The 2022 Florida Statutes (including 2022 Special Session A and 2023 Special Session B) Title VI . Except as provided in this subsection, the value of property for purposes of s. 732.2075 is the fair market value of the property on the applicable valuation date. 97-102; s. 34, ch. Delivering to the successor qualified custodian an affidavit of the outgoing qualified custodian stating that: The outgoing qualified custodian is eligible to act as a qualified custodian in this state; The outgoing qualified custodian is the qualified custodian designated by the testator in the electronic will or appointed to act in such capacity under this paragraph; The electronic will has at all times been in the custody of one or more qualified custodians in compliance with this section since the time the electronic record was created, and identifying such qualified custodians; and. 2001-226. Any known or reasonably ascertainable creditor who did not consent to the proposed distribution and for whom provision for payment was not made may enforce the claim and, if the creditor prevails, shall be awarded costs, including reasonable attorney fees, against those who joined in the affidavit. 75-220; s. 50, ch. 2001-226; s. 6, ch. To the extent paid to or for the benefit of the surviving spouse, the decedents one-half of any property described in s. 732.2045(1)(f). 75-220; s. 963, ch. With approval of the court having jurisdiction of the probate proceeding by an attorney in fact or a guardian of the property of the surviving spouse. s. 1, ch. Any amount of the elective share not satisfied within 2 years of the date of death of the decedent shall bear interest at the statutory rate until fully satisfied, even if an order of contribution has not yet been entered. For this purpose, a general power to appoint by will is a qualifying power of appointment if the power may be exercised by the spouse in favor of the spouses estate without the consent of any other person. No consideration other than the execution of the agreement, contract, or waiver shall be necessary to its validity, whether executed before or after marriage. 74-106; s. 19, ch. Any part of the will is void if so procured, but the remainder of the will not so procured shall be valid if it is not invalid for other reasons. No particular form of words is necessary to the validity of a will if it is executed with the formalities required by law. 2001-36; s. 17, ch. That he or she has previously signed the will, or. The policy must cover losses of at least $250,000 in the aggregate. Except as provided in paragraph (d), for purposes of this subsection: A termination with respect to a right or interest in property occurs when the decedent transfers or relinquishes the right or interest, and, with respect to a power over property, a termination occurs when the power terminates by exercise, release, lapse, default, or otherwise. 89-340; s. 1035, ch. What is an Affidavit of Heirship? Affidavit of Heirship in Florida Has an affidavit of heirs been filed in this Intestate estate? When there is insufficient evidence that two joint tenants or tenants by the entirety died otherwise than simultaneously, the property so held shall be distributed one-half as if one had survived and one-half as if the other had survived. Electronic will means a testamentary instrument, including a codicil, executed with an electronic signature by a person in the manner prescribed by this code, which disposes of the persons property on or after his or her death and includes an instrument which merely appoints a personal representative or guardian or revokes or revises another will. When awarding taxable costs and attorneys fees, the court may direct payment from a partys interest, if any, in the estate, or enter a judgment that may be satisfied from other property of the party, or both. 2001-226. Nonademption of specific devises in certain cases; sale by guardian of the property; unpaid proceeds of sale, condemnation, or insurance. The department shall not be civilly or criminally liable for any proceeds distributed pursuant to this subsection, provided such distribution is made in good faith. Unless a contrary intention appears in the governing instrument: When title to property or its devolution depends on priority of death and there is insufficient evidence that the persons have died otherwise than simultaneously, the property of each person shall be disposed of as if that person survived. Florida Small Estates General Summary Law - Small Estates - USLegal 79-400. 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. History.s. You can find the Florida Probate Code in Chapters 731 through 735 of the Florida Statutes. Devise includes a disposition by trust of that portion of the trust estate which, if titled in the name of the grantor of the trust, would be the grantors homestead. We, and , have been sworn by the officer signing below, and declare to that officer on our oaths that the testator declared the instrument to be the testators will and signed it in our presence and that we each signed the instrument as a witness in the presence of the testator and of each other. 74-106; s. 38, ch. (1) No administration shall be required or formal proceedings instituted upon the estate of a decedent leaving only . 77-174; s. 185, ch. 74-106; s. 8, ch. Antilapse; deceased devisee; class gifts. This section shall be construed as establishing the ownership or rights of the payee in the refund. s. 1, ch. 75-220; s. 1, ch. The transfer of an interest in homestead property described in subsection (1) may not be treated as a devise of that interest even if: The transferor retains a separate legal or equitable interest in the homestead property, directly or indirectly through a trust or other arrangement such as a term of years, life estate, reversion, possibility of reverter, or fractional fee interest; The interest transferred does not become a possessory interest until a date certain or upon a specified event, the occurrence or nonoccurrence of which does not constitute a power held by the transferor to revoke or revest the interest in the transferor, including, without limitation, the death of the transferor; or. Joint Administrative Procedures Committee (JAPC), Joint Committee on Public Counsel Oversight(JCPO), Joint Legislative Auditing Committee (JLAC), Joint Legislative Budget Commission (JLBC), Joint Select Committee on Collective Bargaining (JSCB), Office of Program Policy Analysis & Government Accountability (OPPAGA), Florida Legislative Committee on Intergovernmental Relations (LCIR), Joint Legislative Committee on Everglades Oversight (JCEO), Joint Legislative Sunset Committee (JCSC), Copyright 1995-2023 The Florida Legislature . 2001-226; s. 8, ch. If the affiant is an adult child of the decedent, the affidavit must attest that the decedent left no surviving spouse. 731.10, 731.101, 731.11. Any transfer of property to the extent not otherwise included in the elective estate, made to or for the benefit of any person, except: Any transfer of property for medical or educational expenses to the extent it qualifies for exclusion from the United States gift tax under s. 2503(e) of the Internal Revenue Code, as amended; and. 732.41 and 732.602. 732.216-732.228 apply, a purchaser for value or a lender taking a security interest in the property takes that interest in the property free of any rights of the surviving spouse. Attorney fees and costs may not be awarded against a party who, in good faith, initiates an action under this section to declare a gift void. If property distributed in kind, or a security interest in that property, is acquired by a purchaser or lender for value from a person who has received a gift in violation of this section, the purchaser or lender takes title free of any claims arising under this section and incurs no personal liability by reason of this section, whether or not the gift is void under this section. 81-238; s. 3, ch. 97-102; s. 8, ch. The surviving spouse or an attorney in fact, guardian of the property, or personal representative of the surviving spouse may withdraw an election at any time within 8 months after the decedents death and before the courts order of contribution. 2001-226; s. 13, ch. Sections 732.216-732.228 do not authorize a person to dispose of property by will if it is held under limitations imposed by law preventing testamentary disposition by that person. Disposition of Personal Property Waiver & Consent. A qualified custodian who at any time maintains custody of the electronic record of an electronic will may elect to cease serving in such capacity by: Delivering the electronic will or the electronic record containing the electronic will to the testator, if then living, or, after the death of the testator, by filing the will with the court in accordance with s. 732.901; and. 735.301 Disposition without administration.. To the extent they are not deducted under paragraph (a), all mortgages, liens, or security interests on the property. s. 1, ch. Forms and Assistance. s. 1, ch. If more than one otherwise effective writing exists, then, to the extent of any conflict among the writings, the provisions of the most recent writing revoke the inconsistent provisions of each prior writing. The petition must be signed and verified by the surviving spouse, if any, and any beneficiaries except that the joinder in a petition for summary administration is not required of a beneficiary who will receive a full distributive share under the proposed distribution. The Affidavit of Heirs should list the names, ages, and addresses of the decedent's relatives, and it should indicate the date of death of any deceased relatives. As used in this subsection, the term income has the same meaning as that provided in s. 643(b) of the Internal Revenue Code, as amended, and regulations adopted under that section. . Unless otherwise provided in the decedents will or, in the absence of a provision in the decedents will, in a trust referred to in the decedents will, the following are applied first to satisfy the elective share: Property interests included in the elective estate that pass or have passed to or for the benefit of the surviving spouse, including interests that are contingent upon making the election, but only to the extent that such contingent interests do not diminish other property interests that would be applied to satisfy the elective share in the absence of the contingent interests. 74-106; s. 16, ch. 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 all rights in appropriate proceedings against those who procured the order and, if successful, shall be awarded reasonable attorneys fees as an element of costs. 4. For this purpose, contribution percentage means the remaining unsatisfied balance of the trust or estate at the time of the distribution divided by the value of the trust or estate as determined under s. 732.2055. Most counties additionally require an "affidavit of heirs" from the petitioner listing all relatives . It may be altered by the testator after its preparation. Any rights or benefits under a bond, life insurance policy, or other contractual arrangement if the decedent is the principal obligee or the person upon whose life the policy is issued, unless the surviving spouse is provided for by name, whether or not designated as the spouse, in the bond, life insurance policy, or other contractual arrangement. s. 15, ch. Any joint tenant who unlawfully and intentionally kills another joint tenant thereby effects a severance of the interest of the decedent so that the share of the decedent passes as the decedents property and the killer has no rights by survivorship. s. 1, ch. 75-220; s. 6, ch. To the extent that controlling federal law provides otherwise; If the governing instrument is signed by the decedent, or on behalf of the decedent, after the order of dissolution or order declaring the marriage invalid and such governing instrument expressly provides that benefits will be payable to the decedents former spouse; To the extent a will or trust governs the disposition of the assets and s. 732.507(2) or s. 736.1105 applies; If the order of dissolution or order declaring the marriage invalid requires that the decedent acquire or maintain the asset for the benefit of a former spouse or children of the marriage, payable upon the death of the decedent either outright or in trust, only if other assets of the decedent fulfilling such a requirement for the benefit of the former spouse or children of the marriage do not exist upon the death of the decedent; If, under the terms of the order of dissolution or order declaring the marriage invalid, the decedent could not have unilaterally terminated or modified the ownership of the asset, or its disposition upon the death of the decedent; If the designation of the decedents former spouse as a beneficiary is irrevocable under applicable law; If the governing instrument is governed by the laws of a state other than this state; To an asset held in two or more names as to which the death of one co-owner vests ownership of the asset in the surviving co-owner or co-owners; If the decedent remarries the person whose interest would otherwise have been revoked under this section and the decedent and that person are married to one another at the time of the decedents death; or. For purposes of part satisfaction, property given during the testators lifetime is valued at the time the devisee came into possession or enjoyment of the property or at the time of the death of the testator, whichever occurs first. Because of any of the provisions of s. 689.075. Spousal rights procured by fraud, duress, or undue influence. 97-102; s. 49, ch. 2001-226. An electronic will or codicil is revoked by the testator, or some other person in the testators presence and at the testators direction, by deleting, canceling, rendering unreadable, or obliterating the electronic will or codicil, with the intent, and for the purpose, of revocation, as proved by clear and convincing evidence. Any additional or other securities of the same entity owned by the testator because of action initiated by the entity, excluding any acquired by exercise of purchase options. If there is no kindred of either part, the whole of the property shall go to the kindred of the last deceased spouse of the decedent as if the deceased spouse had survived the decedent and then died intestate entitled to the estate. The proceeds of any policy of insurance on the decedents life in excess of the net cash surrender value of the policy whether payable to the decedents estate, a trust, or in any other manner. When the insured and the beneficiary in a policy of life or accident insurance have died and there is insufficient evidence that they died otherwise than simultaneously, the proceeds of the policy shall be distributed as if the insured had survived the beneficiary. 2013-172. 2017-121. Unless the will provides otherwise, the property devised shall not be held under a testamentary trust of the testator but shall become a part of the principal of the trust to which it is devised. A will or codicil, other than an electronic will, is revoked by the testator, or some other person in the testators presence and at the testators direction, by burning, tearing, canceling, defacing, obliterating, or destroying it with the intent, and for the purpose, of revocation. Household furniture, furnishings, and appliances in the decedents usual place of abode up to a net value of $20,000 as of the date of death. 92-200; s. 972, ch. 2001-226. (d)A personal representative has not been appointed to administer the decedents estate, and no probate proceeding or summary administration procedure has been commenced with respect to the estate. 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. 74-106; s. 11, ch. Any heir or devisee of the decedent who was lawfully entitled to share in the estate but who was not included in the distribution under this section may enforce all rights in appropriate proceedings against those who signed the affidavit or received distribution of personal property and, if successful, shall be awarded costs including reasonable attorney fees as in chancery actions. Subsections (5) and (6) apply notwithstanding the payors knowledge that the person to whom the asset is transferred is different from the person who would own the interest pursuant to subsection (2). 75-220; s. 14, ch. Any unsatisfied contribution is treated as additional unsatisfied balance and reapportioned to other recipients as provided in s. 732.2075 and this section. 2001-226. 74-106; s. 17, ch. The person is also a descendant of his or her father and is one of the natural kindred of all members of the fathers family, if: The natural parents participated in a marriage ceremony before or after the birth of the person born out of wedlock, even though the attempted marriage is void. If a person named in subsection (1) has died, is incapacitated, or is a minor, or has conveyed or transferred all interest in the property of the estate, then, as to that person, the petition must be signed and verified by: The personal representative, if any, of a deceased person or, if none, the surviving spouse, if any, and the beneficiaries; The guardian of an incapacitated person or a minor; or. If the affiant is a parent of the decedent, the affidavit must attest that the decedent left no surviving spouse, no surviving adult child, and no surviving adult descendant. s. 1, ch. If the title to any property to which ss. A valid devise may be made to the trustee of a trust that is evidenced by a written instrument in existence at the time of making the will, or by a written instrument subscribed concurrently with making of the will, if the written instrument is identified in the will. Words of survivorship in a devise or appointment to an individual, such as if he survives me, if she survives me, or to my surviving children, are a sufficient indication of an intent contrary to the application of subsections (1) and (2). Any insurance company, bank, or other obligor making payment according to the terms of its policy or obligation is not liable by reason of this section unless prior to payment it has received at its home office or principal address written notice of a claim under this section. 2001-226; s. 32, ch. If there are one or more surviving descendants of the decedent, all of whom are also descendants of the surviving spouse, and the surviving spouse has one or more descendants who are not descendants of the decedent, one-half of the intestate estate. Subscribed by me in the presence of the testator and the subscribing witnesses, by the means specified herein, all on (date). 74-106; s. 39, ch. 2001-226. 75-220; s. 971, ch. Checklist for Opening Estate. Please include even the names of relatives who were deceased at the time of the Decedent's death, indicating that they are deceased and specifying the date of death. 77-174; s. 275, ch. This subsection only applies to escheated property and shall cease to be effective for proceedings filed after December 31, 2004. s. 1, ch. 97-102; s. 59, ch. Before me, the undersigned authority, personally appeared by the means specified herein, (type or print Affiants name) (Affiant), who swore or affirmed that: 1. On the date of the Decedents death, the Decedent was not legally married to the spouse designated as the primary beneficiary as that term is defined in Section 732.703, Florida Statutes. An adult child of the decedent if the decedent left no surviving spouse; An adult descendant of the decedent if the decedent left no surviving spouse and no surviving adult child; or. 75-220; s. 966, ch. 2009-115; s. 5, ch. The decedents one-half of that property is not in the elective estate. s. 7, ch. 2001-226; s. 5, ch. The custodian must supply the testators date of death or the last four digits of the testators social security number to the clerk upon deposit. This section applies only to outright devises and appointments. If any part of s. 732.2035 or s. 732.2075 is preempted by federal law with respect to a payment, an item of property, or any other benefit included in the elective estate, a person who, not for value, receives the payment, item of property, or any other benefit is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of that item of property or benefit, as provided in ss. The principal of the property could, in the discretion of any person other than the spouse of the decedent, be distributed or appointed to or for the benefit of the decedent. Post and maintain a blanket surety bond of at least $250,000 to secure the faithful performance of all duties and obligations required under this part. Gifts to lawyers and other disqualified persons. The revocation by the testator of a will that revokes a former will shall not revive the former will, even though the former will is in existence at the date of the revocation of the subsequent will. If you do not have an Affidavit of Heirs, your estate may not receive its fair share of the inheritance. Unless the language creating a power of appointment expressly excludes the substitution of the descendants of an object of a power for the object, a surviving descendant of a deceased object of a power of appointment may be substituted for the object whether or not the descendant is an object of the power. 74-106; ss. Box 6043 DeLand, FL 32721-6043 75-220; s. 12, ch. AFFIDAVIT UNDER SECTION 735.303, FLORIDA STATUTES, TO OBTAIN BANK PROPERTY OF DECEASED ACCOUNT HOLDER: (Name of decedent) State of County of Before the undersigned authority personally appeared (name of affiant) , of (residential address of affiant) , who has been sworn and says the following statements are true: Upon petition and notice, the custodian of any will may be compelled to produce and deposit the will. Section 319.28(1)(b), Florida Statutes, states: When the application for a Certificate of Title is made by an heir of a previous owner who died intestate, it shall not be necessary to accompany the application with an order of a probate court if the applicant files with the department an affidavit Except as provided in s. 732.2155(4), any transfer of property by the decedent to the extent the transfer is irrevocable before the effective date of this subsection or after that date but before the date of the decedents marriage to the surviving spouse. No disclosure shall be required for an agreement, contract, or waiver executed before marriage. 75-220; s. 967, ch. Valuation of property used to satisfy elective share. 77-174; s. 16, ch. 2007-74; s. 8, ch. PROBATE DIVISION. 74-106; s. 36, ch. The rights of a surviving spouse to an elective share, intestate share, pretermitted share, homestead, exempt property, family allowance, and preference in appointment as personal representative of an intestate estate or any of those rights, may be waived, wholly or partly, before or after marriage, by a written contract, agreement, or waiver, signed by the waiving party in the presence of two subscribing witnesses. A lawyer is deemed to have prepared, or supervised the execution of, a written instrument if the preparation, or supervision of the execution, of the written instrument was performed by an employee or lawyer employed by the same firm as the lawyer. ELECTION OF SURVIVING SPOUSETO TAKE A ONE-HALF INTEREST OFDECEDENTS INTEREST INHOMESTEAD PROPERTY. s. 1, ch. Securities of another entity owned by the testator as a result of a merger, consolidation, reorganization, or other similar action initiated by the entity. Maintain a liability insurance policy that covers any losses sustained by any person who stores electronic records with a qualified custodian and their estates, beneficiaries, successors, and heirs which are caused by errors or omissions by the qualified custodian and each agent or employee of the qualified custodian. PROBATE CODE: INTESTATE SUCCESSION AND WILLS, ELECTIVE SHARE OF SURVIVING SPOUSE; RIGHTS IN COMMUNITY, CONTRACTUAL ARRANGEMENTS RELATING TO DEATH. 2001-226; s. 107, ch. 2017-121. For this purpose, a beneficiary of an insurance policy on the decedents life, the net cash surrender value of which is included in the elective estate, is treated as having received property included in the elective estate. In addition to any of the fees that may be awarded under subsections (1) and (2), if the personal representative does not file a petition to determine the amount of the elective share as required by the Florida Probate Rules, the electing spouse or the attorney in fact, guardian of the property, or personal representative of the electing spouse may be awarded from the estate reasonable costs, including attorney fees, incurred in connection with the preparation and filing of the petition. The notice must be in substantially the following form: Unless and until an election is made under subsection (2), expenses relating to the ownership of the homestead shall be allocated between the surviving spouse, as life tenant, and the decedents descendants, as remaindermen, in accordance with chapter 738. If a person pays the value of the property on the date of a sale or exchange or contributes all of the property received, as provided in paragraph (2)(b): No further contribution toward satisfaction of the elective share shall be required with respect to that property. 74-106; s. 105, ch. 77-174; s. 14, ch. If the surviving spouse is not living, it shall be paid to the lineal heirs or to the persons having their care and custody. This section is not applicable to a provision in a written instrument appointing a lawyer, or a person related to the lawyer, as a fiduciary. In the case of any policy of insurance on the decedents life includable under s. 732.2035(5), (6), or (7), the net cash surrender value of the policy immediately before the decedents death. 2001-226; s. 13, ch. s. 5, ch. The recipients of the decedents property under the order of summary administration shall be personally liable for a pro rata share of 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 recipient, exclusive of the property exempt from claims of creditors under the constitution and statutes of Florida. 77-87; s. 1, ch. 99-343; s. 19, ch. A surviving adult descendant of the decedent, and the decedent left no surviving spouse and no surviving adult child. In the case of amounts includable under s. 732.2035(8), the transfer tax value of the amounts on the date of the decedents death. The court may provide that the modification has retroactive effect. A designation made by or on behalf of the decedent providing for the payment or transfer at death of an interest in an asset to or for the benefit of the decedents former spouse is void as of the time the decedents marriage was judicially dissolved or declared invalid by court order prior to the decedents death, if the designation was made prior to the dissolution or court order. 79-400; s. 44, ch. 2001-226; s. 1036, ch. Before issuance of letters, any person may carry out written instructions of the decedent relating to the decedents body and funeral and burial arrangements. Except as provided in this act, a qualified custodian must at all times keep information provided by the testator confidential and may not disclose such information to any third party. This subsection applies to joint tenancies with right of survivorship and tenancies by the entirety in real and personal property; joint and multiple-party accounts in banks, savings and loan associations, credit unions, and other financial institutions; and any other form of coownership with survivorship interests. In addition to protected homestead and statutory entitlements, if the decedent was domiciled in Florida at the time of death, the surviving spouse and the decedents lineal heirs the decedent was supporting or was obligated to support are entitled to a reasonable allowance in money out of the estate for their maintenance during administration. as identification, and sworn to and subscribed before me by each of the following witnesses: (type or print name of first witness) who is personally known to me or has produced (state type of identificationsee s.
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