Florida Probate Explained: A Complete Guide to Wills, Intestate Succession, Estate Administration, and Executor Duties by Van Eden Law

Probate in Florida

Excerpted by Mark C. Van Eden, Esq.
From Trawick’s Redfearn Wills and Administration in Florida, Henry Trawick, Jr.

The estate of every person who was domiciled or owned real property in Florida is subject to probate in Florida.Technically, “probate” refers to proving a will’s proper execution. However, it broadly includes the entire succession process for both testate and intestate estates.This guide outlines the Florida probate process, duties of personal representatives, and how estate assets are distributed. It also covers wills, intestate succession, and unique doctrines such as homestead and elective share.

Wills and Other Testamentary Instruments

Types of Wills

Florida only recognizes formal, written wills. Nuncupative and holographic wills are not valid. Codicils can amend or revoke a will.

Contracts Concerning Wills

Contracts to make or revoke wills must be in writing and properly witnessed. Joint or mutual wills do not create an assumption of a binding contract.

Intestate Succession

Descent of Property

If someone dies without a valid will, Florida’s intestacy statutes determine who inherits. These laws prioritize spouses, descendants, and relatives by degree of kinship.

Homestead and Exempt Property

Florida’s homestead protections can restrict devising property and shield it from creditors. Exempt personal property (e.g., furniture, vehicles) also bypasses probate.

Administration of the Estate

Roles and Responsibilities

Florida requires most personal representatives to be represented by a licensed attorney. The PR must locate assets, notify creditors, pay debts, file taxes, and distribute the estate.

Devises

Florida recognizes specific, general, demonstrative, and residuary devises. The testator’s intent and will language determine their classification and treatment during probate.

Adversary Proceedings

This includes will contests, disputes over elective shares, beneficiary status, or claims against the personal representative. Most are resolved within the probate court’s jurisdiction.

Final Distribution

The PR must file a final accounting and petition for discharge. Assets are distributed per the will or intestacy law, with certain assets (e.g., joint accounts, trusts) passing outside probate.

Other Probate Procedures

• Summary Administration
• Disposition Without Administration
• Ancillary Probate for Nonresidents

 Probate in Florida,

 

excerpted by Mark C. Van Eden, Esq., from

Trawick’s Redfearn Wills and Administration in Florida, Henry Trawick, Jr.

 

Introduction

The estate of every person who was domiciled or owned real property in Florida is subject to probate in Florida.

Technically, “probate” means proof of the proper execution of a will. This is called “the probate of the will.” In common parlance, however, probate has come to mean the entire process of succession to decedents’ estates, including intestate estates (when there is no will).

All personal representatives must have an attorney admitted to practice in Florida to represent them unless the personal representative is an attorney or is the sole interested person in the estate.

This article discusses the probate process, the rights, duties, and liabilities of personal representatives, and the rules governing the distribution of assets to heirs and beneficiaries. It is intended as a preliminary guide for persons who have been named as the personal representative in a decedent’s will, or who think they might be appointed as the personal representative by the probate court in cases where the decedent left no will. The article covers the following topics:

• Wills and Other Testamentary Instruments
• Intestate Succession
• Administration of the Estate
• Devises
• Adversary Proceedings
• Distribution
• Other probate proceedings

The article also discusses Homestead and Elective Share, which can serve to dramatically alter the distribution of assets in an estate.

1. Wills and Other Testamentary Instruments

2. Types of wills

Florida recognizes only a formal, written, and attested instrument as a will.

Florida does not recognize nuncupative wills, which are wills spoken during the last illness of a person before at least three competent witnesses whom the testator wanted to witness that the spoken words were his will.

Florida also does not recognize holographic wills, which are wills written entirely in the handwriting of and signed by the testator.

Codicils are instruments that amend a will or a prior codicil or revoke one or both of them. Joint wills are wills signed by two or more testators. On the death of any testator, the will may be probated as the will of that decedent and on the death of the other or others, it may be probated again as those decedents’ wills. Mutual wills are either joint or separate wills of two or more persons in which the provisions made by each testator are reciprocal to those made by the other or others.

Contracts concerning wills

Contracts to make a will, to give a devise, not to revoke a will, not to revoke a devise, not to make a will, or not to make a devise are not binding unless the agreement is in writing and signed by the person agreeing in the presence of two attesting witnesses. The execution of a joint will or mutual wills does not create a presumption of a contract to make a will or a presumption of a contract not to revoke a will or wills.

In 1958 a statute was enacted requiring a written contract witnessed by two attesting witnesses. Consideration and performance by the claimant is still required.[1] Enforcement may be in chancery for specific performance of the contract or imposition of a constructive trust or at law for damages for the breach of the contract. A person who has partly performed the terms of a valid contract to make a will may seek quantum meruit relief. Damages in quantum meruit are the value of the property agreed to be devised.

Mutual wills are not necessarily irrevocable. It is the contract between the testators that governs the matter. The claimant under such a contract must follow the creditor’s claims procedure.

An antenuptial agreement may contain provisions that are a contract to make a will.

An agreement not to contest a will is legal if otherwise valid. The agreement can be enforced in the probate court.

A will can be made irrevocable before the death of the testator by agreement. The agreement must be founded on a valuable consideration.

Wills

A will may dispose of all property of the testator, except homestead, exempt property and the elective share of his spouse. Except for the statutory provisions for a spouse, exempt property, and homestead, a testator has the right to devise property to any person or persons and is not required to leave property to his next of kin.

A provision in a will purporting to penalize any interested person for contesting the will or instituting other proceedings concerning the estate is unenforceable.

Unless a will provides otherwise, all devises are per stirpes, rather than per capita. Per stirpes means that all persons related in the same degree to the testator take equal shares. If one or more of them predecease the testator and the devises do not lapse, the descendants of the predeceased persons take their ancestor’s share. This is distinguished from a per capita distribution in which each surviving person, regardless of the degree of relationship to the testator, takes an equal share.

Testamentary capacity is discussed in II.G. Invalidity of a will caused by fraud, mistake, duress or undue influence is discussed in VII.A.

A will that violates public policy is invalid.

 

Codicils

A codicil is an instrument that changes or revokes a prior will or codicil. It must be executed in the same manner as a will. It differs from a will because a will usually revokes all prior testamentary instruments, while a codicil recognizes the existence of a prior will or codicil and changes it. A codicil may be used to validate a will that has been improperly executed.

 

Joint or mutual wills

A will does not take effect and become irrevocable until the death of the testator. Joint and mutual wills are a modification of this principle by creating an enforceable right before death. Title to property devised still does not pass until the death of the survivor. The validity and enforcement of such wills are based on contract principles.

In the case of a joint will, the parties execute the same instrument and the consideration is the agreement of each to the disposition of the property as specified in the will. A joint will can be revoked by one of the joint testators if that testator gives notice to the others and to all beneficiaries before the death of any signatory testator.

The difference between a joint will and mutual wills is that mutual wills are separate instruments executed by testators who have agreed to make the same or reciprocal provisions in their wills. The consideration for the wills is the agreement to make the dispositive provisions in each will. It is difficult for a court to hold mutual wills irrevocable unless the irrevocability is specified clearly in each will. Presumably, mutual wills can be revoked before the deaths of any testator by notice to the other testator or testators and any beneficiaries.[2]

The execution of a joint will or mutual wills does not create a presumption of a contract nor a presumption not to revoke the will or wills. The remedy of a party seeking to enforce the provisions of a joint will or mutual wills is by specific performance or by imposition of a constructive trust in chancery or by an action at law for damages.[3]

Testators should avoid joint and mutual wills unless they are willing to accept irrevocability, in which event the wills should so specify.

Form, requisites, and execution

The requirements for the proper execution of wills in Florida are as follows:

• A will must be written.
• The testator must sign his name at the end or his name must be subscribed at the end of the will by some other person in his presence and by his direction.
• The testator must sign first or acknowledge that he has previously signed the will or that another person has subscribed the testator’s name to it at his direction in the presence of at least two attesting witnesses.[4]
• The attesting witnesses must sign the will in the presence of the testator and in the presence of each other.

A will is not invalid because the will is witnessed by a person who receives a devise under the will or is appointed a personal representative.

An attesting witness who received an interest under a will was not competent to testify to its execution until 1752 in England. In that year a statute was enacted that made the witness competent, but declared his interest under the will void. This remained the law in Florida until 1933 when a statute was enacted making an exception to the rule if there were a sufficient number of witnesses to the will without counting the interested beneficiary. This harsh result was eliminated in 1979.

Changes on the face of an executed will are presumed to be made after execution. The presumption can be rebutted. Changes made after execution have no effect unless made with the same formalities as are required for executing a will. Merely initialing the changes is not sufficient because the testator must also reaffix his signature and have it reattested. Changes made by a stranger to it are a spoliation of it. It can be admitted to probate if the changes can be established so its original intent is reestablished.

 

Testamentary capacity

The statute excludes a person of unsound mind from those qualified to make a will. The standard for testamentary capacity is whether the testator has sufficient intelligence to understand his ordinary business and to know and understand what disposition he is making of his property at the time he makes a will. Testamentary capacity is judged at the time of execution of the will. A person who lacks testamentary capacity may have a lucid interval during which a valid will can be executed. This principle applies even if the testator is under an adjudication of mental incompetency.  The principle means that the testator returned temporarily to a state of comprehension and regained testamentary capacity.

Illness, and the use of drugs as a result, is insufficient alone to find a testator without testamentary capacity. Immorality does not deprive a person of testamentary capacity. Drunkenness or drug abuse does not deprive a testator of testamentary capacity, although a will is not valid if executed during the time the reasoning faculties of the testator are so affected that he does not know what he is doing. Eccentricity alone does not affect testamentary capacity and neither does old age. Prejudice alone does not affect testamentary capacity, nor does the reasonableness or unreasonableness of a will.

 

Revocation

A will can be revoked by the testator during his lifetime if he has testamentary capacity at the time of revocation. No witnesses to the revocation are necessary unless the revocation is by a writing.

There are two types of revocation, express and implied. Express revocation occurs when a new will or codicil expressly revokes an older will or the destruction, defacing, obliteration, or other act of revocation takes place. Implied revocation occurs when the testator dies leaving a subsequent inconsistent will or codicil in which there is no express revocation of the earlier will, or when there is a change in the decedent’s circumstances not provided for in the will, such as a pretermitted spouse or child.

Whether defacing or destroying a will accomplishes revocation is a question of fact. Revocation requires both intent to revoke and the act of defacing or destruction. Florida does not permit a partial revocation by this method. The testator may perform one of the various acts of defacing or destruction or may direct some other person to do so in his presence.[5]

Implied revocation occurs when:

• there is an inconsistent subsequent will;
• certain changes in domestic relations occur;
• alienation or loss of the property devised occurs subsequent to making the will; or
• a change in a statute invalidates the will.

If the subsequent will or other instrument does nor specifically revoke the prior will, the revocation extends only so far as the inconsistency between the two. In effect, the new will is treated as a codicil.

The subsequent marriage, birth of lineal descendants or adoption of lineal descendants does not revoke a prior will. The pretermitted spouse receives a share in the testator’s estate equal to that a surviving spouse would receive if the testator died intestate, unless provision has been made for or waived by the spouse under a prenuptial or postnuptial agreement, or the spouse is provided for in the will, or the will discloses an intent not to make provision for the spouse.

A pretermitted child receives a share of the testator’s estate equal to that the child would receive if the testator had died intestate, unless the will discloses that the omission was intentional, or the testator had one or more children when the will was executed and devised substantially all of the estate to the other parent of the pretermitted child. The child must be born after the will. If the child has received a part of the testator’s property equivalent to a child’s part by advancement, the child does not receive the share of a pretermitted child.

If a marriage is dissolved or annulled, any provisions of a will executed before the dissolution or annulment that provide for the former spouse is void. The will is construed as if the former spouse had died at the time of the dissolution or annulment, unless the will or the judgment of dissolution or annulment provides otherwise. Remarrying the same spouse after a divorce does not revalidate a will made during the first marriage that has been voided by the intervening dissolution.

The testator is not obliged to hold property until death or property that is specifically devised in a mutual will. To the extent that the testator disposes of property during life, the will is revoked. This applies to the involuntary disposition of the property as well.[6] This is one form of ademption. If a testator ceases to own property before his death and later reacquires it, a devise of the property in a will made during the first ownership is not affected.

Revocation of a will revokes all codicils to the will. The revocation of a codicil does not revoke the will.

The republication of a will is an act from which it is concluded that the revoked will has been revived. In this sense, the revival of a will is synonymous with the republication of the will. Revival is limited by statute in Florida. A will that has been revoked or is invalid for any other reason can be republished and made valid only if it is reexecuted with the formalities required by law for the execution of wills or if a codicil is similarly execute,d republishing the invalid or revoked will. The execution of a codicil referring to a prior will republish the will as modified by the codicil. An invalid will can be validated by the execution of a valid codicil. This is a poor way to revive a will. It is much better to prepare a new instrument with the contents desired by the testator and have it executed properly.

Sometimes,a testator who is not knowledgeable about the law may make changes in his will by interlineations and deletions. Such changes are not valid unless executed with the same formalities as a will. There is a presumption that any such changes were made after the execution of the will. If made prior to execution, the changes are valid.

 

Marital agreements

Spouses may provide for testamentary disposition of property in a written prenuptial or postnuptial agreement executed in the presence of two subscribing witnesses if executed after January 1, 2002.[7] For the agreement to be valid in probate matters, each spouse must make a fair disclosure of the extent and value of his or her estate to the other if the agreement is executed after marriage. No disclosure is required for an agreement executed before marriage. No consideration, other than the execution of the agreement, is necessary to its validity, whether executed before or after marriage. An agreement may waive homestead rights. Nomination as a personal representative is not a property right that is eliminated by a marital agreement. Marital agreements may be attacked on a basis of fraud, incompetency, overreaching, and similar matters that would invalidate a contract.

Trusts

Trusts can have a testamentary effect in either of two ways. First, a trust can be incorporated in a will. It is then called a testamentary trust. Second, a trust created during the life of the settlor may provide for the disposition of the trust assets on death. A trust with testamentary effect, or an amendment to it, must be executed in the same manner and with the same formalities as required for a will.[8] The testamentary effect of living trusts is not administered through probate proceedings and is beyond the scope of this article.

Testamentary powers of appointment

A testamentary power of appointment is authority conferred by a will on one or more persons to perform certain acts after the testator’s death. The person given the power is sometimes called the donee.

Other instruments

Any competent adult may make a written declaration directing that life-prolonging procedures not be provided to him or be withdrawn if the person suffers from a terminal physical condition and is comatose. Such a declaration is generally referred to as a living will. It must be signed by the person in the presence of two subscribing witnesses, one of whom is neither the spouse nor a blood relative of the person. The person may designate a surrogate to execute his wishes if the person is unable to do so.

 

Why a will should be made

There are many valid reasons why a person should make a will. The chief one is that a will gives the testator the power to determine how his property will be distributed, rather than leaving the distribution to be determined by the laws of intestate succession. It is impossible for him to know when he will die or who will be his heirs at law at the time of his death or what he will own or owe. Even if a person owes no debts and wants his estate to be distributed according to the laws of descent, it is better to leave a will saying this so his personal representative can dispense with many of the formalities and some of the expense connected with estate administration. The owner is much better acquainted than anyone else with the condition of his assets. A will is a necessity when the owner has an estate of considerable magnitude, particularly if it is heavily indebted. By a will the owner can give many valuable directions for the marshaling of his assets and for the payment of debts and devises. He can also take advantage of all of the exemptions and deductions that may be available under the estate tax laws.

A person should not wait until his last hours to make a will, when bodily pain and the fear of death may prevent a just disposition. It is a regrettable fact that testators often postpone making their wills until their hours are few and death is upon them. They then hurriedly try to dispose of the accumulations of a lifetime. This may be due to indifference, superstition, false economy, or procrastination. Whatever the cause, the results are usually the same – litigation among the heirs, waste of assets, and the promotion of family quarrels. If a will is to be made, the testator should employ a competent person to draft it rather than depend on his own efforts. If there is anything more conducive to litigation than intestacy, it is a will drawn by the testator himself.

Through the medium of a will, the law gives a person the privilege of reaching back from the unknown and controlling the accumulations he made while living. Yet many good businessmen who have been extremely cautious in their business dealings and particular in their personal affairs die without having made wills. Some even attempt to draft their own wills and dispose of the earnings of a lifetime. These same men would not attempt even one important business act without expert advice. The act of making a will, on which may depend the future happiness of their loved ones and the harmony of family relations, they attempt themselves. If men would make their wills in the midst of health, when their minds are at their best, much of the bitterness sometimes aroused in the distribution of estates would never appear, and many skeletons would remain undisclosed in family closets.

 

III.       Intestate Succession

1. Descent of property

If a decedent did not leave a will, then his property passes to his heirs by “intestate succession.” This merely means succession without a will. Property in Florida passing by intestate succession passes in accordance with Florida’s intestacy statute. Generally, the statute provides that property passes as follows:

• The surviving spouse of a decedent takes the entire intestate estate if the decedent has no lineal descendants who survived him.
• If there are lineal descendants surviving who are also the lineal descendants of the surviving spouse, the first $60,000.00 of the intestate estate plus one-half of the balance descends to the surviving spouse. The balance goes to the descendants.
• If there are lineal descendants who are not lineal descendants of the surviving spouse, the spouse receives one-half of the intestate estate and the descendants receive the balance.[9]
• The part of an intestate estate that does not descend to the surviving spouse and all of the intestate estate when there is no surviving spouse descends in the following order:
• to the lineal descendants of the decedent;
• to the decedent’s parents equally, or the survivor of them;
• to the decedent’s brothers and sisters and the descendants of deceased brothers and sisters;
• one-half to the decedent’s paternal and the other half to the decedent’s maternal kindred in the following order:
• to the grandfather and grandmother equally, or to the survivor of them;
• to the uncles and aunts and descendants of deceased uncles and aunts of the decedent;
• to such of the kindred as survived in the foregoing order, if there are no paternal kindred and no maternal kindred;
• to the kindred of the last deceased spouse of the decedent if the spouse survived the decedent, and then died intestate and entitled to the estate if there is no kindred of either part.

When none of the persons specified above survive, the property escheats to the state.

Descent is per stirpes. “Per stirpes” comes from the Latin meaning “by the root or stem.” In intestate succession and when used in wills, it means that persons related to the decedent in the same degree take equally and if such a person dies, that person’s descendants take their share in the same manner.

 

Homestead

Homestead is usually thought of as a real property doctrine, but it includes $1,000 of personal property as well. Other personal property that is not subject to devise or descent is called exempt property.

Homestead real property consists of not more than 160 contiguous acres of land outside municipal limits and one-half acre within municipal limits plus the improvements located on the land and without regard to value. Homestead is given to any natural person owning and residing on the property. Title to the property must be in the decedent. Any estate in land can be the subject of homestead, but an estate by the entirety in homestead is not subject to the constitutional limitation on devises.

The homestead section of the Florida Constitution covers two situations:

• First, it exempts the homestead from forced sale with some exceptions.
• Second, it limits the devise of homestead when the owner is survived by a spouse or minor child.

Neither of the homestead doctrines should be confused with the homestead exemption from taxation.

The importance of the exemption from forced sale in connection with the death of the owner is that the exemption inures to the surviving spouse and heirs. When the homestead is sold by the heirs, the proceeds are subject to creditor claims unless the heirs reinvest the proceeds in a homestead within a reasonable time.

The prohibition against devise of homestead can exist only if title to the property is in the decedent’s name alone. If the property is owned as an estate by the entirety (as husband and wife), homestead does not exist insofar as the prohibition is concerned (since the surviving spouse takes by operation of law as the surviving entireties tenant). A spouse can convey homestead property to the other spouse without the grantee’s joinder. Otherwise, the constitutional provision requires the joinder of the nontitle-holding spouse.

The following rules apply concerning the prohibition against devise of homestead:

• No devise of homestead property may be made if the owner is survived by a spouse or minor child.
• If there is no minor child, the homestead may be devised to the spouse.
• The spouse may waive homestead rights by agreement.
• When there is no spouse or minor child or the spouse has waived homestead rights, the testator may devise the homestead to anyone.
• If homestead is not devised as permitted by the Constitution, it descends in the same manner as other intestate property unless the decedent is survived by a spouse and lineal descendants. In that event the surviving spouse takes a life estate in the homestead with a vested remainder to the lineal descendants per stirpes in being at the time of the decedent’s death.
• The homestead owner cannot determine the extent of the homestead by devise nor avoid the constitutional prohibition by a living trust. A devise to a testamentary trust is questionable.

Other exempt property

The Florida Constitution exempts $1,000 of personal property from sale under process for every natural person.[10] The exemption inures to a decedent’s spouse and heirs, not will beneficiaries.

Other exemptions are granted by statute for property in a decedent’s estate. The exempt property passes to the surviving spouse and, if none, to the decedent’s children.  The property consists of:

• household furniture, furnishings and appliances in the usual place of abode not exceeding $10,000 in value at the date of death;
• all automobiles regularly used by the decedent or members of his immediate family as their personal automobiles;
• Florida Prepaid College Program contracts;
• Florida College Savings agreements; and
• benefits for teachers and school administrators.

This property is not exempt from security interests in it. It is exempt from other creditor claims and is in addition to homestead, statutory entitlements, and property passing under a will. It is excluded from the value of the estate before residuary, intestate, pretermitted, or elective shares are determined. If any of the property is specifically devised, it passes under the will. The devise is exempt from creditor claims if the devisee is the spouse or a child.

Wages, travel expenses, and unemployment compensation due after death may be paid to the surviving spouse, children over 18 years of age, or parents, in that order. The payments are not subject to administration, except for travel expenses exceeding $300.   Death payments and the cash surrender value under life insurance policies and disability income benefits are exempt from creditor claims unless the beneficiary is the decedent or his estate. Payments or distributions from employee benefit plans are exempt from creditor claims of the decedent and the beneficiary, except for qualified domestic relations orders, as are payments from the Prepaid Postsecondary Education Expense Trust Fund and many other public pension plans. These exemptions are not available if they result from a fraudulent transfer.

Elective Share

For decedents dying on or after October 1, 2001, the surviving spouse of a decedent domiciled in Florida has the right to elect to take 30% of the fair market value of the “augmented estate,” which is the probate estate plus all items of other property brought into it under the law.

In other words, the surviving spouse may elect to receive either:

• the assets the decedent devised and bequeathed to the surviving spouse in his will, or, if he did not make a will, the assets the probate court would distribute to her under the intestacy statute; or
• Thirty percent of the fair market value of the decedent’s augmented estate.

The elective share is in addition to homestead, exempt property, and family allowance.

The elective share can be waived by agreement.[11]

Community property

Decedents domiciled in Florida may have an interest in community property acquired in another jurisdiction, although Florida is not a community property state.[12] In 1992, the Florida Legislature enacted a statute to regulate the disposition of a decedent’s interest in community property.

Community property principles apply only to property owned by a married person. On death one-half of the community property is the property of the surviving spouse and is not subject to devise by the decedent. The other half is the property of the decedent and is disposed of as his property. The decedent’s half is not subject to the surviving spouse’s right to the elective share nor to community property invested in a Florida homestead.

Married persons may alter the status of community property as they choose.

Escheat

When a person dies and is not survived by any other person entitled to a part of the decedent’s estate, it escheats to the State. The doctrine of escheat is ancient and now means that the State receives the estate.

Advancements

An advancement is an irrevocable gift by a person who dies intestate as to his entire estate and given to an heir in anticipation of the heir’s future share of the intestate person’s estate. An advancement cannot exist unless the conditions at the time of the gift, if continued until the donor’s death, would entitle the donee to inherit. An advancement must be so declared in a contemporaneous writing by the decedent or acknowledged as such in writing by the heir. The value of an advancement is brought back into an intestate estate for distribution under the doctrine of hotchpot at the value at the time of the advancement. A debt owed to the decedent by an heir is charged against the intestate share of the debtor only. If the debtor predeceases the decedent, the debt is not taken into account in computing the intestate share of the debtor’s heirs.

Commencing Administration

Evidence of death

Evidence of death must be filed.

Evidence of death may be an authenticated copy of a death certificate of the official or agency of the place where the death occurred or of the United States or a copy of the record or report of a domestic or foreign state. The copy is prima facie evidence of death.

Death can be established by an action for declaratory judgment or by a proceeding to determine beneficiaries. Under the common law principle the expiration of time of unexplained absence automatically raised the presumption of death. The present statute has reduced the time from seven to five years.

Petition for administration

Administration of a decedent’s estate begins with filing the petition for administration by an interested person. If there is a will, it must accompany the petition. A search of the decedent’s safe deposit may be necessary. If so, a petition to do so must be filed and an order authorizing the entry must be obtained. The lessor of the box may permit the removal of any will, a burial plot deed, or funeral instructions by the person authorized and any life insurance policy by the beneficiary.

If the estate is testate, the will must be proved. Wills are proved by one of the following methods:

• Self-proved wills are admitted to probate without additional proof.
• Other wills require the oath of any attesting witness. Proof may be made before any circuit judge, clerk, or a commissioner appointed by the court.
• If the attesting witnesses cannot be found or have become incompetent or their testimony cannot be obtained in a reasonable time, the will can be probated on the oath of the personal representative or any other person who is not interested in the estate that he believes the writing to be the last will of the decedent.

This is the present equivalent of probate in common form.[13]

Notice of petition for administration

A petitioner may serve formal notice of the petition for administration on interested persons with a copy of any will offered for probate before probate and issuance of letters. If this is done, no person served with the notice before issuance of letters or who has waived notice may challenge the will, testacy of the decedent, qualifications of the personal representative, venue or jurisdiction unless the objections are raised in response to the notice. This is the present equivalent of probate in solemn form. This becomes an adversary proceeding if objections are made.[14]

Qualifications of the personal representative

The personal representative, commonly called the “PR,” administers the decedent’s estate, pays creditors, collects assets, pays any taxes, and distributes the remaining assets as required by the will or by law.

A personal representative is a fiduciary and is sometimes described as a trustee. He has the same fiduciary duty as a trustee. Any person 18 years of age or older may be appointed as personal representative, except a nonresident of Florida unless he is the adoptive child or parent of the decedent; related by lineal consanguinity to the decedent; the spouse, brother, sister, uncle, aunt, nephew, niece of, or someone related to any of them by lineal consanguinity to the decedent; or the spouse of a person otherwise qualified. In testate estates the following order of appointment, called preference, governs:

• the person designated in the will of the decedent;
• the person selected by a majority in interest of the persons entitled to administer the estate;
• a devisee under the will. If more than one applies, the court selects the best-qualified.

In intestate estates, the following preference governs:

• the surviving spouse;
• the person selected by a majority in the interest of the heirs;
• the heir nearest in degree. If more than one applies, the court selects the best-qualified.

The doctrine of executor de son tort has been abolished, but the liability of the wrongdoer is to the personal representative. An executor de son tort is one who, without authority, performs acts in connection with estate administration that are properly performed only by the personal representative. Such a person is liable for his intermeddling.

Issuance of letters of administration

Letters of administration are then issued to the appointee and he is the duly appointed and qualified personal representative of the decedent’s estate. He must file evidence of the decedent’s death within the time required by rule.

Bond

A bond may be waived by the testator in his will. This waiver is not absolutely binding on the court. Some courts automatically require bond in spite of the waiver and thus improperly ignore the statute. A bond, if waived, should not be required unless there is some just cause for it as, for example, the nonresidence of the personal representative.

An action on a personal representative’s bond is discussed in VII.L.

Notice of administration

After the appointment, the personal representative must promptly serve a copy of the notice of administration on the surviving spouse, the beneficiaries, the trustee of any grantor trust, and the persons who may be entitled to exempt property.

Notice to creditors

Unless creditor claims are barred by the two-year statute of limitations, the personal representative must promptly publish a notice to creditors.

The personal representative must make a diligent search to ascertain the names and addresses of creditors of the decedent who are reasonably ascertainable and serve a copy of the notice on them.

1. Administration of the Estate
2. Powers and duties generally

The basic duties of a personal representative are to collect the assets of the decedent, pay valid claims against him, pay administration expenses, pay taxes, and distribute the estate to the person or persons entitled to it.

The personal representative, unless he is the next of kin, does not have any rights in connection with the funeral arrangements or the disposition of a decedent’s body. This is vested in the surviving spouse, or, if there is none, in the next of kin. A person may provide for these matters during his lifetime and such directives supersede the rights of survivors.

One of the first and most important things for the personal representative to do is take charge of the decedent’s bank account, see to its transfer to the estate, and keep control of the account throughout probate administration.

In marshaling the assets of the decedent, the personal representative must:

• make a careful search of the decedent’s property to find assets. The personal representative should have some independent person, such as the attorney or his paralegal, accompany the personal representative. Some decedents hide money and other items. The personal representative must look under table lamps, in the pages of books, under pillows and mattresses, under paper lining in drawers, in chinaware and refrigerators, behind wall pictures, and in similar places;
• review all documents found and copy those that may be needed during administration;[15]
• inspect motor vehicles, boats, aircraft and real property;
• ascertain creditors from the documents found and from bills that are received after death;[16]
• inventory safe deposit boxes;
• review life insurance policies, keep those payable to the estate, and deliver others to the named beneficiary;
• notify the Social Security Administration of the death, and when appropriate, return checks received after death, and apply for death benefits;
• review medical bills and apply for medical and hospital benefits from insurance companies and, when applicable, Medicare;
• obtain a taxpayer identification number if any tax returns will be filed;
• notify any known beneficiary who wants to disclaim of the decedent’s death;[17]
• give notice of the fiduciary relationship to the Internal Revenue Service if tax matters will be involved;
• deliver property in the decedent’s possession, but that did not belong to him, to the owner;
• ascertain if there is a trust that is liable to pay estate obligations;
• take possession of securities and put them in a secure place;[18]
• notify casualty and liability insurers of the death and assure proper coverage for the estate property and the personal representative;
• take charge of the decedent’s mail;
• ascertain if there is pending litigation in which the decedent is a party;
• protect perishable assets;
• notify the Agency for Health Care Administration of the death of the decedent if he was 55 or older; and the Department of Children and Family Services if the decedent received public assistance;
• ascertain if the decedent had any partnership or limited liability company interests;
• ascertain if the decedent had claims against others; and
• carry on the decedent’s business.

The foregoing list is not definitive. Circumstances may require other duties.

Inventory

The first major duty of the personal representative is to marshal the assets and determine what property, wherever located, is in the decedent’s estate. An inventory must be filed within 60 days after issuance of letters.

The inventory must list the decedent’s property in reasonable detail and show the estimated fair market value at the date of the decedent’s death.[19]

A search of the decedent’s safe deposit box, if any, must be made. The personal representative must file a copy of the safe deposit box inventory and the box entry record for six months before the decedent’s death with the court. The personal representative must serve a copy on all interested persons. The procedure for inspection requires two of the following to inspect: the personal representative, his attorney, or an employee of the depository. The inspectors must sign the inventory.

Management of the estate

The duties in managing the estate depend on the amount and variety of assets and liabilities. Some of these may be to:

• retain the decedent’s assets, regardless of their suitability as fiduciary investments;
• abandon estate assets that are of no benefit to the estate;
• execute all instruments to effectuate administration;
• continue the decedent’s unincorporated business for four months if reasonable to preserve the business and thereafter with court approval.[20] The common law principle is that a personal representative who continues the business of the decedent is personally liable for the obligations of the business. He may indemnify himself for the obligation out of the estate assets. The personal representative must assure that all required licenses, tax returns, workers’ compensation insurance and fictitious name registrations are in order;
• invest funds not needed for current payments and invest and reinvest assets generally as required by the circumstances;[21]
• pay taxes, but without any requirement to pay ad valorem taxes unless directed to do so by the will;
• dispose of nonproductive or depreciating property;
• insure the estate assets. The personal representative must review the decedent’s insurance and assure that the insurable assets are adequately insured for all risks for which insurance is usually obtained. Otherwise, he may be personally liable for any loss;
• insure the estate for public liability;
• employ agents and consultants. The personal representative must retain an attorney unless he is the only interested person. He may retain any qualified attorney even though the will names another.
• search for heirs in an intestate estate. Reasonable diligence in the search is required;
• comply with a direction in the will to change assets from one form to another. The doctrine of equitable conversion applies. The interested devisees have the benefit of the doctrine of reconversion to elect to take the property in its original form;
• file interim accountings if the estate administration will be protracted;
• participate in partnerships, limited partnerships, limited liability companies, and other business entities;[22]
• perform the decedent’s executory contracts not of a personal nature;
• serve the notice of administration on interested parties;
• petition for family allowance;
• assist family members to collect life or burial insurance;
• review all medical bills with insurers and, if applicable, Medicare;
• obtain, if needed, tail coverage on errors and omissions insurance;
• collect all debts due the decedent;
• notify any devisee who may want to disclaim;
• ascertain if there is any pending litigation to which the decedent is a party and take appropriate proceedings; and
• give notice to creditors and arrange proper payment of claims against the estate.

Claims procedure

One of the personal representative’s duties is to pay the decedent’s valid debts. The personal representative must diligently search to determine the names and addresses of creditors who are reasonably ascertainable and serve a copy of the notice to creditors on them. Some of the items constituting a diligent search are:

• examining all bills (mail delivery should be changed);
• asking all credit card companies for final bills;
• reviewing the decedent’s checking account to ascertain regular check payees;
• inquiring of friends and family of the deceased;
• obtaining a search for judgments from a title company; and
• asking known healthcare givers about others.

All claims and causes of action against the estate, any personal representative, or any beneficiary are barred two years after the death of the decedent, except for a claimant who timely filed a statement of claim within the two-year period.

The personal representative must pay all claims within one year after the first publication of the notice to creditors.

Assets in a grantor trust are liable for creditors’ claims if the estate is insufficient to pay them.

Personal representatives and agents’ compensation

The Florida Legislature has established statutory fees for attorneys and personal representatives. The statute utilizes a percentage of the value of the estate formula. The percentage is presumptively proper for ordinary services.

In addition to the percentage compensation for ordinary services, a personal representative is entitled to reasonable compensation for extraordinary services, such as the sale of property, the conduct of litigation, involvement in tax proceedings, and carrying on of the decedent’s business or dealing with homestead.

The attorney is also entitled to additional reasonable compensation for extraordinary services, such as probate litigation, tax proceedings, tax advice in postmortem tax planning, participation in reviewing or preparing tax returns, transactions involving real property, advice concerning carrying on the decedent’s business or other commercial activity, environmental legal advice, homestead legal advice, probate compensation disputes, and ancillary administration.

Payment of all claims

The personal representative normally must pay all claims within one year from the date of first publication of the notice to creditors.

Liability of a personal representative

A personal representative is not personally liable for his acts and omissions in the performance of his duties, except:

• when otherwise provided by his contract executed in his fiduciary capacity;
• in contract when he fails to reveal his representative capacity and identify the estate;
• for obligations arising from ownership or control of the estate if he is personally at fault;
• for torts committed in estate administration if he is personally at fault; and
• on a contract for attorney fees.

Claims or demands against the estate may be made against the personal representative in his fiduciary capacity whether or not he is personally liable. Issues of liability between the estate and the personal representative personally are determined in an appropriate proceeding, including one for accounting, surcharge, or indemnification.

Taxes

The United States has an estate tax that applies to all assets of a decedent in this country. Florida has a tax that accepts the federal credit granted to states under the federal tax. There is no pecuniary or additional State tax.[23] Most other states tax a decedent’s assets having a taxable domicile in that state. The personal representative must file estate or inheritance tax returns required by any of these jurisdictions. If the decedent has assets in a foreign country, they may be taxable there. If ancillary administration is required, the state returns are filed by the ancillary personal representative.

If the estate is taxable, a copy of the federal estate tax return is filed at the proper time with the Department of Revenue and the tax due under the federal credit is paid. When the federal tax is settled, a copy of the settlement documentation is also filed with the Department, and the final tax computed and paid or refunded, as appropriate. The personal representative must file a notice in the probate file that an estate tax return is due for the estate. If the estate tax return shows no tax due the State, or that the tax has been paid, a certificate is issued by the Department of Revenue to that effect and filed in the probate proceeding or recorded in Official Records when there is no probate proceeding to clear the assets from any estate tax lien or liability. If no return was due, the personal representative made an affidavit to that effect on a form provided by the Department of Revenue. The affidavit was filed in the probate proceeding or recorded in Official Records in the same manner as the certificate. The lien for the estate tax lasts for 12 years. The personal representative is personally liable for payment of the estate tax.

The United States estate tax is imposed on estates that exceed $2,000,000 in 2006 through 2008. There are a number of exemptions and deductions available in computing the tax and many property interests are included in the taxable estate that are beyond the scope of this article.

The same duty applies concerning federal, foreign states, and foreign countries on income taxes due in those jurisdictions during administration. Florida does not impose an income tax on decedents’ estates. The personal representative may have to file the decedent’s last due federal income tax return and pay the tax.

Florida imposes personal property taxes for which returns must be filed. Real property taxes do not require a return. Other taxes may be imposed on the continuation of a business, most often the sales tax that must be collected by the business even though the customer pays it. Business taxes may also include unemployment compensation, gross receipts, occupational licenses and others applicable only to special types of businesses. Other states having jurisdiction over estate assets may require returns and payment by the personal representative of taxes imposed by that state.

1. Devises
2. Types of devises

There are four types of devises – specific, general, demonstrative, and residuary. A specific devise is a testamentary gift of particularly designated property.[24] General devises are not limited to specific property for their satisfaction. Demonstrative devises are general devises to be satisfied from designated funds or property. To the extent that the devise cannot be satisfied from the designated source, the devise is an ordinary general devise. Residuary devises are general devises of the remaining assets of the estate after all other devises, statutory allowances, administration expenses, claims, and taxes are paid.

A gift of money is general, not specific, unless the gift specifies a particular cash asset to be the gift. A gift of money to be paid from a designated fund or source is a demonstrative devise. If the fund or source does not exist on the testator’s death, the devise is treated as a general devise. A devise of a certain number of shares or bonds issued by a specified issuer is a general devise.[25]

A major distinction between specific and general devises is that the specific devisee has no claim against the estate if his gift is disposed of by the testator, partly or wholly, during the testator’s life or if the asset cannot be located. Specific and demonstrative devises do not abate with general devises. A devise is presumed to be general, rather than specific, unless the will provides otherwise.

Abatement and contribution

Abatement is the reduction or exhaustion of a devise because the estate is insufficient to pay all claims, taxes, administration expenses, statutory allowances, and devises. In that event devises abate pro rata to make good the deficiency in the following order:

• intestate property;
• residuary devises;
• general devises, excluding those that are demonstrative;
• demonstrative and specific devises.

When property that is the subject of a specific or demonstrative devise is used by the personal representative in the abatement process, other devisees must contribute pro rata to the specific or demonstrative devisee whose devise was taken. The court determines the amount of the respective contributions. The contributions are paid or withheld before distribution. Contribution from a grantor trust is applied as though the governing instruments, if any, of the estate and the trust are a common instrument.

If the estate assets are exhausted, a creditor may enforce his claim against any devise that has been distributed. An adeemed devise is not subject to a creditor’s claim unless the creditor had a judgment against the decedent at the time of the ademption.[26]

Ademption

Ademption occurs when a testator, after making his will, disposes of the property specifically devised to the devisee in the place of the devise, either expressly or impliedly, or disposes of the property to a third person and does not obtain it again before the testator’s death or otherwise places it beyond the power of the personal representative to deliver the property as a devise. Only specific devises can be deemed. A distribution intended by the testator to be applied in reduction of a general devise is a satisfaction rather than an ademption. Ademption abates the gift in the will.

Ademption also occurs when gifts are made after the execution of a will to a child named in the will in anticipation of the child’s future share of the parent’s testate estate.

1. Advancements

An advancement is property given by an intestate during his life to an heir as part of the heir’s share in the intestate’s estate. An advancement only occurs if the decedent declares it or a beneficiary acknowledges it as such by a contemporary writing. The related doctrine of hotchpot is the bringing into an intestate estate the value of the advancements made by the intestate to his children so the whole can be distributed in accordance with the statute of descent. The decedent must die completely intestate because the doctrine of advancements is based on a presumption that the decedent intended his children to share equally in his estate. Applying the doctrine to a testator would destroy the will.

Hotchpot is the method by which the presumed intent of the decedent is accomplished. All property received by a child is brought back into the estate and distributed in accordance with the statute of descent. Advancements are deducted from the intestate share of the recipient. If a person refuses to bring his gift into hotchpot, he may not participate in the distribution of the decedent’s property.

Lapsed and void devises

A lapsed devise does not vest in the devisee because:

• the devisee dies before the testator;
• the devisee dies before his interest in the devise vests; or
• the devise is prohibited by law.

A devise does not always lapse. The present statute provides that if the devisee is a grandparent of the testator or a lineal descendant of a grandparent and is dead at the time the will is executed, or predeceases the testator, or is required by the will or operation of law to be treated as if he predeceased the testator, then the descendants of the devisee take the devise per stirpes in his place. A person who would have been a devisee under a class gift if he survived the testator, whether he died before or after the will was executed, receives the benefit of this antilapse provision.[27]

Otherwise, a devise lapses unless the will or law substitutes another person. The death of the life tenant des not cause a lapse of the remainder.

A lapsed devise becomes a part of the residue of the estate. If the residue, or part of it, lapses, the lapsed part passes as intestate property.

A void devise is one that was prohibited when the will was made or became so afterward.

A disclaiming devisee must ascertain that the will or antilapse statute protects his intent in disclaiming so that no unintended result occurs.

Devises to minors

A devise to a minor in excess of $15,000 requires appointment of a guardian of the property for the minor unless the devise is given to the minor under the Florida Uniform Transfers to Minors Act. Devises of less can be distributed to the parents as natural guardians. There is no exemption statute for personal representatives in distributing to a minor so evidence of the guardian’s appointment or parental status should be required by the personal representative before distribution.

A devise to a custodian under the Transfers to Minors Act avoids the need for a guardianship or a trust. It is an effective method of handling such gifts if the custodian is capable and trustworthy, particularly when the value of the gift does not justify a trust.

VII.      Adversary Proceedings

1. Will Contests

Revocation of probate is the usual form of a will contest. Revocation can be sought when a will or codicil has been admitted to probate and the will:

• is not executed with the formalities required by law;
• is executed by a testator who is not competent to do so;
• is executed as a result of undue influence, fraud, duress, or mistake; or
• has been revoked by the testator.

The probate judge should not admit a will to probate that shows improper execution on its face. The usual basis for this ground for revocation is that the witnesses and testator were not all together when the will or codicil was executed.

A testator must have the mental capacity to understand what he is doing with his property when he executes a will or codicil. This entails a comprehension of his property, the persons who are beneficiaries, and how the instrument affects the property and the beneficiaries. He may be declared incompetent, but if he comprehends these matters at the time he executes the will, it is sufficient. This is the lucid interval doctrine. Vacillating judgment, old age or faulty memory, illness, use of drugs or alcohol, eccentricity, or peculiarity in appearance and behavior, or penuriousness, passion or prejudice alone are not a basis for revoking probate. All must be accompanied by a lack of testamentary capacity as defined. If the lack of capacity is found, the entire will or codicil is invalid.

Undue influence has no precise definition. It is determined in each factual situation. The conduct of the person allegedly exercising undue influence must be of such a degree that the conduct overrides the testator’s discretion and destroys his free will. Fraud as an independent basis for revocation of a will is rarely discussed in Florida decisions, except in conjunction with undue influence, but there is a distinction between the two.[28] Mistake does not contemplate those of the scrivener. Mistake means the testator executed the wrong will. Duress, like fraud, is usually discussed in combination with undue influence. Forgery is a basis for revoking probate. A number of factors are considered in deciding whether undue influence was exercised.[29] The grounds of undue influence and testamentary incapacity may be joined, although undue influence usually concedes testamentary capacity.

Creditors’ claims

The procedure for filing creditors’ claims is discussed in V.D.

Determination of beneficiaries

When the personal representative is in doubt about who is entitled to receive the estate, or part of it, or the shares or amounts any person is entitled to receive or when it is necessary to determine who are or were the heirs or devisees of a decedent, regardless of whether an estate is or has been administered, the personal representative or any interested person may petition for a determination of the matter in a pending probate proceeding.

Removal of personal representative

Any interested person may petition for removal of the personal representative or the court may remove him. The petition must allege the petitioner’s interest and facts constituting one of the statutory grounds for removal.[30]

Proof that continuing the tenure of the personal representative will result in an actual loss to the estate must be shown.

If the evidence shows a loss to the estate, the personal representative may be surcharged. The standard of care for the personal representative is that of a trustee.

Construing the will

When the provisions of a will are vague or inconsistent, a petition to construe the will or a part of it, may be filed.

In construing a will, the testator’s intent is controlling and all admissible evidence relating to the intent should be heard. The intent must be ascertained from the entire instrument and not from isolated parts of it.

If a will contains ambiguities or conflicting provisions, the testator’s situation when he made the will, the ties that bound him to the objects of his beneficiaries, the motives that prompted him to make the will, and the influences wrought on him at the time may be considered in arriving at his intention.

Elective share

The substantive aspects of elective share are discussed in III.D.

As a condition precedent to a proceeding for determination of the elective share, the spouse of the decedent, the spouse’s attorney in fact, or the spouse’s guardian of the property must file the election within six months from the date of the first publication of the notice of administration, or two years from the date of death of the decedent, whichever occurs first.

Homestead

The substantive aspects of homestead are discussed in III.B.

Homestead is created by the Constitution. Homestead is not a part of the decedent’s estate if the decedent is survived by a spouse or minor child because it cannot be devised, except to a spouse when there is no minor child.

As a result, probate courts are limited to determining whether property is homestead in a probate proceeding. If it is, the Constitution and statutes say what happens on death. If it is not a homestead, it is a part of the decedent’s estate and subject to probate administration.

A verified petition to determine a homestead can be filed by any interested person.

The personal representative can incur liability if homestead status is not determined, particularly when the homestead is devised and there are unpaid creditors.

Wrongful death claims

If a decedent’s death was caused by the wrongful act of a person, the personal representative has a duty to pursue the claim.

Compensation contests

Any interested person may file a petition to review the propriety of the employment of any person employed by the personal representative and the reasonableness of the personal representative or the employed person.

Partition

Probate courts have the authority to partition property to accomplish distribution. The proceeding is begun by a petition filed by the personal representative or a beneficiary.

Compulsory distribution

A beneficiary who wants the distribution of his devise before the personal representative is required to distribute it may file a petition to obtain the devise.

Breach of duty and surcharge

Any interested person may assert a claim against the personal representative for a breach of duty and to surcharge him by a petition in the probate proceeding. The personal representative’s standard of care is that of a trustee. The breach of that duty may be asserted in a surcharge, accounting, indemnification, breach of bond, or other proceeding.[31]

Interference with expectancy

Interference with an expectancy is an actionable tort. For an expectancy to exist, the decedent must have had a fixed intent to make a gift inter vivos or at death by will or by trust to the claimant. The remedies include damages, restitution, equitable liens and imposition of a constructive trust. The action may be brought before the testator dies.

Establishment of lost or destroyed will

An interested person may file a petition to probate a lost or destroyed will. The remedy is to prevent a spoliator of a will from profiting from his wrong.[32]

The contents of the will must be proved by at least two disinterested witnesses if there is no copy of the will. If there is a correct copy, one witness suffices.[33] Declarations of the testator are admissible to prove the contents of the will. There is a presumption of revocation when no will is found. The presumption does not apply if the will was kept by the testator’s attorney. Evidence of access by persons with an adverse interest in destroying the will may overcome the presumption of revocation. Evidence of access by persons with an adverse interest in destroying the will may overcome the presumption of revocation.

Reconstruction of will

A will that has been altered after execution can be reconstructed. The reconstruction replaces the spurious or altered parts of the will with the original or corrected parts. Any interested person may file a petition for this purpose.

Revocation of letters of administration

Letters of administration can be revoked, as distinct from probate revocation, and the personal representative removed, when the letters were improperly issued. This usually occurs when the statutory preferences are not followed in intestate estates or when a later will is probated naming a different personal representative.

A later will cannot be offered for probate after discharge.

Other proceedings

Personal representatives can be parties to all types of civil actions that are independent of the probate proceeding.

Exempt property is set aside on a verified petition to do so filed within four months after the first publication of the notice of administration or within 40 days after termination of any proceeding involving the validity of the will or affecting exempt property. The determination is usually uncontested.

A pretermitted spouse or child may have a right to a part of a decedent’s property. If so, a petition to determine the rights of the pretermitted person must be filed alleging the standing of the petitioner and the grounds for the claim. [34]  Usually, The proceeding is not contested unless there is a marital agreement in the case of a spouse. A spouse or child can become pretermitted if a will executed after marriage or birth that provides for the person is adjudged invalid.

The personal representative or an heir or devisee of a decedent can file an action to perfect title to community property.

A cause of action in favor of a surviving spouse for transfer of assets based on fraud of the deceased spouse no longer exists.

If an heir or devisee has renounced his interest in the estate during the decedent’s life for a consideration and seeks to renege on the agreement, the personal representative has an obligation to contest the matter.

If the custodian of a will refuses to produce it on the decedent’s death, the custodian can be compelled to do so. Any interested person can file a petition to produce the will and have formal notice served on the custodian.

VIII.     Distribution

A personal representative has a duty to promptly settle an estate and to distribute the assets. He may not be required to distribute any assets until after five months from his appointment.

Special procedures for distribution

Death benefits, such as but not limited to life insurance, employee benefit plans, annuities, endowments, and health and accident policies, or payable to a trustee under a living trust or a testamentary trust, are paid to the trustee and are not available to pay taxes, debts, or other charges enforceable against the estate to any greater extent than if paid directly to the trust beneficiaries.

The decedent’s share in a tenancy in common is a part of his estate and is administered in the same manner as other assets.

In contrast, the following assets do not pass through the estate and are not a part of it:

• joint tenancy and entirety property;
• joint checking, savings survivorship, and pay on death accounts;
• life insurance proceeds payable to designated beneficiaries;
• employee benefits payable to designated beneficiaries;
• remainder interests in trusts; and
• motor vehicles are distributed pursuant to statutory procedures as are vessels.

Social security benefits terminate on death, except for the lump sum death benefit. The monthly payment received after death should be returned. The surviving spouse and other survivors entitled to the lump sum or continued payments should be told to apply promptly to the nearest Social Security Administration office to obtain their entitlement. A similar procedure should be followed with the Department of Veteran Affairs if the decedent was a veteran. Both types of claims must be made within two years of death.

Final Accounting

A personal representative is required to file a final accounting after he has completed administration of the estate.

Discharge

At the time the personal representative files his final accounting, he also files a petition for discharge.

When the personal representative has completed distribution, he files the heirs’ or devisees’ receipts or other evidence of distribution and evidence that creditors’ claims have been disposed of. The court then enters an order of discharge. The order of discharge releases the personal representative as such and individually, and his surety, if any, from all liability for the administration of the estate, but the bar is not absolute. The principle is that full disclosure activates the statutory bar, but concealment of any matter does not.[35]

VIII.     Other Probate Proceedings

• Summary administration

Summary administration is designed for small estates in which the creditors’ claims are paid by the heirs or devisees or the claims are barred and there is no dispute about the disposition of the assets. It is available when:

• the value of the estate, subject to Florida administration and less the value of property exempt from creditors’ claims, is $75,000.00 or less; or
• When the decedent has been dead for more than two years.

Disposition without administration

When a decedent leaves personal property that is exempt by statute or under the Constitution and nonexempt property not exceeding the amount of preferred funeral expense and reasonable and necessary medical and hospital expense for the last 60 days of the last illness, a person entitled to the property may apply informally to the court for transfer of the property to him. If the court is satisfied that the applicant is entitled to the property, the court may authorize delivery or transfer of the property to the applicant.  The authority is given by a writing under the clerk’s seal.

Motor vehicles and vessels can be transferred without administration by furnishing the Department of Motor Vehicles and Highway Safety or the Department of Natural Resources, as appropriate, with their required forms for transfer.

Ancillary administration

Estate administration in the state of the decedent’s domicile is called domiciliary.  Administration in another jurisdiction is called ancillary. Administration in Florida of a nonresident’s estate is ancillary administration.

Foreign probate proceedings are not binding on Florida courts, at least insofar as real property is concerned, and so an ancillary proceeding is always required when the decedent owned real property in Florida.

[1] If the contract is to provide care or do something else for the decedent during the decedent’s lifetime, performance is still required just as in any other contract. If the contract is a mutual agreement to make wills, the performance occurs when the wills are made.

[2] See Via v. Putnam, 656 So.2d 460 (Fla. 1995), which gives a subsequent spouse priority over children for elective share and pretermitted share.

[3] See In re Estate of Rowland, 504 So.2d 543 (Fla. 4^th DCA 1987), in which the will contained irrevocability language and was enforceable in chancery.

[4] See In re Schiele’s Estate, 51 So.2d 287 (Fla. 1951) on treating the notary as witness and Bain v. Hill, 639 So.2d 178 (Fla. 3d DCA 1994) on a witness signing before the testator; see Bain on the “end” of the will. See In re Williams’ Estate, 182 So.2d 10 (Fla. 1965) for executing by an “x.” See In re Estate of Charry, 359 So.2d 544 (Fla. 4^th DCA 1978) on the witnesses signing only the self-proving affidavit.

[5] Examples of revocation by this method are physical destruction in In re Griffis’ Estate, 330 So.2d 797 (Fla. 4^th DCA 1976); obliterating the notarial seal by the word “void” and writing “(date) I myself declare this will null and void of sound mind …” with the signature of the testator in In re Estate of Dickson, 590 So.2d 471 (Fla. 3d DCA 1991) in which the court overlooked cancellation in favor of obliteration; cutting out the signature of the testator and the witnesses in In re Wider’s Estate, 62 So.2d 422 (Fla. 1952); writing the word “Cancelled” across two paragraphs of the will in Leighton v. Harmon, 111 So.2d 697 (Fla. 2d DCA 1959). An example of an insufficient destruction or obliteration is when an unsigned photographic copy is destroyed in In re Estate of Tolin, 622 So.2d 988 (Fla. 1993).

[6] For example, bankruptcy, condemnation, or foreclosure.

[7] Witnesses are not required on agreements executed before January 1, 2002 or if the agreement was executed out of Florida and are valid where executed.

[8] Testamentary trusts because they are part of a will and living trusts because of Fla. Stat. § 737.111.

[9] A pretermitted spouse takes the entire estate when there are no lineal descendants, regardless of a will.

[10] The exemption for the debt of the decedent, not the beneficiary.

[11] See II.I on marital agreements.

[12] Florida is full of residents who have relocated. If they previously lived in a community property state, they may own community property. Community property states are Arizona, California, Hawaii for a time, Idaho, Louisiana, Michigan for a time, Nebraska for a time, Nevada, New Mexico, Oklahoma for a time, Oregon for a time, Texas, Washington, and Wisconsin. Efforts are continuously made to push Florida marital property toward community property.

[13] See IV.C, for the present equivalent of probate in solemn form.

[14] See IV.B, for the present equivalent of probate in common form.

[15] This helps discover assets and potential claims.

[16] Survivors should be told not to pay bills but to deliver them to the personal representative or his attorney.

[17] The crucial time period is nine months to file the disclaimer.

[18] Do not change the name into that of the personal representative; it simply makes double work at distribution.

[19] A decedent’s interest in a partnership is not subject to administration. See V.C n.20. Unpaid wages and travel expenses are paid directly to the surviving spouse or children over 18 years of age. Unemployment compensation is paid similarly. Neither is subject to administration. Life insurance proceeds are paid to the beneficiary, unless the beneficiary is the estate. Joint bank accounts with right of survivorship are not estate assets. A Totten trust is not an estate asset. A decedent’s interest in a grantor trust is not an estate asset.

[20] The personal representative is not an insurer of the success of the business. In a partnership the articles of partnership or the limited partnership agreement usually provide for procedure on death.

[21] The prudent investor standard applies to personal representatives. The personal representative may delegate investment decisions under certain conditions and after notice to all beneficiaries.

[22] In a partnership a deceased partner is disassociated on death. This does not require dissolution of the partnership unless the partnership agreement so provides. The remaining partners must arrange a purchase of the decedent’s interest unless they dissolve the partnership. If the partnership is dissolved, its business is wound up, creditors paid and any excess distributed to the partners and any loss made up by them. In a limited partnership the personal representative takes the place of the deceased partner in settling the estate. The partner’s rights depend on the limited partnership agreement. The statute authorizing registered limited liability partnerships does not provide for the death of a partner. The personal representative of a deceased member of a limited liability company may exercise all of the decedent’s rights in settling the estate. The company is dissolved by the death unless all surviving members agree to continue the business or do so under a right retained in the articles of organization. In a dissolution the company is wound up by collecting its assets, paying its debts and distributing any excess assets to members as required by the articles of organization or the regulations or, absent any such provisions, by the statute.

[23] The Florida tax is sometimes called a piggyback tax.

[24] For example, a gift of “my diamond bracelet” or “my ten shares of General Electric Stock, Certificate G-45687” or “Lot 10, Block A, of Gulf Acres.”

[25] The devise is specific when “my” is placed before the devised description.

[26] The devisee may require contribution from other devisees for the lien of a judgment obtained during the testator’s life. Enforceability requires filing a statement of claim.

[27] The statute does not apply to a spouse so as to prevent lapse on that spouse’s death before the testator. A gift to a class cannot lapse as long as any member of the class survives the testator.

[28] Fraud is practiced by misrepresentation and deceit. Undue influence coerces the testator into acting contrary to his wishes.

[29] Examples are declarations of the testator prior to execution of the will in Hopkins v. McClure, 45 So.2d 656 (Fla. 1950) and In re Deane’s Estate, 153 So.2d 26 (Fla. 3d DCA 1963); an unnatural disposition of the estate in In re Donnelly’s Estate, 137 Fla. 459, 188 So. 108 (Fla. 1938); a confidential relationship combined with active procurement of the execution of the will in Theus v. Theus, 119 Fla. 190, 161 So. 76 (Fla. 1935) and Marquette v. Hathaway, 76 So.2d 648 (Fla. 1954); immoral relations between the testator and a beneficiary in Norton v. Clark, 253 Ill. 557, 97 N.E. 1079 (Ill. 1912); participation in the preparation and procurement of execution of the will in In re Estate of Carpenter, 253 So.2d 697 (Fla. 1971), in which certain of the criteria are listed; but cf. Raimi v. Furlong, 702 So.2d 1273 (Fla. 3d DCA 1997) and Derovanesian v. Derovanesian, 857 So.2d 240 (Fla. 3d DCA 2003); alcohol use plus other matters in In re Palmer’s Estate, 48 So.2d 732 (Fla. 1950). Examples of insufficient acts or circumstances are care and affection given to the testator by children in In re  Estate of Yelvington, 280 So.2d 497 (Fla. 1^st DCA 1973); spousal influence in In re Knight’s Estate, 108 So.2d 629 (Fla. 1^st DCA 1959); and kindness in In re Estate of Bailey, 122 So.2d 243 (Fla. 2d DCA 1960).

[30] All of the grounds require a specific fact, except wasting or other maladministration of the estate and the holding of an adverse interest. Examples are failure to defend a creditor’s action in In re Estate of Freedman, 180 So.2d 370 (Fla. 3d DCA 1965); irreconcilable conflict between co-personal representatives in Henderson v. Ewell, 111 Fla. 324, 149 So. 372 (Fla. 1933); failure to personally take charge of administering the estate in Laramore v. Laramore, 64 So.2d 662 (Fla. 1953). Examples of adverse interests are filing a claim against the estate in Kolb v. Levy, 104 So.2d 874 (Fla. 3d DCA 1958); an interest as a survivor in the allocation of proceeds of a wrongful death action between the estate and survivors in Continental National Bank v. Brill, 636 So.2d 782 (Fla. 3d DCA 1994); holding certificates of deposit creating Totten trusts with the decedent in In re Estate of Bell, 573 So.2d 57 (Fla. 1^st DCA 1990). The decision about the degree of adversity sufficient for removal is subject to judicial discretion under Padgett v. Estate of Gilbert, 676 So.2d 440 (Fla. 1^st DCA 1996).

[31] The action is called devastavit when brought against the personal representative personally for the benefit of the estate. The cause of action may be statutory, ex contractu, or ex delicto, hence the general statement of the necessary allegations. Examples of causes of action are an accounting for income of a citrus grove in Anderson v. Northrop, 44 Fla. 472, 33 So. 419 (Fla. 1903); release of an estate claim without consideration in University Medical Center v. Zeiler, 625 So. 2d 120 (Fla. 5^th DCA 1993); an unauthorized mortgage on estate property in favor of the personal representative in Brake v. Murphy, 636 So. 2d 72 (Fla. 3d DCA 1994); civil conspiracy in Blatt v. Green, Rose, Kahn & Piotrkowski, 456 So.2d 949 (Fla. 3d DCA 1984); failure to rent an estate-owned condominium in In re Estate of Feldstein, 292 So.2d 404 (Fla. 3d DCA 1974); failure to liquidate assets in compliance with will directions in National Society for Prevention of Blindness v. Parson, 374 So.2d 531 (Fla. 4^th DCA 1979); personal benefit to the personal representative in the sale of the decedent’s business in In re Estate of Corbin, 391 So.2d 731 (Fla. 3d DCA 1980); failure to object to a creditor’s claim in In re Estate of Freedman, 180 So.2d 370 (Fla. 3d DCA 1965). However, the personal representative is not an insurer of the success of an estate-owned business under First Trust & Savings Bank v. Henderson, 101 Fla. 1437, 136 So. 370 (Fla. 1931) or against a decrease in value of estate assets under Fulton v. First National Bank of Fort Myers, 290 So.2d 498 (Fla. 2d DCA 1974).

[32] See II.H, n.5 on revocation methods.

[33] The correct copy referred to in the statute means an exact copy, such as a carbon or photographic copy.

[34] This can also be done as a petition to determine heirs or beneficiaries.

[35] § 733.901(2), Fla. Stat. The statute does not bar an action for fraud by the personal representative in concealing the value of estate assets under Karpo v. Deitsch, 196 So.2d 180 (Fla. 3d DCA 1967), or when an estate asset has been given away without disclosing the fact to devisees under Van Dusen v. Southeast First National Bank, 478 So.2d 82 (Fla. 3d DCA 1985).