publication of notice to creditors but after six months from the first publication of notice to creditors, may, upon just cause shown to the county judge, be allowed as if it had been filed within six months from the first publication of notice to creditors provided there had not been an order of final distribution entered prior to the actual filing of the claim or the effective date hereof and the claimant can show to the satisfaction of the county judge that the allowance of the claim as though properly filed within six months from the first publication of the notice to creditors will not materially adversely affect the orderly administration of the estate. Provided further the time for filing suit upon objections filed to claims filed under this section is extended to July 1, 1963.

Hlstory.-§120, ch. 16103, 1933; CGL 1936 Supp. 6641(92); §3, ch. 22783, 1945; §1, ch. 22889, 1945; §1, ch. 23970, 1947; §1, ch. 57-194; §3, ch. 61-394; §1, ch. 63-309; §1, ch. 67-246; §1, ch. 67-490. cf.-§733.35, Mortgages.

§§734.27-734.29, Suspension ot statutes ot limitations.

733.17 Amendment of claims.-If a bona fide attempt to file a claim is made by any creditor or other claim-ant-but it is defective as to form, the county judge in his discretion may permit the amendment of such claim at any time before payment.

Hlstory.-§121, ch. 16103. 1933; CGL 1936 Supp. 6641(93); §3, ch. 22783, 1945.

733.18 Payment of and objections to claims. (1) No personal representative shall be com

pelled to pay the debts of the decedent until after the expiration of six calendar months from the granting ·of letters; and if any person brings any suit or action against any personal representative within said six calendar months

tion to any claim or demand filed. An objection filed to any unmatured claim matures the same for the purpose of the establishment of the validity and amount thereof by suit. If objection is filed, the person filing it shall, forthwith, but not later than thirty days after same has been filed, serve a copy of such objection by registered mail or personal service on the creditor or claimant to whose claim he objects and also on the personal representative if the objection is filed by any interested person other than the personal representative. Failure to serve copy of such objection as herein provided shall constitute an abandonment of the objection unless the time for service thereof be extended by the county judge for good cause shown. The creditor or claimant shall thereupon be limited to two calendar months from the date of such service within which to bring appropriate suit, action or proceedings upon such claim or demand. The county judge for good cause shown may extend the time for filing objection to any claim or demand or the time for serving such objection, and may likewise for good cause shown extend the time for filing appropriate suit, action or proceedings upon any such claim after objection is filed; but in any of said instances, said extension of time shall be granted only after due notice of such application. No suit, action or proceeding shall be brought against any personal representative after the time limited above. If objection is filed to the claim of any creditor and suit is brought by the creditor to establish his claim or demand, a judgment establishing such claim shall give it no priority over claims of the same general class to which it belongs.

(3) No interest shall be paid by the personal representative or allowed upon the claim of any creditor against the estate of a decedent until the expiration of eight calendar months from the granting of letters unless said claim is founded upon a written obligation of the decedent expressly providing for the payment of interest. Interest shall be allowed and paid by the personal representative upon written obligations of the decedent expressly providing for the payment of interest. Upon all other claims interest shall be allowed and paid beginning eight months from said granting of letters.

History .-1122, ch. 16103, 1933; CG L 1936 Supp. 6641 (94) ; §3, ch. 22783, 1945; §1, ch. 28209, 1953; §1, ch. 61-394; U, ch. 63-454. ct.-§1.01 Defines registered mall to Include certified mall with

return receipt requested .

upon any claim to whic'h the personal repre- 733.19 Execution and levies prohibited.-No sentative has filed no objection, the plaintiff, execution shall issue upon or be levied under any although he obtains decree or judgment, shall judgment against a decedent or against the pernot receive any costs of suit or attorneys' fees, sonal representative, nor shall any levy be made

shall such judgment change the class of against any property, real or personal, of the es-claim in any manner. tate of a decedent. Claims upon all judgments

On or before the expiration of eight cal- against the decedent shall be filed in the same months from the first publication of manner as other claims against estates of deto creditors any personal representative cedents: provided, however, that the provisions

other person interested in the estate may file of this section shall not be construed to prevent the office of the county judge written objec- the enforcement of mortgages, pledges, liens or

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claims to specific property, real or personal. Hlatory.-§123, ch. 16103, 1933; §8, c:tl. 1.7171, 1936; CGL

1936 Supp. 5541 (95); §3, ch. 22783, 1945.

733.20 Order of payment of expenses of administration and claims against the estate; family allowance.-

(!) The personal representative shall pay the expenses of administration and claims against the estate in the following order:

(a) Class one. Costs, expenses of administration, compensation of personal representatives and their attorneys' fees.

(b) Class two. Reasonable funeral expenses not to exceed the sum of seven hundred fifty dollars any excess over the sum allowed herein for fu~eral expenses shall be considered as included in the payments specified to be made in class eight.

(c) Class three. Expenses of last illness of the decedent, including debts for board and lodging, for hospital, physicians, surgeons', and druggists' bills, and for nursing, attendance and medicine during the last sickness of the deceased, incurred within a period of sixty days prior to the death of the decedent.

(d) Class four. If necessary for support. a family allowance of one year's support for the widow or minor, mentally or physically incompetent children of said decedent, or both such widow and children, in addition to the hornestead and exempt personal property. Upon petition of the widow, if any, or of the legal guardian or of the person having the care and custody of a minor child or children, upon notice to the personal representative, a reasonable allowance shall be fixed by the county judge in personal property or money, or both, for the support of said widow and minor children, considering the needs of the family and the value of the estate. Said allowance or the portion payable in money shall be payable in equal periodic payments to be fixed by the county judge and shall be payable to the widow, if any, for the support of herself and the minor child or children, if any. If there is no widow, then the same shall be payable to the legal guardian or to the person having the care and custody of any minor child or children. Upon the petition of any person interested in the estate, the county judge may increase, decrease, discontinue or modify the allowance; but in no event shall such allowance exceed the sum or value of twelve hundred dollars.

(e) Class five. Wages to the extent of one hundred dollars for each employee of the decedent, for work done or services rendered within sixty days prior to the d~ath of the employer.

(f) Class six. Judgments of record in this state during the lifetime of the decedent.

(g) Class seven. Mortgages, mechanics', material-men's, laborers', employees' and other liens where the value of the property of the estate encumbered by said liens exceeds the amount thereof.

(h) Class eight. All other debts without distinction of rank.

(i) Class nine. If, upon petition of the widow or minor children of decedent, upon notice to the personal representative, it shall appear that the family allowance provided under paragraph (d) of this subsection is insufficient for the reasonable support of said widow or minor children, or both, according to their previous standard of living, then the county judge may order the payment of a supplemental family allowance from the assets of decedent's estate remaining after full provision for payment of prior claims, which in his opinion will reasonably support said petitioners; provided, however, that such supplemental allowance shall not exceed the sum of three thousand dollars. Said supplemental allowance shall be payable in such manner as the county judge shall direct, and shall be subject to discontinuance or modification in the same manner as the family allowance provided for under paragraph (d) hereof.

(j) Class ten. In case the decedent, dying testate, lea•:es a natural or adopted child less than eighteen years of age without a legally responsible surviving natural or adoptive parent and without adequate means for support and maintenance in its own right by will, gift or trust, such child shall be deemed a dependent orphan child of the decedent. In addi- · tion to any temporary allowance for maintenance during the period of a.dministration 11s provided by paragraph (d) hereof, the court, on petition of any interested party or on its own motion, shall make such additional provision for such child until its eighteenth birthday as the court deems reasonable and just, subject to the limitations hereinafter set forth. The court may increase, discontinue or modify such allowance, but before entering any order fixing or changing any allowance hereunder the court shall require notice to all interested parties. This provision is designed to afford reasonable protection to any dependent minor child who has been excluded from the provisions of the parents' will under circumstances which deprive it of an effective legal substitute for the continuing obligation of the parent, while living, for support and maintenance during the period of its minority. It is not intended that this provision should have the effect of creating in any child omitted from the provisions of its parent's will an estate which would exceed the value of its distributive share had the deceased parent died intestate. The court in its discretion, and in order to conclude the administration of the estate, may order the entire allowance hereunder paid in a lump to a guardian of the child's property fixing the amount thereof the court sider the net value of the estate distribution and the reasonable of the child prospectively in relation eighteenth birthday.

(2) If, after paying any preceding the estate shall be insufficient to pay all of

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next succeeding class, the creditors or claimants of the latter class shall be paid ratably in proportion to their respective claims.

Hllltory.-§124, ch. 16103, 1933; CGL 1936 Supp. 6541(96); f3, ch. 22783, 1945; 11, ch. 25274, 1949; sub. I (ll(b), am. IL ch. 29678, 1955; (1) (b) a . by §1, ch. 61-63; (1) (d) a. by f1, ch. 111-391. cf.-§1734.02-734.04, Payment of legacies and distributive

shares. §734.05, Order of appropriation of assets.

733.21 Compromise and settlement.-Whenever it is proposed to compromise or settle any claim, whether in suit or not, by or against the estate of a decedent or the personal representative thereof, or to compromise or settle any question or dispute concerning the distribution of a decedent's estate, the county judge having jurisdiction of said decedent's estate, on sworn petition setting forth the facts and circumstances of such claim, question or dispute and the proposed compromise or settlement may, if satisfied that such compromise or settlement will be for the best interests of the estate, enter an order ex parte authorizing the same to be made, which order shall operate to relieve the said personal representative of any and all liability or responsibility in the premises; provided, however, that claims against the estate may not be compromised until after the time for filing objections to claims has expired and then only upon notice to those who have filed objection to the claim proposed to be compromised.

Hletory.-§125. ch. 16103. 1933; CGL 1936 Supp. 6641(97); §3, ch. 22783, 1945.

733.211 Claims undisposed of after three years barred.-

(!) Whenever anyone shall have filed a claim against any estate in any probate proceedings in this state, in accordance with this chapter, and which claim has not had objection filed thereto or has not been paid, settled or otherwise disposed of and no proceeding is pending for the enforcement or compulsory payment thereof, then at the- expiration of three years from the date such claim is filed- such claim shall be forever barred and foreclosed and have no further force or effect and no proceeding or action shall thereafter ever be brought for enforcement or payment of same. This section shall not affect the lien of any duly recorded mortgage or the lien of any person in possession of personal property or the right to foreclose and enforce such mortgage or lien.

(2) This section shall not apply to any claim upon which legal proceedings are brought for enforcement or compulsory payment of same on or before January 1, 1954.

Blstory.-§§1, 2, ch. 28180, 1953.

733.22 Sale pursuant to will.-In every case where a power is given in a will to sell or dispose of property of the estate, or any interest therein, a sale made under authority of such will by the executors, or such of them as qualify, or by the surviving executor or executors shall be valid. Sales made under authority of such will by the administrator with the will annexed, or by the administrator de bonis non

shall also be valid if it appears from the will that the testator intended to confer such power to representatives of his estate other than the named executor or executors.

Hletory.-§126, ch. 16108, 1933; CGL 1936 Supp. 6541(98); §3, ch. 22783, 1945 ; §1, ch. 65-284.

733.23 Sales where no power conferred.Whenever any administrator of a decedent dying intestate, or any executor or administrator with the will annexed whose testator has not conferred upon him a power of sale or whose testator has granted such-power but that 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 therein that the property of the estate be sold for distribution or for any other purpose, the personal representative may sell the same at public or private sale; provided, however, that no title shall pass until by order of the county judge the sale shall be authorized or confirmed. Sales may be authorized before made or confirmed after made. Application for authorization or confirmation of sale shall be made by the sworn petition of the personal representative setting forth the reasons for such sale, a description of the property sold or proposed to be sold, and except when authorization or confirmation of the sale at the current market of stocks or bonds listed upon an established exchange is applied for, the price and terms of such sale.

Hlatory.-§127, ch. 16103, 1933; CGL 1936 Supp. 5541(99); §3. ch. 22783, 1945 ; §9, ch. 22847, 1945. cf.-§733.36, Sale of stocks and bonds.

§733.40, Execution of Instruments by representative.

733.24 Sale on petition of interested persons.-If a personal representative neglects or refuses to sell property of an estate when it is expedient or necessary to do so or when a testator has directed a sale to be made, any person interested may, by petition, apply to the county judge for an order requiring the personal representative to sell. Notice of such petition shall be given to the personal representative and to such persons as would be entitled to notice in case of the application of the personal representative for authorization or confirmation of a sale of such property.


733.25 Sale of real property when widow survives.-In any case when a decedent is survived by a widow, no sale or disposition of real property shall be made, whether pursuant to the powers contained in the decedent's will or under the provisions of this law, until it appears that the widow will not have dower assigned to her, or, if she takes dower, until after her dower has been assigned, unless the widow consents to such sale and joins with the personal representative in the execution of a deed of conveyance to the purchaser thereof.

Hlstory.-§129, ch. 16103, 1933; CGL 1936 Supp. 6541(101); §3. ch. 22783, 1945.

733.26 When notice of sale required.-(1) No notice of any application for the

authorization or confirmation of any sale shall

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be required when it shall appear that the personal property involved is perishable or rapidly depreciating.

(2) No notice of any application for the authorization or confirmation of any sale shall be required in any other case except as follows:

(a) Whenever it shall appear to the county judge that notice is necessary or desirable, notice shall be given to such persons as the county judge shall by order direct.

(b) Whenever application is made for the authorization or confirmation of the sale of property which has been specifically devised or bequeathed, notice shall be given to the devisee or legatee, unless he waive such notice or consent to such sale.

(c) Whenever any person interested in the estate shall serve upon the personal representative a written demand for notice of sale, containing the post-office address of such person, and file a copy of such demand and proof of the service thereof in the office of the county judge, notice of every application thereafter made for the authorization or confirmation of any sale shall be given to such person, unless he waive such notice or consent to such sale.

(d) Whenever the will of a decedent shall contain a direction or express a desire that any described or designated property be not sold, notice of application for the authorization or confirmation of the sale of any such property shall be given to the legatee or devisee of such property, unless he waive such notice or consent to such sale.

(e) Whenever application is made for the authorization or confirmation of the sale of any property for distribution.

History .-§130, ch. 16103, 1933; CG L 1936 Supp. 6541 (102) ; §3, ch. 22783, 1945; §10, ch. 22847, 1945.

733.27 Hearing on application to sen.Where no notice is required, the county judge may hear and determine petitions for the sale of property ex parte. Where notice is required, such hearings shall be as in other cases. At any such hearing the county judge may in his discretion require an appraisal or new appraisal of the property.

Hlstoey.-§131, ch. 16103, 1933; CGL 1936 Supp. 6541(103); §3, ch. 22783, 1945.

733.28 Order of sale.-(1) SALE GENERALLY.-After the hear

ing upon a petition to sell or confirm the sale of property, the county judge shall make and enter an orcier thereon, and if the sale is authorized or confirmed, the order shall describe the property, and if said property is authorized to be sold at private sale, the order shall fix the price and the terms of sale. Such order shall be prima facie evidence of the validity of the proceedings and of the authority of the personal representative to make a conveyance or transfer of the property. A certified copy of such order relating to real property may be recorded in the judgment lien record in the office of the clerk of the circuit court in each county wherein such real property or any part thereof is situated. When an order

authorizing a sale is obtained, it may provide for the public or private sale of any of the property described therein, in parcels or as a whole. If public sale is ordered, the personal representative shall give such notice as the order may require.

(2) SALE BY COMMISSIONER.-In the order of sale, or at any time before a sale authorized to be made by an executor or by an administrator, the county judge, whenever he deems it necessary, may appoint a commissioner to make the sale and to execute whatever instruments may be necessary to consummate it. Any sale made by such commissioner shall be in compliance with the law governing sales by executors and administrators. Any sale so made by a commissioner under such an order shall be as valid as though made by the executor or administrator.

History.-§132, ch. 16103, 1933; CGL 1936 Supp. 5541(104) • §3, ch. 22783, 1945; §11, ch. 22847, 1945. '

733.29 Additional bond upon sale.-Whenever the county judge makes an order authorizing or confirming a sale of property of an estate he may in his discretion require the personai representative to execute a bond or an additional bond, with sureties as provided in this law in such amount as the county judge may d~em necessary, conditioned for the faithful accounting of the proceeds of such sale. No such bond shall, in any case, be required where the personal representative is a bank or trust company. All such bonds shall be recorded in the office of the county judge.

22~:i.t~r{i5.""§133, ch. 16103, 1933; CGL 5541(105); §3, ch.

cf.-§732.62, Bond by a surety company.

733.30 Sales upon terms.-When so provided by the order of the county judge authorizing or confirming a sale of property, personal representatives may sell upon such terms as the order prescribes. If credit is given, it shall be for not more than sixty per cent of the purchase price nor for longer than five years, unless the county judge, in his discretion by written order authorizes a larger per cent of credit. The c~unty judge, in his dis~re!ion by written order, may also enlarge the bme for payment. The exercise of such discretion shall be evidenced by written order duly recorded. The deferred purchase price shall be evidenced by the promissory note of the purchaser payable to the personal representative ~nd secured by mortgage upon the property sold, If real property, or by such security as may be approved by the court in any case. The taking of any such promissory note and mortgage or other security shall not defer the final settlement of the estate, but, in the event of final settlement before the payment in full of such note the same together with the mortgage or othe; securitv' may be assigned and transferred without re= course to such person or persons who but for such sale, would have been entitled to the property so sold.

Hlstory.-§134, ch. 16103, 1933; COL 5541 (106); §3, ch. 22783, 1945; §12, ch. 22847, 1945.

733.31 When personal representative may purchase.-Any personal representative having

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an interest in the estate which he represents, either in his own right or in the right of his wife or infant child, as creditor, devisee, legatee or heir at law may, at any public sale of the real or personal property of his testator or intestate made as provided by law under the order of the county judge, become a bidder therefor; and, if such personal representative is the highest bidder at such sale, he may purchase the same, and said property shall be sold to such executor or administrator, but such sale shall always be subject to confirmation by the county judge.

Blstory.-§135, ch. 16103, 1933; COL 5541(107); §3, ch. 22783, 1945

733.32 Conveyances pursuant to contracts of decedent.-ln all cases where written agreements have been made for the sale and conveyance or transfer of real property in this state or of personal property, and the vendor has died before making such conveyance or transfer, the personal representative or person claiming the right to such conveyance or transfer mlt.y file with the county judge before whom the administration of the estate is pending a sworn petition setting forth the facts upon which the claim is predicated and annexing thereto the agreement or a copy thereof. The county judge, if he deems notice of hearing on said petition necessary or desirable, shall direct who should have the same and the· manner in which it shculd be given. After a hearing upon such petition and the defenses, if any, made thereto, the county judge may make an order directing the personal representative to make, execute and deliver the conveyance or transfer to the person entitled to the same, or otherwise as justice may require. Such order shall describe the property to be conveyed or transferred. Said order shall be 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 such order relating to real property may be recorded in the miscellaneous records in the office of the clerk of the circuit court in any county wherein such real property or any part thereof is situated.

History .-§136, ch. 16103, 1933;. CG L 6541 (108) ; am. §8, ch. 22783, 1945; am. §1, ch. 23717, 1947.

733.33 Sale of contract to purchase.-If a decedent at the time of his death was possessed of a contract for the purchase of real property, the interest of the estate in such property and under such contract may be sold by the personal representative in the same manner as if the decedent had been the owner in fee simple of such property; provided, the holder of the fee simple title to such property and of the vendor's interest thereto shall execute a release to the personal representative relieving the estate from liability upon such contract. Such release shall not be required if no claim has been filed on such contract and if the time for filing claims has expired. In lieu of such release the personal representative may, upon order of the county judge, take from the purchaser of such contract a bond approved by the county judge with

sureties in a penal sum double the amount due and to become due under such contract, conditioned that the purchaser will make all payments upon such contract and perform all agreements therein contained according to the tenor thereof and indemnify and save harmless the personal representative and all persons interested in the estate against all demands, costs, charges and expenses by reason of such contract.

Hlatory.-§137, ch. 16103, 1933; CGL 1936 Supp, 6641(109); am. §3, ch. 22783, 1946.

733.34 Sale of real property subject to contract to purchase.-If a decedent at the time of his death was the owner of real property subject to a contract to sell and convey said property, the interest of the estate in such property and such contract may be sold under order of the county judge in the same manner as other real estate. No recourse shall be had against the estate or the personal representative for the nonpayment or nonperformance by the vendee under any such contract. The consent of the vendee under any such contract to the sale thereof shall discharge the estate and the personal representative from all obligations, duties and liabilities with respect to such contract, but such consent shall not be required if no claim has been filed thereon and the time for filing claims has expired.


733.35 Sale of real property subject to mortgage.-The county judge may, upon petition of the personal representative and with the written consent of the holder of the mortgage, authorize the sale of real property of the estate subject to mortgage, whether such mortgage was made by the decedent, the personal representative or any other person. The consent of the mortgagee shall discharge the estate and the personal representative from liability for the mortgage indebtedness or obligation. Such consent shall not be required if no claim has been filed upon the mortgage indebtedness and the time for filing claims has expired.

Hlatory.-§139, ch. 16103, 1938; CGL 1936 Supp. 6641(111); am. §3, ch. 22783, 1945. cf.-§733.16, Presenting claims.

733.36 Sale of stocks and bonds.-The county judge may, upon petition of the personal representative, make an order authorizing the sale, at the current market price, of any stocks or bonds which are listed upon an established stock or bond exchange, and such order need not otherwise designate the price at which such sale shall be made.


733.361 Stock held in the name of personal representative.-Upon entry of an order or decree of a court of competent jurisdiction, the personal representative or representatives shall have the power and authority to hold any corporate stock, mutual investment trust shares, registered bonds, notes, debentures, or revenue certificates issued by any corporation,

3713


government, municipality, or subdivisions or agencies thereof, in the name of the sole personal representative or in the name of one or more of the several personal representatives, or in the name of a nominee, with or without disclosing any fiduciary relationship; but for all acts and omissions of the personal representative or representatives in whose names such property is held, and of such nominee relating to such property, all the personal representatives shall be jointly and severally responsible.

History.-§! , ch. 61-329 ; §2, ch . 65-106.

733.37 Interest in partnership.-When at the time of his death, a partnership existed between the decedent and any other person, the surviving partner shall, in the absence of a partnership agreement providing otherwise, without delay, wind up and settle the business and the affairs of the partnership, account to the personal representative and pay over to him all balances due the estate. If, however, at date of the partner's death, there existed a partnership agreement specifying the terms and conditions of termination of the partnership upon death of a partner, then such agreement shall be binding with respect to all matters, duties, rights and obligations relating to the partnership, including the determination of its final accounting period. The interest of the decedent in the partnership shall be included in the inventory of the estate. The personal representative may bring and maintain against the surviving partner any action, suit or pruceeding relating to the partnership which the decedent could have brought. Any interest of an estate existing by virtue of a partnership between the decedent and any other person may be sold in the same manner as other property of the estate.

Hlstory.-§141, ch. 16103, 1933; COL 1936 Supp. 6541(143) ; t3, ch. 22783, 1945 ; §1, ch. 26583, 1951.

733.38 Lease of real property.-Whenever it appears expedient and for the best interest of the estate to lease any real property of the estate, the county judge may authorize the personal representative to make such lease. The proceedings in such cases shall be, as nearly as possible, the same as in cases of application for the sale of property, except that notice shall be given to all persons interested in the estate. The personal representative may lease real property without an order of court when the tenancy is from month to month or for a term not extending beyond the time for filing claims against the estate.

Hlstory.-§142, ch. 16103, 1933; COL 1936 Supp. 6641(118); §3, ch. 22783, 1945.

733.39 Borrowing money and mortgaging property.-Whenever it appears expedient or

such sum as the county judge shall deem proper. The proceedings in such cases shall be, as nearly as possible, the same as in cases of applications for the sale of property, except that notice shall be given to all persons interested in the estate. In like manner the county judge may authorize the personal representative to extend or renew any existing obligation of the estate or to extend or renew any existing mortgage, pledge or other lien. The signing of promissory notes or the execution of any agreement or other instrument creating a pledge or other lien by the personal repre8entative, as such, shall create no personal liability against the person so signing or executing.

History -t143, ch. 16103, 1933; COL 1936 Supp. 6541(114); §3, ch. 22783, 1945. cf.-§733.2a, Sales where no power conferreu.

§734.30, Mortgages held by foreign representatives.

733.40 Power of personal representative to execute instruments.-Whenever the county judge authorizes or confirms any sale, authorizes the borrowing of money or the execution of any mortgage, agreement or other instrument creating a lien or a lease, or authorizes the distribution in kind of any property, the personal representative may make, execute, sign, seal, acknowledge and deliver in his name as such personal representative all deeds, bills of sale, assignments, instruments of transfer, promissory notes, mortgages, pledges, leases or any instruments necessary or proper to carry out and give effect to such orders.

Blatory.-§144, ch. 16103, 1933; COL 1936 Supp. 6641(116); §3, ch. 22783, 1945.

733.41 Purchaser protected.-No person purchasing or leasing from, or taking a mortgage, pledge or other lien from a personal representative shall be bound or concerned to see that the money or other things of value paid to such personal representative are actually needed or properly applied; nor shall such person be otherwise obligated as to the proprieties or expediences of the acts of such personal representative. In all such transactions the acts of the personal representative pursuant to the powers of a will or the order of the county judge shall be prima facie valid.

Hlstory.-§146, ch. 16108, 1933; CGL 1936 Supp. 6541(116): §3, ch. 22783, 1945.

733.42 Limitation in favor of purchaser from personal representative.-The title of any purchaser, or of anyone holding under him, who has held possession for three years or more, of any property, real or personal, purchased at any sale made under this law by an executor or administrator, free from fraud, shall not be questioned by any person upon any ground.

Hlstory.-§146, ch. 16103, 1933; CGL 1938 Supp. 6641(117) §3, ch . 22783, 1945.

necessary and for the best interest of the estate 733.43 Annual returns.-to borrow money upon a promissory note, either (1) A personal representative, unless oth-unsecured or to be secured by a mortgage, pledge erwise ordered by the court, shall make his anor other lien upon the property of the estate or nual returns on or before ninety days after the any part thereof, the county judge may by order expiration of the fiscal year, the election whereauthorize the personal representative to borrow of he shall signify by filing notice thereof with

3714


the court within ninety days of his appointment, or, in the absence of such notice of election, on or before April first of each year for the calendar year or fraction of a calendar year expiring on December thirty-first preceding. If he fails to make such returns before the time applicable he shall, in the discretion of the county judge, forfeit all commissions on such returns so to be made; provided, however, that if the time for filing claims against the estate has expired prior to the end of the fiscal or .calendar year, or shall expire within thirty days thereafter, the persona l representative, may, in lieu of making annual returns, file his final returns within ninety days from the expiration of the fiscal year or on or before April 1 after expiration of the calendar year and apply for a discharge. If he fails to make his annual reports within such times as above specified, then, when such returns are made, he shall immediately give written notice of the filing of such returns to all persons interested in the estate being administered by him.

(2) When there is a single heir or beneficiary, or where all of the heirs or beneficiaries are sui juris and consent thereto in writing, it shall not be necessary to file a final accounting, nor to advertise notice thereof, nor shall it be necessary to file annual accountings, unless required in either case by the county judge.

History.-§147, ch. 16103, 1933; CGL 1936 Supp. 5541(118); §3, ch. 22783, 1945; §13, ch. 22847, 1945; §1, ch. 26735, 1951: §2, ch. 29714, 1955; §1, ch. 59-267. cf.-§734.15, Accounting upon removal.

§734.22, Final settlement and discharge.

733.44 Contents of returns.-A personal representative in his returns shall render a full and correct account of the receipts and expenditures of all the estate of which he may have control, and include therein a statement of the assets of the estate. Substantiating papers shall not be filed with accountings, but pertinent substantiating papers and records shall be available at a trial of objections to accountings, and all substantiating papers and records shall be preserved by the personal representative for three years after his discharge.

Hlstory.-§148, ch. 16103, 1933; CGL 1936 Supp. 5541(119); am. §3, ch. 22783, 1945; 2nd par. n. by §2, ch. 59-267.

representative shall serve a copy of the returns upon the person who filed the demand therefor and shall file proof of the service thereof in the office of the county judge. Objection may be filed to the returns at any time within thirty days after the service of copy thereof.

History.-§149, ch. 16103, 1933; §9, ch. 17171, 1935; CGL 1936 Supp. 5541(120); am. §3, ch. 22783, 1945.

733.46 Trial of objections.-If objections to accounts are filed, the personal representative or the objecting party may, after the expiration of the time limited for filing objections upon reasonable notice to the other, apply to the county judge who shall fix a day for the hearing. Upon the conclusion of the hearing, an order shall be entered by the county judge finally sustaining or overruling the objections, and he shall thereupon proceed to enter his order thereon.

Hlstory.-§150, ch. 16103, 1933; CGL 1936 Supp. 5541(121); am. §3, ch. 22783, 1945; §3, ch. 59-267.

733.4 7 Examination of returns not objected to.-If no objection is filed to returns within the time limited by law for filing objections, the county judge shall proceed to examine said returns and enter his order approving the same or requiring such proof of the items contained therein as the county judge shall find desirable.

History.-§151, ch. 16103. 1933; §10, ch. 17171, 1935: CGL 1936 Supp. 5541(122): am. §3, ch. 22783, 1945 ; §4, ch. 59-267.

733.48 Recording settlement.-There may be recorded in the office of the county judge any instrument settling an account in whole or in part, executed by the personal representative and any one or more legatees, devisees, heirs or claimants. To be entitled to record, any such instrument shall be acknowledged or sworn to by the parties before any officer authorized to take acknowledgments or to administer oaths, and the record thereof or a duly certified copy shall be admitted as prima facie evidence thereof and of its due execution without requiring proof of the execution.

History.-§152, ch. 16103, 1933; CGL 1986 Supp. 5541(123): §3, ch. 22783, 1945.

733.49 Order requiring returns; contempt of court.-When any personal representative fails or neglects to make the annual returns

733.45 Objection to returns.-Upon the fil- as required by this law, the county judge shall ing of returns with the county judge by a per- issue an order directing said personal represonal representative, any person interested as sentative to make such returns within fifteen creditor, legatee, distributee, devisee or heir at days from the service upon him of such order, law may, within thirty days after the time limited or show cause why he should not be compelled by law for filing the same, file objection in writ- to do so. A copy of such order shall be served ing to the account or any item thereof, specify- upon the personal representative. If the said ing the ground of objection. No item previously personal representative fails, neglects or reapproved by order of the county judge upon no- fuses without good cause shown to file such retice shall be subject to objection. If any per- turns within the time specified by said order, sonal representative fails to file his annual re- the county judge shall forthwith issue a citation turns on or before the first day of April in any directed to said personal representative to show year, any person interested in the estate may cause why he should not be adjudged in confile in the office of the county judge a written de- tempt of court for such failure or neglect; and mand for service of a copy of the returns, which if such personal representative fails to show demand shall contain the post-office address of just cause, the county judge may forthwith adthe person filing the same. If any demand is on judge said personal representative to be in confile at the time the returns are filed, the personal tempt of court, and said person shall stand

3715

Ch. 733 FLORIDA PROBATE LAW, THffiD PART Ch. 733

committed for contempt until he makes the annual returns.

Hlstory.-§153, ch. 16103, 1933; CGL 1936 Supp. 5541(124); am. §3, ch. 22783, 1945; §5, cb. 59-267.

733.50 Compulsory settlements.-Although an executor may, by the terms of the will appointing him, be exempted from making settlements with returns to the county judge, and although no mismanagement or waste is charged against him, upon the application of any creditor, legatee, distributee, devisee, heir or surety, the county judge shall make an order directing the personal representative to file such accounts and to make such settlements and distribution in whole or in part as is deemed necessary for the proper administration of said estate. Such order may also be made by the county judge upon his own motion.

Hlstory.-§154, ch. 16103, 1933; CGL 1936 Supp. 6541(126); a.m. §3, ch. 22783, 1945. cf.-§734.15-734.19, Settlement upon removal.

733.51 Production of assets.-Upon the petition of any creditor, legatee, distributee, devisee or heir at law, or upon his own motion if he deems it necessary for the proper administration of said estate, the county judge may require any personal representative to produce satisfactory evidence that the assets of the estate are in his possession or under his control and, if necessary or proper, may order the production of such assets for the inspection of ·such creditor, legatee, distributee, devisee or heir at law, or of said judge.

Hlstory.-§166, ch. 16103, 1933; CGL 1936 Supp. 6641(84); §3, cb. 22783, 1945.

733.52 Devastavit.-When an action suggesting a devastavit is brought against any person.al representative, if such personal representative cannot show that he has fully administered according to law, he and his sureties shall be personally charged to the extent of assets not duly administered by him.


733.53 Who may suggest devastavit.-An action suggesting devastavit may be brought against the personal representative by any person interested in the estate. When a personal representative resigns, dies or is removed an acti?n su&:gesting .devastavit may also be bro~ght agamst h1m or h1s executors or administrators an~ ~gainst his surety or sureties by the remammg or successor personal representative.


733.54 Waiver of statute of limitations, internal revenue matters.-Any executor or administrator, duly appointed by any county judge in the state and qualified to act under such appointment, may enter into agreements with the proper officer or department head commissioner or agent, of any department ~f the government of the United States waiving the statute of limitations with respect to the assessment and collection of any federal tax or any deficiency in any federal tax· provided, however, that any such agreement shall be first approved by the county judge having jurisdiction of the administration of the estate.

Hlstory.-§1, cb. 25108, 1949.

3716

Ch. 734 FLORIDA PROBATE LAW, FOURTH PART Ch. 734

CHAPTER 734

FLORIDA PROBATE LAW, FOURTH PART

734.01 Expenses and compensation. 734.02 Delivery of legacies and distributive

shares. 734.03 Proceedings for the payment of legacies

or distributive interest. 734.031 Distribution; transfer of assets in kind

to surviving spouse. Distribution. Apportionment of estate taxes. Order in which assets are appropriated. Mortgage on devised real property;

liability for payment. Abatement and contribution. Advancements. Exempt estates. Resignation of personal representative. Appointment of successor upon res-

ignation. Causes of removal of personal repre-

sentative. Jurisdiction in removal proceedings. Proceedings for removal. Administration following removal. Accounting upon removal. Surrender of assets upon removal. Proceedings for commitment. Commitment proceedings; by whom in-

stituted. Order on proceedings for commitment. Proceedings on bond of removed per

sonal representatives. Survival of action upon resignation or

removal.

734.01 Expenses and compensation.-(!) A personal representative shall be al

lowed all necessary expenses and attorney's fees paid in the care, management and settlement of the estate. A personal representative shall be allowed commissions upon the amount of the estate, real and personal, accounted for by him as compensation for his ordinary services as follows:

(a) For the first one thousand dollars at the rate of six per cent; all above that sum and not exceeding five thousand dollars at the rate of four per cent; and all above five thousand dollars at the rate of two and one-half per cent.

(b) In addition to the aforesaid commissions a personal representative shall be allowed

further compensation as the court may just and reasonable for any extraordinary

including the sale of real estate or property, the conduct of litigation on or against the estate, the adjustment

..... '"'"'""" of extensive or complicated estate taxes, the carrying on of the dece

uu••u''""" pursuant to an order of court, other special services which may be

ne<~es:saty for the personal representative to

provision is made by the will of for compensation to a personal

"""n'"""'l""1'1't.st·~;v,._ the compensation fixed by such

734.22 Final settlement and discharge. 734.221 Disposition of unclaimed funds held

by personal representatives. 734.23 Effect of -discharge. 734.24 Suit upon bond. 734.25 Determination of beneficiaries. 734.26 Subsequent administration. 734.27 Suspension of statutes of limitations in

favor of personal representative. 734.28 Suspension of statutes of limitations in

favor of claimants. 734.29 Limitations against unadministered

estates. 734.30 Foreign personal representatives. 734.31 Ancillary administration. 734.32 Application for administration upon

estates of persons believed to be dead. 734.33 Evidence of presumption. 734.34 Order of presumption. 734.35 Letters of administration; force and

effect. 734.36 Revocation of letters on proof that sup

posed decedent is alive. 734.37 Substitution of supposed decedent in

actions. 734.38 Probate of will of person believed to be

dead. 734.39 Notice to administrator and other per

sons. 734.40 Letters to executor of will of supposed

decedent.

will shall be iil full satisfaction for his services in lieu of the compensation provided, unless by an instrument filed with the county judge he renounces all claim to the compensation given by the will.

(d) 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 any one of such multiple personal representatives for ordinary services shall not exceed the compensation specified in paragraph (a), nor the total compensation allowed all such multiple personal representatives for ordinary services be less than one commission computed in accordance with paragraph (a) hereunder nor more than the sum of two such commissions.

(2) Any attorney who has rendered services to an estate or the personal representative may apply to the court by petition for an order mak~ ing an allowance for attorney's fees, and, after notice to persons adversely affected, the court shall make such order with respect thereto as shall be proper.

(3) In annual and final returns, the personal representative shall be entitled to credit for such reasonable sums as he may have paid for the services rendered to the estate by an attorney and his expenses in connection therewith.

3717


Objections may be made to the allowance of such items as in other cases, unless the said items have been previously allowed by the county judge.

(4) If the personal representative is a practicing attorney at law of this state and has rendered legal services in connection with his official duties, be shall be allowed such fees therefor as shall be just and reasonable.

Hlatory.-§158, ch. 16103, 1933; CGL 1936 Supp. 5541(90); am. §4, ch. 22783, 1945: am. §1, ch. 24295, 1947. (2) a . §10, ch. 26484, 1951; (1) (d) by §1, ch. 59-59; (1) (a) a . by § 1, ch. 61-163. cf.-1732.58, Compensation of administrators ad litem.

734.02 Delivery of legacies and distributive shares.-No personal representative shall be required to pay or deliver any legacy ~r distributive share or to surrender possessiOn of any land to any heir or devisee until the expiration of eight calendar months from the granting of letters. Any payment, delivery or surrender made by the personal representative prior to that time shall be made at his risk.

Hlatory.-§159, ch. 16103, 1933; CGL 1936 Supp. 5541(127); f4, ch. 22783, 1945; f4, ch. 61-394. cf.-§731.23, Descent and distribution ; order.

§133.40, Power of representative to execute Instruments.

734.03 Proceedings for the payment of legacies or distributive interest.-

(!) Before any personal representative is compelled to pay, prior to the final settlement of his accounts, any legacy in money or to deliver any specific personal property bequeathed to any person (unless such personal property is exempt personal property) which may have come i~to his hands, or to pay all or any part of any distributive share in the personal estate of said decedent, or to surrender any land to any heir or devisee, the heir, devisee, legatee or distributee shall file in the office of the county judge a petition setting forth the facts which entitle him to the relief prayed and stating that the property will not be required for the payment of debts, family allowance, estate and inheritance taxes, claims, charges and expenses of administration, or for providing funds for contribution or enforcing equalization in case of advancements; and citation shall be served upon or notice given to the personal representative. Upon the return day, or upon such other day as may be fixed by the county judge, he shall make appropriate order as he shall deem proper under the circumstances.

(2) An order directing the surrender of real estate or the delivery of any specific personal property shall describe the property to be surrendered or delivered; and such order, unless and until revoked or unless reversed on appeal, shall be conclusive in favor of bona fide purchasers for value from such heir, devisee, legatee or distributee as against the personal representative and all other persons claiming by, through, under or a.~:Cainst the decedent or his estate.

(3) If the administration of the estate, except the distribution thereof, has not been completed prior to the entry of any order of distribution, the county judge in his discretion may require the person entitled to such distribution

to give a bond with adequate sureties, to be approved by the county judge, conditioned to make due contribution for the payment of legacies, debts, demands and all costs which may be awarded, if any such debt or demand is duly presented within the time limited by law, and for family allowance, estate and inheritance taxes, claims, charges, expenses of administration and equalization in case of advancements.

Hlatory.-§160, ch. 16103, 1933 ; CGL 1936 Supp. 5541(128); am. §4, ch. 22783, 1946.

734.031 Distribution; transfer of assets in kind to surviving spouse.-

(1) Whenever under any last will and testament or trust indenture the executor, trustee or other fiduciary is required to, or has an option to, satisfy a bequest, devise or transfer in trust to or for the benefit of the surviving spouse of a decedent by a transfer of assets of the estate or trust in kind at the values as finally determined for federal estate tax purposes, the executor, trustee or other fiduciary shall, in the absence of contrary provisions in such will or trust indenture, satisfy such bequest, devise or transfer by the distribution of assets, including cash, fairly representative of the appreciation or depreciation in the value of all property available for distribution in satisfaction of such bequest, devise or transfer.

(2) This act shall take effect September 1, 1965, and shall apply to wills of decedents dying before or after such date and to trust agreements executed before or after such date; provided, however, that this section shall not be applied so as to require repayment to the fiduciary of any distributions actually made prior to such date, nor to impose any obligation or liability upon the fiduciary by reason of distributions actually made prior to such date.

Hlstory.- §§ 1, 2, ch. 65-161

734.04 Distribution.-After 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 made for the payment thereof, and before the final settlement of the accounts of the personal representative, he may apply by petition for an order authorizing him to surrender the possession of any designated or described real estate to the heir or devisee or to deliver any specific property or to make any distribution of the assets of the estate, and an order entered upon such petition shall have the same effect as though entered upon the petition of the heir or devisee as hereinbefore provided. Upon the approval of the final accounts of the personal representative, he shall surrender the possession of all real estate to the heir or entitled thereto and pay over and distribute personal property to those entitled thereto. order of final discharge of the personal sentative shall be evidence of such surrender distribution, and unless revoked or unless versed on appeal, shall be conclusive as to

3718


rights of all heirs, devisees, legatees and distributees.

Hlstory.-§161, ch. 16103, 1933; COL 1936 Supp. 6641(129); am. §4, ch. 22783, 1946.

734.041 Apportionment of estate taxes.(1) Any estate, inheritance, or other death

tax levied or assessed under the provisions of the tax laws of this or any other state or political subdivision thereof, or country or of any United States revenue act, with respect to any property required to be included in the gross estate of a decedent under the provisions of any such law, shall be apportioned in the following manner:

(a) If any portion of the estate passed under the will of a decedent as a specific bequest or devise, or general legacy, or in any other nonresiduary form (exclusive of property over which the decedent had a power of appointment as defined from time to time under the estate tax laws of the United States), the net amount of the tax attributable thereto shall, except as otherwise directed by the will, be charged to and paid from the residuary estate of the testator without requiring contribution from persons receiving such interests. In the event the residuary estate is insufficient to pay the tax attributable to such interests, any balance of such tax shall, except as otherwise directed by the will, be equitably apportioned among the recipients of such interests in the proportions that the value of each such interest included in the measure of such tax bears to the total of all such interests so included.

(b) If any portion of the estate passed under the will of the decedent as a residuary interest (exclusive of property over which the decedent had any such power of appointment), the net amount of the tax attributable thereto shall, except as otherwise directed by the decedent's will, be equitably apportioned among the residuary beneficiaries in the proportions that the value of the residuary interest of each included in the measure of such tax bears to the total of all residuary interests so included; provided, that where any residuary interest is an interest in income or an estate for years or for life or other temporary interest, the tax attributable thereto shall be charged to corpus and not apportioned between temporary and remainder estates.

(c) If any portion of the property with respect to which such tax is levied or assessed is held under the terms of any trust created inter vivos or is subject to such a power of appointment, the net amount of the tax attributable thereto shall, except as otherwise directed by the trust instrument with respect to the fund established thereby, or by the decedent's will, be charged to and paid from that portion of the corpus of the trust property or the property subject to such power of appointment included in the measure of such tax, as the case may be, and shall not be apportioned between temporary and remainder estates.

(d) Real property homesteads which are exempt from execution as defined by the laws

of Florida shall be exempt from apportionment of taxes. Persons taking an interest in such homesteads shall not be liable for apportionment of taxes on account of such homesteads. The net amount of the tax attributable to such homestead property shall be paid from other assets of the probate or intestate estate in the order provided by §734.05, and the homestead shall not be subjected to contribution to such tax until the estate's assets are exhausted.

(e) The balance of the net amount of the tax, including, but not limited to, any tax imposed with respect to gifts in contemplation of death, jointly held properties passing by survivorship, property passing by intestacy, or insurance, shall, except as otherwise directed by the decedent's will, be equitably apportioned among and charged to and paid by the recipients and beneficiaries of such properties or interests in the proportion that the value of the property or interest of each included in the measure of such tax bears to the total value of all such properties and interests included in the measure of such tax; provided, that where any such property or interest is an interest in income or an estate for years or for life or other temporary interest, the amount so charged to such recipients or beneficiaries shall not be apportioned between temporary and remainder estates but shall be charged to and paid out of the corpus of such property or fund.

(2) As used in this section: (a) The net amount of tax attributable to

the interests encompassed by any one of paragraphs (a) through (e) of subsection (1) shall be such portion of the net amount of the tax as finally determined, together with interest thereon, as the value of interests included in the measure of such tax and included in such paragraph bears to the amount of the net estate, except that in the case of an inheritance or similar tax, the tax that is imposed on each beneficiary's interest as determined under the law of the state or country or political subdivision thereof then under consideration shall be deemed the tax attributable to such interest.

(b) The term net estate shall mean the gross estate as defined by the estate, inheritance or death tax laws of the particular state or country or political subdivision thereof whose tax is being apportioned hereunder less the deductions, other than the specific exemption, allowed by such laws. All proportions based on net estate :.;hall be determined without regard to any diminution in deductions resulting from the charge of any portion ·of the tax to a deductible interest.

(c) The term included in the measure of such tax shall not include any property or interest whether passing under the will or not to the extent such property or interest is exempt, or is initially deductible from the gross estate, without regard to any subsequent diminution of such deduction by reason of the charge of any portion of the tax to such property or interest.

3719


(d) The word value shall mean the pecuniary worth of the interest involved as finally determined for purposes of the esta~e, de1;1-th or inheritance tax then under consideration without regard to any diminution thereof by reason of the charge of any portion of tax thereto.

(e) Except when the. will or ?ther ~overning instrument otherwise provides, m the event any credit is given under the estate t.ax laws of the United States for any estate, Inheritance or death taxes paid to other countries or political subdivisions thereof, s'!c?: credit shall be apportioned among the recipients of interests finally charged with the payment of such foreign tax in reduction of any United States estate tax chargeable to such recipients or interests whether or not such United States estate tax is attributable to such foreign interests; any excess of such cre.dit shall be applied in reduction of that portwn of United States estate tax chargeable to residue, and any excess of such credit over. the United States estate tax chargeable to residue shall be apportioned ratably among th~se persons or interests finally charged With the balance of the payment of United States estate tax.

(3) Unless otherwise directed by the will of the decedent, the tax shall be paid by the executor or administrator out of the estate. In all cases in which any property required to be included in the gross estate does not come into the possession of the executor or administrator, he shall, in cases where property of a trust created inter vivos or property subject to a power of appointment is included in such gross estate, be entitled, and it shall be his duty, to recover from the fiduciary in possession of the corpus of such trust or of property subject to such power of appointment, and in all other cases from the recipients or beneficiaries of property or interests with respect to whic~ such tax is levied or assessed, the proportionate amount of such tax payable by such fiduciary or persons with which they are char.geable under the provisions of this act, unless reheved of such duty as provided in subsection (6) ; provided that this subsection shall not authorize the recovery of any taxes hereunder from any company issuing any policy of insurance included in the gross estate, or from any bank, trust company, savings and loan association, or similar institution with respect to any account of which it is a depositary standing in the names of the decedent and any other person or persons which passed by operation of law on the death of the decedent. In any case where the fiduciary brings an action to recover a share of tax apportioned to an interest not within his control, any judgment he may obtain may, in the discretion of the court, include costs and reasonable attorney's fees.

(4) No executor, administrator, or other fiduciary shall be required to transfer any property until the amount of any tax due from the transferee is paid, or, if the apportionment

of tax has not been determined, adequate security is furnished for such payment; provided, that in no event shall the fiduciary be required to distribute assets which he reasonably anticipates may be necessary to pay any state or federal taxes.

(5) After the amount of all estate, inheritance and death taxes is finally determined, the executor, administrator or other fiduciary shall petition the county judge's court having jurisdiction of the estate for an order of apportionment and shall give notice of such petition and the hearing thereon by publication once a week for four consecutive weeks, such hearing to be at least twenty-eight days after the first date of such publication, except that where all persons affected by such order are sui juris or properly represented by a natural or legal guardian and consent thereto in writing, such notice shall not be necessary. The fiduciary shall be entitled to, and it shall be his duty (except as provided in subsection (6) ), to attempt to effect apportionment as determined by the order entered upon such hearing, and such apportionment shall be prima facie correct in proceedings in any court or jurisdiction. The fiduciary shall not be required to seek collection of any portion of tax attributable to any interest not within his control until after the entry of such order of apportionment.

(6) (a) Any executor, administrator, or other fiduciary who shall have the duty under this act of collecting the apportioned tax from persons interested in the estate, may be relieved of such duty to collect the tax or to attempt to collect the same if the coun,ty judge enters an order, after notice and hearing as provided in subsection (5), on a petition filed by such fiduciary finding one or more of the following:

1. That the estimated court costs and at. torney fees in collecting the apportioned tax from a person interested in the estate will approximate the amount of the recovery.

2. That the person interested in the estate is a resident of a foreign country other than Canada and refuses to pay the apportioned tax on demand.

3. That it is impracticable to enforce contribution of the apportioned tax against any person interested in the estate in view of the improbability of obtaining a judgment or the improbability of collection under any judgment that might be obtained, or otherwise.

(b) Provided, that in no event shall the fiduciary be liable for failure to attempt to enforce such collection if such attempt would in fact have been economically impracticable; and provided, further, that nothing herein contained shall limit the right of any person who shall have been charged with more than the amount of the tax apportionable to him to obtain contribution from those who shall not have paid the full amount of the tax apportionable to them, respectively, which right is hereby expressly conferred.

(c) In the event the fiduciary obtains an

3720


order as hereinabove contemplated, the share of tax to which it refers shall be paid from assets of the probate or intestate estate in the order provided by §734.05. Any apportioned tax which is not collected shall also be paid from such assets in such order.

(7) This section shall apply: (a) To estates of decedents dying after the

effective date hereof; (b) To estates of decedents dying after May

13, 1957, provided such decedent had by will directed apportionment of taxes to nonprobate assets consistent with the provisions hereof, and, provided, further, either that the taxes on such estate had been charged and paid consistent with such provision, or that such estate is still in the process of administration and the estate tax has not been finally determined and paid.

Bistory.-§§ 1·4, ch. 25435, 1949 ; §1, ch. 57-87 ; §1, ch. 57-1976 ; §1, ch. 63-106 ; (1), (2) §1, ch. 65-230. cf.- §198.26 No discharge of executor until tax Is paid.

§731.34 Dower In realty and personalty .

734.05 Order in which assets are appropriated.-

(1) If a testator makes provision by his will or designates the funds or property to be used for the payment of debts, estate and fnheritance taxes, family allowance, charges and expenses of administration and legacies, the same shall be paid out of the funds, or from the property or proceeds thereof, as provided or designated by the wills so far as sufficient. If no provision is made, nor any fund designated, or if it is insufficient, the property of the estate shall be used for such purposes (except as otherwise provided in §734.041 with respect to estate, inheritance and other death taxes) and to raise the shares of pretermitted spouse and children in the following order:

(a) Property not disposed of by the will. (b) Property devised or bequeathed to the

residuary legatee or legatees. (c) Property not specifically or demonstra

tively bequeathed or devised. (d) Property specifically or demonstra

tively bequeathed or devised. (2) No priority shall exist as between real

and personal property. Hlstory.-§162, cb. 16103, 1933; CGL 1936 Supp. 6541(130);

§4, ch . 22783, 1945 ; (1) §24, ch . 57-1; (1) §1, ch. 65-105. cf.-§733.20, Order of payment of clalm8.

734.051 Mortgage on devised real property; liability for payment.-The specific devisee of mortgaged real pr.operty shall be entitled to have the mcwtgage on devised real property paid at the expense of the residue of the estate only when the will shows such an implied or expressed intent.

mstory.-§1, ch. 65-543.

given to such directions or intentions. Unless such directions are given or such intention appears, residuary legacies and devises shall first abate; general legacies and devises shall next abate, and specific and demonstrative legacies and devises shall abate last. Demonstrative legacies shall be classed as general legacies, upon the failure or insufficiency of fund or property out of which payment should be made, to the extent of such insufficiency. Legacies or devises to the decedent's widow given in satisfaction of or in lieu of her dower or statutory rights in the estate shall not abate until other legacies and devises of the same class are exhausted. Legacies and devises given for a valuable consideration shall abate with other legacies of the same class only to the extent of the excess +hereof over the amount of value of the consideration until all others of the same class are exhausted. Except as herein provided, legacies and devises shall abate equally and ratably and without preference or priority as between real and personal property. When property, real or personal, which has been specifically devised or bequeathed or charged with a legacy is sold or taken by the personal representative, other legatees or devisees shall contribute according to their respective interests to the legatee or devisee whose legacy or devise has been sold or taken, and the county judge shall, before distribution, determine the amounts of the respective contributions, and the same shall be paid or withheld before distribution is made.

Hlstor;y.-§163, cb. 16103, 1933; CGL 1936 Supp. 6M1(181); am. §4, cb. 22783, 1946. cf.-1733.01, Posseaston of estate of decedent.

734.07 Advancements.-When any person has received any advancements from an intestate in his lifetime and any of the next of kin, by petition, alleges that such advancement bas been made, the same shall be determined by the county judge upon hearing after citation or notice to the personal representative and other persons interested and, unl~s the person to whom such advancement was made or those claiming through him renounce his or their interest in the estate, such advancement as of the value at the time made, without interest, shall be taken into account in determining the distribution of the estate and charged against the person to whom such advancement was made or those claiming -through him. No personal representative shall be held responsible for having made distribution before such a petition has been filed and citation served upon or notice given to him. The statute of limitations shall not apply to advancements.

Hlstorr.-1164, ch. 16103, 1933; COL 1938 Bupp, 5541(1321; am. §4, ch. 22783, 1946.

734.08 Exempt estates.-If at any time during the course of administration it is made to appear to the county judge by petition that the

734.06 Abatement and contribution.-When- estate consists of no more than the homestead ever the assets of a testate estate are insufficient and exempt personal property of the decedent, or for the full payment of debts, estate and inherit- in the event the allegations of said petition are ance taxes, family allowance, charges and ex- denied by trial of the issues made, be may therepenses of administration, devises and legacies upon direct and order the distribution of said and when the will directs or discloses an inten- estate among the persons entitled to receive the tion as to the order of abatement, effect shall be same, and upon said distribution, may thereupon

3721


enter his order relieving, releasing and discharging the personal representative.

ms&ory.-§164, ch. 16103, 1933; COL 1936 Supp. 5541 (132); am. §4, ch. 22783, 1946. cf.-1731.27, Homesteads.

1731.34, Dower. 1§735.01-735.051, When admlnlatratlon unnecessary.

734.09 Resignation of personal representative.-Any personal representative may, upon petition to and with the approval of the county judge of the cou~ty whert:; letters were. granted, resign and be reheved of hts office ; provided, that notice is given to all interested persons of the filing of said petition; and provided, further, that before making an order relieving the personal representative from the duties and obligations as such the county judge shall require him to make and file a true and correct account of his administration and to pay over and deliver to his successor or to his coexecutor or coadministrator or both, as the case may be, any and all of the property of the deceased and all books of account, bonds, notes or other securities, documents, papers or other property of or concerning the estate, together with all the sums of money due the estate by him; and provided, always, that the acceptance of such resignation shall not be eonstrued to exonerate any personal representative or his sureties from any liabilities previously incurred. The county judge, before making such order, shall be satisfied that the interest of the estate will not be placed in jeopardy by such action.

Hlstory.-§166, ch. 16103, 1933; CGL 1936 Supp. 6641(44); am. 14, ch. 22783, 1946.

734.10 Appointment of successor upon resignation.-When there is no coexecutor or coadministrator, a successor must be appointed and duly qualified before a personal representative shall be relieved of his duties and obligations as provided in §734.09.


734.11 Causes of removal of personal representative.-Any personal representative may be removed and his letters revoked for any of the following causes, and such removal shall be in addition to, and not in lieu of, any other penalties prescribed by law:

(1) Insanity. (2) Habitual drunkenness or continued sick

ness rendering him incapable of the discharge of his duties.

(3) Failure to comply with any order of the county judge, unless such order has been superseded on appeal.

( 4) Failure to return schedules of property sold or accounts of sales of property, real or personal, or to produce and exhibit the assets of the estate when so required.

(5) The wasting, embezzlement or other maladministration of the estate.

( 6) Failure to give bond or security for any purpose, when so required by the county judge in accordance with the requirements of law.

(7) Conviction of a felony. (8) Failure of the resident personal repre-

sentative removing from the state to designate a resident agent or representative with his residence and post-office address.

(9) The appointment of a receiver or liquidator for any corporate executor or administrator.

(10) Conflicting or adverse interest held by the personal representative against the estate, but this shall not apply to the widow because of electing to take dower or claiming family allowance or exemptions.

Hlatory.-§168, ch. 16103, 1933; CGL 1936 Supp. 6641(46); 1•. eh. 22783, 1945; aub. 1 (10), eomp. 11, eh. 29718, 191111. cf.-1§732.45-732.49, Who may be appointed personal rep

rMentatlve.

734.12 Jurisdiction in removal proceedings. -Petition for removal must be made to the court from which the letters were issued.

Hletory.-§169, ch. 16103, 1933; CGL 1936 Supp. 6641(47): am. 14. ch. 22783, 1945. cf.-1732.01, .Jurisdiction generally.

734.13 Proceedings for removal.-Proceedings for removal may be instituted by the county judge of his own motion or by any creditor, legatee, devisee, heir, distributee, coexecutor, coadministrator or by any surety upon the bond of the personal representative. Such notice shall be given to the personal representative as the county judge may direct.

Hletory.-§170, ch. 16103, 1933 ; CGL 1936 Supp. 6641(48); am. 14. ch. 22783, 1946.

734.14 Administration following removal.When a personal representative is removed for any cause and there is a remaining executor or administrator, no other executor or administrator shall be appointed; but such remaining executor or administrator shall complete the administration of the estate. If the executor or administrator so removed is a sole executor or administrator, the county judge shall appoint an administrator cum testamento annexo de bonis non, or an administrator de bonis non, as the case may require, in which event a bond shall be required as in the case of an original administration, the condition of the bond being modified to suit the nature of the case.

Hletory.-§171, ch. 16103, 1933; CGL 1936 Supp. 6641(49); am. 14, ch. 22783, 1946.

734.15 Accounting upon removal.-A removed personal representative shall file a true, perfect and final account of his administration in the court of the county judge within twenty days after his removal.

Hlstory.-§172, ch. 16103, 1933; CGL 1936 Supp. 6641(60); am. 14. ch. 22783, 1946. cf.-1733.43, Annual returns.

734.16 Surrender of assets upon removal.The remaining executor or administrator with the will annexed of the property not administered or the administrator of the property not administered shall demand of the removed executor or administrator or of his heirs, personal representatives or sureties, all of the property of the deceased and all books of account, bonds, notes or other securities, documents, papers or other property of or concerning the estate, together with all the sums of money due the estate by him. The removed personal representative, his heirs, per-

3722


sonal representatives or sureties shall turn over to his successor all said property, upon qualification of his successor and upon demand made as afore~:~aid.

HIBtory.-§173, ch. 16103, 1933; CGL 1936 Supp. 5641(51); am. §4, ch. 22783, 1945.

734.17 Proceedings for commitment.-If a removed executor or administrator fails or refuses to file a true, perfect and final account of his administration as required, or fails to turn over to his successor all the goods, property and effects of the deceased, and all books of accounts, bonds, notes or other securities or documents and papers that are in his control and which concern the estate, upon demand, or fails to pay over to such new administrator, or remaining executor or administrator all the sums of money due the estate by him, the county judge, in any event, shall issue an order addressed to such personal representative, directing a compliance with the laws in the respects mentioned, or any of them, as the case may be, within ten days after service of a copy of the order. In case of failure or neglect of the removed personal representative to comply with this order within the time required, the judge may-and when such default is not attributable to a cause which is justifiable, he shall--eommit such removed personal representative until he complies fully with the requirements of the law in the respects indicated. If sufficient cause is shown for the default, the judge shall then indicate a reasonable time in which a compliance with the law shall be required; and upon failure of the removed personal representative to comply with this or any subsequent like order, the judge may commit the party in default until he does comply.

Hlotory.-§174, ch. 16103, 1933; CGL 1936 Supp. 6541(62): am. §4, ch. 22783, 1945.

734.18 Commitment proceedings; by whom instituted.-Proceedings for the commitment of such defaulting personal representative may be instituted by the county judge sua sponte or by any creditor, legatee, devisee, heir or distributee, or by the sureties of any of them; or, in the case of a sole personal representative, such proceedings may be instituted by his successor in office

judge shall, if he deems the facts stated sufficient, issue his said order and proceed in accordance with the provisions of this law.

Hlotory.-§176, ch. 16103, 1933; CGL 1936 Supp. 6541(64); am. §4, ch. 22783, 1945.

734.20 Proceedings on bond of removed personal representatives.-In all cases where a personal representative is removed and he is in default for thirty days, either in the delivery of any portion of the estate or in the payment of the balances due to the new personal representative or the remaining personal representative, the bond of such removed personal representative shall be put in suit. In all cases where there is no bond, the new personal representative or the remaining personal representative shall institute an action forthe recovery of the money due or of the value of the property retained, or both, as the case may be. In either of the cases stated, an attachment may issue against the property of the removed personal representative upon the affidavit of the new or remaining personal representative, his agent or his attorney, that the removed personal representative is in default for thirty days in delivering any portion of the estate, specifying what portion and its value, or in the payment of the balance due, specifying the amount. When this attachment is issued, bond shall be given as in other cases of attachment.

Hlotory.-§177, ch. 16103, 1933; CGL 1936 Supp. 5641(65); am. §4, ch. 22783, 1945.

734.21 Survival of action upon resignation or removal.-All cases pending before any court in favor of or against two or more personal representatives, if one or more is removed, resigns or dies, shall survive to or against the remaining personal representative, if any, .and if there is none, then to or against the successor or successors of such personal representatives; but no remaining- or succesi'lor personal representative shall be liable for any default on the part of any predecessor nor for any amount beyond the value of the property or assets coming into the hands of the remaining or successor personal representative.

Hl•tor:r.-§178, ch. 16103, 1933; CGL 1936 Supp. 5641(56); am. §4, ch. 22783, 1945.

as well as the parties above named. In cases 734.22 Final settlement and discharge.-where there is more than one personal repre- (1) When a personal representative has sentative such proceedings may be instituted by completed the administration and nothing rethe one remaining in otr.ce, or, if more than one mains to be done except to make distribution, remain in office, then by any or all remaining. he shall file his final report and make applica-

Hlstory.-§175, ch. 16103, 1933; CGL 1936 Supp. 5541(53); tion for discharge. After filing a report of his am. ' 4• ch. 22783• 1945• accounts as aforesaid and his application for

734.19 Order on proceedings for commit- discharge, the personal representative shall ment.-If proceedings for commitment are in- then publish a notice once a week for four constituted by the county judge sua sponte, the or- secutive weeks, four publications being suffider so entered, addressed to such personal rep- cient, notifying all persons of the filing of his resentative, directing compliance with the law, report and of his application for discharge. Afshall be sufficient of itself. If proceedings are in· ter filing the proof of publication, if no objecstituted by a person or persons other than the tion is filed and if it appears to the county county judge, they shall be by written petition judge that said applicant has faithfully adminfiled with the county judge, stating the facts istered the estate, he shall be entitled to an upon which the proceedings are based and shall order approving his accounts and shall be dibe sworn to by the person so proceeding. Upon rected to make distribution. No distribution of the filing of such petition under oath, the county estate assets to a testamentary trustee shall

3723


be authorized until proof of qualification of the trustee under the law of the state wherein the testamentary trust is to be administered has been obtained and filed unless it is made to appear to the satisfaction of the county judge that there is no trust qualification law in existence in the state wherein the testamentary trust is to be administered, or unless it is made to appear to the satisfaction of the county judge that the trustee is not required to qualify under the trust qualification law in existence in the state wherein the testamentary trust is to be administered, or unless such qualification or compliance with such trust qualification law shall have been waived in accordance with or as permitted by the provisions of the law of said state. If objection is filed, trial shall be had as provided in this law for the trial of objections to annual returns. Said personal representative may retain from the funds in his hands before making distribution a suffi-cient amount to pay the expenses accrued since the filing of his final report and his application for discharge.

(2) It shall not be necessary to file an annual accounting, a final accounting, nor to advertise notice of the filing of final accounting, petition for distribution and discharge when there is a single heir or beneficiary of an estate or where all of the heirs or beneficiaries are sui juris and such heirs or beneficiaries consent thereto in writing. When the interest of a minor heir or beneficiary does not exceed the amount authorized by Florida law to be received by his natural guardian, such natural guardian may execute a valid written consent to the foregoing for and on behalf of such minor heir or beneficiary. The county judge in his discretion may require the filing of an annual or final accounting and the advertisement of notice thereof and of petition for distribution and discharge, notwithstanding the waivers aforesaid.

Hletory .-§179, cb. 16103, 1988; CG L 1936 Supp. 6641 (126) : §4, ch. 22783, 1945 ; §2, ch. 29716, 1955 ; §1, ch. 63-262; U. ch. 65-104; §13, ch. 65-420. cf.-§737.02 Testamentary trustees to establish qual111catlons.

734.221 Disposition of unclaimed funds held by personal representatives.-

(!) In all cases where there are unclaimed funds in the hands of the personal representative of any decedent's estate which funds cannot be distributed or paid to the lawful owner by reason of inability to find the owner or claimant or because no lawful owner is known to exist or the lawful owner or claimant refuses to accept such funds, then such personal representative upon the order of the county judge shall deposit the same with the clerk of the circuit court in the county where the estate is being probated and receive his receipt therefor, and the clerk shall deposit the funds in the registry of the court to be disposed of as follows: If the value of such funds is fifty dollars or less, the clerk shall post a notice at the courthouse door giving the amount involved, the name of the personal representative

and such other pertinent information that will put interested persons on notice, such notice to remain posted for a period of thirty days. If the value of such funds is over fifty dollars, the clerk shall publish such notice once a week for three consecutive weeks in a newspaper of general circulation in the county. After the expiration of thirty days from receipt thereof the clerk shall deposit such funds with the state treasurer after deducting his fees and the costs for advertising.

(2) Upon receipt of the funds (sometimes referred to hereinafter as "money") paid to him under subsection (1) hereof, the state treasurer shall deposit the same to the credit of the state school fund to become a part of the school fund. All interest and all income that may accrue from the money while so deposited shall belong to the fund. The funds so deposited shall constitute and be a permanent appropriation for payments by the state treasurer in obedience to court orders entered as provided by subsection (3) hereof.

(3) Any person, firm or corporation (hereinafter referred to as "claimant") entitled to any of the funds before or after payment to the state treasurer and deposited as provided by subsections (1) and (2) hereof, may, within twenty years from the date of deposit with the state treasurer, on written petition to the county judge's court which authorized and directed the deposit of the funds, and on written notice to the state attorney of the circuit wherein such county judge's court is situate, and after proof of right thereto, obtain an order of the court directing the payment of such money to the claimant. All funds deposited with the state treasurer and not claimed within twenty ~ars from the date of deposit shall escheat to the state for the use and benefit of the state school fund.

mstory.- §1, ch. 65-207.

734.23 Effect of discharge.-Upon the filing of evidence satisfactory to the county judge that distribution has been made as ordered, the county judge shall enter an order of discharge. Such discharge so obtained shall operate as a release from the duties of personal representative of the estate and as a bar to any suit against said personal representative as such, or as an individual or corporation, and his surety or sureties, unless such suit is commenced within one year from the date of the discharge.

History .-§180, ch. 16103, 1933; CG L 1936 Supp. 6541 (67) ; am. §4, ch. 22783, 1945; §1, ch. 57-124.

734.24 Suit upon bond.-Any bond given by a personal representative or a curator, upon the breach thereof may be put in suit and prosecuted from time to time by the party damaged, in the name of the governor of the state for the use of the party damaged, until the whole penalty of said bond is recovered. The county judge shall deliver to any person on request and on payment of his legal fees for the same, a true copy of any bond given by any personal representative or curator, and such copy certified by said judge,

3724


with the seal of the court annexed, shall be prima facie proof of the bond.

Hlstory.-§181, ch. 16103, 1933; CGL 1936 Supp. 5541(68): am. §4, ch. 22783, 1945.

734.25 Determination of beneficiaries.(!) Whenever property passes by the laws

of descent and distribution or under a will to a person not sufficiently identified in such will, and the personal representative is in doubt as to who is entitled to receive said property, or any part thereof, or if he is in doubt as to shares and amounts which any person is entitled to receive, such personal representative may file with the county judge of the court out of which his letters were issued, his sworn petition setting forth the names, residences and post-office addresses, so far as known or ascertainable by diligent search and inquiry, of all persons in interest, except creditors of the decedent or the estate, and the nature and character of their respective interests and claims so far as known, designating those who are believed by him to be minors or non compos mentis, and stating whether those so designated are under legal guardianship in this state. If the personal representative believes that there are or may be persons who have claims against or interest in such estate as next of kin, distributees, legatees or beneficiaries whose names are not known to him, the petition shall so state.

(2) Upon the filing of such petition, the county judge shall appoint a guardian or guardians ad litem if necessary and shall issue a citation to all claimants and persons in interest whose names are set forth in said petition.

(3) If said petition sets forth that there are or may be persons whose names are not known who have claims against or interests in such estate, citation shall be published, directed to all persons claiming any beneficial interest in the estate of such decedent. Such publication of citation may also include all persons whose names are known and set forth in said petition but who cannot be personally -served.

(4) After a hearing upon such petition and defenses thereto and upon such testimony and evidence as may be produced before the court. the county judge shall make and enter an order finding and adjudging who are entitled to such property and the shares and amounts which they, respectively, are entitled to receive. Any personal representative who makes distribution or takes any other action pursuant to such an order shall be fully protected thereby.

(5) Whenever it is necessary to determine who are or were the heirs, legatees or devisees of a deceased person, on the petition of any interested party or like proceedings, the county judge may make a_ determination thereof, irrespective of whether the estate of such deceased person is administered, or if administered whether the administration of the estate has been closed or the personal representative discharged.

Hlstory.-§182, ch. 16103, 1933; CGJ, 1936 Supp. 5541(134): am. §4, ch. 22783, 1945.

734.26 Subsequent administration. - The final settlement of an estate and the discharge of

the personal representative shall not prevent &

revocation of the order of discharge or the subsequent issuance of letters testamentary or of administration if other property of the estate is discovered or if it becomes necessary or proper for any cause that further administration of the estate be had.


734.27 Suspension of statutes of limitations in favor of personal representative.-If a person entitled to bring an action dies before the expiration of the time limited for the commencement thereof and the cause of action survives, the action may be commenced by his personal representative after such expiration and within twelve months from the granting of letters.


734.28 Suspension of statutes of limitations in favor of claimants.-If a person against whom a cause of action exists dies before the expiration of the time limited for commencement thereof and the cause of action survives, claim shall be filed thereon and like proceedings had as in the case of other claims against the estate.


734.29 Limitations against unadministered estates.-

(!) After three years from the death of any person his estate shall not be liable for any obligation or upon any cause of action if no letters testamentary or of administration with respect thereto have been taken out in Florida within said three years, or if such letters have been taken out but neither proof of publication of notice to creditors, nor the claim of any creditor has been filed in the office of the county judge within said period; provided, however, that the lien of any duly recorded mortgage and the lien of any person in possession of any personal property of the decedent, and the right to foreclose and enforce the same with respect to the property encumbered thereby, shall not be impaired by said limitation.

(2) Where a nonresident decedent leaves property in this state, the domiciliary personal representative of his estate, in order to determine the question of claims in Florida before the expiration of said three year period, may file in the office of the county judge of the county where any such property may be situated a duly certified or exemplified transcript of so much of the domiciliary proceedings as will show:

(a) 1. In a testate estate, the probated will and all probated codicils of the decedent and the order admitting same to record, the letters testamentary or the equivalent thereof, and such portion of the record as will show the names of the legatees, devisees and heirs of the decedent, or an affidavit of- the domiciliary representative reciting that said names are not shown or fully disclosed by the domiciliary record and specifying the same.

'2. Upon petition and presentation of such

3725


transcript and any supporting affidavit of the domiciliary representative, the county judge shall make and enter an order admitting the said will and codicils, if any, to probate and record if he finds that the same complies with the laws of Florida so as to entitle them to probate in this state, and said transcript shall be recorded.

(b) ln an intestate estate, the certified letters of administration or the equivalent thereof, shall be included in the transcript of domiciliary proceedings, together with such portions of the record as will show the names of the heirs of the decedent, which names in case of necessity may be supplied by affidavit of the domiciliary representative as provided in paragraph (a) hereof. Upon petition and presentation of such transcript and any supporting affidavit of the domiciliary representative, the county judge shall cause the same to be filed and recorded.

(3) After complying with the foregoing requirements, with respect to any testate or intestate estate, as the case may be, the domiciliary representative may cause a notice to be published once a week for four consecutive weeks, four publications being sufficient, in a newspaper published in said county, notifying all persons having claims or demands against the estate of such decedent to file same in the offirP of the county judge within six calendar months from the date of the first publication of said notice.

(4) Any claims against said estate must be filed in the form and manner prescribed by law with respect to the regular administration of estates in Florida. If any claim is filed within the period of six months aforesaid, the county judge shall, upon application of any claimant or other person interested in the estate and after ten days written notice by registered mail to the domiciliary representative at his address as shown by the records, appoint an administrator for the estate according to law. If no claim is filed within said period of six months, the property of the decedent in this state shall not be liable for any obligation of said decedent or upon any cause of action against the decedent other than duly recorded mortgages and liens, and claims of persons in possession of property of the decedent as pled~ees. lienors or purchasers.

(5) If no claims are filed against the estate, within six months as herein limited, the county judge shall enter an order adjudging that notice to creditors has been duly published, filed and recorded and that no claims have been filed against the estate.

Hlstory.-§186, ch. 16103, 1933; §1, ch. 19552, 1939; CGL 1936 Supp. 5541(137); am. §4, ch. 22783. 1945; §14, ch. 22847, 1945; §7, ch. 22858, 1945; §1, ch. 25031, 1949: (3)-(5) a . by §5, ch. 61-394. cf.-§1.01 Defines registered mall to Include certified mall with

return receipt requested .

734.30 Foreign personal representatives.(!) Personal representatives who produce

probate of wills or letters of administration duly obtained in any of the states or territories in the

United States and authenticated under the act of congress of May 26, 1790, shall be authorized to maintain actions in the several courts of this state under the same rules and regulations as other plaintiffs.

(2) Personal representatives appointed in any state or country may be sued in this state with reference to property, real or personal, in this state, and may defend any suit, action or proceeding in any court of this state.

(3) Debtors who have received no written demand for payment from a personal representative or curator appointed in this state, within three months after the appointment of a personal representative in any state or country other than this state, and whose property in Florida is subject to a mortgage or other lien securing such debt held by such foreign personal representative may make payment to the foreign personal representative after the expiration of three months from the date of his appointment. A proper satisfaction of such mortgage or lien executed and acknowledged by the foreign personal representative after said three months has expired, in the manner and form entitling the same to record in this state, with a duly authenticated copy of the letters or other evidence of authority of such foreign personal representative attached thereto, may be recorded in the public records of this state in like manner as other satisfactions, and when so recorded, shall constitute an effective discharge of any such mortgage or lien, irrespective of whether the debtor making payment had received such written demand before paying the same.

( 4) All persons indebted to the estate of a decedent or having possession of personal property, either tangible or intangible, belonging to the estate of a decedent, who have received no written demand from a personal representative or curator appointed in this state, for payment of such indebtedness or the delivery of such property, are authorized to make payment of such indebtedness or to deliver such personal property to the foreign personal representative after the expiration of three months from the date of his appointment.

Hlstory.-§187, ch. 16103, 1933; §11, ch. 17171, 1935; CGL 1936 Supp. 5541(138); am. §4, ch. 22783, 1945. ct.-§ 660.10 Trustees, powers and duties.

734.31 Ancillary administration.-(!) Upon the death of a nonresident of this

state leaving assets in this state, credits due him from residents of this state, or liens upon property in this state, the domiciliary personal representative of such decedent may, upon application, have ancillary letters issued to him, if qualified to act. Otherwise, the preference of appointment prescribed in this law shall be applicable. If ancillary letters are applied for by other than the domiciliary personal representative, citation shall be served upon the domiciliary personal represen ta ti ve.

(2) To entitle such applicant to ancillary letters, there shall be filed with the petition a duly certified copy of so much of the domiciliary pro-

3726


ceedings as will show either: (a) The will, petition for probate, order ad

mitting the will to probate and letters testamentary, if there are such; or

(b) The petition for letters of administration and letters of administration.

(3) Upon the filing of a certified copy of a probated will, including any probated codicils thereto, and of the parts of the record of the domiciliary proceedings as aforesaid, the county judge may, upon petition therefor being filed, if he finds that the said will and codicils, if any, comply with the laws of this state so as to entitle them to probate, make and enter an order admitting said will and codicils, if any, to probate and record in this state.

( 4) The ancillary personal representative shall give like bond as personal representatives generally, and all proceedings for appointment and in the administration of the estate shall be, as nearly as possible, similar to those in original administrations.

(5) After the payment of all expenses of administration and claims against the estate in accordance with this law, the county judge may, upon petition, order the remaining personal property in the hands of the ancillary personal representative to be transferred to the domiciliary personal representative.

(6) Ancillary personal representatives shall have the same rights, powers and authority as other personal representatives in Florida with reference to the management and settlement of the estate, and in addition, may sell, lease or mortgage local property in the manner provided in this law, to raise funds for the payment of debts, claims and legacies in the domiciliary jurisdiction. Provided, however, that no such property shall be sold, leased or mortgaged to pay any debt or claim which is barred by any statute of limitation, or of nonclaim, of this state.

Hlstory.-§188, ch. 16103, 1933; CGL 1936 Supp. 5541(146); §4, ch. 22783, 1945 ; §1 , ch . 22890, 1945. ct.-§732.26, Effect of prior foreign probate.

§§732.35, 732.36, Probate of will a fter foreign probate. §732.47, Nonresidents as personal representatives .

734.32 Application for administration upon estates of persons believed to be dead.-Letters of administration on the estate of any person believed to be dead, on account of absence for seven years or more from the place of his last domicile, may be applied for; and if the county judge (of the county in which the estate of such perscn could be administered were the supposed decedent known to be dead) is satisfied that the applicant would be entitled thereto were such supposed decedent known to be dead, be shall order a notice to be published as provided in this law, giving notice therein that on the day of said application said county judge will bear evidence concerning the alleged absence of the supposed decedent and the circumstances and duration thereof.

Hlstory.-§189, ch. 16103, 1933; CGL 1936 Supp. 5541(146); §4, ch. 22783, 1945. cf.-§732.09, Process and service.

§§732.23. 732.43. Petition for letters.

734.33 Evidence of presumptlon.-At the hearing, the county judge shall take such evidence as shall be offered, for the purpose of ascertaining whether the presumption of death is established, and no person shall be disqualified to testify by reason of his relationship as husband or wife to the supposed decedent or of his interest in the estate of the person believed to be dead.

Hlstory.-§190, ch. 16103, 1933; CGL 1936 Supp. 6641(147); §4, ch. 22783 , 1945.

734.34 Order of presumption.-If satisfied, upon the hearing, that the legal presumption of death is established, the county judge shall so order, and shall forthwith cause notice thereof to be published as provided in this law, and also once a week for four consecutive weeks in a newspaper published at or nearest the place where the supposed decedent was last heard from. The said notice shall require the supposed decedent, if alive, or any person for him, to produce, within three months from the date of its first insertion, satisfactory evidence of his continuance in life.


734.35 Letters of administration; force and effect.-If, within the said period of three months, evidence satisfactory to the county judge of the continuance of life of the said decedent has not been produced, the county judge shall issue letters to the party entitled thereto; and the said letters, until revoked, and all acts done in pursuance thereof and in reliance thereupon, shall be as valid as if the supposed decedent were dead.

HIBtory.-§192, ch. 16103, 1933; CGL 1936 Supp. 6641(149); §4, ch . 22783, 1945.

734.36 Revocation of letters on proof that supposed decedent is alive.-The county judge, upon application of the supposed decedent, shall revoke the said letters at any time, on due and satisfactory proof that the supposed decedent is in fact alive; after which revocation all the powers of the administrator shall cease, but all receipts or disbursements of assets and other acts previously done by the administrator shall remain valid; and the administrator shall settle an account of his adt.linistration to the time of such revocation and shall transfer all assets remaining in his hands to the person as whose administrator he had acted, or to his duly authorized agent or attorney; provided, nothing herein contained shall validate the title of any person to any money or property received as widow, next of kin or heir of such supposed decedent, but the same may be recovered from such person in all cases in which said recovery would be had if there had been no such administration.

Hlstor:r.-§193, ch. 16103, 1933; CGL 1936 Supp. 6641(160); §4, ch. 22783, 1945.

734.37 Substitution of supposed decedent in actions.-After revocation of the letters of administration, the person erroneously supposed to be dead may, on suggestion filed of record of the proper fact, be substituted as plaintiff in all actions brought by the administrator, whether pro-

3727


secuted to judgment or otherwise. He may, in all actions previously brought against his administrator, be substituted as defendant, on proper suggestion filed by himself or by the plaintiff therein, but shall not be compelled to go to trial in less than three months from the time of such suggestion filed. Judgments at law and decrees in equity against the administrator, before revocation, as aforesaid, of the letters, may be opened, on application by the supposed decedent made within three months from the said revocation and supported by affidavit, denying specifically, on the knowledge of the affiant, the cause of action or specifically alleging the existence of facts which would be a valid defense; but, if within the said three months such application is not made, or, if being made, the facts exhibited are adjudged an insufficient defense, the judgment or decree shall be conclusive to all intents, saving the defendant's right to have it reviewed, as in other cases, by appropriate appellate proceedings. After the substitution of the supposed decedent as defendant in any proceeding in which any judgment or decree may be procured as aforesaid, the said judgment or decree shall become a lien with like effect as other judgments.

Hlstory.-§194, ch. 16108, 1988; CGL 1936 Supp. 6541(161); §4, ch. 2278l, 1945.

734.38 Probate of will of person believed to be dead.-After letters of administration have been granted upon the estate of a person believed to be dead, the person having the custody of any will which may have been left by such person may produce said will in the county judge's court of the county in which the proceedings to establish the presumptive death of the supposed decedent have been held, and proceedings may be had as in the case of other wills.


734.39 Notice to administrator and other

persons.-Upon the filing of such petition, the county judge shall issue a citation to the person to whom letters of administration have been issued, as aforesaid, and to the surviving spouse and next of kin of the decedent, entitled under the laws of descent and distribution to his estate, to appear and show cause why the said alleged will should not be admitted to probate.


734.40 Letters to executor of will of supposed decedent.-Upon the hearing, if it appears that the proposed will was in fact the last will and testament of the supposed decedent, the said will shall be admitted to probate, and said will shall be annexed to the letters of administration theretofore issued; and thereafter the administrator shall execute the said will according to its terms; provided, that nothing herein shAll prevent the county judge from revoking the said letters, and in case of such revocation the powers of the personal representative and the rights of the legatees and devisees under said will shall cease, and all receipts and disbursements of assets, and other acts previously done by them shall remain as valid as if the said letters were unrevoked; and provided, further, that legatees and devisees may be called upon at any time by the supposed decedent to account for any property which they may have received, in the same manner as is provided in this law, and the administrator may be called upon to render an accounting as to all assets which have come into his custody or control; and provided, further, that if upon probate of the last will and testament of the decedent it appears that an executor is named in the will, the letters of administration shall be revoked and letters testamentary shall be issued to the executor named in said last will and testament.


3728

Ch. 735 SMALL ESTATES; ADMINISTRATION UNNECESSARY Ch. 735

CHAPTER 735

SMALL ESTATES; ADMINISTRATION UNNECESSARY IN CERTAIN ESTATES

735.01 735.02

735.03

735.04

735.05

735.051 735.06 735.07 735.08

Small estates. May be administered in the same man

ner as other estates. Certain administrative steps may be dis

pensed with. When administration unnecessary; tes

tate or intestate estates. Petition for order of administration un-

necessary. Filing of petition. Hearing by county judge. Order of administration unnecessary. County judge's discretion to deny peti-

tion.

735.01 Small estates.-Any testate or intestate estate having a gross value of not more than three thousand dollars, exclusive of the property exempt under the constitution and statutes of the state or any estate of a decedent who has been dead for more than three years, may be administered or not administered as set forth in this chapter; provided that proof satisfactory to the county judge, by affidavit or otherwise, is first produced to show that the estate to be administered comes within said value except where the decedent has been dead for more than three years.

Bldo17.-§1, ch. 16992, 1935 ; COL 1936 Supp. 5541(155) ; §15, ch. 22847, 1945; §1, ch. 23716, 1947.

735.02 May be administered in the same manner as other estates.-8uch estate may be administered in the same manner and under the same rules and regulations as provided by law for the administration of any other estate, or it may be administered as provided in the next section of this chapter.


735.03 Certain administrative steps may be dispensed with.-

(1) In the administration of such an estate the county judge may in his discretion dispense with any steps and proceedings in the administration of such estate which are merely procedural or administrative and which do not affect the substantial rights of the heirs, devisees, legatees and creditors.

(2) The county judge may dispense with the appointment of appraisers and the filing of a warrant of appraisement and may require the personal representative to give a surety bond or a personal bond without sureties. The county judge may authorize notice to creditors to be published in a newspaper, as elsewhere provided by the probate act, or may authorize the notice to creditors to be published by notices posted at the front door of the courthouse and at two or more public places in the county, to be designated by the county judge. He shall require presentation of claims and demands within six calendar months from the time of such posting. He may also relieve the personal representative from filing annual returns and may require the

735.09

735.10

735.11

735.12 735.13 735.14 735.15

Legal effect of order of administration unnecessary.

Optional publication of notice of entry of order.

Rights and remedies of those affected by order of administration unnecessary.

Will subsequently discovered. County judge's fees . Joinder of heirs, etc., in small estates. Income tax refunds in certain cases.

personal representative to file only final returns. He may also authorize the notice of final discharge to be published in a newspaper as elsewhere provided in the probate act, or he may authorize the notice of final discharge to be published by notices posted at the front door of the courthouse and at two or more public places in the county to be designated by the county judge.

(3) The procedural steps which may be eliminated by the county judge as set forth above shall not be construed as exclusive, as it is intended hereby to vest broad powers of discretion in the county judge to the end that he may, in the interest of economy, dispense with any procedural step in the administration of small estates, as defined above, when such step appears to him not to be essential to proper and safe administration and to due process of law. Cases pending on the effective date of this act may be concluded under prior law or under this section.

Blstory.-§2, ch. 16992, 1935; COL 1936 Supp. 5541(156); §15, ch . 22847, 1945 ; §31, ch. 63-572.

735.04 When administration unnecessary; testate or intestate estates.-The county judge may dispense with administration upon the estate of any testate or intestate:

(1) When such testate or intestate died a resident of this state and the entire estate is exempt from the claims of creditors under the constitution and statutes of the state; or,

(2) When such testate or intestate died a resident or nonresident of this State and the estate is not indebted and does not, in the judgment of the county judge, exceed in the aggregate five thousand dollars in value in this State, exclusive of property exempt under the constitution and statutes of the state, and there is a sole heir or surviving spouse, or the surviving spouse, if any, and all the heirs agree upon the distribution of the estate, or in case the decedent died testate and the beneficiaries and the widow, if any, agree upon the distribution of the estate upon the probate of the will: or,

(8) When the decedent, whether he died testate or intestate and whether he died a resident or nonresident of this state, has been dead for more than three years and no letters testa-

8729


mentary or letters of administration have been issued on his estate, and his last will and testament, if any, has not been admitted to probate in this state or elsewhere and there is a sole heir or surviving spouse, or the surviving spouse, if any, and all the heirs agree upon the distribution of the estate, or in case the decedent died testate and the beneficiaries and the widow, if any, agree upon the distribution of the . estate upon the probate of the will.

mator;r.-§2, ch. 161192, 11135; CGL 1D36 Supp. 5541 (156); 115, ch. 22847, 1945; §2, ch. 23716, 1947; fl. ch. 25010, 1949.

735.05 Petition for order of administration unnecessary.-

(!) INTESTATE ESTATES.-The petition for an order of administration unnecessary on an intestate estate shall be signed and sworn to by all the heirs who are sui juris and by the surviving spouse of the decedent and by the guardians of heirs not sui juris. The petition shall be filed in the office of the county judge of the county where the decedent resided at the time of his death, and shall set forth the name, residence, date and place of death of the decedent; the names, ages and residences of the heirs and surviving spouse of the decedent and their respective relationships to the decedent; a detailed schedule of all the decedent's property, real and personal, showing the cash value of each item, and a statement of the agreed distribution of same among the petitioners; and if the entire estate is claimed to be exempt under the constitution and statutes of the state, the names and addresses of all known general creditors and judgment creditors of the decedent.

(2) TESTATE ESTATES.-The petition for an order of administration unnecessary on a testate estate may be filed only after the will has been probated, and shall be filed in the same case in which the will was probated. The petition shall be sworn to by the widow and by all the legatees and devisees who are sui juris and by the guardian of any of those who are not sui juris. The petition shall be filed in the office of the county judge of the county where the decedent resided at the time of his death, and shall set forth the same information as that specified in the preceding subsection of this section for petitions relating to intestate estates, except that, in lieu of the names, ages and residences of the heirs and the surviving spouse, the petition shall set forth the names, ages and residences of the legatees, devisees and the widow, if any, of the decedent.

(3) GUARDIAN AS PETITIONER.-If any heir, legatee or devisee of the decedent is not sui juris, the legal guardian of the estate of such incompetent shall be a party to the petition and

by the laws of Florida to be received by a natural guardian.

Hlltory.-§4, ch. 16992, 1936; CGL 1938 Supp. 5541(158); 115, ch. 22847, 19411.

735.051 Filing of petition.-The petition for an order of administration unnecessary may be filed at any stage of the administration of any estate in accordance with the procedure as set forth in §735.05 and an order for administration unnecessary entered in accordance with §735.07 if it appears that at the time of such petition the estate would qualify for such an order of administration unnecessary.

Blstor:r .-§ 1, ch. 59-308.

735.06 Hearing by county judge.-Upon the filing of the petition, if it appears that the entire estate of the decedent is claimed to be exempt under the constitution and statutes of the state, the county judge shall promptly notify each known creditor of the decedent, by registered mail, of the entry of his order, and shall make and file a certificate of such mailing.

Hlstor:r .-§a, ch. 16992, 1935; CGL 1936 Supp. 5541(157); §15, ch . 22847, 1945. cf.-§1.01 Defines registered mall to Include certified mall with

return receipt requested.

735.07 Order of administration unnecessary.-

(1) After the hearing the county judge, if fully satisfied that the estate is entitled to the special benefits of this law, that the averments of the petition are true, and that there has been no concealment of material facts, shall make and enter his order that administration of the estate of the decedent is unnecessary. Such order shall contain a finding by the county judge of the true cash value of the estate.

(2) In such order, if the estate is an intestate estate, he shall set forth:

(a) The names and residences of the heirs and surviving spouse of the decedent who are entitled to have distribution of the estate without administration;

(b) What particular properties shall be distributed to each; and

(c) If the entire estate is exempt, of what the estate consists and what debts are known to exist against the estate.

(3) If the estate is a testate estate, the order shall set forth :

(a) The names and residences of the legatees, devisees and the widow, if any;

(b) What particular properties shall be distributed to each; and

(c) If the entire estate is exempt, of what the estate consists and what debts are known to exist against the estate.

Hlatory.-§15, ch. 22847, 1945.

shall have power to accept such distribution as 735.08 County judge's discretion to deny the county judge may order, in full satisfaction petition.-The county judge in his discretion and discharge of the interest of such incom- may deny the petition and forthwith appoint an petent in the estate. Natural guardians of a administrator of the intestate estate in any case minor are authorized to act for such minor in the in which he has doubt as to the truth of the aversame manner as a legal guardian appointed by the ments of the petition; and in the case of a teacounty judge, where the interest of the minor in tate estate, if he has doubt as to the truth of the estate does not exceed the amount authorized such averments, he may order the executor of the

3730


will, or his successor, to proceed with the administration.

Hlatory.-§15, ch. 22847, 1945.

735.09 Legal effect of order of administration unnecessary.-The county judge's order that administration of the estate of the decedent is unnecessary shall have the following effect:

(1) Those to whom specified portions of the decedent's estate may be assigned by the order shall be entitled to receive and collect the same and to have the same transferred to them; they may maintain suits to enforce such rights.

(2) Debtors of the decedent, those holding property of the decedent and those with whom securities or other property of the decedent are registered, are authorized and empowered to comply with such order by paying, delivering and transferring to those specified in the order the respective portions of the decedent's estate assigned to them by the order, and such persons shall not be accountable to anyone else for such property.

(3) From and after the . entry of such order, bona fide purchasers for value from those respectively to whom properties of the decedent may be assigned by the order shall take the same free, clear and discharged of all claims and demands of creditors of the decedent and all rights of the widow of the decedent and all other heirs, legatees, devisees and claimants against the estate.

( 4) Property of the decedent (not exempt from forced sale under process) remaining in the hands of those to whom it may be assigned by such order shall continue to be liable for the debts of the decedent and for all the other claims whatsoever against the estate of the decedent, if any such claims exist, until barred as herein elsewhere provided.

(5) The petitioners for an order of administration unnecessary shall, if the petition is granted, thereby become personally liable, jointly and severally, for all lawful claims and demands against the estate of the decedent, but only to the aggregate gross value of the estate of the decedent, exclusive of the property exempt from process under the constitution and statutes of Florida.

( 6) After three years from the death of the decedent, his estate and those to whom it may be assigned shall not be liable for any obligation or liability of the decedent unless in the meantime proceedings are taken for the enforcement of same.

(7) Claimants against the estate of the decedent, if any, shall thenceforth be limited to the remedies prescribed in §735.11

Hlstory.-§16, ch. 22847, 1945.

735.10 Optional publication of notice of entry of order.-

(1) Those who shall have procured the entry of the order of administration unnecessary, or any one or more of them may, at their election, publish a notice to all persons having claims or demands against the estate of the decedent, that an order of administration unnecessary has been

entered by the county judge. Such notice shall specify the total cash value of the estate and the names and addresses of those to whom it has been assigned by such order. Such notice, if published, shall be published once a week for four consecutive weeks in a newspaper published in the county wherein such order was entered, and proof of publication of such notice shall be filed with the county judge.

(2) If proof of publication of such notice is duly filed in the office of the county judge, all claims and demands of creditors against the estate of the decedent shall be forever barred unless such claims and demands are duly sworn to and filed in the office of the county judge within six months of the first publication of such notice.

History.-§15, ch. 22847, 1945; (2). §1, ch. 63-146.

735.11 Rights and remedies of those affected by order of administration unnecessary.-

(!) Any creditor or claimant against the estate of a decedent may by bill in chancery, filed at any time within three years from the death of the decedent, or within six months of the first publication of the notice of entry of the order of administration unnecessary, if same shall have been duly published and proof of publication filed, impress a trust upon all property of the decedent (exclusive of property exempt under the constitution and statutes of Florida and exclusive of the widow's exemption) remaining in the possession of the heirs, legatees, devisees and surviving spouse; require such parties to account for the value of all such property alienated, consumed, spent or donated by them, and have deficiency decrees to the extent of the undischarged liability of such parties, together with legal interest from the date of the filing of suit, and costs.

(2) Such suit or suits may be brought by one or more claimants or creditors; other claimants or creditors may intervene and share ratably in the recovery, and any one directly or indirectly affected by the order of administration unnecessary may also intervene in the proceeding or himself institute suit for his own protection. Any one or more of the petitioners who procured the order of administration unnecessary may be made party defendant. Any such defendant may implead other heirs, legatees or devisees for contribution or exoneration. A receiver may be appointed as a matter of course. It shall be no objection that the bill or other pleading is multifarious. Such suits may be brought only in the county in which the order of administration shall have been entered. If more than one suit is brought, such suits shall be consolidated.

(3) Any heir, legatee or devisee of the decedent who was lawfully entitled to share in the estate but who was excluded by the order of administration unnecessary may enforce his rights against those who procured such order in the manner hereinabove prescribed for creditors and claimants; or he may intervene in the suit of a creditor for the enforcement of his rights, subject, however, to the superior rights of creditors.

3731


( 4) In all such cases plaintiffs shall be awarded reasonable attorneys' fees as an element of costs.

mstory.-§15, cb. 22847, 1945; (1) a. by §6, cb. 61-39-l.

735.12 Will subsequently discovered.-If, after the entry of an order of administration unnecessary on an intestate estate, a will of the decedent is discovered, proceedings may be had in accordance with §732.33. But in such cases, those who have procured the entry of the order of administration unnecessary shall be accountable, jointly and severally, not only for the property of the decedent remaining in their hands but also for the proceeds of that which they have alienated and for the value of that which they have consumed, spent or donated.

Hiatory.-§16, ch. 22847, 1946.

735.13 County judge's fees.-The county judge shall receive a fee of seven dollars and fifty cents for all proceedings to and including the entry of an order of administration unnecessary, and fifty cents for each notice given by registered mail, and such fees as are allowed in probate proceedings for any other subsequent services.

Hiatory.-U5, cb. 22847, 1945 cf.-§1.01 Defines registered mall to Include certified mail with


735.14 Joinder of heirs, etc., in small estates. -That whenever any heir, devisee, legatee, widow or surviving spouse is authorized or required under this chapter, to join in any agreement or petition and any such person shall have died or shaH have become incompetent or shall be a minor or shall have conveyed or transferred all of his or her interest in the property of the estate, then the heirs, devisees, legatees and surviving spouse, if any, and the executor or administrator, if any, of the estate of any such deceased person or the guardian of any such incompetent or minor or the grantee or transferee of any such person, as the case may be, shall be authorized to join in such agreement or petition in lieu of

any such heir, devisee, legatee, widow or surviving spouse.

Hiator:r .-§1, cb. 23872, 19<l7.

735.15 Income tax refunds in certain cases.-

(1) In any case where the United States treasury department determines there exists an overpayment of federal income tax and the person in whose favor the overpayment is determined is dead at the time such overpayment of tax is to be refunded, and irrespective of whether the deceased had filed a joint and several or separate income tax return, the amount of such overpayment, if not in excess of five hundred dollars, may be refunded as follows:

(a) Directly to the surviving spouse on his or her sworn application; or,

(b) If there be no surviving spouse, to such one of decedent's children as is designated in a sworn application purporting to be executed by all of the decedent's children over the age of fourteen years; provided that in either event such application shows to the knowledge of the applicant or applicants that the decedent was not indebted, or that provision has been made for the payment of his or her debts, or that the entire estate is exempt from the claims of creditors under the constitution and statutes of the state, and further shows that no administration of the estate, including the obtaining of an order of no administration necessary, has been initiated and that none is planned.

(2) If a refund is made to the surviving spouse or designated child pursuant to such application, such refund shall operate as a complete acquittal and discharge to the United States from liability from any suit, claim or demand of whatsoever nature by any heir, distributee, creditor of the decedent, or other person; provided, however, that nothing contained herein shall be construed as establishing the ownership or rights of any person in the refund so distributed.

Hlstory.-§1, ch. 65-162.

3732

Ch. 736 MISCELLANEOUS PROBATE PROVISIONS Ch. 736

CHAPTER 736

MISCELLANEOUS PROBATE AND SIMILAR PROVISIONS

736.01 Receipts for debts due minors; effect. 736.02 Compulsory settlement by persons hold

ing interests of minors. 736.03 Enforcement of order for compulsory

settlement. 736.04 Mortgaging property of certain estates

for the purpose of paying existing mortgages and liens.

736.041 Presumption of order of death. 736.05 Uniform simultaneous death law. 736.06 Foreign wills; record and effect after

three years from death of testator. 736.07 Effect of chapter 22783, acts 1945. 736.17 Bequests and devises to trustee.

736.01 Receipts for debts due minors; effect.-If any executor, administrator or trustee receives and gives discharges for debts, rents, dues or sums of money belonging to any orphan or minor, for whom the said executor, administrator or trustee is acting, all such discharges and receipts shall be binding upon the orphan or minor and his heirs, when he shall come to full age, and shall be effectual in law to discharge the person taking the same. But nothing herein contained shall discharge the executor, administrator or trustee from accounting to the orphan or minor where such receipt or discharge has not been legally given, or has been given for a fraudulent purpose.

Blstory.-§40, Nov. 20, 1828; RS 1869; OS 2355; ROS 3678; COL 5542; am. §5, ch. 22783, 1945.

736.02 Compulsory settlement by persons holding interests of minors.-The county judge may award process to cause to come before him every person who as executor or administrator, tutor, trustee or otherwise is or may be concerned and entrusted or in anywise accountable for any estate, real or personal, belonging to any orphan or minor, to cause him to make within a reasonable time true and perfect inventories of said estate and to render just and true accounts of the same.

Hl&tory.-§37, Nov. 20, 1828; RS 1879; GS 2371; RGS 8693; CGL 6558; am. 16, ch. 22783, 1946.

736.03 Enforcement of order for compulsory settlement.-If any person directed neglects to account to said court, the court shall immediately issue an attachment against such person, to be executed by the sheriff of the county where such person lives, which sheriff shall, together with his return, produce the delinquent who shall pay all the costs of the attachment; and said person shall stand committed for contempt until he makes such account.

Hlator;r.-§1880 RS 1892; GS 2872; RGS 3694; CGL 5569; am. 15, ch. 22783, 1945.

736.04 Mortgaging property of certain estates for the purpose of paying existing mortgages and Iiens.-In estates of decedents in the process of administration on June 10, 1935, who died prior to October 1, 1983, leaving real

736.20 736.21 736.22 736.23

736.24

736.25 736.26 736.27 736.28 736.29 736.30

Short title. Legislative declaration. Definitions. Persons who may execute an anatom

ical gift. Persons who may become donees; pur

poses for which anatomical gifts may be made.

Manner of executing anatomical gifts. Delivery of document of gift. Amendment or revocation of the gift. Rights and duties at death. Eye banks; registration of need. Uniformity of interpretation.

estate encumbered by mortgage, lien or taxes, when it is made to appear to the county judge having charge of the administration of such estate, at any time before the final settlement of such estate, that it is expedient or necessary and for the best interests of the estate to borrow money upon a mortgage upon the real estate belonging to the estate or any part thereof, in order to pay off and discharge such mortgages or liens upon the real estate of the deceased, the county judge may by order authorize the personal representative to borrow such sum as the judge shall deem proper or necessary for such purpose and to execute such mortgage as may be necessary to secure the same. Such mortgage, when so executed by such authority, shall be effective in law to bind the real estate described therein as effectuaJly as the same was bound by the mortgage or lien which is discharged and paid off by such loan, with the same rights, equities and priorities as existed in favor of the debts and liens so discharged.

Blstory.-§1, ch. 17105, 1935; COL 1936 Supp. 5541(11U); am. §5, ch. 22783, 1945.

736.041 Presumption of order of death.When there is no sufficient evidence of the order in which the deaths of two or more persons occurred, no one of such persons shall be presumed to have died first; provided, however, that where the title to property or the devolution thereof depends upon priority of death and there is no sufficient evidence of the order in which the deaths of such persons occurred, the provisions of §736.05 shall control.

Wstory.-§2, ch. 63-183.

736.05 Uniform simultaneous death law.(1) NO SUFFICIENT EVIDENCE OF

SURVIVORSHIP.-Where the title to property or the devolution thereof depends upon priority of death and there is no sufficient evidence that the persons have died otherwise than simultaneously, the property of each person shall be disposed of as if he had survived, eXCElPt as provided otherwise in this law.

(2) BENEFICIARI.ES OF ANOTHER PERSON'S DISPOSITION OF PROPERTY.-Where two or more beneficiaries are designated to take

3733


successively by reason of survivorship under another person's disposition of property and there is no sufficient evidence that these beneficiaries have died otherwise than simultaneously, the property thus disposed of shall be divided into as many equal portions as there are successive beneficiaries, and these portions shall be distributed respectively to those who would have taken in the event that each designated beneficiary had survived.

(3) JOINT TENANTS OR TENANTS BY THE ENTIRETY.-Where there is no sufficient evidence that two joint tenants or tenants by the entirety have died otherwise than simultaneously, the property so held shall be distributed one-half as if one had survived and onehalf as if the other had survived. If there are more than two joint tenants and all of them have so died, the property thus distributed shall be in the proportion that one bears to the whol'1 number of joint tenants.

(4) INSURANCE POLICIES.-Where the insured and the beneficiary in a policy of life or accident insurance have died and there is no sufficient evidence that they have died other~ wise than simultaneously, the proceeds of the policy shall be distributed as if the insured had survived the beneficiary.

(5) NOT RETROACTIVE.-This law shall not apply to the distribution of the property of a person who has died before June 12, 1941.

(6) DOES NOT APPLY IF DECEDENT PROVIDES OTHERWISE.-This law shall not apply in the case of wills, living trusts, deeds or contracts of insurance wherein provision has been made for distribution of property different from the provisions of this law.

(7) UNIFORMITY OF INTERPRETATION.-This law shall be so construed and interpreted as to effectuate its general purpose to make uniform the law in those states which enact it.

(8) SHORT TITLE.-This section may be cited as the uniform simultaneous death law.

Hlotory.-§§1-8, ch. 20884, 1941; am. §5, ch. 22783, 1945.

736.06 Foreign wills; record and effect after three years from death of testator.-

( I) A duly authenticated copy of any will, including any codicils thereto, of a nonresident, which devises real property in this state, or any right, title or interest therein, and which conforms to the laws of this state as to form and manner of execution, when duly proved and admitted to probate in the proper court of any other statAil, territory or country, when accompanied by a duly authenticated copy of the petition for probate and order admitting it to probate, may be admitted to record in the office of the county judge of any county of this state in which such real property is situated, at any time after three years from the death of the testator or at any time after the domiciliary personal representative has been discharged, when there has been no probate of such will in this statt!. Provided, however, if in the jurisdiction where the will of the nonresident was probated no peti-

tion is required as a prerequisite to the probate of a will, upon proof by affidavit or certificate of the judge of said court that no such petition is required in such jurisdiction, a duly authenticated copy of any such will, when accompanied by a duly authenticated copy of the order admitting it to probate, may be admitted to record, as herein provided, without being accompanied by duly authenticated copy of petition for ;;>robate, and the order of court admitting such will to record in Florida shall recite that in the state of original probate no petition was required.

i 2) The said duly authenticated copies of will, codicil and order admitting to probate, may be admitted to record by the county judge upon the petition of any person. If the court finds that the will and any codicils thereto conform to the laws of this state as to form and manner of execution and that the said copies are duly authenticated, he shall, by short order, admit the same to record.

(3) All orders heretofore made for the record of such wills and codicils and ail proceedings had under this section unaccompanied by an authenticated copy of the petition for probate are hereby validated and such wills and codicils shall be as valid and effectual to pass title to the real property therein describ~d or referred to as if said wills and codicils had been accompanied by an authenticated copy of the petition for probate.

( 4) When so admitted to record, such will and any codicils thereto, and all such as may have heretofore been recorded in the office of the county judge, whether admitted by order of the county judge or not, shall be as valid and effectual to pass title to real property, and any right, title or interest therein, as if such will had been duly proved and admitted to probate in the proper court in this state.

(5) The record of such copy, or a duly certified transcript thereof shall be presumptive evidence of the authority of any person authorized by such will, or any codicil thereto, to convey or otherwise dispose of any such real property or any right, titl'd or interest therein.

Hlotory. -§1, ch. 22884, 1945; am. §1, ch. 24341, 1947.

736.07 Effect of chapter 22783, acts 1945.Laws passed at the regular session of the legislature of 1945 shall not be repealed or affected by chapter 22783, acts of 1945 (revision of chapters 731, 732, 733, 734 and 736) but shall have full effect as if passed after the enactment of said chapter.

Hlotory.-§6, ch. 22783, 1945.

*736.17 Bequests and devises to trustee.(!) An otherwise valid bequest or devise

may be made to the trustee of a trust which is evidenced by a written instrument in existence at the time of the making of the will or by a written instrument subscribed concurrently with the making of the will, provided that such written instrument is identified in the will.

(2) Such devise or bequest shall not be in-

3734


valid for any or all of the following reasons: (a) Because the trust is amendable or revo

cable or both by any person whomsoever; or (b) Because the trust has been amended or

revoked in part after execution of the will or codicil thereto; or

(c) Because the trust instrument or any amendment thereto was not executed in the manner required for wills; or

(d) Because the possible expectancy of receiving benefits as named beneficiary of a life insurance policy deposited, or to be deposited with the trustee is the only trust res, and even though the testator or other person has reserved any or all rights of ownership in such insurance contracts, including the right to change the beneficiary.

(3) Such devise or bequest shall operate to dispose of property under the terms of the instrument which created the trust as theretofore or thereafter amended.

(4) An entire revocation of the trust by an instrumePt. in writing prior to the testator's death shall invalidate the devise O!" bequest.

(5) Unless the will provides otherwise, the property so devised or bequeathed shall not be deemed held under a testamentary trust of the testator and thus shall not be subject to the terms of chapter 737, Florida trust accounting law, but shall become a part of the principal of the trust to which it is devised or bequeathed.

(6) This section shall not be construed as repealing or amendatory of, but as cumulative to, all laws touching upon the subject matter hereof and now in force and effect.

(7) This act shall take effect immediately upon the date the same becomes law and shall be applicable to wills executed before and after said date by persons who are living on or after said date.

Hlstory.-U. ch. 59-57; §§2, 3, ch. 61-427. •Note.-This section was inadvertently repealed by §14, ch .

69-88, which enacted the uniform anatomical gift act. It will be r eenacted by a subsequent r eviser's bill.

736.20 Short title.-Sections 736.22, 736.-24-736.28, and 736.30 may be cited as the uniform anatomical gift act.

History.-§!, ch. 69-88.

736.21 Legislative declaration.-Because of the rapid medical progress in the fields of tissue and organ preservation, the transplantation of tissue, and tissue culture, and because it is in the public interest to aid the development of this field of medicine, it is the policy and purpose of the Legislature of Florida in enacting this act to encourage and aid the development of reconstructive medicine and surgery and the development of medical research by facilitating premortem and postmortem authorizations for donations of tissue and organs. It is the purpose of this act to regulate only the gift of a body or parts of a body to be made after the death of a donor.

Hlstory.-§2, ch. 69-88 .

736.22 Definitions.-For the purpose of this act:

(1) "Bank" or "storage facility" means a facility licensed, accredited, or approved under the laws of any state for storage of human bodies or parts thereof.

(2) "Decedent" means a deceased individual.

(3) "Donor" means an individual who makes a gift of all or part of his body.

(4) "Hospital" means a hospital licensed, accredited, or approved under the laws of any state and includes a hospital operated by the United States government, a state, or a subdivision thereof, although not required to be licensed under state laws.

(5) "Part" includes organs, tissues, eyes, bones, arteries, blood, other fluids, and other portions of the human body, and "part" includes "parts."

(6) "Person" means an individual, corporation, government or governmental subdivision or agency, business trust, estate, trust, partnership or association, or any other legal entity.

(7) "Physician" or "surgeon" means a physician or surgeon licensed to practice under chapter 458 or chapter 459 or similar laws of any state. "Surgeon" will include dental or oral surgeon.

(8) "State" includes any state, district, commonwealth, territory, insular possession, and any other area subject to the legislative authority of the United States.

Hlstory.-§3, ch. 69-88.

736.23 Persons who may execute an anatomical gift.-

(1) Any individual of sound mind and eighteen years of age or more may give all or part of his body for any purpose specified in §736.21, the gift to take effect upon death.

(2) Any of the following persons, in order of priority stated, and in the absence of actual notice of contrary indications by the decedent, or actual notice of opposition by a member of the same or a prior class, may give all or any part of the decedent's body for any purposes specified in §736.21 :

(a) The spouse; (b) An adult son or daughter; (c) Either parent; (d) An adult brother or sister; or (e) A guardian of the person of the de

cedent at the time of his death; provided, however, no gift shall be made by the spouse if any adult son or daughter shall object thereto.

(3) If the donee has actual notice of contrary indications by the decedent or objection of a son or daughter or that a gift by a member of a class is opposed by a member of the same or a prior class, the donee shall not accept the gift.

(4) The persons authorized by subsection (2) may make the gift after death or immediately before death.

(5) A gift of all or part of a body author-

3735


izes any examination necessary to assure medical acceptability of the gift for the purposes intended.

(6) The rights of the donee created by the gift are paramount to the rights of others except as provided by §736.27.

Hlstory.-§4, ch. 69-88 .

736.24 Persons who may become donees; purposes for which anatomical gifts may be made.-The following persons may become donees of gifts of bodies or parts thereof for the purposes stated:

(1) Any hospital, surgeon, or physician, for medical or dental education, research, advancement of medical or dental science, therapy, or transplantation; or

(2) Any accredited medical or dental school, college, or university for education, research, advancement of medical or dental science, or therapy; or

(3) Any bank or storage facility, for medical or dental education, research, advancement of medical or dental science, therapy, or transplantation; or

(4) Any specified individual for therapy or transplantation needed by him.

Hlstory.-§5, ch . 69-88.

736.25 Manner of executing anatomical gifts.-

(1) A gift of all or part of the body under §736.23 (1) may be made by will. The gift becomes effective upon the death of the testator without waiting for probate. If the will is not probated, or if it is declared invalid for testamentary purposes, the gift, to the extent that it has been acted upon in good faith, is nevertheless valid and effective.

(2) A gift of all or part of the body under §736.23 (1) may also be made by document other than a will. The gift becomes effective upon the death of the donor. The document, which may be a card designed to be carried on the person, must be signed by the donor and need not be witnessed. If the donor cannot sign, the document may be signed for him at his direction and in his presence and in the presence of two witnesses who must sign the document in his presence. Delivery of the document of gift during the donor's lifetime is not necessary to make the gift valid.

(3) The gift may be made to a specified donee or without specifying a donee. If the latter, the gift may be accepted by the attending physician as donee upon or following death. If the gift is made to a specified donee who is not available at the time and place of death, the attending physician, upon or following death, in the absence of any expressed indication that the donor desired otherwise, may accept the gift as donee. The physician who becomes a donee under this subsection shall not participate in the procedures for removing or transplanting a part.

(4) Notwithstanding §736.28(2), the donor may designate in his will, card or other document of gift the surgeon or physician to carry

out the appropriate procedures. In the absence of a designation, or, if the designee is not available, the donee or other person authorized to accept the gift may employ or authorize any surgeon or physician for the purpose.

(5) Any gift by a person designated in §736.23(2) shall be made by a document signed by him, or made by his telegraphic, recorded telephonic or other recorded message.

mstory.-§6, ch. 69-88.

736.26 Delivery of document of gift.-If the gift is made by the donor to a specified donee, the will, card, or other document, or an executed copy thereof, may be delivered to the donee to expedite the appropriate procedures immediately after death, but delivery is not necessary to the validity of the gift. The will, card, or other document, or an executed copy thereof, may be deposited in any hospital, bank or storage facility, or registry office that accepts them for safekeeping or for facilitation of procedures after death. On request of any interested party upon or after the donor's death, the person in possession shall produce the document for examination.

Hlstory.-§7, ch. 69-88 .

736.27 Amendment or revocation of the gift.-

(1) If the will, card, or other document, or executed copy thereof, has been delivered to a specified donee, the donor may amend or revoke the gift by:

(a) The execution and delivery to the donee of a signed statement; or

(b) An oral statement made in the presence of two persons and communicated to the donee; or

(c) A statement during a terminal illness or injury addressed to an attending physician and communicated to the donee; or

(d) A signed card or document found on his person or in his effects.

(2) Any document of gift which has not been delivered to the donee may be revoked by the donor in the manner set out in subsection (1) or by destruction, cancellation, or mutilation of the document and all executed copies thereof.

(3) Any gift made by a will may also be amended or revoked in the manner provided for amendment or revocation of wills or as provided in subsection (1).

Hlstory.-§8, ch. 69-88.

736.28 Rights and duties at death.-(1) The donee may accept or reject the

gift. If the donee accepts a gift of the entire body, or a part of the body to be used for scientific purposes other than as a transplant, he may, subject to the terms of the gift, authorize embalming and the use of the body in funeral services. If the gift is of a part of the body, the donee, ·upon the death of the donor and prior to or after embalming, shall cause the part to be removed without unnecessary mutilation. After removal of the part, custody

3736


of the remainder of the body vests in the surviving spouse, next of kin, or other persons under obligation to dispose of the body.

(2) The time of death shall be determined by a physician who attends the donor at his death, or, if none, the physician who certifies the death. This physician shall not participate in the procedures for removing or transplanting a part.

(3) A person who acts in good faith and without negligence in accord with the terms of this act or under the anatomical gift laws of another state or a foreign country is not liable for damages in any civil action or subject to prosecution in any criminal proceeding for his act.

(4) The provisions of this act are subject to the laws of this state prescribing powers and duties with respect to autopsies.

History.-§9, ch. 69-88.

736.29 Eye banks; registration of need.(1) Any state, county, district, or other

public hospital may purchase and provide the necessary facilities and equipment to establish

and maintain an eye bank for restoration of sight purposes.

*(2) The bureau of blind services of the division of vocational rehabilitation of the department of health and rehabilitative services may have prepared, printed, and thereafter distributed:

(a) A form document of gift for a gift of the eyes;

(b) An eye bank register, consisting of the names of persons who have executed documents for the gift of their eyes; and

(c) Wallet cards reciting such document of gift.

mstory.-§10, ch. 69-88; §§19, 35, ch. 69-106. •Note.-The editors have reworded paragraphs (a), (b), and

(c) to make them consistent with the preceding sections. As enacted, the wording referred to sections repealed by §14, ch. 69-88.

736.30 Uniformity of interpretation.-This act shall be so construed as to effectuate its general purpose to make uniform the law of those states which enact it.

History.-§ 11, ch. 69-88.

3737

Ch. 737 TRUST ACCOUNTING LAW Ch. 737

CHAPTER 737

TRUST ACCOUNTING LAW

737.01 Definitions. 737.02 Testamentary trustees to establish

737.03 737.04 737.05 737.06

qualifications. Requisites of petition. When petition to be filed. Respondents. Representation of incompetent benefi

ciary. 737.07 Representation in case of remainder to

737.08 737.09 737.10 737.11 737.12

a class. Who may qualify as trustees. Resident agent. Hearing and decree. Bond of trustee. Annual accounts, authority to appoint

examiners and auditors. 737.13 Notice of filing annual accounts.

737.01 Definitions.-In this chapter, where the context requires or permits, the wordR "person," "trustee" and "beneficiary" and pronouns related thereto shall include both the singular and plural and individ11als and corporations. The word "trustee" shall mean any person or corporation designated in a will tv perform trust functions and also shall include a temporai'Y or successor trustee. The word "executor" shall include administrator cum testamento annexo. The word "trust" shall Include trust estate and trust fund. The word "beneficiary" shall mean any person or corporation having any interest, vested or contingent, in the trust fund, including the guardian or other representative of any beneficiary. The words "supervisory proceeding" shall mean the proceeding in the circuit court required by this chapter. The words "incompetent beneficiary" shall include a minor, a person legally adjudged incompetent, an unknown person and an unborn person.

Hlstory.-§1, ch. 26656, 1951.

737.02 Testamentary trustees to establish qualifications.-

(!) Every person named as trustee under a will admitted to original probate in Florida shall, before he is entitled to receive any part of the property devised or bequeathed to him as such trustee, apply by petition to the circuit court of the county in which the decedent was domiciled, or in which the trustee is domiciled or has his principal place of business, to establish his qualifications as trustee and to submit the administration of the trust to the supervision of the court; provided, however, that if the trustee is a nonresident individual or a corporation organized under the laws of some other jurisdiction and having its principal place of business in some other state or country and where it appears from the will that the testator intended the trust to be administered in and subject to the laws of the jurisdiction in which the individual trustee resides or the corporate trustee has its principal place of business, such individu-

737.14 737.15 737.16 737.17 737.18 737.19 737.20 737.21 737.22 737.23 737.24 737.25 737.251

737.26 737.27 737.28

Objections to annual accounts. Order on trustee's account. Final account. Declaratory relief. Removal of trustee. Vacancy in trust. Powers of court. Penalties. Expenses and compensation. Waiver of accounting. Application to inter vivos trusts. Practice and procedure. Charitable trusts where beneficiaries

unknown; representative. Short title. Effective date. Inapplicability of chapter 737.

als or corporate trustee shall be exempt from the provisions of this chapter and the county JUdge shall authorize distribution of any property devised or bequeathed to the trustee without requiring such individual or corporate trustee to establish his qualifications hereunder.

(2) The court costs, costs of premium of the surety bond of the trustee and the initial fee of legal counsel incurred in first establi~hing the qualifications of the first trustees hereunder shall be paid as administration expenses by the executor of the estate of th~ decedent whose will created the trust.

History .-§2, ch. 26656, 1951. cf.-§734.22 Final settlement and discharge.

737.03 Requisites of petition.-The petition shall conform substantially to the following requirements. It shall be entitled "In re: Trust under Will of --------------------------------- ----------------------------------------------• deceased," and shall contain:

(1) the name and address of the trustee and a statement showing his qualifications as trustee;

(2) the name of the decedent, the date of his death, the date upon which his will was admitted to probate, the court admitting the will to probate, a copy of the will, and the status of the administration of the decedent's estate;

(3) an inventory and itemized statement of the value of the trust, insofar as this information is available;

( 4) the name, address and status of each beneficiary and a description of their respective interests in the trust; and

(5) a prayer for a decree determining that the trustee is qualified to act, fixing the amount of his bond, if any, assuming judicial supervision of the trust and a prayer for instructions as to any other matters presented by the petition.

Hlstory.-§3, ch. 26656, 1951.

737.04 When petition to be filed.-The petition shall be filed and the qualifications of

3738


the trustee duly established before the trustee shall be authorized to receive anv of the trust funds or assets. If the trustee fails to file the petition within sixty days after notification by the executor that he is ready to make distribution of the trust, a similar petition may be filed by any beneficiary or by the executor of the will.

Hlstory.-§4, ch. 26656, 1951.

737.05 Respondents.-The executor of the will shall be made a respondent to the petition unless such executor is also a petitioning trustee, and each beneficiary of the trust shall also be made a respondent to the petition. If the petition is not filed by the trustee, he shall be made a respondent. Each respondent shall be served with process as in suits in equity; provided, however, that any respondent may, by answer signed, waive service of process upon himself. Unknown and unborn beneficiaries need not in express terms be made parties respondent to the proceedings; but in any event such beneficiaries, whether named as parties or not, shall be deemed parties to the proceedings; represented, as the case may be, in the manner provided by §§737.06 and 737.07, but the testator may waive notice to any or all of the beneficiaries, or he may limit the notice to certain of the beneficiaries, or to direct beneficiaries, and in such case notice need be given only to those beneficiaries required to be served, but such beneficiaries, if sui juris, may waive such notice in writing.

mstory.-§5, ch. 26656, 1951; §1, ch. 29924, 1955.

737.06 Representation of incompetent beneficiary.-The guardian of the property of any incompetent beneficiary shall represent such incompetent beneficiary in the supervisory proceedings. Any incompetent beneficiary for whose property no guardian has qualified, including any unknown or unborn beneficiary, may be represented by a competent living member of the class to which said beneficiary belongs or would belong or by a guardian ad litem as the court shall determine, except in such cases as come within the purview of §737.07. A guardian ad litem may appear and plead without service of process upon him. If the trustee is serving also as guardian of the property of an incompetent beneficiary, the court shall appoint a guardian ad litem to represent such incompetent beneficiary.

mstory.-§6, ch. 26656, 1951; §2, ch. 29924, 1955.

737.07 Representation in case of remainder to a class.-Where an interest in the trust has been limited in any contingency to the persons who shall compose a class upon the happening of a future event, it shall be sufficient to make parties to the supervisory proceeding the persons in being who would constitute the class if such event had happened immediately before the commencement of the supervisory proceeding, and all decrees entered therein shall be conclusive on all present and future members of the class. Where

an interest in the trust has been limited to a person who is a party to the supervisory proceeding, and the same interest has been further limited upon the happening of a future event to persons who are or may be the distributees, heirs. issue or other kindred of such party, it shall not be necessary to make such distributees, heirs, issue or other kindred parties to the supervisory proceeding, and all decrees entered therein shall be conclusive upon them.

History .-§7, ch. 26656, 1951.

737.08 Who may qualify as trustees.-Generally, any person sui juris or any corporation authorized under the laws of Florida to receive testamentary bequests in trust may qualify as such trustee; but no person who has been convicted of a felony or who, from sickness, intemperance or want of understanding, is incompetent to discharge the duties of a trustee, shall be permitted to qualify.

Hlstory.-§8, ch. 26656, 1951.

737.09 Resident agent.-(1) Before any person may qualify as trus

tee hereunder, he shall file in the supervisory proceeding the name and address of an agent residing in the county in which the proceeding is brought, with the consent in writing of such resident agent, the service of process upon whom shall bind such person in his representative capacity and personally; provided, however, that any liability sought to be imposed in any such action must have accrued in the administration of the trust, and provided further that service of process upon such resident agent may be made only when the trustee, whether a resident or nonresident of Florida, is not amenable to service of process within the state. Inability to effect personal service on the trustee may be evidenced by return of the sheriff.

(2) This section does not apply to corporations authorized to exercise trust functions in Florida or to trustees exempt from the provisions of this chapter under §737.02.

Hlstory.- §9, ch. 26656, 1951.

737.10 Hearing and decree.-If, at the hearing on the petition, the trustee is found qualified to act, the court shall determine the amount of his bond, if any• and the time within which it must be filed. Upon qualification of the trustee and giving of bond as required, the court shall enter a decree declaring the trustee qualified to act and the court shall thereupon assume supervisory jurisdiction of the trust. The decree may also contain any other appropriate provisions concerning the administration of the trust. If the trustee fails to qualify, the court shall appoint some other suitable person who upon qualifying shall be appointed to serve as trustee. No oath of the trustees shall be required as evidence of acceptance of the trust or the undertaking of faithful performance thereof.

Hlstory.-§10, ch. 26656, 1951.

3739


737.11 Bond of trustee.-When any person interested in the trust estate files with the circuit court having jurisdiction of such trust estate a petition, from which petition and the evidence adduced thereon it is made to appear to the court that there is reasonable ground to apprehend that the trustee is mismanaging, wasting or diverting, or will mismanage, waste or divert the assets of said trust estate from their proper administration, the court shall require such trustee to give a bond with sufficient security conditioned as the law directs; and this bond may be required although the will may exempt said trustee from giving the bond. The trustee shall have such notice as the court may prescribe, and the right to appear and defend the proceedings. No bond shall be required of any corporation qualified to exercise trust powers in Florida, and whenever a corporate trustee is a cotrustee with one or more individuals and such corporate trustee certifies to the court that it has the custody of all of such assets, no bond shall be required of such individual, cotrustee or trustees.

Wstory.-§11, ch. 26656, 1951.

737.12 Annual accounts, authority to appoint examiners and auditors.-

(1) Every trustee shall file an annual account within ninety days after the expiration of the immediately preceding full calendar or fiscal year of the administration of the trust; providing, however, that where the value of the trust property or the volume of transactions of the trust is small, the court may, in its discretion, authorize the trustee to file periodic accounts covering two or more years each. Each annual or other periodic account shall contain an inventory of the trust fund at the end of the accounting period, a statement of the trustee's principal and income, receipts and disbursements during the accounting period, whether in cash or other property, and any other information which the trustee may desire to submit. All disbursements and distributions shown upon the account shall be supported by receipts or vouchers showing the pu_rpose therefor whenever the court or any beneficiary shall so request. The trustee may withdraw such receipts or vouchers from the court files upon order of the court and whenever all of the beneficiaries are sui juris and shall file in such action their several consents in writing waiving the filing of an accounting, the trustee shall then be relieved of filing such accounting unless required by the court, until one or more of the beneficiaries shall file a withdrawal in writing of such consent and waiver, or files a request in writing for an accounting. This shall not prevent any trustee from filing an accounting at any time.

(2) The court may examine or audit the accounts, or may appoint an examiner or auditor to examine and audit such accounts and report thereon to the court.

(3) The cost of the audit or examination

shall be paid out of the trust estate or as the decree of the court shall otherwise direct.

Wstory.-§12, ch. 26656, 1951; §3, ch. 29924, 1955; §1, ch. 59-376.

737.13 Notice of filing annual accounts.The trustee need not, but may, at his option, give notice of the filing of an annual account, but the notice, if given, shall state that it is an application for the approval of all annual accounts then on file not previously approved. Such notice may be by registered mail with return receipt, by personal service, or by delivery made by any person within or without the state, or by such other method as the court may authorize; but service on an attorney of record shall not be sufficient, nor shall the entry of a decree pro confesso against any beneficiary on the original petition constitute notice to such beneficiary under this section.

Hlstory.-§13, ch. 26656, 1951. cf.-§1.01 Defines registered mall to Include certified mall with


737.14 Objections to annual accounts.-Objections to any unapproved annual account may be filed by any beneficiarv at any time. If notice of filing an annual account is given, objections to any unproved account must be filed within sixty days after the notice is given or mailed; if notice of filing such account is waived, objections must be filed within sixty days after the filing of the account. Objections shall be tried and determined by the court upon the application of any party in interest, including the trustee, after due notice to all other parties.

Wstory.-§14, ch. 26656, 1951.

737.15 Order on trustee's account.-If notice of the filing of an annual account has been given or waived, the court may, after the time for filing objections has expired, or at the hearing on any objections, enter an appropriate order on such account and on all unapproved annual accounts previously filed.

Hlstory.-§15, ch. 26656, 1951.

737.16 Final account.-Prior to the final distribution of the trust, the trustee shall file a final account in the same form as an annual account, and give notice thereof to all beneficiaries as prescribed in §737.13. Objections to a final account shall be filed and determined as prescribed for annual accounts. If the court finds that the trustee has properly administered the trust, an order shall be entered approving the final account and all unapproved annual accounts and directing distribution; and upon filing of proper receipts showing distribution as directed, an order shall be entered finally discharging the trustee and the sureties on his bond, which order shall be conclusive, subject only to the right of appeal.

Wstory.-§16, ch. 26656, 1951. cf.-§1.01 Defines registered mall to Include certified mall with


737.17 Declaratory relief.-The supervisory proceeding is hereby declared to be a continu-

3740


ing proceeding and service or waiver of process based upon the original petition shall be sufficient to give the court jurisdiction of all parties thereto for the purpose of granting any declaratory or other relief authorized by chapter 86. Application for any such relief may be made by the trustee or any beneficiary and due notice of the application shall be given. Such notice may be given as provided in §737.13, but the applicant at his option may make service of process thereon as in suits in equity.

Hlstory.-§17, ch. 26656, 1951. cf.-§1.01 Defines registered mail to include certified mail with


737.18 Removal of trustee.-The trustee may be removed for good cause on the petition of any beneficiary or by the court on its own motion after due notice to the trustee and all other beneficiaries. The court may appoint a temporary trustee to administer the trust estate until final determination of removal proceedings.

Hlstory.-§18, ch. 26656, 1951.

737.19 Vacancy in trust.-In the event of a vacancy in the office of trustee from any cause, the court shall appoint a successor trustee, upon whose qualification the supervisory proceeding shall proceed as if the trustee so appointed had been named in the will. Upon the resignation, removal or death of a trustee, the court may enter all necessary orders with reference to the filing of accounts by the resigned or removed trustee or by the personal representative of the deceased trustee and the delivery of the trust to the successor trustee. Such orders may be enforced by commitment or contempt proceedings,

mstory.-§19, ch. 26656, 1951.

737.20 Powers of court.-All prov1s1ons of the Florida guardianship law with reference to devastavit, production of assets, and proceedings on the bond of a removed guardian, shall, where relevant, apply to trustees in the supervisory proceedings.

Hlstory.-§20, ch. 26656, 1951.

737.21 Penalties.-Any executor who makes distribution of any trust assets or any person who, as trustee or purporting to act as trustee, accepts distribution of any property under the will of a decedent prior to the entry of a decree establishing the trustee's qualifications, as required by this chapter, shall forfeit the right to his office, shall forfeit all compensation for his services, and shall be personally liable to the beneficiaries for the value of all property so distributed or received together with the income therefrom subsequent to the date of distribution. The trustee shall be '3ubject to all the penalties provided by law for perjury for any wilfully false statement of a material fact made in any petition or account filed by him even though such petition or account is not verified. When a trustee fails to comply with any of the provisions of this chap-

ter or with any order of the court entered in the supervisory proceeding, he may be removed or his compensation may be reduced or forfeited, or both, in the discretion of the court.

Hlstory.-§21, ch. 26656, 1951. cf.-§837.01, PerJUl'J.

737.22 Expenses and compensation.-The trustee shall be allowed reasonable compensation for his services, and all necessary expenses, including attorney's fees, incurred by him in the management of the trust estate.

History.-§22, ch. 26656, 1951.

737.23 Waiver of accounting.-The court shall have discretionary power to require the filing of annual and final accountings, notwithstanding any waiver thereof by the testator in his will or by the beneficiaries of the trust. The court may also require any additional accounting to be filed at any time.

History.-§23, ch. 26656, 1951.

737.24 Application to inter vivos trusts.This chapter shall not apply to inter vivos trusts, but the creator of an inter vivos trust. by provision in the trust instrument, may require the trustee to comply with the provisions of this chapter, in which event the trustee and the administration of said trust shall be subject to the provisions hereof in all respects as if said trust had been created by will. The trustee under an existing active inter vivos trust shall not be required to comply with this chapter by reason of any testamentary bequest or devise to him as such trustee unless such compliance is expressly required by the will, and in such circumstances only the property so bequeathed shall be subject to administration under the provisions hereof.

History.-§24, ch. 26656, 1951.

737.25 Practice and procedure.-Except as otherwise expressly provided herein, practice and procedure in the supervisory proceedings shall be as presc·ribed by law for suits in equity. Appeals shall be governed by the statutes and court rules applicable to equity cases.

History.-§25, ch. 26656, 1951.

737.251 Charitable trusts where beneficiaries unknown; representative.-In all proceedings under this chapter involving charitable trusts with unknown or unascertainable beneficiaries, the state's attorney for the judicial circuit having original jurisdiction of said trust shall be deemed to be the representative of such beneficiaries for ~ll the purposes of this chapter.

History.-§1, ch . 57-149.

737.26 Short title.-This chapter shall be cited as the Florida trust accounting law.

History .-§26, ch. 26656, 1951.

737.27 Effective date.-This chapter shall take effect on May 19, 1951 and shall apply only to trusts created by wills dated on or after January 1, 1952; provided, however, that the trustee under any testamentary trust created

3741


by the will of a decedent dying prior thereto may, at his option, subject such trust to the provisions of this chapter.

Bistory.-§27, ch. 26656, 1951.

737.28 Inapplicability of chapter 737.-Notwithstanding the provisions of chapter 737 or any other law requiring a testamentary trustee to qualify and account to any court, any person who in his last will and testament shall hereafter appoint a testamentary trustee, may in such will and testament or any codicil thereto, waive compliance by the trustee with the provisions of this chapter as such chapter now

exists or may hereafter be amended and may also specifically or by general terms waive compliance with any other law requiring qualification, ·administration or accounting by such trustee to any court and in any such instance the testamentary trustee shall be relieved of compliance therewith; provided, however, this section shall not prevent any beneficiary, or other interested party, instituting suit and obtaining an accounting of the administration of the trust or instituting any other suit against the trustee in connection with the administration or disposition of the trust.

History.-U. ch. 63-434.

3742

TITLE XLII DOMESTIC RELATIONS

CHAPTER 741

HUSBAND AND WIFE

741.01

741.02 741.03

741.04 741.05

741.051

741.052 741.053 741.054 741.055 741.056 741.057 741.058 741.059

County judge to issue marriage license.

Additional license fee. County judge not to send out marriage

lieense signed in blank. Marriage license issued. Penalty for violation of laws regulat

ing issuance of marriage license. Marriage licenses; conditions prece

dent to issuance; certificate of physician.

Same; serological tests. Same; forms to be prescribed. Same; making of tests. Same; affidavit of positive report. Same; no charge for laboratory test. Same; filing of certificates. Same; limitation on licenses. Same; use of information by division

of health.

741.01 County judge to issue marriage license.-Every marriage license shall be issued by the county judge of the county wherein the woman resides, under his hand and seal, and said county judge shall issue such license, upon payment of his fee of two dollars, if there appear to be no impediment to the marriage.

Hlatory.-§2, Nov. 2, 1829; §2, ch. 8720, 1887; 11, ch. 8890, 1889; RS 2066; GS 2674; RGS 8933; CGL 6848.

741.02 Additional license fee.-Upon the issuance of each and every license issued by a county judge in the state, such county judge shall in addition to the fee allowed by §741.01, collect and receive an additional fee of three dollars to be distributed as provided by §382.24.

Hlstory.-§1, ch. 11869, 1927; COL 5851; §7, ch. 22000, 1943; §1, ch. 67-520.

741.03 County judge not to send out marriage license signed in blank.-It is unlawful for any county judge in the state to send out of his office any marriage license signed in blank to be issued upon application to persons not in the office of the county judge.

Hl•toey.-§1, cb. 782R, 1919: CGL 6849.

741.04 Marriage license issued.-No county judge in this state shall issue a license for the marriage of any person, unless there shall be first presented and filed with him an affidavit in writing, signed by both parties to the marriage, made and subscribed before some person authorized by law to administer an oath, reciting the true and correct ages of such parties, and unless both such

741.0591 741.0592 741.0593 741.06

741.07

Penalties for violation of law. Same; reports confidential. Effective date of law.

When marriage license may be issued to persons under twenty-one years.

Persons authorized to solemnize matri-mony.

7 41.08 Marriage not to be solemnized without a license.

741.09 Record of license and certificate. 741.10 Proof of marriage where no certificate

741.18

741.21 741.211 741.22 741.23 741.24

available. Certain marriages by judge of probate

validated. Incestuous marriages prohibited. Common law marri,ages void. Punishment for incest. Husband not liable for wife's torts. Civil action against parents; willful

destruction of property by minor.

parties shall be over the age of twenty-one years; provided, that if either of such parties shall be under the age of twenty-one years, such county judge shall not issue a license for the marriage of such party unless there shall be first presented and filed with him the written consent of the parents or guardian of such minor to such marriage, acknowledged before some officer authorized by law to take acknowledgments and administer oaths; provided, this section shall not apply in any case where both parents of sucb minor shall be deceased at the time of making application for such marriage license; but no minor who has been before married shall be required to produce evidence of consent of parents or guardian as aforesaid; and provided, further, no marriage license shall be issued by any county judge in this state after application therefor until after expiration of three days, including day application is made to county judge by the parties seeking to be married, for the issuance of a marriage license, and it shall be the duty of the county judge to post a true copy of said application at the front door of the court house in the county where said application was made for a period of three days prior to the issuance of said marriage license, which said three days shall include day of application therefor.

Hlstory.--§2, Nov. 2, 1829; §2, cb. 3720, 1887; 11, cb, 3890, 1889; RS 2065; GS 2574 ; §2, cb. 7828, 1919; RGS 3933; COL 5850; f 1, ch. 22643, 19'5; am. f1, ch. 28103, 1953. cf.-§741.06, When license may Issue to minors.

1741.08, Necessity of license.

3743

Ch. 741 HUSBAND AND WIFE

7 41.05 Penalty for violation of laws regulating issuance of marriage license. - Any county judge, or other person, who shall violate any provision of §§741.03 and 741.04, shall, upon conviction thereof, be deemed guilty of a felony, and shall be punished by imprisonment in the state prison for a period of not more than one year, or by fine not to exceed five hundred dollars.

Hlstory.-§3, ch. 7828, 1919: CGL 7617. cf.-§775.06, Alternative punishment.

741.051 Marriage licenses; conditions precedent to issuance; certificate of physician.After October 1, 1945, every person making application for license to marry shall file with the county judge, as a condition precedent to the issuance of any such license, a certificate from a duly licensed physician, which certificate shall state that the applicant has been given such physical examination, including_ a standard serological test, as may be necessary for the discovery of syphilis, made not . more than thirty days prior to the date of application for such marriage license, and that the applicant is not infected with syphilis, or if so infected is not in a stage of that disease which is or may become communicable to the marital partner.

Hlstory.-§§1, 16, ch. 22738, 1946.

741.052 Same; serological tests.-The certificate of the duly licensed physicians, as aforesaid, shall be accompanied by a statement by the person making the standard serological test or from the person in charge of the laboratory making the test, setting forth the name of the test, the result of the test, the date it was made, the name and address of the physician who submitted the sample of blood for the test, and the name and address of the person whose blood was tested. In submitting the blood specimen the physician shall designate that this is a premarital test and the statement from the laboratory shall show that this was a premarital test.

Hlstory.-§2, ch. 22738, 1945.

741.053 Same; forms to be prescribed.The certificate of a physician and the statement constituting the laboratory report on the serological test shall each be on a form to be provided by the division of health of the department of health and rehabilitative services and distributed to the offices of all county judges and to all laboratories, hospitals andjor clinics in the state approved by the division of health.

Hlstory.-§3, ch. 22738, 1945; §§19, 35, ch. 69-106.

741.054 Same; making of tests.-For the purpose of this law a standard serological test shall be a test for syphilis approved by the division of health, and an approved laboratory shall be the division of health laboratory, any of its branches, or any other laboratory licensed or operated in accordance with the laws of this state or of the state in which it is located; provided, however, that the serological test or tests shall be such as will exclude the possibility that the disease as shown by said test or tests is some other disease than syphilis.

Hlstory.-14, ch. 22738, 1945; 1119, 35, ch . 69-106.

741.055 Same; affidavit of positive report.In any case where such examinations and tests have been made and certificate or certificates have been refused because one or both of the applicants have been found to be infected with syphilis, the county judge shall nevertheless be authorized and empowered on application of both parties to such marriage to issue the license without the certificate of a physician if the judge is satisfied by affidavit or other proof that the female is pregnant; providing, that all other requirements of the marriage laws have been complied with and that the public health and welfare will not be injuriously affected thereby. In every such case, however, the county judge shall transmit to the division of health a transcript of the court record and file a copy of the order of the court in lieu of the physician's certificate. The court when it is deemed necessary may, to the extent authorized by law or rules of court, order all the proceedings instituted under the provisions of this section to be confidential and private. There shall be no fee for the court proceedings authorized in this section.

mstory.-§5, ch. 22738, 1945 ; 1§19, 35, ch . 69-106.

741.056 Same; no charge for laboratory test.-All serological tests required by this law on blood specimens submitted to the laboratory of the division of health or to any of its authorized branches shall be made without charge. The fee of the physician for making the examinations and issuance of the certificate required by this law shall not exceed the usually charged for office visits.

Hlstory.-§6, ch. 22738, 1945; §§19, 35, ch. 69-106.

741.057 Same; filing of certificates.-The physician's certificate and the laboratory report shall be filed with the transcripts of court proceedings in the office of the county judge for a period of not less than sixty days, after which time they may be destroyed at the discretion of the county judge.

mstory.-§7, ch. 22738, 1845; §1, ch. 61-17.

741.058 Same; limitation on licenses.From and after the effective date of this law, marriage licenses shall be valid only for a period of thirty days after issuance, and no person shall perform any ceremony of marriage after the expiration date of such license. The county judge shall recite on each marriage license the final date that such is so valid.

History .-§8, ch. 22738, 1946.

741.059 Same; use of information by division of health.-The division of health shall be authorized to use the information derived from premarital serological tests for such follow-up procedures as are required by law or deemed necessary by said division for the protection of the public health.

Wstory.-§9, ch. 22738, 1945; §§19, 35, ch. 69-106.

741.0591 Penalties for violation of law.Any applicant for a marriage license, physician or representative of a laboratory who shall misrepresent his identity or any of the facts called

3744

Ch. 741 HUSBAND AND WIFE Ch. 741

for by the certificate form or laboratory report form as provided for in §741.053; or any county judge or his deputy who shall issue a marriage license without having received the physician's certificate, laboratory report or order from the court, or who shall have reason to believe that any of the facts have been misrepresented and shall nevertheless issue a marriage license; or any person who shall otherwise fail to comply with the provisions of this law shall be guilty of a misdemeanor.

Hlstory.-§10. ch. 22738. 1945. Note.-See former §741.0510.

741.0592 Same; reports confidential.-Physicians' certificates, laboratory reports and court orders and all information therein contained shall be confidential and shall not be divulged to or open to inspection by any person outside the office of the county judge other than the state division of health or local health officers or their duly authorized representatives. Any person who shall divulge such information or open for inspection such certificates, laboratory reports or court orders, without authority, to any person not by law entitled to the same, shall be guilty of a misdemeanor.

Hlstory.-§11, ch. 22738, 1945; §§19, 35, ch . 69-106. Note.-See former §741.0511.

cf.-§775.07, Misdemeanor, punishment.

741.0593 Effective date of law.-From and after October 1, 1945, any person who enters into the contract of marriage without having first complied with §§741.051-741.0592, shall be guilty of a misdemeanor and upon conviction therefor shall be punished as prescribed by law.

History.-§ 12, ch. 22738, 1945. Noto.-See former §741.0512.

cf.-§775.07, Misdemeanor, punishment.

741.06 When marriage license may be issued to persons under twenty-one years.-The county judge of any county in the state may, in the exercise of his discretion, issue a license to marry to any male or female under the age of twentyone years, upon sworn application of both applicants under oath that they are the parents or expectant parents of a child. The consent of the parents or guardian of such applicants shall not be required for the issuance of a license to marry under the provisions of this section. No license to marry shall be granted to any male under the age of eighteen years, nor to any female under the age of sixteen years, with or without the consent of their parents except as hereinabove provided.

Hlstory.-§1, ch. 18021, 1937; CGL 1940 Supp. 5850(1); §1, ch. 63-238 .

741.07 Persons authorized to solemnize matrimony.-All regularly ordained ministers of the gospel or elders in communion with some church, and all judicial officers and notaries public of this state may solemnize the rights of matrimonial contract, under the regulations prescribed by law. Provided that any marriage which may be had and solemnized among the people called quakers, or friends, in the manner and form used or practiced in their societies, according to their rites and ceremonies, shall

be good and valid in law; and wherever the words "minister" and "elder" are used in this chapter they shall be held to include all of the persons connected with the society of friends, or quakers, who perform or have charge of the marriage ceremony according to their rites and ceremonies.

Blstory.-§1, Nov. 2, 18~9 ; §2, ch. 1127, 1861; RS 2056; GS 2575 ; RGS 3934; COL 5853; §1, ch. 28104, 1953.

7 41.08 Marriage not to be solemnized without a license. - Before any of the persons named in §7 41.07 shall solemnize any marriage, he shall require of the parties a marriage license issued according to the requirements of §741.01, and within ten days after solemnizing the marriage he shall make a certificate thereof of the license, and shall transmit the same to the office of the county judge from which it issued.

Wstory.-§ § 2, 3, Nov. 2, 1829; §1, ch. 3890, 1889; RS 2057; GS 2576; ROS 3935; COL 5854.

7 41.09 Record of license and certificate.The county judge shall keep in good and substantially bound books a correct record of all marriage licenses issued, with the names of the parties and the date of issuing, and upon the return of the license and certificate he shall enter therein the name of the person solemnizing the marriage and the date of marriage and of the return.

Wstory.-§3, Nov. 2, 1829; §1, ch. 3890, 1889; RS 2058; GS 2577; RGS 3936; COL 5855.

741.10 Proof of marriage where no certificate available.-When any marriage is or has been solemnized by any of the persons named in §741.07, and such person has not made a certificate thereof of the marriage license as required by §741.08, or when the marriage license has been lost, or when by reason of death or other cause the proper certificate cannot be obtained, the marriage may be proved by affidavit before any officer authorized to administer oaths made by two competent witnesses who were present and saw the marriage ceremony performed, which affidavit may be filed and recorded in the office of the county judge from which the marriage license issued, with the same force and effect as in cases in which the proper certificate has been made, returned and recorded.

Wstory.-§1, ch. 3126, 1879; RS 2059; OB 2578; ROB 3837; COL 5856.

741.18 Certain marriages by judge of probate validated.-In all cases where marriages have been solemnized by a judge of probate prior to the tenth day of January, 1849, the same shall be held as valid in every respect, as if the said marriages had been solemnized after the passage of the act entitled "An act to authorize the several judges of probate to solemnize the rites of matrimony and for other purposes," approved the day and year aforesaid.

Wotor;r.-§2, ch. 253, 18411; RS 2061; OB 25M; RGS 3943; COL 5862.

741.21 Incestuous marriages prohibited. -A man may not marry any woman to whom he

3745

Ch. 741 HUSBAND AND WIFE Ch. 741

is related by lineal consanguinity, nor his sister, nor his aunt, nor his niece. A woman may not marry any man to whom she is related by lineal consanguinity, nor her brother, nor her uncle, nor her nephew.

History.-RS 2602; GS 3525; RGS 5415; CGL ?558.

741.211 Common law marriages void.-No common law marriage entered into after January 1, 1968, shall be valid, except that nothing contained in this section shall affect any marriage which, though otherwise defective, was entered into by the party asserting such marriage in good faith and in substantial compliance with this chapter.

History.-§1, ch. 67·571.

741.22 Punishment for incest. - Persons within the degrees of consanguinity within which marriages are prohibited or declared by law to be incestuous and void, who intermarry or commit adultery or fornication with each other, shall be punished by imprisonment in the state prison not exceeding twenty years, or in the county jail not exceeding one year.

Wdory.-§7, sub-ch. 8, ch. 1637, 1868; RS 2801; OS 3524; ROS M14; COL 7667.

741.23 Husband not liable for wife's torts. -The common law rule whereby a husband is

liable for the torts of his wife is hereby abrogated.

Hlstory.-§1, ch. 26829, 1951.

741.24 Civil action against parents; willful destruction of property by minor.-

(1) Any municipal corporation, county, school district and department of Florida; any person, partnership, corporation or association; or any religious organization, whether incorporated or unincorporated, shall be entitled to recover damages in an appropriate action at law in an amount not to exceed one thousand dollars in a court of competent jurisdiction from the parents of any minor under age of eighteen years, living with the parents, who shall maliciously or willfully destroy property, real, personal or mixed, belonging to such municipal corporation, county, school district or department of the state, person, partnership, corporation or association or religious organization.

(2) The recovery shall be limited to the actual damages in an amount not to exceed one thousand dollars in addition to taxable court costs.

History.-§§ 1, 2, ch. 31400, 1956; §40, ch. 67-254; §1, ch. 67· 404.

Note.-see former §45.20 .

3746

Ch. 742 BASTARDY Ch. 742

CHAPTER 742

BASTARDY

7 42.011 Bastardy proceedings; circuit court jurisdiction.

742.021 Same; venue, process, complaint. 742.031 Same; hearings; court orders, support,

hospital expenses, etc. 742.041 Same; monthly contributions. 7 42.06 Same; jurisdiction retained for future

orders.

742.011 Bastardy proceedings; circuit court jurisdiction.-Any unmarried woman who shall be pregnant or delivered of a bastard child, may bring proceedings in the circuit court, in chancery, to determine the paternity of such child.

Bistory.-§1, ch. 26949, 1951.

742.021 Same; venue, process, complaint.The proceedings shall be by verified complaint filed in the circuit court of the county in which the woman resides or of the county in which the alleged father resides. The complaint shall aver sufficient facts charging the paternity of the child. Process directed to the defendant shall issue forthwith requiring the defendant to file his written defenses to the complaint in the same manner as suits in chancery. Upon application and proof under oath, the court may issue a writ of ne exeat against the defendant on such terms and conditions and conditioned upon bond in such amount as the court may determine.

Blstory.-§2, ch. 26949, 1951.

742.031 Same; hearings; court orders, support, hospital expenses, etc.-Hearings for the purpose of establishing or refuting the allegations of the complaint and answer shall be held in the chambers and may be restricted to such persons, in addition to the parties involved and their counsel, as the judge in his discretion may direct. The court shall determine the issues of paternity of the child, and the ability of the parents and each of them to support the child and if the court shall find the defendant to be the father of the child he shall so order and shall further order the defendant to pay the complainant, her guardian or such other person assuming responsibility for the child as the judge may direct, such sum or sums as shall be sufficient to pay reasonable attorney's fee, hospital or medical expenses, cost of confinement and any other expenses incident to the birth of such child. In addition the court shall order the defendant to pay periodically for the support of such child such sums as shall be fixed by the court in accordance with the provisions of this act, and also all taxable costs of the proceedings. Upon request of either party, the issue of the paternity of such child may be tried by jury and the chancellor shall transfer the cause for the determination of such issue.

Blstor,..-§3, ch. 26949, 1951; §1, ch. 59-45.

742.07 742.08 742.09 742.091 742.10

Effect of adoption. Default of support payments. Publishing names; penalty. Marriage of parents. Chapter in lieu of other proceedings.

742.041 Same; monthly contributions.-The court shall order the defendant to pay monthly for the care and support of such child the fol lowing amounts: From date of birth to 6th birthday-$40 per month From 6th birthday to 12th birthday-$60 per month From 12th birthday to 15th birthday-$90 per month From 15th birthday to 18th birthday-$110 per month Such amounts may be increased or reduced by the judge in his discretion depending upon the circumstances and ability of the defendant.

Bistory.-§4, ch. 26949, 1951.

742.06 Same; jurisdiction retained for future orders.-The court shall retain jurisdiction of the cause for the purpose of entering such other and further orders as changing circumstances of the parties may in justice and equity require.

Bistory.-§5, ch. 26949, 1951.

742.07 Effect of adoption.-Upon the adoption of a child, for whom support has been ordered, by some person other than the father, the liability of the father for the support of the child shall be terminated.

History.- §6, ch. 26949, 1951.

742.08 Default of support payments.-Upon default in payment of any moneys ordered by the court to be paid, the court may enter a judgment for the amount in default which shall be a lien upon all property of the defendant both real and personal. Willful failure to comply with an order of the court shall be deemed a contempt of the court entering the order and shall be punished as such. The court may require bond of the defendant for the faithful performance of his obligation under the order of the court in such amount and upon such conditions as the court shall direct.

Bistory.-§7, ch. 26949, 1951.

742.09 Publishing names; penalty.-lt shall be unlawful for the owner, publisher, manager or operator of any newspaper, magazine, radio station or other publication of any kind whatsoever, or any other person responsible therefor, or any radio broadcaster, to publish the name of any of the parties to any court proceeding instituted or prosecuted under this act; and any person violating this provision

3747

Ch. 742 BASTARDY Ch. 742

shall be guilty of a misdemeanor and be punished by imprisonment in the county jail not exceeding twelve months or by fine not exceeding one thousand dollars or both.

History .-§8, ch. 26949, 1951.

7 42.091 Marriage of parents. - If the mother of any bastard child and the reputed father shall at any time after its birth intermarry, the child shall in all respects be deemed and held legitimate, and upon the payment of all costs and attorney fees as determined

by the court, the cause shall be dismissed and the bond provided for in §742.021 shall be void. The record of the proceedings in such cases shall be sealed against public inspection in the interests of the child.

mstory.-§1, ch. 57-267.

742.10 Chapter in lieu of other proceedings. -This chapter shall be in lieu of any other proceedings provided by law for the determination of paternity and support of bastard children.

mstory.-§9, ch. 26949, 1951; flO, ch. 27991, 1953.

3748

Ch. 743 DISABILITY OF NONAGE OF MINORS REMOVED Ch. 743

CHAPTER 743

DISABILITY OF NONAGE OF MINORS REMOVED

743.01 Married male minors' disability re-moved.

7 43.02 Applied to divorced persons, etc. 743.03 Removal of disabilities of female minors. 743.04 Removal of disabilities of persons en-

titled to servicemen's benefits.

7 43.01 Married male minors' disability removed.-The disability of nonage of all male minors who are married, who have been married, or who may hereafter become married, is removed, and all such persons may assume the management of their estate, contract and be contracted with, sue and be sued, and do and perform any and all acts, matters and things that he could do if he were twenty-one years of age.

mstory.-§1. ch. 7364, 1917 ; ROB 3962; COL 5881; am. 11, ch. 22750, 1945. cf.-§62.011 Removal of minor's d!sab!l!tles .

743.02 Applied to divorced persons, etc.The provisions of §743.01 shall apply to all such persons who may have obtained a decree of divorce, or who may hereafter obtain a decree of divorce, or whose wife may have died before such person has reached his majority.

mstory.-§2, ch. 7364, 1917; ROB 3963; COL 5882.

7 43.03 Removal of disabilities of female minors.-The disabilities of nonage of all female minors who are married, who have been married, or who may hereafter become married, including those divorced or hereafter divorced, and those who are or who may hereafter become widows, are removed, and hereafter all such female minors may assume the management of their estate, contract and be contracted with, sue and be sued, and do and perform any and all acts, matters and things that she could do if she were twenty-one years of age.

History.-§ 1, ch. 9286, 1923; COL 5883.

7 43.04 Removal of disabilities of persons entitled to servicemen's benefits.-Any person under the age of twenty-one years authorized to participate in the rights, privileges and bene-

7 43.05 Removal of disabilities of minors; borrowing money for educational purposes.

fits conferred by chapter 37 of Title 38 U.S.C. "Home, Farm and Business Loans," and the infant wife of any such person, are hereby authorized to make and execute any and all contracts necessary to the full realization of the rights, privileges and benefits conferred under that act provided that such persons shall be otherwise competent to enter into agreements and contracts. Contracts so entered into by any such persons under twenty-one years of age shall have the same force and effect as though they were the obligations of persons over twenty-one years of age.

History.-§!, ch . 23873, 1947; §24, ch. 69-353.

743.05 Removal of disabilities of minors; borrowing money for educational purposes.For the purpose of borrowing money for their own higher educational purposes, and for such purposes only, the disabilities of nonage of minors are removed for all persons, whether male or female, who are between the ages of sixteen years and twenty-one years. Any person between the ages of sixteen years and twenty-one years is authorized to make and execute any and all promissory notes, contracts, or other instruments necessary to be executed by him in order to borrow money for his own higher educational purposes. Any promissory note, contract, or other instrument entered into by any such person pursuant to the provisions of this section shall have the same force and effect as though they were the obligations of persons over the age of twenty-one years; provided, that no such obligation shall be valid if the rate of interest thereon exceeds seven percent per annum, simple interest.

Hlstory.-§1, ch. 59-268; §!, ch. 69-105.

3749

Ch. 744 FLORIDA GUARDIANSHIP LAW, FIRST PART Ch. 744

CHAPTER 744

FLORIDA GUARDIANSHIP LAW, FIRST PART

744.01 Short title. 744.02 Application. 7 44.03 Definitions. 744.04 Liberal construction. 744.05 Guardians of incompetent world war

veterans. 7 44.06 Jurisdiction. 744.07 Court always open. 744.08 Disqualification of county judge. 744.09 Substitution of circuit judge. 744.10 Change of domicile of ward. 744.11 Venue. 744.12 Guardian ad litem. 744.13 Natural guardians. 744.14 Testamentary guardian. 744.15 Foreign guardians. 744.16 Foreign guardian may manage the

property of nonresident ward. 7 44.17 Sale, mortgage or lease by foreign

guardian of nonresident ward. 744.18 Resident guardian of the property of

nonresident incompetent. 744.19 Petition for appointment of resident

guardian for the property of nonresident incompetent.

744.20 Guardian ad litem for property of nonresident incompetent.

744.21 Notice of hearing on petition for appointment of resident guardian of the property of nonre-sident incompetent.

744.22 Hearing on petition for appointment of resident guardian of the property of nonresident incompetent.

744.23 Costs on appointment of resident guardian of the property of nonresident incompetent.

744.24 Testimony at hearing on appointment of resident guardian of the property of nonresident incompetent.

744.25 Preference in appointment as resident guardian of the property of nonresident incompetent.

744.26 Bond, oath, duties and powers of resident guardian of the property of nonresident ward.

7 44.27 Who may be appointed guardian of a resident incompetent.

744.28 Pleadings. 744.29 Notice and service. 744.30 Petition for appointment of guardian. 744.31 Petition for appointment of guardian

for a person mentally or physically incompetent.

744.315 Appointment of guardian of estate of physically incapacitated person without adjudication of incompetency.

744.01 Short title.- This chapter, together with chapters 745 and 746 next following, is known and may be cited as the Florida guardianship law.

mator:r.-§1, ch. 8478, 1921; CGL 5884; §1, ch. 22750, 1945.

744.32 Subpoenas and depositions. 7 44.33 Notice of hearing on petition for ap

pointment of guardian for an incompetent.

744.34 Order of appointment. 744.35 Preference in appointment. 7 44.36 Oath of guardian. 744.37 Oaths and affidavits. 7 44.38 Bond of guardian. 744.39 Bond of surety company. 7 44.40 Letters of guardianship. 7 44.41 Insufficiency of bond. 7 44.42 Validity of bond. 744.43 Liability of surety. 744.44 Suit upon bond. 744.45 Release of surety. 744.46 Resident agent. 7 44.47 Costs. 744.48 Duties of guardian of the person. 744.481 Periodic examination of ward. 744.482 Duty to file report. 744.483 Expense of examinations; insufficient

assets. 744.484 Relief to be granted. 744.49 Powers of guardian of the person. 744.50 Payments to guardian of the per-son. 744.51 Duties of guardian of the property. 744.52 Guardian to take possession of all prop-

erty. 744.53 Duty to file inventory. 744.54 Appointment and qualification of ap-

praisers. 7 44.55 Form and return of appraisal. 744.56 Compensation of appraisers. 744.57 When appraisal unnecessary. 744.58 Inventory or appraisal as evidence. 744.59 Subsequently discovered or acquired

property. 744.60 Compromise and settlement. 744.601 Plaintiffs; actions by infants, idiots

and lunatics. 744.61 Suits by and against guardian or ward. 744.62 Suspension of statutes of limitations in

favor of guardian. 744.63 Suspension of statutes of limitations in

favor of claimants. 744.64 Application of income of property of

ward. 744.65 Petition for support of ward's depend-

ents. 744.66 Continuance of business. 7 44.67 Cultivation of lands. 744.68 Burial expenses of ward.

744.02 Application.-This Florida guardianship law shall take effect on January 1 1946 at 12:01 o'clock in the morning, and thereafter shall govern all matters pertaining to guardians and wards and the property of such wards,

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Ch. 732 FLORIDA PROBATE LAW, SECOND PART Ch. 732...

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Transcript of Ch. 732 FLORIDA PROBATE LAW, SECOND PART Ch. 732...