PROBATE CODE: INTESTATE SUCCESSION AND WILLS Ch. …Giving a written waiver of the right to dis...

F.S.1979 PROBATE CODE: INTESTATE SUCCESSION AND WILLS Ch. 732

interest to which he may be entitled in any manner described in the subsection, including subparagraph (2)(a)8., even though the interest includes disclaimed assets by virtue of the beneficiary's disclaimer.

(4) FORM, FILING, RECORDING, AND SERVICE OF DISCLAIMER INSTRUMENTS.-

(a) To be a disclaimer, a writing shall declare the disclaimer and its extent, describe the interest in property disclaimed, and be signed, witnessed, and acknowledged in the manner provided for the conveyance of real property.

(b) A disclaimer shall be effective and irrevocable when the instrument is recorded by the clerk where the estate of the decedent is or has been administered. If no administration has been commenced, recording may be made with the clerk of any county where venue of administration is proper.

(c) The person disclaiming shall deliver or mail a copy of the disclaimer instrument to the personal representative, trustee, or other person having legal title to, or possession of, the property in which the disclaimed interest exists. No representative, trustee, or other person shall be liable for any otherwise proper distribution or other disposition made without actual notice of the disclaimer or, if the disclaimer is waived or barred as hereinafter provided, for any otherwise proper distribution or other disposition made in reliance on the disclaimer, if the distribution or disposition is made without actual notice of the facts constituting the waiver or barring the right to disclaim.

(5) TIME FOR RECORDING DISCLAIMER-A disclaimer shall be recorded at any time after the creation of the interest, but in any event within 9 months after the event giving rise to the right to disclaim, including the death of the decedent; or, if the disclaimant is not finally ascertained as a beneficiary or his interest has not become indefeasibly fixed both in quality and quantity at the death of the decedent, then the disclaimer shall be recorded not later than 6 months after the event that would cause him to become finally ascertained and his interest to become indefeasibly fixed both in quality and quantity. However, a disclaimer may be recorded at any time after the creation of the interest, upon the written consent of all interested parties as provided in section 731.302.

(6) WAIVER OR BAR TO RIGHT TO DISCLAIM.-

(a) The right to disclaim otherwise conferred by this section shall be barred if the beneficiary is insolvent at the time of the event giving rise to the right to disclaim and also by:

1. Making a voluntary assignment or transfer of, a contract to assign or transfer, or an encumbrance of, an interest in real or personal property.

2. Giving a written waiver of the right to disclaim the succession to an interest in real or personal property.

3. Making any sale or other disposition of an interest in real or personal property pursuant to judicial process by the beneficiary before he has recorded a disclaimer.

(b) The acceptance, assignment, transfer, encumbrance, or written waiver of the right to disclaim a part of an interest in property, or the sale pursuant

to judicial process of a part of an interest in property, shall not bar the right to disclaim any other part of the interest in property.

(7) EFFECT OF RESTRAINTS.-The right to disclaim granted by this section shall exist irrespective of any limitation imposed on the interest ofthe disclaimant in the nature of an express or implied spendthrift provision or similar restriction.

(8) RIGHT TO DISCLAIM UNDER OTHER LAW NOT ABRIDGED.-This law shall not abridge the right of any person to disclaim, renounce, alienate, release, or otherwise transfer or dispose of any interest in property under any other existing or future law.

History.-s. 1, ch. 74-106; s. 40, ch. 75-220; s. 15, ch. 77-87. Note.-Created from former s. 731.37.

732.802 Murderer.-A person convicted of the murder of a decedent shall not be entitled to inherit from the decedent or to take any part of his estate as a devisee. The part of the decedent's estate to which the murderer would otherwise be entitled shall pass to the persons entitled to it as though the murderer had died during the lifetime of the decedent.

History.-s. 1, ch. 74-106; s. 113, ch. 75-220. Note.-Created from former s. 731.31.

732.803 Charitable devises.-(1) If a testator dies leaving lineal descendants or

a spouse and his will devises part or all of the testator's estate:

(a) To a benevolent, charitable, educational, literary, scientific, religious, or missionary institution, corporation, association, or purpose,

(b) To this state, any other state or country, or a county, city, or town in this or any other state or country, or

(c) To a person in trust for any such purpose or beneficiary, whether or not the trust appears on the face of the instrument making the devise,

the devise shall be avoided in its entirety if one or more of the lineal descendants or a spouse who would receive any interest in the devise, if avoided, files written notice to this effect in the administration proceeding within 4 months after the date letters are issued, unless:

(d) The will was duly executed at least 6 months before the testator's death, or

(e) The testator made a valid charitable devise in substantially the same amount for the same purpose or to the same beneficiary, or to a person in trust for the same purpose or beneficiary, as was made in the last will or by a will or a series of wills duly executed immediately next to the last will, one of which was executed more than 6 months before the testator's death.

(2) The testator's making of a codicil that does not substantially change a charitable devise as herein defined within the 6-month period before the testator's death shall not render the charitable gift voidable under this section.

History.-s. 1, ch. 74-106; s. 42, ch. 75-220; s. 16, ch. 77-87; s. 1, ch. 77-174. Note.-Created from former s. 731.19.

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732.804 Provisions relating to cremation.The fact that cremation occurred pursuant to a provision of a will or any written contract signed by the decedent in which he expressed his intent that his body be cremated is a complete defense to a cause of action against the personal representative or person providing the services.

History.-<~. 1, ch. 74-106; s. 43, ch. 75-220.

PART IX

PRODUCTION OF WILLS

732.901 Production of wills.

732.901 Production of wills.-(1) The custodian of a will must deposit the will

with the clerk of the court having venue of the estate of the decedent within 10 days after receiving information that the testator is dead. Willful failure to do so shall render the custodian responsible for all costs and damages sustained by anyone if the court finds that the custodian had no just or reasonable cause for withholding the deposit of the will.

(2) By petition and notice of it served on him, the custodian of any will may be compelled to produce and deposit the will as provided in subsection (1). All costs, damages, and a reasonable attorney's fee shall be adjudged to petitioner against the delinquent custodian if the court finds that the custodian had no just or reasonable cause for withholding the deposit onhe will.

History.-<~. 1, ch. 74-106; s. 44, ch. 75-220. Note.-Created from former s. 732.22.

732.910 732.911 732.912

732.913

732.914 732.915 732.916 732.917 732.918 732.9185 732.919

732.921

PART X

ANATOMICAL GIFTS

Legislative declaration. Definitions. Persons who may make an anatomical

gift.. Persons who may become donees; pur

poses for which anatomical gifts may be made.

Manner of executing anatomical gifts. Delivery of document. Amendment or revocation of the gift.. Rights and duties at death. Eye banks. Corneal removal by medical examiners. Enucleation of eyes by licensed funeral

directors. Plastic pouches and uniform organ donor

cards provided with driver's license; issuance, reissuance, or renewal.

732.910 Legislative declaration.-Because of the rapid medical progress in the fields of tissue and organ preservation, transplantation of tissue, and tissue culture, and because it is in the public interest to aid the development of this field of medicine, the Legislature in enacting this part intend!? 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 part to regulate only the gift. of a body or parts of a body to be made after the death of a donor.


732.911 Definitions.-For the purpose of this part:

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

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

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


732.912 Persons who may make an anatomical gift.-

(1) Any person who may make a will may give all or part of his body for any purpose specified in s. 732.910, the gift. to take effect upon death.

(2) In the 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, any of the following persons may give all or any part of the decedent's body for any purpose specified in s. 732.910:

(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 decedent at

the time of his death; ·

but no gift. shall be made by the spouse if any adult son or daughter objects.

(3) If the donee has actual notice of contrary indications by the decedent or objection of an adult 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 authorizes 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 s. 732.917.

History.-<~. 1, ch. 74-106; s. 45, ch. 75-220. Note.-Created from former s. 736.23.

732.913 Persons who may become donees; purposes for which anatomical gifts may be made.-The following persons may become donees

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F.S.1979 PROBATE CODE: INTESTATE SUCCESSION AND WILLS Ch. 732

of gifts of bodies or parts of them for the purposes stated:

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

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

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

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

Hlstory.-8. l, ch. 74-106; 8. 45, ch. 75-220. Note.-{;reated from former 8. 736.24.

732.914 Manner of executing anatomical gifts.-

(1) A gift of all or part of the body under subsection 732.912(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 is nevertheless valid to the extent that it has been acted upon in good faith.

(2Xa) A gift of all or part of the body under subsection 732.912(1) may also be made by a document other than a will. The gift becomes effective upon the death of the donor. The document must be signed by the donor in the presence of two witnesses who shall sign the document in his presence. It may be a card designed to be carried on the person. If the donor cannot sign, the document may be signed for him at his direction and in his presence and 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.

(b) The following form of written instrument shall be sufficient for any person to give all or part of his body for the purposes of this part:

UNIFORM DONOR CARD

The undersigned hereby makes this anatomical gift, if medically acceptable, to take effect on death. The words and marks below indicate my desires: I give: (a) -'--------any needed organs or parts; (b) only the following organs or parts

)Speci fy the organ lsl or partl sl)

for the purpose of transplantation, therapy , medical research, or education; (c) my body for anatomical study if needed. Limitations or special wishes, if any:

i If a pplicable. list specifi c donee !

Signed by the donor and the following witnesses in the presence of each other: !Signature of donor I f Date of birth of donor )

<Date signed I :..:'Cc..:it'"-y .:.;•n,;,:d-=S.:.:ta:.:..:te:.:...l -----tWitness l !Witness!

IAddressl !Address!

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

(4) Notwithstanding subsection 732.917(2), the donor may designate in his will 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 subsection 732.912(2) shall be made by a document signed by him or made by his telegraphic, recorded telephonic, or other recorded message.

History.-s. 1, ch. 74-106; 8. 45, ch. 75-220. Note.-{;reated from former 8. 736.25.

732.915 Delivery of document.-If the gift is made by the donor to a specified donee, the document, other than a will, 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 document may be deposited in any hospital, bank, storage facility, or registry office that accepts such documents 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.-s. 1, ch. 74-106; 8. 45, ch. 75-220. Note.-{;reated from former 8. 736.26.

732.916 Amendment or revocation of the gift.-

(1) If the will or other document 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.

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

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

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

(2) A document of gift that 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.

(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).

History.-s. 1, ch. 74-106; 8. 113, ch. 75-220. Note.-{;reated from former 8. 736.27.

732.917 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 a

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transplant, he may authorize embalming and the use of the body in funeral services, subject to the terms of the gift. If the gift is of a part of the body, the donee shall cause the part to be removed without unnecessary mutilation upon the death of the donor and before or after embalming. After removal of the part, custody 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 there is no such physician, 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 part 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 for his acts in any criminal proceeding.

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


732.918 Eye banks.-(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 Department of Education may have prepared, printed, and 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.

(c) Wallet cards reciting the document of gift. History.-s. 1, ch. 74-106; s. 45, ch. 75-220; s. 462, ch. 77-147. Note.-Created from former s. 736.29.

732.9185 Corneal removal by medical examiners.-

(1) In any case in which a patient is in need of corneal tissue for a transplant, a district medical examiner or an appropriately qualified designee with training in ophthalmologic techniques may, upon request of any eye bank authorized under s. 732.918, provide the cornea of a decedent whenever all of the following conditions are met:

(a) A decedent who may provide a suitable cornea for the transplant is under the jurisdiction of the medical examiner and an autopsy is required in accordance with s. 406.11.

(b) No objection by the next ofkin of the decedent is known by the medical examiner.

(c) The removal of the cornea will not interfere with the subsequent course of an investigation or autopsy.

(2) Neither the district medical examiner nor his appropriately qualified designee nor any eye bank

authorized under s. 732.918 may be held liable in any civil or criminal action for failure to obtain consent of the next of kin.

History.-s. 1, ch. 77-172; s. 1. ch. 78-191.

732.919 Enucleation of eyes by licensed funeral directors.-In respect to a gift of an eye as provided for in this part, a licensed funeral director as defined in chapter 470 who has completed a course in eye enucleation and has received a certificate of competence from the Department of Ophthalmology of the University of Florida School of Medicine or the University ofMiami School of Medicine may enucleate eyes for gift after proper certification of death by a physician and in compliance with the intent of the gift as defined in this chapter. No properly certified funeral director acting in accordance with the terms of this part shall have any civil or criminal liability for eye enucleation.


732.921 Plastic pouches and uniform organ donor cards provided with driver's license; issuance, reissuance, or renewal.-

(1) Whenever any person applies for or requests issuance, reissuance, or renewal of any driver's license, the Division of Driver Licenses, Department of Highway Safety and Motor Vehicles, may cause to be furnished to that person a form, authorized under the provisions ofs. 732.914, for the gift of all or a part of the donor's body, conditioned upon the donor's death. The form may be given to the applicant by an employee of the division. The Division of Driver Licenses may furnish to any person the necessary literature and material on anatomical gifts and may provide a small pouch of plastic, vinyl, or other suitable material that can be used to conveniently enclose both the driver's license and uniform donor card. This pouch should be of a design approved by the Department of Highway Safety and Motor Vehicles and the Department of Health and Rehabilitative Services. This program will be at no cost to the Department of Highway Safety and Motor Vehicles. The Department of Health and Rehabilitative Services may provide the necessary supplies, pouches, forms, and other accessories through funds appropriated from general revenue or contributions from interested voluntary, nonprofit organizations. The Department of Highway Safety and Motor Vehicles shall incur no liability in connection with the performance of any acts authorized herein.

(2) The Division of Driver Licenses of the Department ofHighway Safety and Motor Vehicles and the Department of Health and Rehabilitative Services shall cooperate in the promulgation of rules and regulations to implement the provisions of this section according to the provisions of chapter 120.

History.-s. 1, ch. 75-71; s. 1. ch. 77-16; s. 463, ch. 77-147; s. 1, ch. 77-174.

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F.S.1979 PROBATE CODE: ADMINISTRATION OF ESTATES Ch. 733

CHAPTER 733

PROBATE CODE: ADMINISTRATION OF ESTATES

PART I GENERAL PROVISIONS (ss. 733.101-733.109)

PART II COMMENCING ADMINISTRATION (ss. 733.201-733.213)

PART III PRIORITY TO ADMINISTER AND QUALIFICATIONS OF PERSONAL REPRESENTATIVE (ss. 733.301-733.309)

PART IV APPOINTMENT OF PERSONAL REPRESENTATIVE; BONDS (ss. 733.401-733.405)

PART V CURATORS; SUCCESSOR PERSONAL REPRESENTATIVES; REMOVAL (ss. 733.501-733.509)

PART VI DUTIES AND POWERS OF PERSONAL REPRESENTATIVE (ss. 733.601-733.619)

PART VII CREDITORS' CLAIMS (ss. 733.701-733.710)

PART VIII SPECIAL PROVISIONS FOR DISTRIBUTION (ss. 733.801-733.817)

PART IX CLOSING ESTATES (ss. 733.901, 733.903)

PART I

GENERAL PROVISIONS

733.101 Venue of probate proceedings. 733.103 Effect of probate. 733.104 Suspension of statutes of limitation in fa-

vor of the personal representative. 733.105 Determination of beneficiaries. 733.106 Costs and attorney fees. 733.107 Burden of proof in contests. 733.109 Revocation of probate.

733.101 Venue of probate proceedings.-(!) The venue of probate of all wills and granting

of letters shall be: (a) In the county in this state where the decedent

had his domicile. (b) If the decedent had no domicile in this state,

then in any county where the decedent was possessed of any property.

(c) If the decedent had no domicile in this state and possessed no property in this state, then in the county where any debtor of the decedent resides.

(2) For the purpose of this section, a married woman whose husband is an alien or a nonresident of Florida may establish or designate a separate domicile in this state.

(3) When any proceeding is filed laying venue in the wrong county, the court may transfer the action in the same manner as provided in the Rules of Civil Procedure. Any action taken by the court or the parties before the transfer is not affected because of the improper venue.


733.103 Effect of probate.-(1) Until admitted to probate in this state or in

the state where the decedent was domiciled, the will shall be ineffective to prove title to, or the right to possession of, property of the testator.

(2) In any collateral action or proceeding relating to devised property, the probate of a will in Florida shall be conclusive of its due execution; that it was executed by a competent testator, free of fraud, duress, mistake, and undue influence; and of the fact that the will was unrevoked on the testator's death.

History.--s. 1, ch. 74-106; s. 48, ch. 75-220; s. 17, ch. 77-87; s. 1, ch. 77-174. Note.-Created from former s. 732.26.

733.104 Suspension of statutes of limitation in favor of the personal representative.-

(!) If a person entitled to bring an action dies before the expiration of the time limited for the commencement of the action and the cause of action survives, the action may be commenced by his personal representative after the expiration and within 12 months from the date of the decedent's death.

(2) . If a person against whom a cause of action exists dies before the expiration of the time limited for commencement of the action and the cause of action survives, claim shall be filed on the cause of action, and it shall then proceed as other claims against the estate, notwithstanding the expiration of the time limited for commencement of the action.


733.105 Determination of beneficiaries.-(!) When property passes by intestate succession

or under a will to a person not sufficiently identified in the will and the personal representative is in doubt about:

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Ch. 733 PROBATE CODE: ADMINISTRATION OF ESTATES F.S.1979

(a) Who is entitled to receive it or part of it, or (b) The shares and amounts that any person is

entitled to receive,

the personal representative may file a petition setting forth the names, residences, and post-office addresses of all persons in interest, except creditors of the decedent, so far as known or ascertainable by diligent search and inquiry, and the nature of their respective interests, designating those who are believed by him to be minors or incompetents 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 whose names are not known to him who have claims against, or interest in, the estate as heirs or devisees, the petition shall so state.

(2) After formal notice and hearing, the court shall enter an order determining the heirs or devisees or the shares and amounts they are entitled to receive, or both. Any personal representative who makes distribution or takes any other action pursuant to the order shall be fully protected.

(3) When it is necessary to determine who are or were the heirs or devisees, the court may make a determination, on the petition of any interested person, in like proceedings and after formal notice, irrespective of whether the estate of the deceased person is administered or, if administered, whether the administration of the estate has been closed or the personal representative discharged. A separate civil action may be brought under this subsection when an estate is not being administered.

History.-s. 1, ch. 74-106; 8. 48, ch. 75-220; s. 226, ch. 77-104; 8. 1, ch. 77-174. Note.-Created from former s. 734.25.

733.106 Costs and attorney fees.-(1) In all probate proceedings costs may be

awarded as in chancery actions. (2) A person nominated as personal representa

tive of the last known will, or any proponent of the will if the person so nominated does not act within a reasonable time, if in good faith justified in offering the will in due form for probate, shall receive his costs and attorney fees out of the estate even· though he is unsuccessful.

(3) Any attorney who has rendered services to an estate may apply for an order awarding attorney fees, and after informal notice to the personal representative and all persons bearing the impact of the payment the court shall enter its order on the petition.

( 4) When costs and attorney fees are to be paid out of the estate, the court may, in its discretion, direct from what part of the estate they shall be paid.


733.107 Burden of proof in contests.-In all proceedings contesting the validity of a will, the burden shall be upon the proponent of the will to establish prima facie its formal execution..and attestation. Thereafter, the contestant shall have the burden of establishing the grounds on which the probate of the will is opposed or revocation sought.

History.-8. 1, ch . 74-106; s. 50, ch. 75-220. Note.-Created from former s. 732.31.

733.109 Revocation of probate.-(!) Any interested person, including a benefici

ary under a prior will, except those barred under s. 733.212 or s. 733.2123, may, before final discharge of the personal representative, petition the court in which the will was admitted to probate for revocation of probate.

(a) The petition shall state the interest of the petitioner and the grounds for revocation.

(b) The petition shall be served upon the personal representative and all interested persons by formal notice, and thereafter proceedings shall be conducted as an adversary proceeding under the rules of civil procedure.

(2) Pending the determination of any petition for revocation of probate, the personal representative shall proceed with the administration of the estate as if no revocation proceeding had been commenced, except that no distribution may be made to devisees in contravention of the rights of those who, but for the will, would be entitled to the property disposed of.

(3) Revocation of probate of a will shall not affect or impair the title to the property theretofore purchased in good faith for value from the personal representative.

History.-s. 1, ch. 74-106; s. 50, ch. 75-220; 8. 18, ch. 77-87; s. 227, ch. 77-104. Note.-Created from former 8 . 732.30.

PART II

COMMENCING ADMINISTRATION

733.201 733.202 733.203 733.204

733.205 733.206

733.207

733.208 733.209 733.212

733.2123 733.213

Proof of wills. Petition. Notice; when required. Probate of a will written in a foreign lan

guage. Probate of notarial will. Probate of will of resident after foreign

probate. · Establishment and probate of lost or de-

stroyed will. Discovery of later will. Estates of missing persons. Notice of administration; filing of objec

tions and claims. Adjudication before issuance of letters. Probate as prerequisite to petition for

construction of will.

733.201 Proof of wills.-(1) Self-proved wills executed in accordance with

this code may be admitted to probate without further proof.

(2) A will may be admitted to probate upon the oath of any attesting witness taken before any circuit judge, commissioner appointed by the court, or clerk.

(3) If it appears to the court that the attesting witnesses cannot be found or that they have become incompetent after the execution of the will or their testimony cannot be obtained within a reasonable time, a will may be admitted to probate upon the oath of the personal representative nominated by the will as provided in subsection (2), whether or not he is interested in the estate, or of any person having

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F.S.I979 PROBATE CODE: ADMINISTRATION OF ESTATES Ch. 733

no interest in the estate under the will, that he believes the writing exhibited to be the true last will of the decedent.

Hlstory.-s. 1, ch. 74·106; s. 51, ch. 75-220. Note.-Created from former s. 732.24.

733.202 Petition.-(1) A verified petition for administration may be

filed by any interested person. (2) The petition for administration shall contain: (a) A statement of the interest of the petitioner,

his name and address, and the name and office address of his attorney.

(b) The name, last known address, and date and place of death of the decedent and the state and county of the decedent's domicile.

(c) So far as is known, the names and addresses of the beneficiaries and the ages of any who are minors.

(d) A statement showing venue. (e) The priority under part III of the person

whose appointment as the personal representative is sought.

(f) A statement of the approximate value and nature of the assets so the clerk can ascertain the amount of the filing fee and the court can determine the amount of any bond authorized by this code.

(3) If the decedent was a nonresident of this state, the petition shall state whether domiciliary proceedings are pending in another state or country, if known, and, if so, the name and address of the foreign personal representative and the court issuing letters.

(4) In an intestate estate, the petition shall: (a) State that after the exercise of reasonable dil

igence the petitioner is unaware of any unrevoked wills or codicils or, if the petitioner is aware of any unrevoked wills or codicils, why the wills or codicils are not being probated, or

(b) Otherwise give the facts concerning the will or codicil.

(5) In a testate estate, the petition shall: (a) Identify all unrevoked wills and codicils being

presented for probate. (b) State that the petitioner is unaware of any

other unrevoked will or codicil or, if the petitioner is aware of any other unrevoked will or codicil, why the other will or codicil is not being probated.

(c) State that the original of the decedent's last will is in the possession of the court or accompanies the petition or that an authenticated copy of a will probated in another jurisdiction accompanies the petition.


733.203 Notice; when required.-(1) If a caveat has been filed by an heir or a devi

see under a will other than that being offered for probate, the procedure provided for in s. 733.2123 shall be followed.

(2) Except as may otherwise be provided in this part, no notice need be given of the petition for administration or of the order granting letters when it appears that the petitioner is entitled to preference of appointment. Before letters shall be granted to any person who is not entitled to preference, formal

notice shall be served on all known persons qualified to act as personal representative and entitled to preference equal to or greater than the applicant, unless those entitled to preference waive it in writing.


733.204 Probate of a will written in a foreign language.-

(1) No will written in a foreign language shall be admitted to probate unless it is accompanied by a true and complete English translation.

(2) In admitting the will to probate, the court shall establish its correct English translation. If the original will is not or cannot be filed, a photographic copy of the original will shall be filed. At any time during the administration any interested person may have the correctness of the translation, or any part, redetermined after formal notice to all other interested persons. No personal representative who complies in good faith with the English translation of the will as may then be established by the court shall thereafter be held liable as a result of having done so.


733.205 Probate of notarial will.-(1) When a copy of a notarial will in the posses

sion of a notary entitled to its custody in a foreign state or country, the laws of which state or country require that the will remain in the custody of such notary, duly authenticated by the notary, whose official position, signature, and seal of office are further authenticated by an American consul, vice consul, or other American consular officer within whose jurisdiction the notary is a resident, is presented to the court, it may be admitted to probate if the original could have been admitted to probate in this state.

(2) The duly authenticated copy shall be prima facie evidence of its purported execution and of the facts stated in the certificate in compliance with subsection (1).

(3) Any interested person notified may oppose the probate of such notarial will or may petition for revocation of probate of such notarial will, as in the case of original probate of a will in this state.


733.206 Probate of will of resident after for· eign probate.-

(1) If a will of any person who dies a resident of this state is admitted to probate in any other state or country through inadvertence, error, or omission before probate in this state, the will may be admitted to probate in this state if the original could have been admitted to probate in this state.

(2) An authenticated copy of the will, foreign proof of the will, the foreign order of probate, and any letters issued shall be filed instead of the original will and shall be prima facie evidence of its execution and admission to foreign probate.

(3) Any interested person may oppose the probate of the will, or may petition for revocation of the

1107


probate of the will, as in the case of the original probate of a will in this state.


733.207 Establishment and probate of lost or destroyed will.-

(1) The establishment and probate of a lost or destroyed will shall be in one proceeding. The court shall recite, and thereby establish and preserve, the full and precise terms and provisions of the will in the order admitting it to probate.

(2) The petition for probate of a lost or destroyed will shall contain a copy ofthe will or its substance. The testimony of each witness must be reduced to writing and filed and shall be evidence in any contest ofthe will if the witness has died or moved from the state. ·

(3) No lost or destroyed will shall be admitted to probate unless formal notice has been given to those who, but for the will, would be entitled to the property thereby devised. The content of the will must be clearly and distinctly proved by the testimony of two disinterested witnesses, or,. if a correct copy is provided, it shall be proved by one disinterested witness.

Hlstory.-s. 1, ch. 74-106; s. 57, ch. 75-220. Note.-Created from former s. 732.27.

733.208 Discovery of later will.-On the discovery of a later will or codicil expressly or impliedly revoking the probated will in whole or in part, pending or during administration, any interested person may offer the later will for probate. The proceedings shall be similar to those for revocation of probate. No later will or codicil may be offered after the closing of the estate.


733.209 Estates of missing persons.-The estates of missing persons shall be administered in the same manner as other estates. A petition for administration ofthe estate shall request entry of an order declaring the death of a missing person prior to appointing a personal representative and commencing administration.

History.-s. 1, ch. 74-106. Note.-Created from former s. 732.53.

733.212 Notice of administration; filing of objections and claims.-

(1) The personal representative shall promptly publish a notice of administration and serve a cop;r of the notice on the surviving spouse and all beneficiaries known to the personal representative by mail in the manner provided for service of formal notice, unless served under s. 733.2123. He may similarly serve other heirs or devisees under a known prior will. The notice shall contain the name of the decedent, the file number of the estate, the court in which the proceedings are pending and its address, the name and address of the personal representative, and the name and address of the personal representative's attorney and state that the publication of the notice has begun. The notice shall require all interested persons to file with the court, within 3 months of the first publication of the notice:

(a) All claims against the estate.

(b) Any objection by an interested person to whom notice was mailed that challenges the validity of the will, the qualifications of the personal representative, venue, or j\.lrisdiction of the court.

(2) Publication shall be once a week for 2 consecutive weeks, two publications being sufficient, in a newspaper published in the county where the estate is administered or, if there is no newspaper published in the county, in a newspaper of general circul~tion in that county. Proof of publication shall be filed.

(3) Objections under paragraph (1)(b), by persons to whom notice was mailed, that are not filed within 3 months following the date of first publication of the notice are forever barre!f. Claims under paragraph (1)(a) are barred as provided in s. 733.702.

Hlstory.-s. 1, ch. 74-106; s. 60, ch. 75-220; s. 227, ch. 77-104. Note.-Created from former s. 732.28.

733.2123 Adjudication before issuance of letters.-A petitioner may serve formal notice of his petition for administration on interested persons. No person who is served with formal notice of the petition for administration prior to the issuance of letters or who has waived notice may challenge the validity of the will, testacy of the decedent, qualifications of the personal representative, venue, or jurisdiction of the court, except in connection with the proceedings before issuance of letters.

Hlstory.-s. 60, ch. 75-220.

733.213 Probate as prerequisite to petition for construction of will.-No pleading seeking construction of a will may be maintained until the will has first been probated.

History.-s. 1, ch. 74-106; s. 61, ch. 75-220. Note.-Created from former s. 73?.42.

733.301

733.302

733.303 733.304 733.305 733.306 733.307 733.308 733.309

PART III

PRIORITY TO ADMINISTER AND QUALIFICATIONS OF

PERSONAL REPRESENTATIVE

Preference in appointment of personal representative.

Who may be appointed personal repre-sentative.

Persons not qualified. Nonresidents. Trust companies and other corporations. Effect of appointment of debtor. Succession of administration. Administrator ad litem. Executor de son tort.

733.301 Preference in appointment of personal representative.-In the granting of letters, the following preferences shall be observed:

(1) In testate estates: (a) The personal representative, or his successor,

nominated by the will or pursuant to a power conferred in the will.

(b) The person selected by a majority in interest of the persons entitled to the estate.

(c) A devisee under the will. If more than one devisee applies, the court may exercise its discretion

1108


in selecting the one best qualified. (2) In intestate estates: (a) The surviving spouse. (b) The person selected by a majority in interest

of the heirs. (c) The heir nearest in degree. If more than one

applies, the court may exercise its discretion in selecting the one best qualified for the office.

(3) A guardian of the property of a ward who if competent would be entitled to appointment as, or to select, a personal representative may exercise the right to select the personal representative.

(4) In either a testate or an intestate estate, if no application is made by any of the persons named in subsections (1) or (2), the court shall appoint a capable person; but no person may be appointed under this subsection:

(a) Who works for, or holds public office under, the court.

(b) Who is employed by, or holds office under, any judge exercising probate jurisdiction.

(5) After letters have been granted in either a testate or an intestate estate, if a person who was entitled to, and has not waived, preference over the person appointed at the time ofhis appointment and on whom formal notice was not served seeks the apppintment, the letters granted may be revoked and the person entitled to preference may have letters granted to him after formal notice and ·hearing.

(6) After letters have been granted in either a testate or an intestate estate, if any will is subsequently admitted to probate the letters shall be revoked and new letters granted as provided in subsection (1).

Hlstory.-s. 1, ch. 74-106; s. 62, ch. 75-220; s. 21, ch. 77-87; s. 1, ch. 77-174. Note.-Created from former s. 732.44.

733.302 Who may be appointed personal representative.-Subject to the limitations in this part, any person sui juris who is a resident of Florida at the time of the death of the person whose estate he seeks to administer is qualified to act as personal representative in Florida. A 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 personal representative is not qualified.


733.303 Persons not qualified.-(!) A person is not qualified to act as a personal

representative if: (a) He has been convicted of a felony. (b) He is mentally or physically unable to per

form the duties. (c) He is under the age of 18 years. (2) If the person named as personal representa

tive in the will is not qualified, letters shall be granted as provided in s. 733.301.


733.304 Nonresidents.-A person who is not domiciled in the state cannot qualify as personal representative unless the person is:

(1) A legally adopted child or adoptive parent of the decedent;

(2) Related by lineal consanguinity to the decedent;

(3) A spouse or a brother, sister, uncle, aunt, nephew, or niece of the decedent, or someone related by lineal consanguinity to any such person; or

(4) The spouse of a person otherwise qualified under this section.


733.305 Trust companies and other corpora· tions.- ·

(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.

(2) When a qualified corporation has been named as a personal representative in a will and thereafter transfers its business and assets to, consolidates or merges with, or is in any manner provided by law succeeded by, another qualified corporation, on the death of the testator, the successor corporation may qualify, and the court may issue letters to the succes.sor corporation unless the will provides otherwise.

(3) A corporation authorized and qualified to act as a personal representative as a result of merger or consolidation shall succeed to the rights and duties of all predecessor corporations as the personal representative of estates upon filing proof in the court, and without a new appointment. 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.


733.306 Effect of appointment of debtor.The appointment of a debtor as personal representative shall not extinguish the debt due to the decedent. This section shall not prevent a testatorfrom releasing a debtor by will.


733.307 Succession of administration.-No personal representative of a personal representative as such shall be authorized to administer the estate of the first decedent. On the death of the sole or surviving personal representative, the court shall appoint a successor personal representative to complete the administration of the estate.


733.308 Administrator ad litem.-When it is necessary that an estate be represented and there is no personal representative of the estate, the court shall appoint an administrator ad litem without bond for that particular proceeding. The fact that the personal representative is seeking reimbursement for claims against the decedent paid by the personal representative does not require appointment of an administrator ad litem.


1109


733.309 Executor de son tort.-No 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 caused by his wrongful action. This section shall not be construed to prevent a creditor of a decedent from suing anyone in possession of property fraudulently conveyed by the decedent to set aside the fraudulent conveyance.

Hlstory.-s. 1, ch. 74-106; s. 65, ch. 75-220.

733.401 733.402

733.403 733.404 733.405

PART IV

APPOINTMENT OF PERSONAL REPRESENTATIVE; BONDS

Issuance of letters. Bond of personal representative; when re-

quired; form. Amount of bond. Liability of surety. Release of surety.

733.401 Issuance of letters.-(!) After the petition for administration is filed: (a) The will, if any, shall be proved as provided

elsewhere in this code and shall be admitted to probate.

(b) The court shall appoint the person entitled and qualified to be personal representative.

(c) The court shall determine the amount of any bond required under this part. The clerk may approve the bond in the amount determined by the court and shall not charge a service fee.

(d) Any required oath or designation of, and acceptance by, a resident agent shall be filed .

(2) Upon compliance with all of the foregoing, letters shall be issued to the personal representative.

(3) Mistaken noncompliance with any of the requirements of subsection (1) shall not be jurisdictional.

History.-s. 1, ch. 74-106; s. 66, ch. 75-220; s. 23, ch. 77-87.

733.402 Bond of personal representative; when required; form.-

(1) Unless the testator waived the requirement, every person to whom letters are granted shall execute and file a bond with surety, as defined in s. 45.011, to be approved by the clerk. The bond shall be payable to the Governor and his successors in office, conditioned on the performance of all duties as personal representative according to law. The bond must be joint and several.

(2) No bond executed by a personal representative or curator shall be void or invalid because of an informality in it or an informality or illegality in the appointment of the fiduciary. The bond shall have the same force as if the appointment had been legally made and the bond executed in proper form.

(3) The requirements of this section shall not ap-

ply to banks and trust companies authorized by law to act as personal representative.

Hlstory.-s. 1, ch. 74-106; s. 67, ch. 75-220; s. 24, ch. 77-f37; s. 1, ch. 77-174. Note.-Created from former s. 732.61.

733.403 Amount of bond.-(1) All bonds required by this part shall be in the

penal sum that the court deems sufficient after consideration of the gross value of the estate, the relationship of the personal representative to the beneficiaries, exempt property and any family allowance, the type and nature of assets, and liens and encumbrances on the assets.

(2) On petition by any interested person or on the court's own motion, the court may waive the requirement of filing a bond, require a personal representative or curator to give bond, increase or decrease the bond, or require additional surety.

Hlstory.-s. 1, ch. 74-106; s. 67, ch. 75-220. Note.-Created from former ss. 732.63, 732.64, 732.66.

733.404 Liability of surety.-No surety for any personal representative or curator shall be charged beyond the assets of an estate because of any omission or mistake in pleading or offalse pleading of the personal representative or curator.


733.405 Release of surety.-(1) On petitioning the surety, or the personal rep

resentative of a surety, on the bond of any personal representative or curator shall be entitled as a matter of right to be released from future liability upon the bond.

(2) Pending the hearing of the petition, the court may restrain the principal from acting in his representative capacity, except to preserve the estate.

(3) On hearing, the court shall enter an order prescribing the amount of the new bond for the personal representative or curator and the date when the bond shall be filed. If the principal fails to give the new bond, he shall be removed at once, and further proceedings shall be had as in cases of removaL

(4) The original surety or sureties shall be liable for all acts of the personal representative or surety until he has given the new bond and, after the giving of the new bond, shall remain liable for all the principal's acts to the time of the filing and approval of the new bond. The new surety shall be liable for the principal's acts only after the filing and approval of the new bond.


PARTV

CURATORS; SUCCESSOR PERSONAL REPRESENTATIVES; REMOVAL

733.501 733.502 733.503

733.504

733.505 733.506

Curators. Resignation of personal representative. Appointment of successor upon resigna-

tion. Causes of removal of personal representa

tive. Jurisdiction in removal proceedings. Proceedings for removaL

1110


733.507

733.508 733.509

Administration following resignation or removal.

Accounting upon removal. Surrender of assets upon removal.

733.501 Curators.-(1) When it is necessary, the court may appoint

a curator and issue letters of curatorship to take charge of the estate of a decedent until letters are granted. If the person entitled to letters is a resident of the county where the property is situated, no curator shall be appointed until formal notice is given to the person so entitled to letters. On appointment, the court shall direct the person in possession of the effects of the decedent to deliver them to the curator. The order may be enforced by contempt.

(2) If there is great danger that the property or any part of it is likely to be wasted, destroyed, or removed beyond the jurisdiction of the court and if the appointment of a curator would be delayed by giving notice, the court may appoint a curator without giving notice.

(3) On special order of the court, the curator may be authorized to perform any duty or function of a personal representative.

(4) Bond shall be required of the curator as the court deems necessary to secure the property. No bond shall be required of banks and trust companies as curators.

(5) The curator shall file an inventory of the property within 20 days. When the personal representative qualifies, the curator shall immediately account and deliver all assets of the estate in his hands to the personal representative within 20 days, and in default shall be subject to the provisions of this code relating to removal of personal representatives.

(6) Curators shall be allowed reasonable compensation for their services.

Hlstory.-s. 1, ch. 74·106; s. 69, ch. 75-220; s. 1, ch. 77-174. Note.-Created from former s. 732.21.

733.502 Resignation of personal representative.-A personal representative may resign and be relieved of his office. Notice of the petition shall be given to all interested persons. Before relieving the personal representative from his duties and obligations, the court shall require him to file a true and correct account of his administration and deliver to his successor or to his joint personal representative all of the property of the decedent and all records concerning the estate. The acceptance of the resignation, after compliance with this section, shall not exonerate any personal representative or his surety from liability previously incurred.


733.503 Appointment of successor upon resignation.-If there is no joint personal representative, a successor must be appointed and qualified before a personal representative may be relieved of his duties and obligations as provided in s. 733.502.

History.-s. 1, ch. 74-106; s. 69, ch. 75-220. Note.-Created from formers. 734.10.

733.504 Causes of removal of personal representative.-A personal representative may be removed and his letters revoked for any of the following causes, and the removal shall be in addition to any penalties prescribed by law:

(1) Adjudication of incompetency. (2) Physical or mental incapacity rendering him

incapable of the discharge of his duties. (3) Failure to comply with any order of the court,

unless the order has been superseded on appeal. (4) Failure to account for the sale of property or

to produce and exhibit the assets of the estate when so required.

(5) The wasting or maladministration of the estate.

(6) Failure to give bond or security for any purpose.

(7) Conviction of a felony. (8) Insolvency of, or the appointment of a receiv

er or liquidator for, any corporate personal representative.

(9) The holding or acquiring by the personal representative of conflicting or adverse interests against the estate that will or may adversely interfere with the administration of the estate as a whole. This cause of removal shall not apply to the surviving spouse because of the exercise of the right to the elective share, family allowance, or exemptions, as provided elsewhere in this code.

(10) Revocation of the probate of the decedent's will that authorized or designated the appointment of such personal representative.

(11) Removal of domicile from Florida, if the personal representative is no longer qualified under part III of this chapter.

History.-s. 1, ch. 74-106; s. 69, ch. 75-220; s. 1, ch. 77-174. Note.-Created from formers. 734.11.

733.505 Jurisdiction in removal proceedings. -A petition for removal shall be filed in the court issuing the letters.

Hlstory.-s. 1, ch. 74-106. Note.-Created from former s. 734.12.

733.506 Proceedings for removal.-Proceedings for removal may be commenced by the court or by any interested person or joint personal representative.

History.- s. 1, ch. 74-106; s. 71, ch. 75-220. Note.-Created from former s. 734.13.

733.507 Administration following resignation or removal.-When a personal representative has resigned or is removed and there is a remaining personal representative, no other personal representative shall be appointed unless the will otherwise requires. The remaining personal representative, together with any successor personal representative, if appointed, shall complete the administration of the estate. If the resigned or removed personal representative is a sole personal representative, the court shall appoint a successor personal representative as provided in s. 733.301.


1111


733.508 Accounting upon removal.-A · removed personal representative shall file a full, true, and correct account of his administration within 30 days after his removal.


733.509 Surrender of assets upon removal.The removed personal representative shall deliver to the remaining or successor personal representative all of the property of the decedent and all records, documents, papers, and other property of or concerning the estate.


PART VI

DUTIES AND POWERS OF PERSONAL REPRESENTATIVE

733.601 733.602 733.603

733.604 733.605 733.606 733.607 733.608

733.609

733.610

733.611

733.612

733.613

733.614

733.615

733.616

733.617

733.6175

733.619

Time of accrual of duties and powers. General duties. Personal representative to proceed with-

out court order. Inventory. Appraisers. Suppleme'ntary inventory. Possession of estate. General power of the personal represent

ative. Improper exercise of power; breach of fi

duciary duty. Sale, encumbrance or transaction involv

ing conflict of interest. Persons dealing with the personal repre

sentative; protection. Transactions authorized for the personal

representative; exceptions. Personal representative's right to sell

real property. Powers and duties of successor personal

representative. Joint personal representatives; when

joint action required. Powers of surviving personal representa

tives. Compensation of personal representa

tives and professionals. Proceedings for review of employment of

agents and compensation of personal representatives and employees of estate.

Individual liability of personal representative.

on behalf of the estate done by others when the acts would have been proper for a personal representative.

History.-s. 1, ch. 74-106; s. 74, ch. 75-220.

733.602 General duties.-(1) A personal representative is a fiduciary who

shall observe the standards of care applicable to trustees as described by s. 737.302. A personal representative is under a duty to settle and distribute the estate of the decedent in accordance with the terms of the decedent's will and this code as expeditiously and efficiently as is consistent with the best interests of the estate. He shall use the authority conferred upon him by this code, the authority in the will, if any, and the authority of any order in proceedings to which he is party, for the best interests of interested persons.

(2) A personal representative shall not be liable for any act of administration or distribution if the act was authorized at the time. Subject to other obligations of administration, a probated will is authority to administer and distribute the estate according to its terms. An order of appointment of a personal representative is authority to distribute apparently intestate assets to the heirs of the decedent if, at the time of distribution, the personal representative is not aware of a proceeding challenging intestacy or a proceeding questioning his appointment or fitness to continue. Nothing in this section affects the duty of the personal representative to administer and distribute the estate in accordance with the rights of interested persons.

Hlstory.-s. 1, ch. 74-106; s. 74, ch. 75-220; s. 27, ch. 77-87; s. 1, ch. 77-174; s. 270, ch. 79-400.

733.603 Personal representative to proceed without court order.-A personal representative shall proceed expeditiously with the settlement and distribution of a decedent's estate and, except as otherwise specified by this code or ordered by the court, shall do so without adjudication, order, or direction of the court. He may invoke the jurisdiction 9f the court to resolve judicial questions concerning the estate or its administration.

History.-s. 1, ch. 74-106.

733.604 Inventory.-(!) Within 60 days after issuance ofletters, a per

sonal representative who is not a curator or a successor to another personal representative who has previously discharged the duty shall file an inventory of property of the estate, listing it with reasonable detail and including for each listed item its estimated fair market value at the date of the decedent's death.

(2) The personal representative shall send a copy of the inventory to interested persons who request it.


733.601 Time of accrual of duties and powers. -The duties and powers of a personal representative commence upon his appointment. The powers of a personal representative relate back in time to give acts by the person appointed, occurring before appointment and beneficial to the estate, the same ef- 733.605 Appraisers.- The personal representafect as those occurring thereafter. Before issuance of tive may employ a qualified and disinterested apletters, a person named executor in a will may carry praiser to assist him in ascertaining the fair market out written instructions of the decedent relating to value of any asset at the date of the decedent's death his body and funeral and burial arrangements. A or any other date that may be appropriate, the value personal representative may ratify and accept acts of which may be subject to reasonable doubt. Differ-

1112


ent persons may be employed to appraise different kinds of assets included in the estate.

History.-s. 1, ch. 74·106; s. 76, ch. 75-220. Note.-Created from former ss. 733.04, 733.05.

733.606 Supplementary inventory._:_lf the personal representative learns of any property not included in the original inventory or that the estimated value or description indicated in the original inventory for any item is erroneous or misleading, he shall file a supplementary inventory showing the estimated value of the new item at the date of the decedent's death or the revised estimated value or description and furnish copies to interested persons who requested a copy of the inventory.

History.-s. 1, ch. 74·106; s. 76, ch. 75·220.

733.607 Possession of estate.-Except as otherwise provided by a decedent's will, every personal representative has a right to, and shall take possession or control of, the decedent's property, except the homestead, but any real property or tangible personal property may be left with, or surrendered to, the person presumptively entitled to it unless possession of the property by the personal representative will be necessary for purposes of administration. The request by a personal representative for delivery of any property possessed by a beneficiary is conclusive evidence that the possession of the property by the personal representative is necessary for the purposes of administration, in any action against the beneficiary for possession of it. The personal representative shall take all steps reasonably necessary for the management, protection, and preservation of the estate until distribution. He may maintain an action to recover possession of property or to determine the title to it.

History.-s. 1, ch. 74·106; s. 28, ch. 77·87. Note.-Created from former s. 733.01.

733.608 General power·of the personal representative.-All real and personal property of the decedent, except the homestead, within this state and the rents, income, issues, and profits from it shall be assets in the hands of the personal representative:

(1) For the payment of devises, debts, family allowance, estate and inheritance taxes, claims, charges, and expenses of administration.

(2) To enforce contribution and equalize ad-vancement.

(3) For distribution. History.-s. 1, ch. 74·106; s. 29, ch. 77·87. Note.-Created from former s. 733.01(1).

733.609 Improper exercise of power; breach of fiduciary duty.-If the exercise of power concerning the estate is improper or in bad faith, the personal representative is liable to interested persons for damage or loss resulting from a breach of his fiduciary duty to the same extent as a trustee of an express trust. In all actions challenging the proper exercise of a personal representative's powers, the court shall award taxable costs as in chancery actions, including attorney's fees.

History.-s. 1, ch. 74·106; s. 78, ch. 75-220.

733.610 Sale, encumbrance or transaction involving conflict of interest.-Any sale or encumbrance to the personal representative or his spouse, agent, or attorney, or any corporation or trust in which he has a substantial beneficial interest, or any transaction that is affected by a conflict of interest on the part of the personal representative, is voidable by any interested person except one who has consented after fair disclosure, unless:

(1) The will or a contract entered into by the decedent expressly authorized the transaction; or

(2) The transaction is approved by the court after notice to interested persons.

History.-s. 1, ch. 74·106; s. 78, ch. 75-220.

733.611 Persons dealing with the personal representative; protection,-Except as provided in subsection 733.613(1), a person who in good faith either assists a personal representative or deals with him for value is protected as if the personal representative properly exercised his power. The fact that a person knowingly deals with the personal representative does not alone require the person to inquire into the existence of his power, the limits on his power, or the propriety of its exercise. A person is not bound to see to the proper application of estate assets paid or delivered to the personal representative. The protection here expressed extends to instances in which a procedural irregularity or jurisdictional defect occurred in proceedings leading to the issuance ofletters, including a case in which the alleged decedent is alive. The protection here expressed is not by substitution for that provided in comparable provisions of the laws relating to commercial transactions and laws simplifying transfers of securities by fiduciaries.

History.-s. 1, ch. 74·106; s. 78, ch. 75-220; s. 30, ch. 77-87; s. 1, ch. 77·174.

733.612 Transactions authorized for the personal representative; exceptions.-Except as otherwise provided by the will or by order of court, and subject to the priorities stated in s. 733.805, without order of court, a personal representative, acting reasonably for the benefit of the interested persons, may properly:

(1) Retain assets owned by the decedent, pending distribution or liquidation, including those in which the personal representative is personally interested or that are otherwise improper for trust investments.

(2) Perform or compromise, or, when proper, refuse performance of, the decedent's contracts. In performing enforceable contracts by the decedent to convey or lease real property, among other possible courses of action, the personal representative may:

(a) Convey the real property for cash payment of all sums remaining due or for the purchaser's note for the sum remaining due, secured by a mortgage on the land.

(b) Deliver a deed in escrow, with directions that the proceeds, when paid in accordance with the escrow agreement, be paid to the distributees of the decedent, as designated in the escrow agreement.

(3) Receive assets from fiduciaries or other sources.

( 4) If funds are not needed to meet debts and expenses currently payable and are not immediately

1113


distributable, deposit or invest liquid assets of the estate, including moneys received from the sale of other assets, in federally insured interest-bearing accounts, readily marketable secured loan arrangements, or other prudent investments that would be reasonable for use by trustees.

(5) Acquire or dispose of an asset, excluding real property in this or another state, for cash or on credit and at public or private sale, and manage, develop, improve, exchange, partition, or change the character of an estate asset.

(6) Make ordinary or extraordinary repairs oralterations in buildings or other structures; demolish improvements; or erect new party walls or buildings.

(7) Enter into a lease, as lessor or lessee, for a term within, or extending beyond, the period of administration, with or without an option to renew.

(8) Enter into a lease or arrangement for exploration and removal of minerals or other natural resources or enter into a pooling or unitization agreement.

(9) Abandon property when it is valueless or so encumbered, or in such condition, that it is of no benefit to the estate.

(10) Vote, or refrain from voting, stocks or other securities in person or by general or limited proxy.

(11) Pay calls, assessments, and other sums chargeable or accruing against, or on account of, securities, unless barred by the provisions relating to claims.

(12) Hold property in the name of a nominee or in other form without disclosure of the interest of the estate, but the personal representative is liable for any act of the nominee in connection with the property so held.

(13) Insure the assets of the estate against damage, loss, and liability and insure himself against liability to third persons.

(14) Borrow money, with or without security, to be repaid from the estate assets or otherwise, other than real property, and advance money for the protection of the estate.

(15) Extend, renew, or in any manner modify any obligation owing to the estate. If the personal representative holds a mortgage, security interest, or other lien upon property of another person, he may accept a conveyance or transfer of encumbered assets from the owner in satisfaction of the indebtedness secured by its lien instead of foreclosure.

(16) Pay taxes, assessments, and other expenses incident to the administration of the estate.

(17) Sell or exercise stock subscription or conversion rights or consent, directly or through a committee or other agent, to the reorganization, consolidation, merger, dissolution, or liquidation of a corporation or other business enterprise.

(18) Allocate items of income or expense to either estate income or principal, as permitted or provided by law.

(19) Employ persons, including attorneys, accountants, auditors, investment advisors, and others, even if they are one and the same as the personal representative or are associated with the personal representative, to advise or assist the personal representative in the performance of his administrative duties; act upon the recommendations of such em-

ployed persons without independent investigation; and, instead of acting personally, employ one or more agents to perform any act of administration, whether or not discretionary. Any fees and compensation paid to any such person who is the same as, associated with, or employed by, the personal representative shall be taken into consideration in determining the personal representative's compensation.

(20) Prosecute or defend claims or proceedings in any jurisdiction for the protection of the estate and of the personal representative in the performance of his duties.

(21) Sell, mortgage, or lease any personal property of the estate or any interest in it for cash, credit, or for part cash or part credit, and with or without security for the unpaid balance.

(22) Continue any unincorporated business or venture in which the decedent was engaged at the time of his death:

(a) In the same business form for a period of not more than 4 months from the date of his appointment, if continuation is a reasonable means of preserving the value of the business, including good will.

(b) In the same business form for any additional period of time that may be approved by order of court.

(23) Provide for exoneration of the personal representative from personal liability in any contract entered into on behalf of the estate.

(24) Satisfy and settle claims and distribute the estate as provided in this code.

(25) Enter into agreements with the proper officer or department head, commissioner, or agent of any department of the government of the United States, waiving the statute oflimitations concerning the assessment and collection of any federal tax or any deficiency in a federal tax.

(26) Make part distribution to the beneficiaries of any part of the estate not necessary to satisfy claims, expenses of administration, taxes, family allowance, exempt property, and an elective share, in accordance with the decedent's will or as authorized by operation of law.

(27) Execute any instruments necessary in the exercise of the personal representative's powers.

History.-s. 1, ch. 74-106; s. 78, ch . 75-220; s. 3, ch. 76-172; s. 31, ch. 77-87; s. 1, ch . 77-174; s. 271, ch. 79-400.

733.613 Personal representative's right to sell real property.-

(1) When a personal representative of a decedent dying intestate, or whose testator has not conferred upon him a power of sale or whose testator has granted a power of sale but his power is so limited by the will or by operation of law that it cannot be conveniently exercised, shall consider that it is for the best interest of the estate and of those interested in it that real property be sold, the personal representative may sell it at public or private sale. No title shall pass until the sale is authorized or confirmed by the court. Petition for authorization or confirmation of sale shall set forth the reasons for the sale, a description of the property sold or to be sold, and the price and terms of the sale. Except when interested persons have joined in the petition for sale of real property or have consented to the sale, notice of the

1114


petition shall be given. No bona fide purchaser shall be required to examine any proceedings before the order of sale.

(2) When a decedent's will confers specific power to sell or mortgage real property or a general power to sell any asset of the estate, the personal representative may sell, mortgage, or lease, without authorization or confirmation of court, any real property of the estate or any interest therein for cash or credit, or for part cash and part credit, and with or without security for unpaid balances. The sale, mortgage, or lease need not be justified by a showing of necessity, and the sale pursuant to power of sale shall be valid.


733.614 Powers and duties of successor personal representative.-A successor personal representative has the same power and duty as the original personal representative to complete the administration and distribution of the estate as expeditiously as possible, but he shall not exercise any power made personal to the personal representative named in the will.


733.615 Joint personal representatives; when joint action required.-If two or more persons are appointed joint personal representatives, and unless the will provides otherwise, the concurrence of all is required on all acts connected with the administration and distribution of the estate. This restriction does not apply when any joint personal representative receives and receipts for property due the estate, when the concurrence of all cannot readily be obtained in the time reasonably available for emergency action necessary to preserve the estate, or when a joint personal representative has been delegated to act for the others.


733.616 Powers of surviving personal representatives.-Unless the terms of the will otherwise provide, every power exercisable by joint personal representatives may be exercised by the one or more remaining after the appointment of one or more is terminated, and if one or more, but not all, nominated as joint personal representatives are not appointed, those appointed may exercise all the powers incident to the office.


733.617 Compensation of personal representatives and professionals.-

(!) Personal representatives, attorneys, accountants, and appraisers and other agents employed by the personal representative shall be entitled to reasonable compensation. Reasonable compensation shall be based on one or more of the following:

(a) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perfoFm the service properly.

(b) The likelihood that the acceptance of the particular employment will preclude other employment by the person.

(c) The fee customarily charged in the locality for similar services.

(d) The amount involved and the results obtained.

(e) The time limitations imposed by the circumstances.

(f) The nature and length of the professional relationship with the decedent.

(g) The experience, reputation, diligence, and ability of the person performing the services.

(2) If a will provides for compensation ofthe personal representative either directly or conditionally and there is no contract with the decedent regarding compensation, he may renounce the provisions and be entitled to reasonable compensation. A personal representative also may renounce his right to all or any part of the compensation. A renunciation may be filed with the court. '

(3) If the personal representative is a member of The Florida Bar and has rendered legal services in connection with his official duties, he shall be allowed a fee therefor, determined as provided in subsection (1).

History.-s. 1, ch. 74-106; s. 80, ch. 75-220; s. 1, ch . 76-172. Note.-Created from former s. 734.01.

733.6175 Proceedings for review of employment of agents and compensation of personal representatives and employees of estate.-After notice to all affected interested persons and upon petition of an interested person bearing all or part of the impact of the payment of compensation to the personal representative or any person employed by him, the propriety of such employment and the reasonableness of such compensation or payment may be reviewed by the court. The burden of proof of propriety of such employment and the reasonableness of the compensation shall be upon the personal representative and the person employed by him. Any person who is determined to have received excessive compensation from an estate for services rendered may be ordered to make appropr iate refunds.

History.-s. 2, ch. 76-172.

733.619 Individual liability of personal representative.-

(1) Unless otherwise provided in the contract, a personal representative is not individually liable on a contract, except a contract for attorney's fee, properly entered into in his fiduciary capacity in the administration of the estate unless he fails to reveal his representative capacity and identify the estate in the contract.

(2) A personal representative is individually liable for obligations arising from ownership or control of the estate or for torts committed in the course of administration of the estate only if he is personally at fault.

(3) Claims based on contracts, except a contract for attorney's fee, entered into by a personal representative in his fiduciary capacity, on obligations arising from ownership or control of the estate, or on torts committed in the course of estate administration, may be asserted against the estate by proceeding against the personal representative in his fiduciary capacity, whether or not the personal representative is individually liable therefor.

1115


(4) Issues of liability as between the estate and the personal representative individually may be determined in a proceeding for accounting, surcharge, or indemnification, or other appropriate proceeding.


733.701 733.702 733.703 733.704 733.705 733.706 733.707

733.708 733.709 733.710

PART VII

CREDITORS' CLAIMS

Notifying creditors. Limitations on presentation of claims. Form and manner of presenting claim. Amendment of claims. Payment of and objection to claims. Executions and levies. Order of payment of expenses and obliga-

tions. Compromise. Claims undisposed of after 1 year. Limitations against unadministered es-

tates.

733.701 Notifying creditors.-Unless the proceedings are under chapter 734 or chapter 735, every personal representative shall cause notice of administration to be published under section 733.212, notifying creditors of the decedent and others to present their claims within 3 months after the date of the first publication of such notice or be forever barred.


733.702 Limitations on presentation of claims.-

filed in the manner provided in this part and within the time limited.

(3) Nothing in this section affects or prevents: (a) A proceeding to enforce any mortgage, securi

ty interest, or other lien on property of the decedent. (b) To the limits of casualty insurance protection

only, any proceeding to establish liability of the decedent or the personal representative for which he is protected by the casualty insurance.


733.703 Form and manner of presenting claim.-A creditor shall file with the clerk a written statement of the claim, indicating its basis, the name and address of the creditor or his agent or attorney, and the amount claimed. The claim is presented when filed. If a claim is not yet due, the date when it will become due shall be stated. If the claim is contingent or unliquidated, the nature of the uncertainty shall be stated. If the claim is secured, the security shall be described. Failure to describe correctly the security, the nature of any uncertainty, or the due date of a claim not yet due does not invalidate the presentation made. A creditor shall deliver a copy of the claim to the clerk who shall furnish the copy to the personal representative and note the fact on the original.


733.704 Amendment of claims.-If a bona fide attempt to file a claim is made by a creditor but the claim is defective as to form, the court may permit the amendment of the claim at any time.

History.-s. 1, ch. 74-106; s. 1, ch. 77-174. Note.-Created from former s. 733.17. (1) No claim or demand against the decedent's

estate that arose before the death of the decedent, including claims of the state and any of its subdivi- 733.705 Payment of and objection to sions, whether due or not, direct or contingent, liqui- claims.-dated or unliquidated, and no claim for personal (1) No personal representative shall be comproperty in the possession of the personal represent- pelled to pay the debts of the decedent until after the ative or for damages, including, but not limited to, expiration of 4 months from the first publication of actions founded on fraud or other wrongful act or notice of administration. If any person brings an acomission of the decedent, shall be binding on the tion against a personal representative within the 4

months on any claim to which the personal repreestate, on the personal representative, or on any ben- sentative has filed no objection, the plaintiff shall eficiary, unless presented: not receive any costs or attorneys' fees if he prevails,

(a) Within 3 months from the time of the first nor shall the judgment change the class ofthe claim publication of the notice of administration, even for payment under this code. though the personal representative has recognized (2) On or before the expiration of 4 months from the claim or demand by paying a part of it or interest the first publication of notice of administration, a on it or otherwise. The personal representative may personal representative or other interested person settle in full any claim without the necessity of the may file a written objection to any claim. An objecclaim being filed when the settlement has been ap- tion filed to an unmatured claim matures it for the proved by the beneficiaries adversely affected ac- purpose of bringing an action on it. If an objection is cording to the priorities provided in this code and filed, the person filing it shall serve a copy of the when the settlement is made within the statutory objection by registered or certified mail to the adtime for filing claims; or he may file a proof of claim dress of the claimant as shown on the claim or delivof all claims he has paid or intends to pay. ery to the claimant to whose claim he objects or the

(b) Within 3 years after the decedent's death, if claimant's attorney of record, if any, not later than notice of administration has not been published. 10 days after it has been filed, and also on the petson-

(2) No cause of action heretofore or hereafter ac- al representative if the objection is filed by any intercruing, including, but not limited to, actions founded ested person other than the personal representative. upon fraud or other wrongful act or omission, shall Failure to serve a copy of the objection constitutes an survive the death of the person against whom the abandonment of the objection. claim may be made, whether an action is pending at (3) The claimant shall be limited to 30 days from the death of the person or not, unless the claim is the date of service of an objection within which to

1116


bring an independent action upon the claim. For good cause, the court may extend the time for filing an objection to any claim or the time for serving the objection, and may likewise extend the time for filing an action or proceeding after objection is filed. The extension of time shall be granted only after notice. No action or proceeding shall be brought against the personal representative after the time limited above. If an objection is filed to the claim of any creditor and an action is brought by the creditor to establish his claim, a judgment establishing the claim shall give it no priority over claims of the same class to which it belongs.

(4) No interest shall be paid by the personal representative or allowed by the court on a claim until the expiration of 5 calendar months from the first publication of the notice of administration, unless the claim is founded on a written obligation of the decedent providing for the payment of interest. Interest shall be paid by the personal representative on written obligations of the decedent providing for the paym,ent of interest. On all other claims, interest shall be allowed and paid beginning 5 months from the first publication of the notice of administration.

(5) The court may determine all issues concerning claims or matters not requiring trial by jury.

History.-s. 1, ch. 74-106; s. 86, ch . 75-220; s. 34, ch. 77-87; s. 1, ch. 77-174. Note.-Created from former s. 733.18.

733.706 Executions and levies.-Except upon approval by the court, no execution or other process shall issue on or be levied against property of the estate. Claims on all judgments against a decedent shall be filed in the same manner as other claims against estates of decedents. This section shall not be construed to prevent the enforcement of mortgages, security interests, or liens encumbering specific property.


733.707 Order of payment of expenses and obligations.-

( I) The personal representative shall pay the expenses of the administration and obligations of the estate in the following order:

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

(b) Class 2.-Reasonable funeral, interment, and grave-marker expenses; whether paid by a guardian under subsection 744.501(21), the personal representative, or any other person, not to exceed the aggregate of $1,500.

(c) Class 3.-Debts and taxes with preference under federal law.

(d) Class 4.-Reasonable and necessary medical and hospital expenses of the last 60 days of the last illness of the decedent, including compensation of persons attending him.

(e) Class 5.-Family allowance. (f) Class 6.-Debts acquired after death by the

continuation of the decedent's business, in accordance with subsection 733.612(22), but only to the extent of the assets of that business.

(g) Class Z-All other claims, including those founded on judgments or decrees rendered against

the decedent during his lifetime, and any excess over the sums allowed in paragraphs (b) and (d).

(2) After paying any preceding class, if the estate is insufficient to pay all of the next succeeding class, the creditors of the latter class shall be paid ratably in proportion to their respective claims.


733.708 Compromise.-When a proposal is made to compromise any claim, whether in suit or not, by or against the estate of a decedent or to compromise any question concerning the distribution of a decedent's estate, the court may enter an order authorizing the compromise if satisfied that the compromise will be for the best interest of the beneficiaries. The order shall relieve the personal representative of liability or responsibility for the compromise. Claims against the estate may not be compromised until after the time for filing objections to claims has expired. Notice must be given to those who have filed objection to the claim proposed to be compromised.


733.709 Claims undisposed of after 1 year.When a person has filed a claim against an estate and the claim has not been paid, settled, or otherwise disposed of and no proceeding is pending for the enforcement or compulsory payment of it at the expiration of 1 year from the date the claim was filed, the claim shall be forever barred. No action shall thereafter be brought to enforce it. This section shall not affect the lien of any duly recorded mortgage or security interest or the lien of any person in possession of personal property or the right to foreclose and enforce the mortgage or lien.


733.710 Limitations against unadministered estates.-Three years after the death of a person, his estate shall not be liable in any cause of action if no letters have been issued in Florida within the 3-year period. This section shall not affect the lien of any duly recorded mortgage or security interest or the lien of any person in possession of personal property or the right to foreclose and enforce the mortgage or lien.

History.-s. 1, ch. 74-106; s. 50, ch. 75-220; s. 36, ch. 77-87. Note.-Created from former s. 734 .29(1).

733.801

733.802

733.803

733.805 733.806 733.808 733.809

PART VIII

SPECIAL PROVISIONS FOR DISTRIBUTION

Delivery of devises and distributive shares.

Proceedings for compulsory payment of devises or distributive interest.

Encumbered property; liability for pay-ment.

Order in which assets are appropriated. Advancement. Death benefits; disposition of proceeds. Right of retainer.

1117


733.810 733.811 733.812

733.813 733.814 733.815 733.816

733.817

Distribution in kind; valuation. Distribution; right or title of distributee. Improper distribution; liability of distrib-

utee. Purchasers from distributees protected. Partition for purpose of distribution. Private agreements among distributees. Disposition of unclaimed funds held by

personal representatives. Apportionment of estate taxes.

733.801 Delivery of devises and distributive shares.-No personal representative shall be required to pay or deliver any devise or distributive share or to surrender possession of any land to any beneficiary until the expiration of5 months from the granting of letters.


733.802 Proceedings for compulsory payment of devises or distributive interest.-

(1) Before final distribution, no personal representative shall be compelled:

(a) To pay a devise in money before the final settlement of his accounts,

(b) To deliver specific personal property devised that may have come into his hands, unless the personal property is exempt personal property,

(c) To pay all or any part of a distributive share in the personal estate of a decedent, or

(d) To surrender land to any beneficiary,

unless the beneficiary files a petition setting forth the facts that entitle him to relief and stating that the property will not be required for the payment of debts, family allowance, estate and inheritance taxes, claims, elective share of the surviving spouse, charges, or expenses of administration or for providing funds for contribution or enforcing equalization in case of advancements.

(2) An order directing the surrender of real property or the delivery of personal property shall describe the property to be surrendered or delivered. The order shall be conclusive in favor of bona fide purchasers for value from the beneficiary or distributee as against the personal representative and all other persons claiming by, through, under, or against the decedent or his estate.

(3) If the administration of the estate has not been completed before the entry of an order of partial distribution, the court may require the person entitled to distribution to give a bond with sureties as prescribed ins. 45.011, conditioned on the making of due contribution for the payment of devises, family allowance, estate and inheritance taxes, claims, elective share of the spouse, charges, expenses of administration, and equalization in case of advancements, plus any interest on them.

History.-s. 1, ch. 74-106; s. 86, ch. 75-220; s. 37, ch. 77-87; s. 1, ch. 77-174; s. 272, ch. 79-400.

Note.-Created from former s. 734.03.

intent. A general direction in the will to pay debts does not show such an intent.


733.805 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 inheritance taxes, family allowance, exempt property, elective share charges, expenses of administration, and devises, they shall be paid out of the funds or from the property or proceeds as provided by the will so far as sufficient. If no provision is made or any fund designated, or if it is insufficient, the property of the estate shall be used for such purposes, except as otherwise provided in s. 733.817 with respect to estate, inheritance, and other death taxes, and to raise the shares of a pretermitted spouse and children, in the following order:

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

devisees. (c) Property not specifically or demonstratively

devised. (d) Property specifically or demonstratively de

vised. (2) Demonstrative devises shall be classed as gen

eral devises upon the failure or insufficiency of funds or property out of which payment should be made, to the extent of the insufficiency. Devises to the decedent's surviving spouse, given in satisfaction of, or instead of, the surviving spouse's statutory rights in the estate, shall not abate until other devises of the same class are exhausted. Devises given for a valuable consideration shall abate with other devises of the same class only to the extent of the excess over the amount of value of the consideration until all others of the same class are exhausted. Except as herein provided, devises shall abate equally and ratably and without preference or priority as between real and personal property. When property that has been specifically devised or charged with a devise is sold or taken by the personal representative, other devisees shall contribute according to their respective interests to the devisee whose devise has been sold or taken, and before distribution the court shall determine the amounts of the respective contributions, and they shall be paid or withheld before distribution is made.


733.806 Advancement.-If a person dies intestate as to all his estate, property that he gave in his lifetime to an heir is treated as an advancement against the latter's share of the estate only if declared in a contemporaneous writing by the decedent or acknowledged in writing by the heir. The property advanced shall be valued at the time the heir came into possession or enjoyment of the property or at

733.803 Encumbered property; liability for the time of the death of the decedent, whichever first payment.-The specific devisee of any encumbered occurs. If the recipient of the property does not surproperty shall be entitled to have the encumbrance vive the decedent, the property shall not be taken on devised property paid at the expense of the resi- into account in computing the intestate share to be due of the estate only when the will shows such an received by the recipient's descendants unless the

1118


declaration or acknowledgment provides otherwise. History.-s. 1, ch. 74-106. Note.-Created from former s. 734.07.

733.808 Death benefits; disposition of proceeds.-

(1) Death benefits of any kind, including, but not limited to, proceeds of:

(a) An individual life insurance policy; (b) A group life insurance policy; (c) An employees' trust or under a contract pur

chased by an employees' trust forming part of a pension, stock-bonus, or profit-sharing plan;

(d) An annuity or endowment contract; and (e) A health and accident policy,

may be made payable to the trustee under a trust agreement or declaration of trust in existence at the time of the death of the insured, employee, or annuitant. The death benefits shall be held and disposed ofby the trustee in accordance with the terms of the trust as they appear in writing on the date of the death of the insured, employee, or annuitant. It shall not be necessary to the validity of the trust agreement or declaration of trust, whether revocable or irrevocable, that it have a trust corpus other than the right of the trustee to receive death benefits.

(2) Death benefits of any kind, including, but not limited to, proceeds of:

(a) An individual life insurance policy; (b) A group life insurance policy; (c) An employees' trust, or under a contract pur

chased by an employees' trust, forming part of a pension, stock-bonus, or profit-sharing plan;

(d) An annuity or endowment contract; and (e) A health and accident policy,

may be made payable to the trustee named, or to be named, in a written instrument that is admitted to probate as the last will of the insured, the owner of the policy, the employee covered by the plan or contract, or any other person, whether or not the will is in existence at the time of designation. Upon the admission of the will to probate, the death benefits shall be paid to the trustee, to be held, administered, and disposed of in accordance with the terms of the trust or trusts created by the will.

(3) In the event no trustee makes proper claim to the proceeds from the insurance company or other obligor within a period of 6 months after the date of the death of the insured, employee, or annuitant, or if satisfactory evidence is furnished to the insurance company or such obligor within that period that there is, or will be, no trustee to receive the proceeds, payment shall be made by the insurance company or obligor to the personal representative of the person making such designation, unless otherwise provided by agreement with the insurer or other obligor during the lifetime of the insured, employee, or annuitant.

(4) Death benefits payable as provided in subsections (1), (2) or (3), unless paid to a personal representative under the provisions of subsection (3), shall not be deemed to be part of the estate of the testator or an intestate estate, and shall not be subject to any obligation to pay transfer or estate taxes, debts, or other charges enforceable against the estate to any

greater extent than if such proceeds were payable directly to the beneficiaries named in the trust.

(5) The death benefits so held in trust may be commingled with any other assets that may properly come into the trust.

(6) Nothing in this section shall affect the validity of any designation of a beneficiary of proceeds heretofore made that designates as beneficiary the trustee of any trust established under a trust agreement or declaration of trust or by will.


733.809 Right of retainer.-The amount of a noncontingent indebtedness of a beneficiary to the estate, if due, or its present value, if not due, may be offset against the beneficiary's interest, but the beneficiary has the benefit of any defense that would be available to him in a direct proceeding for recovery of the debt.

History.-s. 1, ch. 74-106; s. 39, ch. 77-87.

733.810 Distribution in kind; valuation.-(1) Unless a general power of sale is conferred or

a contrary intention is indicated by the will or unless assets are otherwise disposed of under the provisions of this code, the distributable assets of a decedent's estate shall be distributed in kind through application of the following provisions:

(a) Any family allowance or devise payable in money may be satisfied by value in kind if:

1. The person entitled to the payment has not demanded cash;

2. The property distributed in kind is valued at fair market value as of the date of its distribution; and

3. No residuary devisee has requested that the asset remain a part of the residue of the estate.

(b) When it is not practicable to distribute undivided interests in a residuary property, the property shall be converted into cash for distribution.

(2) When the personal representative, trustee, or other fiduciary under a will or trust instrument is required to, or has an option to, satisfy a devise or transfer in trust to, or for the benefit of, the surviving spouse with assets of the estate or trust in kind, at values as finally determined for federal estate tax purposes, the personal representative, trustee, or other fiduciary shall, unless the will or trust instrument otherwise provides, satisfy the devise or transfer in trust by distribution of assets, including cash, fairly representative of the appreciated or depreciated value of all property available for distribution in satisfaction of the devise or transfer in trust, taking into consideration any gains and losses realized from the sale, prior to distribution of the marital interest, of any property not specifically, generally, or demonstratively devised.

(3) With the consent of all beneficiaries affected, a personal representative or a trustee is authorized to distribute any distributable assets, non-pro rata among the beneficiaries entitled thereto.


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733.811 Distribution; right or title of distributee.-Proof that a distributee has received an instrument transferring assets in kind or payment in distribution or possession of specific property from a personal representative is conclusive evidence that the distributee has succeeded to the interest of the estate in the distributed assets, as against all persons interested in the estate, but the personal representative may recover the assets or their value if the distribution was improper.

Hlstory.-s. 1, ch. 74-106.

733.812 Improper distribution; liability of distributee.-Unless the distribution or payment no longer can be questioned because of adjudication, estoppel, or limitations, a distributee of property improperly distributed or paid or a claimant \,Vho was improperly paid, if he has the property, is liable to return the property improperly received and its income since distribution to the personal representative or to the beneficiaries entitled to it. If he does not have the property, then he is liable to return the value of the property improperly received at the date of disposition and its income and gain received by him.

History.-s. 1, ch. 74-106; s. 92, ch. 75-220.

733.813 Purchasers from distributees protected.-Ifproperty distributed in kind, or a security interest therein, is acquired by a purchaser or lender for value from a distributee who has received an instrument of distribution or possession from the personal representative, the purchaser or lender takes title free of any claims ofthe estate and incurs no personal liability to the estate, whether or not the distribution was proper. To be protected under this provision a purchaser or lender need not inquire whether a personal representative acted properly in making the distribution in kind.

Hlstory.-s. 1, ch. 74-106.

733.814 Partition for purpose of distribution. -When two or more heirs or devisees are entitled to distribution of undivided interests in any property, the personal representative or one or more of the beneficiaries may petition the court before closing the estate to make partition. After formal notice to the interested beneficiaries, the court shall partition the property in the same manner as provided by law for civil actions of partition. The court may direct the personal representative to sell any property that cannot be partitioned without prejudice to the owners and that cannot conveniently be allotted to any one party.

History.-s. 1, ch. 74-106.

733.815 Private agreements among distributees. -Subject to the rights of creditors and-taxing authorities, competent interested persons may agree among themselves to alter the interests, shares, or amounts to which they are entitled under the will or under the laws of intestacy in a written contract executed by all who are affected. The personal representative shall abide by the terms of the agreement, subject to his obligation to administer the estate for the benefit of creditors, to pay all taxes and costs of administration, and to carry out the responsibilities

of his office for the benefit of any beneficiaries of the decedent who are not parties to the agreement. Personal representatives are not required to see to the performance of trusts ifthe trustee is another person who is willing to accept the trust. Trustees of a testamentary trust are beneficiaries for the purposes of this section. Nothing herein relieves trustees of any duties owed to beneficiaries of trusts.

History.-s. 1, ch. 74-106; s. 94, ch. 75-220.

733.816 Disposition of unclaimed funds held by personal representatives.-

(!) In all cases in which there are unclaimed funds in the hands of a personal representative that cannot be distributed or paid to the lawful owner because of inability to find him or because no lawful owner is known, the court shall order the personal representative to deposit the funds with the clerk and receive a receipt, and the clerk shall deposit the funds in the registry ofthe court to be disposed of as follows:

(a) If the value of the funds is $50 or less, the clerk shall post a notice for 30 days at the courthouse door giving the amount involved, the name of the personal representative, and the other pertinent information that will put interested persons on notice.

(b) If the value of the funds is over $50, the clerk shall publish the notice once a month for 2 consecutive months in a newspaper of general circulation in the county.

After the expiration of6 months from the posting or first publication, the clerk shall deposit the funds with the State Treasurer after deducting his fees and the costs of publication.

(2) Upon receipt of the funds, the State Treasurer shall deposit them 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).

(3) Within 10 years from the date of deposit with the State Treasurer, on written petition to the court that directed the deposit of the funds and informal notice to the Department of Legal Affairs, and after proof of his right to them, any person entitled to the funds before or after payment to the State Treasurer and deposit as provided by subsection (1) may obtain an order of court directing the payment ofthe funds to him. All funds deposited with the State Treasurer and not claimed within 10 years from the date of deposit shall escheat to the state for the benefit of the State School Fund.


cf.-s. 717.08 Property held by fiduciaries.

733.817 Apportionment of estate taxes.-(1) Any estate, inheritance, or other death tax

levied or assessed under the tax laws of this or any other state, political subdivision, or country or under any United States revenue act concerning any property included in the gross estate under the law shall be apportioned in the following manner:

1120

F.S.l979 PROBATE CODE: ADMINISTRATION OF ESTATES Ch. 733

(a) If a part of the estate passed under a will as a specific devise or general devise 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 attribut&ble to it shall be charged. to and paid from the residuary estate without requiring contribution from persons receiving the interests, except as otherwise directed by the will. In the event the residuary estate is insufficient to pay the tax attributable to the interests, any balance of the tax shall be equitably apportioned among the recipients of the interests in the proportions that the value of each interest included in the measure of the tax bears to the total of all interests so included, except as otherwise directed by the will.

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

(c) If a part of the property concerning which the tax is levied or assessed is held under the terms of any trust created inter vivos or is subject to a power of appointment, the net amount ofthe tax attributable to it shall be charged to and paid from the part of the corpus of the trust property or the property subject to the power of appointment included in the measure of the tax, as the case may be, and shall not be apportioned between temporary and remainder interests, except as otherwise directed by the trust instrument concerning the fund established by it or by the will.

(d) Real property homesteads that are exempt from execution by law shall be exempt from apportionment of taxes. P~rsons taking an interest in the homesteads shall not be liable for apportionment of taxes on account of the homesteads. The net amount of the tax attributable to homestead property shall be paid from other assets of the probate or intestate estate in the order as directed by will or, if not so provided, in the following order:

1. Property not disposed of by the will. 2. Property devised to the residuary devisee. 3. Property not specifically or demonstratively

devised. 4. Property specifically or demonstratively de

vised. (e) The balance of the net amount of the tax,

including, but not limited to, any tax imposed concerning gifts in contemplation of death, jointly held properties passing by survivorship, property passing by intestacy, or insurance, shall be equitably apportioned among, and paid by, the recipients and beneficiaries of the properties or interests, in the proportion that the value of the property or interest of each

included in the measure of the tax bears to the total value of all the properties and interests included in the measure of the tax, except as otherwise directed by the will. When a property or interest is an interest in income or an estate for years or for life or other temporary interest, the amount 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 the property or fund.

(f) Nothing herein contained shall be construed to require the personal representative to pay any estate, inheritance, or other death taxes levied or assessed by any foreign country, unless specific directions to that effect are contained in the will.

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

terests encompassed by any one of paragraphs (lXa) through (e) shall be the part of the net amount of the tax as finally determined, with interest on it, as the value of interests included in the measure of the tax and inCluded in the 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, country, or political subdivision then under consideration, shall be deemed the tax attributable to the 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, country, or political subdivision whose tax is being apportioned, less the deductions, other than the specific exemption, allowed. All proportions based on net estate shall be determined without regard to any diminution in deductions resulting from the charge of any part ofthe tax to a deductible interest. ·

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

(d) The word "value" shall mean the pecuniary worth of the interest involved as finally determined for purposes of the estate, death, or inheritance tax then under consideration, without regard to any diminution of it by reason of the charge of any part of tax.

(e) Except when the will or other governing instrument otherwise provides, in the event a credit is given under the estate tax laws of the United States for any estate, inheritance, or death taxes paid to other countries or political subdivisions, the credit shall be apportioned among the recipients of interests finally charged with the payment of the foreign tax in reduction of any United States estate tax chargeable to the recipients or interests, whether or not the United States estate tax is attributable to the foreign interests. Any excess of the credit shall be applied in reduction of the part of United States estate tax chargeable to residue, and any excess of the credit over the United States estate tax chargeable to residue shall be apportioned ratably among

1121


those persons or interests finally charged with the balance of the payment of United States estate tax.

(3) Unless otherwise directed by the will, the tax shall be paid by the personal representative 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 personal representative, he shall recover:

(a) From the fiduciary in possession of the corpus of the trust or of property subject to the power of appointment in cases in which property of a trust created inter vivos or property subject to a power of appointment is included in the gross estate; and

(b) In all other cases, from the recipient or beneficiaries of property or interests with respect to which the tax is levied or assessed,

the proportionate amount of the tax payable by the fiduciary or persons with which they are chargeable under the provisions of this act, unless relieved of the duty as provided in subsection (6). This subsection shall not authorize the recovery of any taxes from any company issuing insurance included in the gross estate, or from any bank, trust company, savings and loan association, or similar institution with respect to any account in the name of the decedent and any other person that passed by operation oflaw on the decedent's death. If the fiduciary brings an action to recover a share of tax apportioned to an interest not within his control, the judgment he obtains may include costs and reasonable attorney's fees.

(4) No personal representative 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, until adequate security is furnished for the payment. The fiduciary shall not be required to distribute assets that 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 personal representative or other fiduciary shall petition for an order of apportionment and shall give formal notice of the petition and the hearing to all interested persons. The personal representative shall be entitled, and it shall be his duty, except as provided in subsection (6), to attempt to effect apportionment as determined by the order, and the apportionment shall be prima facie correct in proceedings in any court or jurisdiction. The personal representative shall not be required to seek collection of any portion of tax attributable to any interest not within his control until after entry of the order.

(6)(a) A personal representative or other fiduciary who has the duty under this section of collecting the apportioned tax from persons interested in the estate may be relieved of the duty to collect the tax by an order of the court finding:

1. That the estimated court costs and attorney 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 ofthe 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) The fiduciary shall not be liable for failure to attempt to enforce collection if the attempt would in fact have been economically impracticable. Nothing in this section shall limit the right of any person who is 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, and that right is hereby conferred.

(c) If a fiduciary obtains an order described above, the share of tax to which it refers shall be paid from assets of the estate in the order provided by s. 733.805. Any apportioned tax that is not collected shall also be paid from assets in the same order.


PART IX

CLOSING ESTATES

733.901 Distribution; final discharge. 733.903 Subsequent administration.

733.901 Distribution; final discharge.-(!) When a personal representative has complet

ed administration except for distribution, he shall file a final accounting and a petition for discharge that shall contain:

(a) A complete report of all receipts and disbursements since the date of the last annual accounting or, if none, from the commencement of administration.

(b) A statement that he has fully administered the estate by making payment, settlement, or other disposition of all claims and debts that were presented and the expenses of administration.

(c) The proposed distribution of the assets of the estate.

(d) Any prior distributions that have been made. (e) A statement that objections to this report or

proposed distribution of assets be filed within 30 days.

The final accounting and petition for discharge shall be filed and served on all interested persons within 12 months after issuance of letters, unless the time is extended by the court for cause shown after notice to interested persons. The petition shall state the status of the estate and the reasons for the extension.

(2) If no objection to the accounting or petition for discharge has been filed within 30 days from the date of service of copies on interested persons, or if service has been waived, the personal representative may distribute the estate according to the plan of distribution set forth in the petition without a court order. The assets shall be distributed free from the claims of any interested person and, upon receipt of evidence that the estate has been properly distributed and that claims of creditors have been paid or

1122


otherwise disposed of, the court shall enter an order discharging the personal representative and releasing the surety on any bond.

(3) If an objection to the petition for discharge has been filed within the time allowed, the court shall determine the plan of distribution and, upon receipt of evidence that the estate has been properly distributed and that claims of creditors have been paid or otherwise disposed of, the court shall enter an order discharging the personal representative and releasing the surety on any bond.

(4) The 30-day period contained in subsection (2) may be waived upon written consent of all interested persons.

(5) The discharge of the personal representative shall release the personal representative of the es-

tate and shall bar any action against the personal representative, as such or individually, and his surety.


733.903 Subsequent administration.-The final settlement of an estate and the discharge of the personal representative shall not prevent a revocation ofthe order of discharge or the subsequent issuance of letters if other property of the estate is discovered or if it becomes necessary that further administration of the estate be had for any cause.


1123

Ch. 734 PROBATE CODE: ANCILLARY ADMINISTRATION F.S.1979

CHAPTER 734

PROBATE CODE: FOREIGN PERSONAL REPRESENTATIVES; ANCILLARY ADMINISTRATION


PART II JURISDICTION OVER FOREIGN PERSONAL REPRESENTATIVES (ss. 734.201, 734.202)

PART I

GENERAL PROVISIONS

734.101 Foreign personal representative. 734.102 Ancillary administration. 734.104 Foreign wills; admission to record; effect

on title.

734.101 Foreign personal representative.(!) Personal representatives who produce au

thenticated copies of probated wills or letters of administration duly obtained in any state or territory of the United States may maintain actions in the courts of this state.

(2) Personal representatives appointed in any state or country may be sued in this state concerning property in this state and may defend actions or proceedings brought in this state.

(3) Debtors who have not received a written demand for payment from a personal representative or curator appointed in this state within 60 days after appointment of a personal representative in any other state or country, and whose property in Florida is subject to a mortgage or other lien securing the debt held by the foreign personal representative, may pay the foreign personal representative after the expiration of 60 days from the date of his appointment. Thereafter, a satisfaction of the mortgage or lien executed by the foreign personal representative, with an authenticated copy of his letters or other evidence of authority attached, may be recorded in the public records. The satisfaction shall be an effective discharge of the mortgage or lien, irrespective of whether the debtor making ·payment had received a written demand before paying the debt.

(4) All persons i.ndebted to the estate of a decedent, or having possession of personal property belonging to the estate, who have received no written demand from a personal representative or curator appointed in this state for payment of the debt or the delivery of the property are authorized to pay the debt or to deliver the personal property to the foreign personal representative after the expiration of 60 days from the date of his appointment.


734.102 Ancillary administration.-(!) If a nonresident of this state dies leaving as

sets in this state, credits due him from residents in this state, or liens on property in this state, a personal representative specifically designated in the decedent's will to administer the Florida property shall be entitled to have ancillary letters issued to him, if

qualified to act in Florida. Otherwise, the foreign personal representative of the decedent's estate shall be entitled to have letters issued to him, if qualified to act in Florida. If the foreign personal representative is not qualified to act in Florida and the will names an alternate or successor who is qualified to act in Florida, the alternate or successor shall be entitled to have letters issued to him. Otherwise, those entitled to a majority interest of the Florida property may have letters issued to a personal representative selected by them who is qualified to act in Florida. If the decedent dies intestate and the foreign domiciliary personal representative is not qualified to act in Florida, the order of preference for appointment of a personal representative as prescribed in this code shall apply. If ancillary letters are applied for by other than the domiciliary personal representative, prior notice shall be given to any domiciliary personal representative.

(2) To entitle the applicant to ancillary letters, an authenticated copy of so much of the domiciliary proceedings shall be filed as will show either:

(a) The will, petition for probate, order admitting the will to probate, and letters, if there are such; or

(b) The petition for letters and the letters. (3) On filing the authenticated copy of a probated

will, including any probated codicils, the court shall determine ifthe will and the codicils, if any, comply with subsections 732.502(1) or (2). If they comply, the court shall admit the will and any codicils to record.

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

(5) After the payment of all expenses of administration and claims against the estate, the court may order the remaining property held by the ancillary personal representative transferred to the domiciliary personal representative or distributed to the heirs or devisees.

(6) Ancillary personal representatives shall have the same rights, powers, and authority as other personal representatives in Florida to manage and settle estates; to sell, lease, or mortgage local property; and to raise funds for the payment of debts, claims, and devises in the domiciliary jurisdiction. No property shall be sold, leased, or mortgaged to pay a debt or claim that is barred by any statute of limitation or of nonclaim of this state.


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F.S.1979 PROBATE CODE: ANCILLARY ADMINISTRATION Ch. 734

734.104 Foreign wills; admission to record; effect on title.-

(1) An authenticated copy of the will of a nonresident that devises real property in this state, or any right, title, or interest in the property, may be admitted to record in any county of this state where the property is located at any time after 3 years from the death of the decedent or at any time after the domiciliary personal representative has been discharged if there has been no proceeding to administer the estate of the decedent in this state, provided:

(a) The will complies with s. 732.502 as to form and manner of execution; and

(b) The will has been admitted to probate in the proper court of any other state, territory, or country.

(2) A petition to admit a foreign will to record may be filed by any person and shall be accompanied by authenticated copies of the foreign will, the petition for probate, and the order admitting the will to probate. If no petition is required as a prerequisite to the probate of a will in the jurisdiction where the will of the nonresident was probated, upon proof by affidavit or certificate that no retition is required, an authenticated copy of the wil may be admitted to record without an authenticated copy of a petition for probate, and the order admitting the :will to record in this state shall recite that no petition was required in the jurisdiction of original probate.

(3) If the court finds that this section has been complied with, it shall enter an order admitting the foreign will to record.

(4) When admitted to record, the foreign will shall .be as valid and effectual to pass title to real property and any right, title, or interest therein as if the will had been admitted to probate in this state.

History.-s. 3, ch. 74-106; s. 98, ch. 75-220; s. 45, ch. 77-87; s. 229, ch. 77-104; s. 15, ch. 79-221; s. 27 4, ch. 79-400.

Note.-Created from former s. 736.06. .

PART II

JURISDICTION OVER FOREIGN PERSONAL REPRESENTATIVES

734.201 Jurisdiction by act offoreign personal representative.

734.202 Jurisdiction by act of decedent.

734.201 Jurisdiction by act of foreign personal representative.-A foreign personal representative submits personally to the jurisdiction of the courts of this state in any proceeding concerning the estate by:

(1) Filing authenticated copies of the domiciliary proceedings under s. 734.103.

(2) Receiving payment of money or taking delivery of personal property, under s. 734.101.

(3) Doing any act as a personal representative in this state that would have given the state jurisdiction over him as an individual.

History.-s. 1, ch. 74-106; s. 99, ch. 75-220.

734.202 Jurisdiction by act of decedent.-In addition to jurisdiction conferred by s. 734.201, a foreign personal representative is subject to the jurisdiction of the courts of this state to the same extent that his decedent was subject to jurisdiction immediately before death.

History.-s. 1, ch. 74-106.

1125

Ch. 735 PROBATE CODE: FAMILY ADMINISTRATION AND SMALL ESTATES F.S.1979

CHAPTER 735

PROBATE CODE: FAMILY ADMINISTRATION AND SMALL ESTATES

PART I FAMILY ADMINISTRATION (ss. 735.101-735.107)

PART II SUMMARY ADMINISTRATION (ss. 735.201-735.209)

PART III DISPOSITION OF PERSONAL PROPERTY WITHOUT ADMINISTRATION (ss. 735.301, 735.302)

PART I

FAMILY ADMINISTRATION

735.101 Family administration; nature of proceedings.

735.103 Petition for family administration. 735.107 Family administration distribution.

735.101 Family administration; nature of proceedings.-Family administration may be had in the administration of a decedent's estate when it appears:

(1) In an intestate estate, that the heirs at law of the decedent consist solely of a surviving spouse, lineal descendants, and lineal ascendants, or any of them.

(2) In a testate estate, that the beneficiaries under the will consist of a surviving spouse, lineal descendants, and lineal ascendants, or any of them, and that any specific or general devise to others constitutes a minor part of the decedent's estate.

(3) In a testate estate, that the decedent's will does not direct administration as required by chapter 733.

(4) That the value of the gross estate, as of the date of death, for federal estate tax purposes is less than $60,000.

(5) That the entire estate consists of personal property or, if real property forms part of the estate, that administration under chapter 733 has proceeded to the point that all claims of creditors have been processed or barred.

History.-s. 1, ch. 74-106; s. 101, ch. 75-220.

735.103 Petition for family administration.A verified petition for family administration shall contain, in addition to the statements required by s. 733.202, the following:

(1) Facts showing that petitioners are entitled to family administration, as provided in s. 735.101.

(2) A complete list of the assets of the gross estate for federal estate tax purposes and their estimated value.

(3) An appropriate statement that the estate is not indebted or that provision for payment of debts has been made or the claims are barred.

(4) A proposed schedule of distribution of all assets to those entitled thereto as surviving spouse,

heirs, beneficiaries, or creditors.

The petition shall be signed and verified by all beneficiaries and the surviving spouse, if any. The petition may be signed on behalf of a minor or an incompetent by his legal guardian or, if none, by his natural guardian.


735.107 Family administration distribution.-

(1) Upon filing the petition for family administration, the will, if any, shall be proved in accordance with chapter 733 and be admitted to probate.

(2) If the estate consists of personal property only, then, after such hearing as the court may require, an order of family administration may be entered allowing immediate distribution of the assets to the persons entitled to them.

(3) The order of family administration and the distribution so entered shall have the following effect:

(a) Those to whom specified parts of the decedent's estate are assigned by the order shall be entitled to receive and collect the parts and to have the parts transferred to them. They may maintain actions to enforce the right.

(b) 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 the order by paying, delivering, or transferring to those specified in the order the parts of the decedent's estate assigned to them by the order, and the persons so paying, delivering, or transferring shall not be accountable to anyone else for the property.

(c) After the entry of the order, bona fide purchasers for value from those to whom property of the decedent may be assigned by the order shall take the property free of all claims of creditors of the decedent and all rights of the surviving spouse and all other heirs and devisees.

(d) Property of the decedent that is not exempt from claims of creditors and that remains in the hands of those to whom it may be assigned by the order shall continue to be liable for claims against the decedent until barred as provided in this law.

(e) The petitioners for the order of family administration shall be personally liable for all lawful claims against the estate of the decedent, but only to the extent of the value of the estate of the decedent actually received by each petitioner, exclusive of the property exempt from claims of creditors under the Constitution and statutes of Florida.

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F.S.1979 PROBATE CODE: FAMILY ADMINISTRATION AND SMALL ESTATES Ch. 735

(f) After 3 years from the death of the decedent, neither his estate nor those to whom it may be assigned shall be liable for any claim against the decedent, unless proceedings have been taken for the enforcement of the claim.

(g) Any heir or devisee of the decedent who was lawfully entitled to share in the estate but was not included in the order of family administration and distribution may enforce his rights against those who procured the order in appropriate proceedings and, when successful, shall be awarded reasonable attorney's fees as an element of costs.

(4)(a) If the estate of the decedent includes real property and administration under chapter 733 has proceeded to the point that all claims of creditors have been processed or barred, or upon the satisfaction of all claims of creditors, if any, and after such hearing as the court may require, an order of family administration may be entered and the personal representative authorized to make distribution of the assets to the persons entitled to them. Upon evidence satisfactory to the court that distribution has been made, the court shall enter an order discharging the personal representative.

(b) Any heir or devisee of the decedent who was lawfully entitled to share in the estate but who was not included in the order of family administration and distribution may enforce his rights against those who procured the order in appropriate proceedings and, when successful, shall be awarded reasonable attorney's fees as an element of costs.


735.201

735.202

735.203 735.2055 735.206 735.209

PART II

SUMMARY ADMINISTRATION

Summary administration; nature of proceedings.

May be administered in the same manner as other estates.

Petition for summary administration. Filing of petition. Summary administration distribution. Joinder of heirs, etc., in summary admin-

istration.

735.201 Summary administration; nature of proceedings.-Summary administration may be had in the administration of a decedent's estate when it appears:

(1) In a testate estate, that the decedent's will does not direct administration as required by chapter 733.

(2) That the value of the entire estate subject to administration in this state, less the value of property exempt from the claims of creditors, does not exceed $10,000 or that the decedent has been dead for more than 3 years.

History.-s. 1, ch. 74-106; s. 105, ch. 75-220.

735.202 May be administered in the same manner as other estates.-The estate may be administered in the same manner as the administra-

tion of any other estate, or it may be administered as provided in this part.


735.203 Petition for summary administration.-

(1) A petition for summary administration may be filed by any beneficiary, heir at law, or person nominated as personal representative in the decedent's will offered for probate and shall be signed and verified by:

(a) The surviving spouse, if any; the heirs at law or beneficiaries who are sui juris; and the guardians of any heirs at law or beneficiaries who are not sui juris; or

(b) The persons described by s. 735.209. (2) A petition for summary administration shall

contain, in addition to the statements required by paragraphs 733.202(2)(b) and (c), the following:

(a) Facts showing that petitioners are entitled to summary administration as provided in s. 735.201.

(b) A complete list of the assets of the estate and their estimated value, together with those assets claimed to be exempt.

(c) A statement that the estate is not indebted or that provision for payment of debts has been made.

(d) A proposed schedule of distribution of all assets to those entitled thereto as surviving spouse, beneficiaries, or creditors.


735.2055 Filing of petition.-The petition for summary administration may be filed at any stage of the administration of an estate if it appears that at the time of filing the estate would qualify.

History.-s. 47, ch. 77-87.

735.206 Summary administration distribution.-

(1) Upon the filing of the petition for summary administration, the will, if any, shall be proved in accordance with chapter 733 and be admitted to probate.

(2) After such hearing as the court may require, an order of summary administration may be entered allowing immediate distribution of the assets to the persons entitled to them.

(3) The order of summary administration and distribution so entered shall have the following effect:

(a) Those to whom specified parts of the decedent's estate, including exempt property, are assigned by the order shall be entitled to receive and collect the parts and to have the parts transferred to them. They may maintain actions to enforce the right.

(b) Debtors ofthe 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 the order by paying, delivering, or transferring to those specified in the order the parts of the decedent's estate assigned to them by the order, and the persons so paying, delivering, or transferring shall not be accountable to anyone else for the property.

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Ch. 735 PROBATE CODE: FAMILY ADMINISTRATION AND SMALL ESTATES F.S.1979

(c) After the entry of the order, bona fide purchasers for value from those to whom property of the decedent may be assigned by the order shall take the property free of all claims of creditors of the decedent and all rights of the surviving spouse and all other heirs and devisees.

(d) Property of the decedent that is not exempt from claims of creditors and that remains in the hands of those to whom it may be assigned by the order shall continue to be liable for claims against the decedent until barred as provided in this law.

(e) The petitioners for the order of summary administration shall be personally liable for all lawful claims against the estate ofthe decedent, but only to the extent of the value of the estate of the decedent actually received by each petitioner, exclusive of the property exempt from claims of creditors under the Constitution and statutes of Florida.

(f) After 3 years from the death of the decedent, neither his estate nor those to whom it may be assigned shall be liable for any claim against the decedent, unless proceedings have been taken for the enforcement of the claim.

(g) Any heir or devisee of the decedent who was lawfully entitled to share in the estate but who was not included in the order of summary administration and distribution may enforce his rights in appropriate proceedings against those who procured the order and, when successful, shall be awarded reasonable attorney's fees as an element of costs.


735.209 Joinder of heirs, etc., in summary administration.-

(1) When any heir, devisee, or surviving spouse is authorized or required under this part to join in any agreement or petition and any such person has died, become incompetent or is a minor, or has conveyed or transferred all of his or her interest in the property of the estate, then:

(a) The heirs, devisees, and surviving spouse, if any, of a deceased person,

(b) The personal representative, if any, ofthe estate of a deceased person,

(c) The guardian of an incompetent or minor, or (d) The grantee or transferee of any of them

shall be authorized to join in such agreement or petition instead of the heir, devisee, or surviving spouse.

(2) The joinder in, or consent to, a petition for summary administration is not required of an heir or beneficiary who will receive his full distributive share under the proposed distribution. Any beneficiary not joining or consenting shall receive formal notice of the petition.

History.-s. 1, ch. 74-106; s. 109, ch. 75-220; s. 49, ch. 7UJ7; s. 1, ch. 77-174. Note.-Created from former s. 735.14.

PART III

DISPOSITION OF PERSONAL PROPERTY WITHOUT ADMINISTRATION

735.301 735.302

Disposition without administration. Income tax refunds in certain cases.

735.301 Disposition without administration.-

(1) No administration shall be required or formal proceedings instituted upon the estate of a decedent leaving only personal property exempt under the provisions of s. 732.402, personal property exempt from the claims of creditors under the Constitution of Florida, and nonexempt personal property the value of which does not exceed the sum of the amount of preferred funeral expenses and reasonable and necessary medical and hospital expenses of the last 60 days of the last illness.

(2) Upon informal application by affidavit, letter, or otherwise by any interested party, and if the court is satisfied that subsection (1) is applicable, the court, by letter or other writing under the seal of the court, may authorize the payment, transfer, or disposition of the personal property, tangible or intangible, belonging to the decedent to those persons entitled.

(3) Any person, firm; or corporation paying, delivering, or transferring property under the authorization shall be forever discharged from any liability thereon.

History.-s. I , ch. 74-106; s. lll , ch. 75-220; s . 50, ch. 77-87; s. I, ch. 77-174; s. 275, ch. 79-400.

735.302 Income tax refunds in certain cases.-

(1) In any case when the United States Treasury Department determines that an overpayment of federal income tax exists and the person in whose favor the overpayment is determined is dead at the time the overpayment of tax is to be refunded, and irrespective of whether the decedent had filed a joint and several or separate income tax return, the amount ofthe overpayment, if not in excess of $500, may be refunded as follows:

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

(b) Ifthere is no surviving spouse, to one of decedent's children who is designated in a verified application purporting to be executed by all of the decedent's children over the age of 14 years.

In either event, the application must show that the decedent was not indebted, that provision has been made for the payment of the decedent's debts, or that the entire estate is exempt from the claims of creditors under the Constitution and statutes of the state, and that no administration of the estate, including summary administration, has been initiated and that none is planned, to the knowledge of the applicant.

(2) If a refund is made to the surviving spouse or designated child pursuant to the application, the refund shall operate as a complete discharge to the United States from liability from any action, claim, or demand by any beneficiary of the decedent or other person. Nothing in this section shall be construed as establishing the ownership or rights of any person in the refund so distributed.

History.-s. I , ch. 74-106; s. ll2, ch. 75-220; s. 51, ch. 77-87; s. I, ch. 77-174. Note.-Created from former s. 735.!5.

1128

F.S.1979 TRUST ADMINISTRATION Ch. 737

CHAPTER 737

TRUST ADMINISTRATION

PART I TRUST REGISTRATION (ss. 737.101, 737.105)

PART II JURISDICTION OF COURTS (ss. 737.201-737.205)

PART III DUTIES AND LIABILITIES OF TRUSTEES (ss. 737.301-737 .307)

PART IV POWERS OF TRUSTEES (ss. 737.401-737.407)

PART V CHARITABLE TRUSTS (ss. 737.501-737.512)

· PART I

TRUST REGISTRATION

737.101 Principal place of administration of trust; duty to register trust.

737.105 Qualification of foreign trustee.

737.101 Principal place of administration of trust; duty to register trust.-

(1) Unless otherwise designated in the trust agreement, the principal place of administration of a trust is the trustee's usual place of business where the records pertaining to the trust are kept or, if he has no place of business, the trustee's residence.

(2) If not otherwise designated in the trust instrument in the case of cotrustees, the principal place of administration is:

(a) The usual place of business of the corporate trustee, if there is but one corporate cotrustee;

(b) The usual place ofbusiness or residence of the individual trustee who is a professional fiduciary, if there is but one such person and no corporate cotrustee; or otherwise,

(c) The usual place of business or residence of any of the cotrustees as agreed upon by them.

History.-s. 1, ch. 74-106; s. 1, ch. 75-221; s. 1, ch. 77-344. cf.-s. 731.201 General definitions.

737.105 Qualification of foreign trustee.-Unless otherwise doing business in this state, local qualification by a foreign trustee is not required in order for the trustee to receive distribution from a local estate. Nothing in this chapter shall affect the provisions of s. 660.10.

History.-s. 1, ch. 74-106; s. 1, ch. 75-221.

PART II

JURISDICTION OF COURTS

737.201 Court powers over trusts. 737.202 Trust proceedings; venue. 737.203 Trust proceedings; dismissal of matters re

lating to foreign trusts. 737.204 Proceedings for review of employment of

agents and review of compensation of trustee and employees of trust.

737.205 Trust proceedings; commencement.

737.201 Court powers over trusts.-(1) The proceedings that may be maintained un

der this section are those concerning the administration and distribution of trusts, the declaration of rights, and the determination of any other matters involving trustees and beneficiaries of trusts. These include, but are not limited to, proceedings to:

(a) Appoint or remove a trustee. (b) Review trustees' fees and to review and settle

interim or final accounts. (c) Ascertain beneficiaries; determine any ques

tion arising in the administration or distribution of any trust, including questions of construction of trust instruments; instruct trustees; and determine the existence or nonexistence of any immunity, power, privilege, duty, or right.

(2) A proceeding under this section does not result in continuing supervisory proceedings. The management and distribution of a trust estate, submission of accounts and reports to beneficiaries, payment of trustee's fees and other obligations of a trust, acceptance and change of trusteeship, and other aspects of the administration of a trust shall proceed expeditiously, consistent with the terms of the trust, free of judicial intervention and without order, approval, or other action of any court, subject to the jurisdiction of the court invoked by interested parties or otherwise exercised as provided by law.


737.202 Trust proceedings; venue.-Venue for actions and proceedings concerning trusts, including those under s. 737.201, may be laid in:

(1) Any county where the venue is proper under chapter 47.

(2) Any county where the beneficiary suing or being sued resides or has its principal place of business.

(3) The county where the trust has its principal place of administration.

History.-s. 1, ch. 74-106; s. 4, ch. 77-344.

737.203 Trust proceedings; dismissal of matters relating to foreign trusts.-Over the objection of a party, the court shall not entertain proceedings under s. 737.201 for a trust registered, or having its principal place of administration, in another state unless all interested parties could not be bound by

1129

Ch. 737 TRUST ADMINISTRATION F.S.1979

litigation in the courts of the state where the trust is registered or has its principal place of administration. The court may condition a stay or dismissal of a proceeding under this section on the consent of any party to jurisdiction of the state where the trust is registered or has its principal place of business, or the court may grant a continuance or enter any other appropriate order.

History.-s. 1, ch. 74-106.

737.204 Proceedings for review of employment of agents and review of compensation of trustee and employees of trust.-After notice to all interested persons, the court may review the propriety of employment by a trustee of any person, including any attorney, auditor, investment advisor, or other specialized agent or assistant, and the reasonableness of the compensation of any person so employed and of the compensation determined by the trustee for his own services. A person who has received excessive compensation from a trust may be ordered to make a refund of the excess.

History.-s. 1, ch. 74-106; s. 4, ch. 75-221.

737.205 Trust proceedings; commencement. -Proceedings concerning trusts shall be commenced by filing a complaint and shall be governed by the Rules of Civil Procedure.

History.-s. 1, ch. 74-106; s. 4, ch. 75-221.

737.301 737.302

737.303

737.304 737.305

737.3053 737.3055

737.306

737.307

PART III

DUTIES AND LIABILITIES OF TRUSTEES

General duties not limited. Trustee's standard of care and perform

ance. Duty to inform and account to benefici

aries. Duty to provide bond. Trustee's duty concerning location of

trust. Trustee's duty to distribute trust income. Trustee's duty to ascertain marketable ti

tle of trust real property. Personal liability of trustee to third par

ties. Limitations on proceedings against trus

tees after beneficiary receives account.

737.301 General duties not limited.-Except as specifically provided, the general duty ofthe trustee to administer a trust diligently for the benefit of the beneficiaries is not altered by this part.

History.-s. 1, ch. 74-106.

737.302 Trustee's standard of care and performance.-Except as otherwise provided by the trust instrument, the trustee shall observe the standards in dealing with the trust assets that would be observed by a prudent trustee dealing with the property of another. If the trustee has special skills, or is named trustee on the basis of representations

of special skills or expertise, he is under a duty to use those skills.

History.-s. 1, ch. 74-106; s. 6, ch. 75-221.

737.303 Duty to inform and account to beneficiaries.-The trustee shall keep the beneficiaries of the trust reasonably informed of the trust and its administration. In addition:

(1) Within 30 days after his acceptance of the trust, the trustee shall inform the current income beneficiaries and vested remaindermen in writing of his acceptance of the trust and of his name and address.

(2) Upon reasonable request, the trustee shall provide a beneficiary as defined under ss. 731.201 and 731.303 with a copy of the trust instrument that describes or affects his interest.

(3) Upon reasonable request, the trustee shall provide any vested beneficiary with relevant information about the assets of the trust and the particulars relating to administration.

(4) A vested beneficiary is entitled to a statement of the accounts of the trust annually and upon termination of the trust or upon change of the trustee.


737.304 Duty to provide bond.-A trustee need not provide bond to secure performance of his duties unless this is required by the trust instrument, reasonably requested by a beneficiary, or found by the court to be necessary to protect the interests ofbeneficiaries who are not able to protect themselves and whose interests otherwise are not adequately represented. On application of the trustee or other interested person, the court may excuse a requirement of bond, increase or reduce the amount of the bond, release the surety, or permit the substitution of another bond with the same or different sureties. If bond is required, it shall be filed in the clerk's office in the county where the trust has its principal place of business, in amounts and with surety as provided in s. 45.011 and conditioned on the faithful performance of the trust.


737.305 Trustee's duty concerning location of trust.-A trustee is under a continuing duty to administer the trust at a place appropriate to the purposes of the trust and its sound, efficient management. If the principal place of administration becomes inappropriate for any reason, the court may enter an order for the purposes of furthering efficient administration and the interests of beneficiaries, including, if appropriate, removal of the trustee and appointment of a trustee in another state. Trust provisions relating to the place of administration and to changes in the place of administration or of trustee shall control, unless compliance would be contrary to efficient administration or the purposes of the trust. Views of adult beneficiaries shall be given weight in determining the suitability of the trustee and the place of administration.


1130


737.3053 Trustee's duty to distribute trust income.-If a will or trust instrument granting income to the grantor's or testator's spouse for life with a general power of appointment in the spouse is silent as to the time of distribution of income and the frequency thereof, the trustee shall distribute all net income to the income beneficiary, as defined in chapter 738, no less frequently than annually. This provision shall apply to any trust established before, on, or after the effective date hereof unless the trust instrument expressly directs or permits net income to be distributed less frequently than annually.

History.-s. 3, ch. 79-343.

737.3055 Trustee's duty to ascertain marketable title of trust real property.-A trustee holding title to real property received from a settlor or estate shall not be required to obtain title insurance or proof of marketable title until a marketable title is required for a sale or conveyance of the real property.

History.-s. 4, ch. 79-343.

737.306 Personal liability of trustee to third parties.-

(1) Unless otherwise provided in the contract, a trustee is not personally liable on contracts, except contracts for attorneys' fees, properly entered into in his fiduciary capacity in the course of administration of the trust estate unless he fails to reveal his representative capacity and identify the trust estate in the contract.

(2) A trustee is personally liable for obligations arising from ownership or control of property of the trust estate or for torts committed in the course of administration of the trust estate only if he is personally at fault.

(3) Claims based on contracts, except contracts for attorneys' fees, entered into by a trustee in his fiduciary capacity, on obligations arising from ownership or control of the trust estate, or on torts committed in the course of trust administration may be asserted against the trust estate by proceeding against the trustee in his fiduciary capacity, whether or not the trustee is personally liable.

(4) Issues ofliability between the trust estate and the trustee individually may be determined in a proceeding for accounting, surcharge, or indemnification, or in any other appropriate proceeding.


737.307 Limitations on proceedings against trustees after beneficiary receives account.Unless previously barred by adjudication, consent, or limitations, an action against a trustee for breach of trust is barred for any beneficiary who has received a final, annual, or periodic account or other statement fully disclosing the matter unless a proceeding to assert the claim is commenced within 6 months after receipt of the final, annual, or periodic account or statement. In any event, and notwithstanding lack of full disclosure, all claims against a trustee who has issued a final account or statement received by the beneficiary and has informed the beneficiary of the location and availability of records for his examination are barred as provided in chapter 95. A beneficiary has received a final account or

statement if, being an adult, it is received by him or if, being a minor or disabled person, it is received by his representative as described in s. 731.303.

History.-s. 1, ch. 74-106; s. 7, ch. 75-221.

737.401

737.402 737.403

737.404

737.405 737.406 737.407

PART IV

POWERS OF TRUSTEES

Powers of trustee conferred by trust or by law.

Powers of trustees conferred by this part. Power of court to permit deviation or to

approve transactions involving conflict of interest.

Powers exercisable by joint trustees; lia-bility.

Third persons protected. Application of this part. Final accounting under Trust Accounting

Law required.

737.401 Powers of trustee conferred by trust or by law.-The trustee has all powers conferred upon him by this part, unless limited in the trust instrument.


737.402 Powers of trustees conferred by this part.-

(1) From the time of creation of the trust until final distribution of the assets of the trust, a trustee has the power to perform every act that a prudent trustee would perform for the purposes of the trust, without court authorization, including, but not limited to, the powers specified in subsection (2).

(2) Unless otherwise provided in the trust instrument, a trustee has the power:

(a) To collect, hold, and retain trust assets received from a settlor until disposition of the assets should be made. The assets may be retained even though they include an asset in which the trustee is personally interested.

(b) To hold without liability, other than that involved in holding property legal for investment of trust funds, any and all property received from or through the settlor of the trust, whether or not permissible for investment of funds of that particular trust, and any property lawfully coming into the hands of the trustees instead of or in substitution therefor, including the power to exchange capital stock of any bank or trust company, including capital stock of the corporate trustee, for capital stock in any registered bank holding company if the bank holding company is subject to the provisions of Title 12, U.S.C., s. 1841 et seq., as amended, commonly known as the Bank Holding Company Act of 1956. This provision shall not be construed to cover reinvestments of cash made by the trustee except the purchase of fractional shares and the exercise of rights acquired in the exchange.

(c) To receive additions to the assets of the trust. (d) To continue or participate in the operation of

any business or other enterprise and to effect incorporation, dissolution, or other change in the form of the organization of the business or enterprise.

(e) To acquire an undivided interest in a trust

1131


asset in which the trustee holds an undivided interest in any trust capacity.

(f) To invest and reinvest trust assets in accordance with the provisions of the trust or as provided by law.

(g) If a bank, to deposit trust funds in another department of the same entity or in a bank that is affiliated with the trustee bank.

(h) To acquire or dispose of an asset for cash or on credit at a public or ptivate sale; to manage, develop, improve, exchange, partition, change the character of, or abandon a trust asset or any interest in it; and to encumber, mortgage, or pledge a trust asset for a term within or extending beyond the term of the trust in connection with the exercise .of any power vested in the trustee.

(i) To make ordinary or extraordinary repairs or alterations in buildings or other structures, to demolish any improvements, or to raze existing, or erect new, party walls or buildings.

(j) To subdivide, develop, or dedicate land to public use; to make, or obtain the vacation of, plats and adjust boundaries; to adjust differences in valuation on ~xchange or partition by giving or receiving consideration; or to dedicate easements to public use without consideration.

(k) To enter for any purpose into a lease as lessor or lessee with or without option to purchase or renew for a term within or extending beyond the term of the trust. ·

(1) To enter into a le~e or arrangement for exploration and removal of minerals or other natural resources or enter into a pooling or unitization agreement.

(m) To grant an option involving disposition of a trust asset or to take an option for the acquisition of any asset.

(n) To vote a security, in person or by general or limited proxy, or not to vote a security.

(o) To pay calls, assessments, and any other sums chargeable or accruing against, or on account of, securities.

(p) To sell or exercise stock subscription or conversion rights and consent, directly or through a committee or other agent, to the reorganization, con, solidation, merger, dissolution, or liquidation of a corporation or other businees enterprise.

(q) To hold property in the name of a nominee or in other form without disclosure of the trust so that title to the property may pass by delivery, but the trustee is liable for any act of the nominee in connection with the property so held.

(r) To insure the assets of the trust against damage or loss and insure the trustee against liability with respect to third persons.

(s) To borrow money, to be repaid from trust assets or otherwise, and to advance money for the protection of the trust and for all expenses, losses, and liabilities sustained in the administration of the trust or because of the holding or ownership of any trust assets, for which advances, with any interest, the trustee has a lien on the trust assets as against the beneficiary. ..

(t) To pay or contest any claim; to settle a claim by or against the trust by compromise, arbitration, or otherwise; and to release any claim belonging to

the trust in whole or in part to the extent that the claim is uncollectible.

(u) To pay taxes, assessments, compensation of the trustee, and other expenses incurred in the collection, care, administration, and protection of the trust.

(v) To allocate items of income or expense to either trust income or principal, as provided by law.

(w) To pay any sum distributable to a beneficiary under legal disability to the beneficiary or by paying the sum for the use of the beneficiary either to a legal representative appointed by the court or, if none, to a relative; and, when income is directed to be paid to minors, apply and expend it for their benefit either with or without the intervention of a guardian.

(x) To effect distribution of property and money in divided or undivided interests and to adjust resulting differences in valuation.

(y) To employ persons, including attorneys, auditors, investment advisors, or agents, even if they are the trustee or associated with the trustee, to advise or assist the trustee in the performance of his administrative duties; to act without independent investigation upon their recommendations; and, instead of acting personally, to employ one or more agents to perform any act of administration, whether or not discretionary.

(z) To prosecute or defend actions, claims, or proceedings for the protection of trust assets and of the trustee in the performance of his duties.

(aa) To execute and deliver all instruments that will accomplish or facilitate the exercise of the powers vested in the trustee.


737.403 Power of court to permit deviation or to approve transactions involving conflict of interest.-

(1) This part does not affect the power of the court to relieve a trustee for cause from any restrictions on his power that would otherwise be placed upon him by the trust or by this part. '

(2) If the duty of the trustee and his individual interest or his interest as trustee of another trust conflict in the exercise of a trust power, the power may be exercised only by court authorization, except as provided ins. 737.402(2)(a), (e), (g), (s) and (y). Under this section, personal profit or advantage to an affiliated or subsidiary company or association is personal profit to any corporate trustee.

Hlstory.-s. 1, ch. 74-106; s. 8, ch. 75-221.

737.404 Powers exercisable by joint trustees; liability.-

(1) Any power vested in three or more trustees may be exercised by a majority, but a trustee who has not joined in exercising a power is not liable to the beneficiaries or to others for the consequences of the exercise, and a dissenting trustee is not liable for the consequences of an act in which he joins at the direction of the majority of the trustees if he expressed his dissent in writing to any of his cotrustees at or before the time of the joinder.

(2) If two or more trustees are appointed to perform a trust and any of them is unable or refuses to

1132


accept the appointment or, having accepted, ceases to be a trustee, the surviving or remaining trustees shall perform the trust and succeed to all the powers, duties, and discretionary authority given to the trustees jointly.

(3) This section does not excuse a cotrustee from liability for failure either to participate in the administration of the trust or to attempt to prevent a breach of trust.


737.405 Third persons protected.-With respect to a third person dealing with a trustee or assisting a trustee in the conduct of a transaction, the existence of trust powers and their proper exercise by the trustee may be assumed without inquiry. The third person is not bound to inquire whether the trustee has power to act or is properly exercising the power. A third person without actual knowledge that the trustee is exceeding his powers or improperly exercising them is as fully protected in dealing with the trustee as ifthe trustee possessed and properly exercised the powers he purports to exercise. A third person is not bound to assure the proper application of trust assets paid or delivered to the trustee.

·History.-s. 1, ch. 74-106; s. 10, ch. 75-221; s. 10, ch. 77-344.

737.406 Application of this part.-Except as specifically provided in the trust, the provisions of this part apply to any trust established before or after the effective date of this part.

Hlstory.-s. 1, ch. 74-106.

737.407 Final accounting under Trust Accounting Law required.-For the purpose of concluding the accounting of trusts being administered under the Trust Accounting Law, all trustees shall submit a final accounting, to be approved by the court, within 1 year from January 1, 1976.

Hlstory.-s. 19, ch. 75-221; s. 1, ch. 77-174; s. 11, ch. 77-344. Note.-Former s. 738.i51.

737.501 737.502 737.503

737.504

737.505 737.506 737.507 737.508

737.509 737.510

737.511

PARTV

CHARITABLE TRUSTS

Definitions. Application of this part. Trustee of a private foundation trust or a

split interest trust. Powers and duties of trustee of a private

foundation trust or a split interest trust.

Notice that this part does not apply. Power to amend trust instrument. Power of court to permit deviation. Release; property and persons affected;

manner of effecting. Election to come under this part. Supervision by public charitable organi

zation. Interpretation.

737.512 Inapplicability to certain trusts.

737.501 Definitions.-As used in this part: (1) Unless otherwise indicated, section refer

ences relate to the Internal Revenue Code of1954, in effect on January 1, 1971, and the references are to sections of Title 26 of the United States Code as in effect on that date.

(2) "Charitable organization" means an organization described in s. 501(c)(3) and exempt from tax under s. 501(a).

(3) "Private foundation trust" means a trust, including a trust described ins. 4947(aX1), as defined in s. 509(a).

(4) "Split interest trust" means a trust for individual and charitable beneficiaries that is subject to the provisions of s. 4947(a)(2).

(5) "State attorney" means: (a) The state attorney for the judicial circuit hav

ing original jurisdiction of the trust if the trust is registered.

(b) The state attorney for the judicial circuit where the trustee is domiciled or has his principal place of business if the trust is not registered.

(6) "Trust" means an express trust created by a trust instrument, including a will.

(7) "Trustee" means the trustee, trustees, person, or persons possessing a power or powers referred to in this part concerning a private foundation trust or a split interest trust.


737.502 Application of this part.-Except as otherwise provided in the trust, the provisions of this part apply to all private foundation trusts and split interest trusts, whether created or established before or after November 1, 1971, and to all trust assets acquired by the trustee before or after November 1, 1971.


737.503 Trustee of a private foundation trust or a split interest trust.-Except as provided in s. 737.505, F.S., the trustee of a private foundation trust or a split interest trust has the duties and powers conferred on him by this part.

Hlstory.-s. 1, ch. 74-106; s. 12, ch. 75-221. Note.-Created from formers. 691.13.

737.504 Powers and duties of trustee of a pri· vate foundation trust or a split interest trust.-

(1) In the exercise of his powers, including the powers granted by this part, a trustee has a duty to act with due regard to his obligation as a fiduciary, including a duty not to exercise any power in such a way as to:

(a) Deprive the trust of an otherwise available tax exemption, deduction, or credit for tax purposes.

(b) Deprive a donor of a trust asset or tax deduction or credit.

(c) Operate to impose a tax upon a donor, trust,

1133


or other person.

"Tax" includes, but is not limited to, any federal, state, or local excise, income, gift, estate, or inheritance tax.

(2) Except as provided ins. 737.505, F.S., a trustee of a private foundation trust shall make distributions at such time and in such manner as not to subject the trust to tax under s. 4942.

(3) Except as provided in subsection (4) and in s. 737.505, F.S., a trustee of a private foundation trust, or a split interest trust to the extent that the split interest trust is subject to the provisions of s. 4947(a)(2), in the exercise of his powers shall not:

(a) Engage in any act of self dealing as defined in s. 4941(d).

(b) Retain any excess business holdings as defined in s. 4943(c).

(c) Make any investments in a manner that subjects the foundation to tax under s. 4944.

(d) Make any taxable expenditures as defined in s. 4945(d).

(4) Paragraphs (3)(b) and (c) shall not apply to a split interest trust if:

(a) All the income interest, and none of the remainder interest, of the trust is devoted solely to one or more of the purposes described in s. 170(c)(2)(B), and all amounts in the trust for which a deduction was allowed under ss. 170, 545(b)(2), 556(b)(2), 642(c), 2055, 2106(a)(2), or 2522 have an aggregate fair market value of not more than 60 percent of the aggregate fair market value of all amounts in the trust; or

(b) A deduction was allowed under ss. 170, 545(b)(2), 556(b)(2), 642(c), 2055, 2106(a)(2), or 2522 for amounts payable under the terms of the trust to every remainder beneficiary, but not to any income beneficiary.


737.505 Notice that this part does not apply. -In the case of a power to make distributions, ifthe trustee determines that the governing instrument contains provisions that are more restrictive than s. 737.504(2), F.S., or ifthe trust contains other powers, inconsistent with the provisions ofs. 737.504(3), F.S., that specifically direct acts by the trustee, the trustee shall notify the state attorney within 6 months after November 1, 1971, or when the trust becomes subject to this part, whichever last occurs. Section 737.504, F.S., shall not apply to any trust for which notice has been given unless the trust is amended to comply with the terms of this part.


737.506 Power to amend trust instrument.(!) In the case of a trust that is solely for a named

charitable organization or organizations and for which the trustee does not possess any discretion concerning the distribution of income or principal among two or more such organizations, the trustee may amend the governing instrument to comply with the provisions of subsection 737.504(2), F.S., with the consent of the named charitable organization or organizations.

(2) In the case of a charitable trust that is not

subject to the provisions of subsection (1), the trustee may amend the governing instrument to comply with the provisions of subsection 737.504(2), F.S., with the consent of the state attorney.


737.507 Power of court to permit deviation.This part does not affect the power of a court to relieve a trustee from any restrictions on his powers and duties that are placed upon him by the governing instrument or applicable law for cause shown and upon complaint of the trustee, state attorney, or an affected beneficiary and notice to the affected parties.


737.508 Release; property and persons affected; manner of effecting.-

(!) The trustee of a trust, all of the unexpired interests in which are devoted to one or more charitable purposes, may release a power to select charitable donees unless the creating instrument provides otherwise.

(2) The release of a power to select charitable donees may apply to all or any part of the property subject to the power and may reduce or limit the charitable organizations, or classes of charitable organizations, in whose favor the power is exercisable.

(3) A release shall be effected by a duly acknowledged written instrument signed by the trustee and delivered as provided in subsection (4).

(4) Delivery of a release shall be accomplished as follows:

(a) If the release is accomplished by specifying a charitable organization or organizations as beneficiary or beneficiaries of the trust, by delivery of a copy of the release to each designated charitable organization.

(b) If the release is accomplished by reducing the class of permissible charitable organizations, by delivery of a copy of the release to the state attorney.

(5) If a release is accomplished by specifying a public charitable organization or organizations as beneficiary or beneficiaries of the trust, the trust at all times thereafter shall be operated exclusively for the benefit of, and be supervised by, the specified public charitable organization or organizations.


737.509 Election to come under this part.With the consent of that organization or organizations, a trustee of a trust for the benefit of a public charitable organization or organizations may come under subsection 737.508(5), F.S., by filing with the state attorney an election, accompanied by the proof of required consent. Thereafter the trust shall be subject to subsection 737.508(5) and s. 737.510, F.S.


737.510 Supervision by public charitable organization.-

(1) The trustee of a trust subject to the supervision by a specified public charitable organization or organizations, as provided in subsection 737 .508(5),

1134


F.S., shall file with each specified charitable organization:

(a) A true copy of the governing instrument with a verified written report setting forth complete information concerning the nature of the assets and liabilities at the delivery of the release pursuant to subsection 737.508(4), F.S., or the filing of the election under s. 737.509, F.S.

(b) An annual report within 4~ months following the close of each year setting forth a complete statement of receipts, disbursements, assets with cost and market value of each asset, and liabilities.

(c) Such other information as may be necessary to compel proper administration of the trust.

(2) By delivery of the release or execution of the election, as the case may be, the trustee and each specified public charitable organization, by accepting delivery of the release as provided in subsection 737.508(4), F.S., or by consenting to the election ins. 737.509, F.S., agree that the public charitable organization or organizations shall have:

(a) The power and duty to compel the proper administration of the trust.

(b) The power to inspect the books, records, memoranda, papers, documents of title, and evidence of assets, liabilities, receipts, or disbursements in the possession or control of the trustee or other person

having custody of the books and records. (c) The power to require such other information

as may be necessary to compel proper administration of the trust.


737.511 Interpretation.-This part shall be interpreted to effectuate the intent of the state to preserve, foster, and encourage gifts to, or for the benefit of, charitable organizations.


737.512 Inapplicability to certain trusts.This part shall not apply to any trust to the extent that a court shall determine, in a proceeding initiated before November 1, 1971, that the application would be contrary to the terms of the instrument governing the trust and that it may not properly be changed to conform to the provisions of this part, but nothing herein shall be construed as creating or imposing on the trustee of any trust any obligation to initiate a proceeding to obtain any court determination with respect to the application of the provisions of this part.


1135

Ch. 738 PRINCIPAL AND INCOME F.S.1979

CHAPTER 738

PRINCIPAL AND INCOME

738.01 Definitions. 738.02 Duty of trustee for receipts and expendi

tures. 738.03 Income; principal; charges. 738.04 When right to income arises; apportion

ment of income. 738.05 Income earned during administration of a

decedent's estate. 738.06 Corporate distributions. 738.07 Bond premium and discount. 738.08 Business and farming operations. 738.09 Disposition of natural resources. 738.10 Timber, etc. 738.11 Other property subject to depletion. 738.12 Underproductive property. 738.13 Charges against income and principal. 738.14 Expenses; nontrust estates. 738.15 Application of this chapter.

738.01 Definitions.-As used in this chapter: (1) "Income beneficiary" means the person to

whom income is presently payable or for whom it is accumulated for distribution as income.

(2) "Inventory value" means the cost of property purchased by the trustee and the market value of other property at the time it became subject to the trust.

(3) "Remainderman" means the person entitled to principal, including income that has been accumulated and added to principal.

History.-s. 1, ch. 74-106; s. 13, ch. 75-221; s. 2, ch. 77-254. Note.-Created from fonner s. 690.02.

cf.-s. 731.201 General definitions.

738.02 Duty of trustee for receipts and expenditures.-

(1) A trust shall be administered with due regard to the respective interests of income beneficiaries and remaindermen. A trust is so administer~d with respect to the allocation of receipts and expenditures if a receipt is credited, or an expenditure is charged, to income or principal, or partly to each:

(a) In accordance with the terms of the trust instrument, notwithstanding contrary provisiop.s of this chapter;

(b) In accordance with the provisions of this chapter, in the absence of any contrary terms of the trust instrument; or

(c) If neither of the preceding rules of administration is applicable, in accordance with what is reasonable and equitable in view of:

1. The interests of those entitled to income as well as of those entitled to principal, and

2. The manner in which men of ordinary prudence would act in the management of the property of another. ·

(2) If the trust instrument gives the trustee discretion in crediting a receipt or charging an expenditure to income or principal, or partly to each, no inference of imprudence o"r partiality arises from the

fact that the trustee has made an allocation contrary to a provision of this chapter.

History.-s. 1, ch. 74·106; s. 13, ch. 75-221.

738.03 Income; principal; charges.-(1) "Income" is the return in money or property

derived from the use of ptincipal, including return received as:

(a) Rent of real or personal property, including sums received for cancellation or renewal of a lease.

(b) Interest on money lent, including sums received as consideration for the privilege of prepayment of principal, except as provided in s. 738.07(1) on bond premium and bond discount.

(c) Income earned during administration of a decedent's estate as provided in s. 738.05.

(d) Corporate distributions as provided in s. 738.06.

(e) Accrued increment on bonds or other obligations issued at discount as provided in s. 738.07(2).

(f) Receipts from business and farming opera-tions, as provided in s. 738.08. ·

(g) Receipts from disposition of natural resources, as provided in ss'. 738.09 and 738.10.

(h) Receipts from other principal subject to depletion, as provided in s. 738.11.

(i) Receipts from disposition of underproductive property as provided in s. 738.12.

(2) "Principal" is the property that has been set aside by the owner or the person legally empowered so that it is held in trust eventually to be delivered to a remainderman, while the return or use of the principal is in the meantime taken or received by, or held for accumulation for, an income beneficiary. "Principal" includes:

(a) Consideration received by the trustee on the sale or other transfer of principal, on repayment of a loan, or as a refund, replacement, or change in the form of principal.

(b) Proceeds of property taken in eminent domain pr9ceedings.

(c) Proceeds of insurance upon property forming part of the principal, except proceeds of insurance upon a separate interest of an income beneficiary.

(d) Stock dividends, receipts on liquidation ·of a corporation, and other corporate distributions as provided in s. 738.06.

(e) Receipts from the disposition of corporate securities as provided ins. 738.07.

(f) Royalties and other receipts from disposition of natural resources as provided in ss. 738.09 and 738.10.

(g) Receipts from other principal subject to depletion, as provided ins. 738.11.

(h) Any profit resulting from any change in the form of principal, except as provided in s. 738.12 on underproductive property.

(i) Receipts from disposition of underproductive property, as provided ins. 738.12.

G) Any allowances for depreciation established under s. 738.08 and paragraph 738.13(1)(b).

(3) After determining income and principal in accordance with the trust instrument or this chap-

1136

F.S.1979 PRINCIPAL AND INCOME Ch. 738

ter, the trustee shall charge expenses and other charges to income or principal as provided in s. 738.13.


738.04 When right to income arises; apportionment of income.-

(!) An income beneficiary is entitled to income from the date specified in the trust instrument or, if none is specified, from the date an asset becomes subject to the trust. In the case of an asset becoming subject to a trust by reason of a will, it becomes subject to the trust at the date of the death of the testator even though there is an intervening period of administration of the testator's estate.

(2) In the administration of a decedent's estate or upon an asset becoming subject to a trust by reason of a will:

(a) Receipts due but not paid at the date of death of the testator are principal.

(b) Receipts in the form of periodic payments, including rent, interest, or annuities, except as provided in paragraph (c) and other than corporate distributions to stockholders, distributions from mutual funds, and dividends from savings banks and savings and loan associations, not due at the date of the death of the testator shall be treated as accruing from day to day. That part of the receipt accruing before the date of death is principal and the balance is income.

(c) Anything contained in this subsection to the contrary notwithstanding, proceeds from a qualified pension or profit-sharing plan, including, but not limited to, corporate plans, .partnership and individual self-employment retirement plans, and individual retirement accounts, as those terms are used in the Internal Revenue Code of the United States as from time to time amended, which are received or paid in installments or ~nnuity payments shall be principal, except to the extent of interest or other income earned on such proceeds after the death of the testator.

(3) In all other cases, any receipt from an incomeproducing asset is income even though the receipt was earned or accrued in whole or in part before the date when the asset became subject to the trust.

(4) On termination of an income interest, the income beneficiary whose interest is terminated, or his estate, is entitled to:

(a) Income undistributed on the date of termination.

(b) Income due but not paid to the trustee on the date of termination.

(c) Income in the form of periodic payments, including rent, interest, or annuities, other than corporate distributions to stockholders, distributions from mutual funds, and dividends from savings banks and savings and loan associations, not due on the date of termination, accrued from day to day.

(5) Corporate distributions to stockholders, distributions from mutual funds, and dividends from savings banks and savings and loan associations shall be treated as due on the day fixed by the corpo-

ration for determination of stockholders of record entitled to distribution or, if no date is fixed, on the date of declaration of the distribution by the corporation.


738.05 Income earned during administration of a decedent's estate.-

(!) Unless the will otherwise provides, and subject to subsection (2), all expenses incurred in connection with the settlement of a decedent's estate, including debts, funeral expenses, estate and other death taxes, family allowances, fees of attorneys and personal representatives, and court costs shall be charged against the principal of the estate.

(2) Unless the will otherwise provides, income from the assets of a decedent's estate after the death of the testator and before distribution, including income from property used to discharge liabilities, shall be determined in accordance with the rules applicable to a trustee under this chapter and dis~ tributed as follows:

(a) To specific devisees, the income from the property bequeathed or devised to them respectively, including an appropriate portion of interest accrued since the death of the testator, and less taxes, the cost of ordinary repairs, other expenses of management and operation of the property, and taxes imposed on income, excluding taxes on capital gains, that accrue during the period of administration.

(b) To all other devisees, except devisees of pecuniary bequests not in trust, the balance of the income, including interest accrued since the death of the testator, and less the balance of taxes, the cost of ordinary repairs, other expenses of m~nagement and operation of all property from which the estate is entitled to income, and taxes imposed on income, excluding taxes on capital gains, that accrue duririg the period of administration, in proportion to their respective interests in the undistributed assets of the estate computed at times of distribution on the basis of inventory value.

(3) Income received by a trustee under paragraph (2)(b) shall be treated as income of the trust.

(4) Unless the will otherwise provides, interest and penalties attributable to estate and other death taxes may be charged against either the principal or income of the estate in the sole discretion of the personal representative.


738.06 Corporate distributions.-(!) Corporate distributions of shares of the dis

tributing corporation, including distributions in the form of a stock split or stock dividend, are principal. A right to subscribe to shares or other securities issued by the distributing corporation accruing ·to stockholders on account of their stock ownership and the proceeds of any sale of the right are principal.

(2) Except to the extent that the corporation indicates that some part of a corporate distribution is a settlement of preferred or guaranteed dividends accrued since the truste'e became a stockholder or is, instead, a settlement of an ordinary cash dividend, a corporate distribution is principal if the distribu-

1137

Ch. _738 PRINCIPAL AND INCOME F.S.1979

tion is pursuant to: (a) A call of shares. (b) A merger, consolidation, reorganization, or

other plan by which assets of the corporation are acquired by another corporation.

(c) A total or partial liquidation of the corporation, including any distribution which the corporation indicates is a distribution in total or partial liquidation.

(d) Any distribution of assets pursuant to a judgment or final administrative order by a governmental agency ordering distribution of the particular assets.

(3) Distributions made from ordinary income by a regulated investment company, or by a trust qualifying and electing to be taxed under federal law as a real estate investment trust, are income. All other distributions made by the company or trust, including distributions from capital gains, depreciation, or depletion, whether in the form of cash, an option to take new stock or cash, or an option to purchase additional shares, are principal.

(4) Except as provided in subsections (1), (2), and (3), all corporate distributions are income, including:

(a) Cash dividends. (b) Distributions of, or rights to subscribe to,

shares or securities or obligations of corporations other than the distributing corporation and the proceeds of the rights or property distributions.

(c) Constructive dividends of ordinary income from Subchapter S corporations, reduced by losses passing to the shareholder.

Except as provided in subsections (2) and (3), if the distributing corporation gives a stockholder an option to receive a distribution either in cash or in its own shares, the distribution chosen is income.

(5) The trustee may rely upon any statement of the distributing corporation about any fact relevant under any provision of this chapter concerning the source or character of dividends or distributions of corporate assets.

Hlstory.-s. 1, ch. 74-106; s. 14, ch. 75-221; s. 230, ch. 77-104; s. 4, ch. 77-254; s. 277, ch. 79-400.

Note.-Created from former s. 690.06.

738.07 Bond premium and discount.-(!) Bonds or other obligations for the payment of

money are principal at their inventory value. No provision shall be made for amortization ofbond premiums or for accumulation for discount. The proceeds of sale, redemption, or other disposition of the bonds or obligations are principal.

(2) The increment in value of a bond or other obligation for the payment of money bearing no stated interest but payable at a future time in excess of the price at which it was issued or purchased, if purchased after issuance, is distributable as income. If the increment in value accrues and becomes payable pursuant to a fixed schedule of appreciation, it may be distributed to the beneficiary who was the income beneficiary at the time of increment from the first principal cash available or, if none is available, when the increment is realized by sale, redemp-

tion, or other disposition. When unrealized increment is distributed as income but out of principal, the principal shall be reimbursed for the increment when realized.


738.08 Business and farming operations.(!) If a trustee uses any part of the principal in

the continuance of a business of which the settlor was a sole proprietor or a partner, the net profits of the business, computed in accordance with accounting principles for a comparable business, are income. If a loss results in any fiscal or calendar year, the loss falls on principal and shall not be carried into any other fiscal or calendar year for purposes of calculating net income.

(2) Generally accepted accounting principles shall be used to determine income from an agricultural or farming operation, including the raising of animals or the operation of a nursery.

Hlstory.-s. 1, ch. 74-106; s. 15, ch. 75-221. Note.-Created from former ss. 690.08, 690.09.

738.09 Disposition of natural resources.(!) If any part of the principal consists of a right

to receive royalties, overriding or limited royalties, working interests, production payments, net profit interests, or other interests in minerals or other natural resources in, on, or under land, the receipts from taking the natural resources from the land shall be allocated as follows:

(a) If received as rent on a lease or extension payments on a lease, the receipts are income.

(b) If received from a production payment, the receipts are income to the extent of any factor for interest or its equivalent provided in the governing instrument. The fraction of the balance of the receipts that the unrecovered cost of the production payment bears to the balance owed on the production payment, exclusive of any factor for interest or its equivalent, shall be allocated to principal. The receipts not allocated to principal are income.

(c) If received as a royalty, overriding or limited royalty, or bonus, or from a working, net profit, or any other interest in minerals or other natural resources, receipts not provided for in the preceding paragraphs shall be apportioned on a yearly basis in accordance with this paragraph, whether or not any natural resource was being taken from the land at the time the trust was established. There shall be added to principal as an allowance for depletion the part of the gross receipts that is allowed to the trust as a deduction for depletion in computing taxable income for federal income tax purposes. The balance of the gross receipts is income after payment of all direct and indirect expenses.

(2) If a trustee on January 1, 1976, held an asset of depletable property of a type specified in this section, he shall allocate receipts from the property in the manner used before January 1, 1976, but for all depletable property acquired after January 1, 1976, by an existing or new trust, the method of allocation provided herein shall be used.

1138

F.S.1979 PRINCIPAL AND INCOME Ch. 738

(3) This section does not apply to timber, water, soil, sod, dirt, turf, or mosses.


738.10 Timber, etc.-If any part ofthe principal consists of land from which merchantable timber, water, soil, sod, dirt, turf, or mosses may be removed, the receipts from taking the item from the land shall be allocated in accordance with paragraph 738.02(1)(c).

History.-s. 1, ch. 74-106; s. 16, ch. 75-221.

738.11 Other property subject to depletion.Except as provided in ss. 738.09 and 738.10, if the principal consists of property subject to depletion, including leaseholds, patents, copyrights, royalty rights, and rights to receive payments on a contract for deferred compensation, receipts from the property not in excess of5 percent per year of its inventory value are income and the balance is principal.


738.12 Underproductive property.-(1)(a) If the total principal of a trust does not in

any year yield a net income of at least 3 percent of its market value (including as income the value of any beneficial use of the property by the income beneficiary), the trustee shall pay to the income beneficiary an amount equal to 3 percent of the value of the principal, based upon the market value at the calendar year end. This amount shall be paid to the income beneficiary using the first principal cash available.

(b) In the event of a termination or initiation of a trust, or the termination of a beneficial income interest of a trust, for a period of less than 12 months, the amount to be paid to the income beneficiary shall be prorated proportionately with the length ofthe time of his interest in the trust and in accordance with section 738.03.

(2) Upon the sale of the property the income beneficiary shall not be entitled to any portion of the proceeds of sale, except that any amount determined in subsection (1) that remains unpaid at the time of sale shall be paid therefrom.

(3) If by the terms of the trust any portion of the income is to be retained by the trustee or disposed of other than by payment to an income beneficiary, such portion of the amount determined in subsection (1) shall be retained or disposed of as provided by the terms of the trust.


738.13 Charges against income and principal.-

(1) The following charges shall be made against income:

(a) Ordinary expenses incurred in connection with the administration, management, or preservation of the trust property, including regularly recurring taxes assessed against any part of the principal; water rates; premiums on insurance taken upon the interests of the income beneficiary, remainderman, or trustee; interest paid by the trustee, except inter-

est or penalties on estate or other death taxes; and ordinary repairs.

(b) Only when specifically required by the instrument, a reasonable allowance for depreciation on property subject to depreciation under accounting principles, but no allowance shall be made for depreciation of that part of any real property used by a beneficiary as a residence or for depreciation of any property held by the trustee on January 1, 1976, for which the trustee is not then making an allowance for depreciation.

(c) One-half of court costs, attorney's fees, and fees on periodic judicial accounting, unless the court directs otherwise.

(d) Court costs, attorney's fees, and other fees on other accountings or judicial proceedings if the matter primarily concerns the income interest, unless the court directs otherwise.

(e) One-half of the trustee's regular compensation, whether based on a percentage of principal or income, and all expenses reasonably incurred for current management of principal and application of income.

(f) Any tax levied upon receipts defined as income under this chapter or the trust instrument and payable by the trustee.

(2) If charges against income are of unusual amount, the trustee may charge them over a reasonable period of time, by means of reserves or other reasonable means, and withhold from distribution sufficient sums to regularize distributions.

(3) The following charges shall be made against principal:

(a) Trustee's compensation not chargeable to income under paragraphs (1)(d) and (e), special compensation of trustees, expenses reasonably incurred in connection with principal, court costs and attorney's fees primarily concerning matters of principal, and trustee's compensation computed on principal as an acceptance, distribution, or termination fee.

(b) Charges not provided for in subsection (1), including the cost of investing and reinvesting principal; the payments on principal of an indebtedness, including a mortgage amortized by periodic payments of principal; expenses for preparation of property for rental or sale; and, unless the court directs otherwise, expenses incurred in maintaining or defending any action to construe the trust, protect it or the property, or assure the title of any trust property.

(c) Extraordinary repairs or expenses incurred in making a capital improvement to principal, including special assessments; but a trustee may establish an allowance for depreciation out of income to the extent permitted by paragraph (l)(b) and by s. 738.08.

(d) Any tax levied upon profit, gain, or other receipts allocated to principal, notwithstanding denomination of the tax as an income tax by the taxing authority.

(e) If an estate or inheritance tax is levied in respect of a trust in which both an income beneficiary and a remainderman have an interest, any amount apportioned to the trust, other than penalties and interest thereon, even though the income beneficiary also has rights in the principal. Unless

1139

Ch. 738 PRINCIPAL AND INCOME F.S.1979

otherwise provided in the trust instrument, any interest or penalties attributable to such estate or inheritance taxes and paid by the trust shall be charged against either the income or principal of the trust in the sole discretion of the trustee.

(4) Regularly recurring charges payable from income shall be apportioned to the same extent and in the same manner that income is apportioned under s. 738.04.

History.-8. 1, ch. 74-106; 8. 18, ch. 75-221; 8. 2, ch. 79-343. Note.-Created from former s. 690.13.

738.14 Expenses; nontrust estates.-(! ) The provisions of s. 738.13, so far as applica

ble, and excepting those dealing with costs of, or assessments for, improvements to property, shall govern the apportionment of expenses between tenants and remaindermen when no trust has been created, subject to any agreement of the parties or specific direction of the taxing or other statutes, but when either tenant or remainderman has incurred an expense for the benefit of his own estate without the consent or agreement of the other, he shall pay such expense in full.

(2) Subject to the exceptions stated in subsection (1), the cost of, or special taxes or assessments for, an improvement representing an addition of value to property forming part of the principal shall be paid by the tenant when the improvement is not reasona-

bly expected to outlast the estate of the tenant. In all other cases a part only shall be paid by the tenant, while the remainder shall be paid by the remainderman. The part payable by the tenant shall be ascertained by taking that percentage of the total that is found by dividing the present value of the tenant's estate by the present value of an estate of the same form as that of the tenant except that it is limited for a period corresponding to the reasonably expected duration of the improvement. The computation of present values of the estates shall be made on the expectancy basis set forth in the official mortality tables, and no other evidence of duration or expectancy shall be considered.

History.-8. 1, ch. 74-106; 8. 18, ch. 75-221; 8. 1, ch . 77-174. Note.-Created from former 8. 690.14.

738.15 Application of this chapter.-Except as provided in the trust instrument, the will or this chapter, this chapter shall apply to any receipt or expense received or incurred after January 1, 1976, by any trust or decedent's estate, whether established before or after January 1, 1976, and whether the asset involved was acquired by the trustee or personal representative before or after January 1, 1976.

History.-8. 1, ch. 74-106; s. 18, ch. 75-221. Note.-Created from former 8. 690.03.

1140

TITLE XLIII DOMESTIC RELATIONS

CHAPTER 741

HUSBAND AND WIFE

741.01

741.02 741.03

741.04 741.0405

741.041

741.05 741.051

741.052 741.053 741.054 741.055 741.056 741.057 741.058 741.059 741.0591 741.0592 741.0593

741.07

741.08

741.09 741.10

741.21 741.211 741.23 741.24

741.30

County court judge or clerk of the circuit court to issue marriage license; fee.

Additional fee. County court judge or clerk of the circuit

court not to send out marriage license signed in blank.

Marriage license issued. When marriage license may be issued to

persons under 18 years. Marriage license application valid for 30

days. Penalty for violation ofss. 741.03, 741.04. Marriage licenses; conditions precedent

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 department. Penalties for violation of law. Same; reports confidential. Penalty for violation of ss. 741.051-

741.0592. Persons authorized to solemnize matri

mony. Marriage not to be solemnized without a

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

available. Incestuous marriages prohibited. Common law marriages void. Husband not liable for wife's torts. Civil action against parents; willful de

struction or theft of property by minor. Petition for order to restrain abusive

spouse.

741.01 County court judge or clerk of the cir· cuit court to issue marriage license; fee.-

(1) Every marriage license shall be issued by a county court judge or clerk of the circuit court under his hand and seal. Said county court judge or clerk of the circuit court shall issue such license, upon application therefor, ifthere appears to be no impediment to the marriage. The county court judge or clerk of the circuit court shall collect and receive a fee of $2 for receiving the application for the issu-

ance of a marriage license. (2) The fee charged for each marriage license is

sued in the state shall be increased by the sum of$5. This fee shall be collected upon receipt of the application for the issuance of a marriage license. The Executive Office of the Governor shall establish a trust fund for the purpose of collecting and disbursing funds generated from the increase in marriage license fees. Such funds generated shall be directed to the Department of Health and Rehabilitative Services for the specific purpose offunding spouse abuse centers, and the funds shall be appropriated in a "Grants-in-Aids" category to the Department of Health and Rehabilitative Services, Aging and Adult Services, for the purpose of funding spouse abuse centers.

History.-s. 2, Nov. 2, 1829; s. 2, ch. 3720, 1887; s. 1, ch. 3890, 1889; RS 2055; GS 2574; RGS 3933; CGL 5848; s. 28, ch. 73-334; s. 1, ch. 74-3; s. 1, ch. 74-372; s. 8, ch. 78-281; s. 143, ch. 79-190; s. 7, ch. 79-402.

741.02 Additional fee.-Upon the receipt of each application for the issuance of a marriage license, the county court judge or clerk of the circuit court shall, in addition to the fee allowed by s. 741.01, collect and receive an additional fee of$3, to be distributed as provided by s. 382.24.

History.-s. 1, ch. 11869, 1927; CGL 5851; s. 7, ch. 22000, 1943; s. 1, ch. 67-520; s. 28, ch. 73-334; s. 1, ch. 74-372.

7 41.03 County court judge or clerk of the circuit court not to send out marriage license signed in blank.-It is unlawful for any county court judge or clerk of the circuit court 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 court judge or clerk ofthe circuit court.

History.-s. 1, ch. 7828, 1919; CGL 5849; s. 28, ch. 73-334; s. 1, ch. 74-372.

741.04 Marriage license issued.-(1) No county court judge or clerk of the circuit

court 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; unless both such parties shall be over the age of 18 years, except as provided in s. 741.0405; and unless one party is a male and the other party is a female.

(2) No marriage license shall be issued by any

1141

Ch. 741 HUSBAND AND WIFE F.S.1979

county court judge or clerk of the circuit court in this state after application therefor until after expiration of 3 days, including the day application is made to the county court judge or clerk of the circuit court by the parties seeking to be married for the issuance of a marriage license, and it shall be the duty of the county court judge or clerk of the circuit court in counties which have less than 50,000 residents pursuant to the last decennial census to post a true copy of said application at the front door of the courthouse in the county where said application was made for a period of 3 days prior to the issuance of said marriage license, which said 3 days shall include day of application therefor.

History.-s. 2, Nov. 2, 1829; s. 2, ch. 3720, 1887; s. 1, ch. 3890, 1889; RS 2055; GS 2574; s. 2, ch. 7828, 1919; RGS 3933; CGL 5850; s. 1, ch. 22643, 1945; s. 1, ch. 28103, 1953; s. 28, ch. 73-334; s. 1, ch. 74-372; s. 1, ch. 77-19; s. 64, ch. 77-121; s. 1, ch. 77-139; s. 1, ch. 78-266. cf.-s. 741.0405 When license may issue to minors.

s. 741.08 Necessity of license.

741.0405 When marriage license may be issued to persons under 18 years.-

(1) If either of the parties shall be under the age of 18 years but at least 16 years of age, the county court judge or clerk of the circuit court shall issue a license for the marriage of such party only if there is 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. However, the license shall be issued without parental consent when both parents of such minor are deceased at the time of making application or when such minor has been married previously.

(2) The county court 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 18 years, upon application of both parties sworn under oath that they are the parents of a child.

(3) When the fact of pregnancy is verified by the written statement of a licensed physician, the county court judge of any county in the state may, in his discretion, issue a license to marry:

(a) To any male or female under the age of 18 years upon application of both parties sworn under oath that they are the expectant parents of a child; or

(b) To any female under the age of 18 years and male over the age of 18 years upon the female's application sworn under oath that she is an expectant parent.

(4) No license to marry shall be granted to any person under the age of16 years, with or without the consent of the parents, except as provided in subsections (2) and (3).

History.-s. 2, ch. 78-266.

741.041 Marriage license application valid for 30 days.-Marriage license applications shall be valid only for a period of 30 days after receipt by an applicant, and no clerk of the circuit court shall issue a license for the marriage of two people more than 30 days after the application was received by the applicant.

History.-s. 2, ch. 77-139; s. 279, ch. 79-400.

741.05 Penalty for violation of ss. 741.03, 741.04.-Any county court judge, clerk of the circuit court, or other person who shall violate any provision of ss. 7 41.03 and 7 41.04 shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

History.-s. 3, ch. 7828, 1919; CGL 7517; s. 692, ch. 71-136; s. 28, ch. 73-334; s. 1, ch. 74-372.

741.051 Marriage licenses; conditions precedent to issuance; certificate of physician.-Every person making application for license to marry shall file with the county court judge or clerk of the circuit court, 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 an approved serological test for syphilis and found not to be infected with syphilis, or if so infected, not to be in a stage of infection which is or may become communicable to the marital partner. Said serological test shall be made not more than 60 days prior to the date of application for a license to marry.

History.-ss. 1, 15, ch. 22738, 1945; s. 28, ch. 73-334; s. 1, ch. 74-372; s. 3, ch. 78-266.

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.

History.-s. 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 Department of Health and Rehabilitative Services and distributed to the offices of all county court judges and clerks of the circuit courts and to all laboratories, hospitals or clinics in the state approved by the department.

History.-s. 3, ch. 22738, 1945; ss. 19, 35, ch. 69-106; s. 28, ch. 73-334; s. 1, ch. 74-372; s. 464, ch. 77-147.

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 Department of Health and Rehabilitative Services, and an approved laboratory shall be the department 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.

History.-s. 4, ch. 22738, 1945; ss. 19, 35, ch. 69-106; s. 465, ch. 77-147.

1142

F.S.1979 HUSBAND AND WIFE Ch. 741

741.055 Same; affidavit of positive report.ln 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 court 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 court judge shall transmit to the Department of Health and Rehabilitative Services 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.

History.-s. 5, ch. 22738, 1945; ss. 19, 35, ch. 69-106; s. 28, ch. 73-334; s. 466, ch. 77-147.

741.056 Same; no charge for laboratory test. -All serological tests required by this law on blood specimens submitted to the laboratory of the Department of Health and Rehabilitative Services 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 sum usually charged for office visits.


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 court judge or clerk ofthe circuit court for a period of not less than 60 days, after which time they may be destroyed at the discretion ofthe county court judge or clerk of the circuit court.

History.-s. 7, ch. 22738, 1945; s.1, ch. 61-17; s. 28, ch. 73-334; s. 1, ch. 74-372.

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 30 days after issuance, and no person shall perform any ceremony of marriage after the expiration date of such license. The county court judge or clerk ofthe circuit court shall recite on each marriage license the final date that such is so valid.

History.-s. 8, ch. 22738, 1945; s. 28, ch. 73-334; s. 1, ch. 74-372.

741.059 Same; use of information by department.-The Department of Health and Rehabilitative Services 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 department for the protection of the public health.


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 for by the certificate form or laboratory report form as provided for ins. 741.053. Any clerk ofthe circuit court or county court 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 of the second degree, punishable as provided in s. 775.082 or s. 775.083.

History.-s. 10, ch. 22738, 1945; s. 693, ch. 71-136; s. 28, ch. 73-334; s. 1, ch. 74-372.

Note.-Former s. 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 court judge or clerk of the circuit court other than the Department of Health and Rehabilitative Services 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 of the second degree, punishable as provided in s. 775.082 or s. 775.083.

History.-s. 11, ch. 22738, 1945; ss. 19, 35, ch. 69-106; s. 694, ch. 71-136; s. 28, ch. 73-334; s. 1, ch. 74-372; s. 469, ch. 77-147.


741.0593 Penalty for violation of ss. 741.051-741.0592.-Any person who enters into the contract of marriage without having first complied with ss. 741.051-741.0592 shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

History.-s. 12, ch. 22738, 1945; s. 695, ch. 71-136; s. 178, ch. 73-333. Note.-Former s. 741.0512.

741.07 Persons authorized to solemnize matrimony.-

(1) All regularly ordained ministers of the gospel or elders in communion with some church, or other ordained clergy, and all judicial officers, clerks of the circuit courts, and notaries public of this state may solemnize the rights of matrimonial contract, under the regulations prescribed by law. Nothing in this section shall make invalid a marriage which was solemnized by any member of the clergy, or as otherwise provided by law prior to July 1, 1978.

(2) 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

1143

Ch. 741 HUSBAND AND WIFE F.S.1979

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.

History.-s. 1, Nov. 2, 1829; s. 2, ch.ll27, 1861; RS 2056; GS 2575; RGS 3934; CGL 5853; s. 1, ch. 28104, 1953; s. 1, ch. 74-372; s. 1, ch. 78-15.

741.08 Marriage not to be solemnized without a license.-Before any of the persons named in s. 741.07 shall solemnize any marriage, he shall require of the parties a marriage license issued according to the requirements of s. 741.01, and within 10 days after solemnizing the marriage he shall make a certificate thereof on the license, and shall transmit the same to the office of the county court judge or clerk of the circuit court from which it issued.

History.-ss. 2, 3, Nov. 2, 1829; s. 1, ch. 3890, 1889; RS 2057; GS 2576; RGS 3935; CGL 5854; s. 28, ch. 73-334; s. 1, ch. 74-372.

741.09 Record of license and certificate.The county court judge and clerk of the circuit court 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 shall enter therein the name of the person solemnizing the marriage and the date of marriage and of the return.

History.-s. 3, Nov. 2, 1829; s. 1, ch. 3890, 1889; RS 2058; GS 2577; RGS 3936; CGL 5855; s. 28, ch. 73-334; s. 1, ch. 74-372.

741.10 Proof of marriage · where no certificate available.-When any marriage is or has been solemnized by any of the persons named ins. 741.07, and such person has not made a certificate thereof on the marriage license as required by s. 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 ofthe county court judge or clerk ofthe circuit court 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.

History.-s. 1, ch. 3126, 1879; RS 2059; GS 2578; RGS 3937; CGL 5856; s. 28, ch. 73-334; s. 1, ch. 74-372.

741.21 Incestuous marriages prohibited.-A man may not marry any woman to whom he 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 7558.

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.-s. 1, ch. 67-571.

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.

History.-s. 1, ch. 26829, 1951.

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

(1) Any muiJ,icipal corporation, county, school district, or 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 $2,500, in a court of competent jurisdiction, from the parents of any minor under the age of 18 years, living with the parents, who shall maliciously or willfully destroy or steal property, real, personal, or mixed, belonging to such municipal corporation, county, school district, department of the state, person, partnership, corporation, association, or religious organization.

(2) The recovery shall be limited to the actual damages in an amount not to exceed $2,500, in addition to taxable court costs.

History.-ss. 1, 2, ch. 31400, 1956; s. 40, ch. 67-254; s. 1, ch. 67-404; s. 1, ch. 77-366; s. 280, ch. 79-400.


741.30 Petition for order to restrain abusive spouse.-Any person who has filed a complaint of spouse abuse with a law enforcement agency and who files a verified petition alleging spouse abuse with the clerk of the circuit court of the county wherein the person filing the verified petition resides shall be entitled to have the court issue a restraining order with such terms and conditions as the court deems advisable with respect to the facts alleged in the verified petition. The verified petition shall contain the date, time, and place 'of the alleged spouse abuse, the law enforcement agency which investigated the complaint, and the circumstances of the spouse abuse which occurred. The verified petition shall be in the following form:

PETITION FOR AN ORDER TO RESTRAIN AN ABUSIVE SPOUSE

Before me, the undersigned authority, personally appeared Petitioner ... (N~~~L .. . who was sworn and says that the following statement is true.

The petitioner has filed a complaint with (law en

fgr~~m~11.L~K~!l~.Y.l.. .. alleging that petitioner was ... a'bused by respondent spouse at ... (P.!~~~L. on .. (~!!.W.L. at ... m~~L in the following manner: J~!r~\!m.~~!l~~~L . ......

Petitioner seeks an order restraining the respondent spouse from abusing the petitioner and providing for any other terms and conditions that the court deems advisable with respect to the facts alleged in the petition.

Sworn to and subscribed on ..... , 19 ...... .JN9.\!m: .. !\t.l?.l!~L..

My Commission Expires:

1144

F.S.1979 HUSBAND AND WIFE Ch. 741

Notice that a restraining order has been issued shall be served upon the spouse complained against. When the court issues the restraining order without a hearing, the court, if requested by the spouse complained against, shall provide a hearing as soon as reasonably possible but not later than 20 days after the date of the issuance of the order. The issuance of

such an order shall not require that the party alleging spouse abuse be represented by an attorney, nor shall such a restraining order be conditioned upon any dissolution of marriage proceedings.

History.-s. 1, ch. 79-40;!. 'Note.-The words "of the alleged spouse abuse" were inserted by the edi

tors.

1145

Ch. 742 DETERMINATION OF PATERNITY F.S.1979

CHAPTER 742

DETERMINATION OF PATERNITY

742.011

742.021 742.031

742.041 742.06

742.07 742.08 742.09 742.091 742.10 742.11

Determination of paternity proceedings; Circuit Court jurisdiction.

Same; venue, process, complaint. Same; hearings; court orders, support, hos

pital expenses, etc. Same; monthly contributions. Same; jurisdiction retained for future or-

ders. Effect of adoption. Default of support payments. Publishing names; penalty. Marriage of parents. Chapter in lieu of other proceedings. Presumed legitimacy of child conceived by

means of artificial insemination.

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

History.-s. 1, ch. 26949, 1951; s. 5, ch. 75-166.

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.

History.-s. 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 re-

quest 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.

History.-s. 3, ch. 26949, 1951; s. 1, ch. 59-45.

742.041 Same; monthly contributions.-(!) The court shall order the defendant to pay

monthly for the care and support of such child the following amounts:

(a) From date of birth to 6th birthday-$40 per month.

(b) From 6th birthday to 12th birthday-$60 per month.

(c) From 12th birthday to 15th birthday-$90 per month.

(d) From 15th birthday to 18th birthday-$110 per month.

(2) Such amounts may be increased or reduced by the judge in his discretion depending upon the circumstances and ability of the defendant.

History.-s. 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.

History.-s. 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.-s. 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 ofthe 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.

History.-s. 7, ch. 26949, 1951.

742.09 Publishing names; penalty.-It 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 shall be guilty of a misdemeanor of the first

1146

F.S.1979 DETERMINATION OF PATERNITY Ch. 742

degree, punishable as provided in s. 775.082 or s. 775.083.

Hlstory.-s. 8, ch. 26949, 1951; s. 697, ch. 71·136.

742.091 Marriage ofparents.-Ifthe mother of any child born out of wedlock 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 s. 7 42.021 shall be void. The record of the proceedings in such cases shall be sealed against public inspection in the interests of the child.

History.-s. 1, ch. 57·267; s. 6, ch. 75-166.

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 children born out of wedlock.

History.-s. 9, ch. 26949, 1951; s. 10, ch. 27991, 1953; s. 7, ch . 75-166.

742.11 Presumed legitimacy of child conceived by means of artificial insemination.-Any child born within wedlock who has been conceived by the means of artificial insemination is irrebuttably presumed to be legitimate, provided that both husband and wife have consented in writing to the artificial insemination.

History.- s. 1, ch . 73-104.

1147

Ch. 743 DISABILITY OF NONAGE OF MINORS REMOVED F.S.1979

CHAPTER 743

DISABILITY OF NONAGE OF MINORS REMOVED

743.01 743.04

743.05

743.06

743.064

743.065

743.07

Removal of disabilities of married minors. Removal of disabilities of persons entitled

to benefits under the "Home, Farm and Business Loans Act."

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

Removal of disabilities ofminors; donation of blood without parental consent.

Emergency medical care or treatment to minors without parental consent.

Unwed pregnant minor or minor mother; consent to medical services for minor or minor's child valid.

Rights, privileges, and obligations of persons 18 years of age or older.

7 43.01 Removal of disabilities of married minors.-The disability of nonage of a minor who is married or has been married or subsequently becomes married, including one whose marriage is dissolved, or who is widowed, or widowered, is removed. The minor may assume the management of his estate, contract and be contracted with, sue and be sued, and perform all acts that he could do if not a minor.

History.-ss. 1, 2, ch. 7364, 1917; RGS 3962, 3963; s. 1, ch. 9286, 1923; CGL 5881, 5882, 5883; s. 1, ch. 22750, 1945; s. 1, ch. 71-147; s. 1, ch. 73-300.

743.04 Removal of disabilities of persons entitled to benefits under the "Home, Farm and Business Loans Act."-A minor authorized to participate in the rights, privileges, and benefits conferred by chapter 37 of Title 38 U. S. C., "Home, Farm and Business Loans Act," is authorized to make and execute all contracts necessary for the full utilization of the rights, privileges, and benefits conferred under said chapter if the person is otherwise competent to make and execute contracts. The contracts so made shall have the same effect as though they were the contracts of persons who were not minors.

History.-s. 1, ch. 23873, 1947; s. 24, ch. 69-353; s. 2, ch. 71-147.

7 43.05 Removal of disabilities of minors; borrowing money for educational purposes.-For the purpose ofborrowing money for their own higher educational expenses, the disability of nonage of minors is removed for all persons who have reached 16 years of age. Such minors are authorized to make and execute promissory notes, contracts, or other instruments necessary for the borrowing of money for this purpose. The promissory notes, contracts, or other instruments so made shall have the same effect as though they were the obligations of persons who were not minors. No such obligation shall be valid if the interest rate on it exceeds 7 percent a year.


therefor, of his blood and to the penetration of tissue which is necessary to accomplish such donation. Such consent shall not be subject to disaffirmance because of minority, unless the parent or parents of such minor specifically object, in writing, to the donation or penetration of the skin.

History.-s. 1, ch. 70-430; s. 1, ch. 76-13.

743.064 Emergency medical care or treatment to minors without parental consent.-

(1) The absence of parental consent notwithstanding, a physician licensed under chapter 458 or an osteopathic physician licensed under chapter 459 may render emergency medical care or treatment to any minor who has been injured in an accident or who is suffering from an acute illness, disease, or condition if, within a reasonable degree of medical certainty, delay in initiation of emergency medical care or treatment would endanger the health of the minor, and provided such emergency medical care or treatment is administered in a hospital licensed by the state under chapter 395 or in a college health service.

(2) This section shall apply only when parental consent cannot be immediately obtained for one of the following reasons:

(a) The minor's condition has rendered him unable to reveal the identity of his parents, guardian, or legal custodian, and such information is unknown to any person who accompanied the minor to the hospital.

(b) The parents, guardian, or legal custodian cannot be immediately located by telephone at their place of residence or business.

(3) Notification shall be accomplished as soon as possible after the emergency medical care or treatment is administered. The hospital records shall reflect the reason such consent was not initially obtained and shall contain a statement by the attending physician that immediate emergency medical care or treatment was necessary for the patient's health. The hospital records shall be open for inspection by the person legally responsible for the minor.

(4) No physician, hospital, or college health service shall incur civil liability by reason of having rendered emergency medical care or treatment pursuant to this section, provided such treatment or care was rendered in accordance with acceptable standards of medical practice.

History.-s. 1, ch. 79-302.

743.065 Unwed pregnant minor or minor mother; consent to medical services for minor or minor's child valid.-

(1) An unwed pregnant minor may consent to the performance of medical or surgical care or services relating to her pregnancy by a hospital or clinic or by a physician licensed under chapter 458 or chapter 459, and such consent is valid and binding as if she

743.06 Removal of disabilities of minors; do- had achieved her majority. nation of blood without parental consent.-Any (2) An unwed minor mother may consent to the minor who has reached the age of 17 years may give performance of medical or surgical care or services consent to the donation, without compensation for her child by a hospital or clinic or by a physician

1148

F.S.1979 DISABILITY OF NONAGE OF MINORS REMOVED Ch. 743

licensed under chapter 458 or chapter 459, and such consent is valid and binding as if she had achieved her majority.

(3) Nothing in this act shall affect the provisions of s. 390.001.

History.-s. 1, ch. 79-302.

743.07 Rights, privileges, and obligations of persons 18 years of age or older.-

(1) The disability of nonage is hereby removed for all persons in this state who are 18 years of age or older, and they shall enjoy and suffer the rights, privileges, and obligations of all persons 21 years of age or older except as otherwise excluded by the

State Constitution immediately preceding the effective date of this section.

(2) This section shall not prohibit any court of competent jurisdiction from requiring support for a dependent person beyond the age of 18 years; and any crippled child as defined in chapter 391 shall receive benefits under the provisions of said chapter until age 21, the provisions of this section to the contrary notwithstanding.

(3) This section shall operate prospectively and not retrospectively, and shall not affect the rights and obligations existing prior to July 1, 1973.

History.-ss. 2, 3, ch. 73-21. cf.-s. 1.01 Minor defined.

1149

Ch. 744 GUARDIANSHIP F.S.1979

CHAPTER 744

GUARDIANSHIP


PART II VENUE (ss. 744.201, 744.202)

PART III TYPES OF GUARDIANSHIP (ss. 744.301-744.308)

PART IV GUARDIANS (ss. 744.309-744.313)

PART V APPOINTMENT (ss. 744.331-744.357)

PART VI POWERS AND DUTIES (ss. 744.361-744.461)

PART VII TERMINATION (ss. 744.464-744.531)

744.101 744.1011

744.102 744.1025 744.103

744.104 744.105 744.106 744.107 744.108

PART I

GENERAL PROVISIONS

Short title. Effective date; substantive rights; proce-

dures. Definitions. Additional definitions. Guardians of incompetent world war vet-

erans. Verification of documents. Costs. Notice and virtual representation. Visitors. Guardians' fee.

744.101 Short title.-This chapter may be cited as the "Florida Guardianship Law."


744.1011 Effective date; substantive rights; procedures.-This act shall take effect January 1, 1976. The substantive rights of all persons that have vested prior to January 1, 1976 shall be det~rmined as provided in former chapters 7 44-7 46, Flonda Statutes as they exist prior to January 1, 1976. The proc~dures for the enforcement of substantive rights which have vested prior to January 1, 1976, shall be as provided in this act.

Hlstory.-s. 27, ch. 75-222.

for the person or property, or both, of a minor child by the will of its parent.

(5) An "incompetent" is a person who, because of minority, senility, lunacy, insanity, imbecility, idiocy, drunkenness, excessive use of drugs, or other physical or mental incapacity, is incapable of either managing his property or caring for himself, or both.

(6) A "minor" is a person under 18 years of age whose disabilities have not been removed by marriage or otherwise.

(7) "Property" means realty, personalty, and choses in action or any interest in them, legal or equitable, and also claims or rights of action arising in tort.

(8) A "ward" is an incompetent for whom a guardian has been appointed.

(9) "Limited guardian" means a person to whom the law has entrusted only the property of an incompetent that is received from sources other than the incompetent's wages or earnings.

(10) "Standby guardian" means a person empowered to assume the duties of guardianship or limited guardianship upon the death or adjudication of incompetency of the last surviving natural or adoptive parent of an incompetent.

(11) "Corporate guardian" means a corporation organized and existing under the laws of Florida and having trust powers.

(12) "Nonprofit corporate guardian" means a nonprofit corporation organized for religious or charitable purposes and existing under the laws of this state.

744.102 Definitions.-Unless the context re- (13) "Estate" includes the property of a ward quires otherwise, when used in this law: subject to administration.

(1) A "guardian" is one to whom the law has en- (14) "Clerk" means the clerk or deputy clerk of trusted the custody and control of the person or prop- the court. erty, or both, of an incompetent. "Guardian" may (15) "Court" means the circuit court. mean curator, conservator, or committee, if appoint- h h

(16) "Next of kin" means t ose persons w o ed in another state. would be heirs at law of the ward or alleged incompe-(2) A "guardian ad litem" is one appointed by a h court in which particular litigation is pending to tent if such person were deceased and includes t e

lineal descendants of such ward or alleged incomperepresent a ward in that litigation. (3) A "foreign guardian" is one appointed in tent person.

Hlstory.-s. 1, ch. 74-106; s. 2, ch. 75-222; s. 231, ch. 77-104; s. 1, ch. 79-221. another state or country. Note.-Created from formers. 744.03.

(4) A "testamentary guardian" is one appointed cf.-s. 731.201 General definitions.

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PROBATE CODE: INTESTATE SUCCESSION AND WILLS Ch. …Giving a written waiver of the right to dis...

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