4.04.25 Decedent's Estates

Does your state use terminology different from that provided in 4:04.1 of the Underwriting Manual? If so, please identify and define such terms. Provide statutory citations.

No.

Is there a statutory time limit for (a) probating a decedent's will, or (b) opening administration of an Intestate's estate? If so, specify for both situations. Provide statutory citations.

No, but an estate can be closed after a year fue to inactivity.

Does the disposition of property under the laws of intestacy depend upon any of the following classifications of property or rights in property: Community, separate, tenancy by the entirety, dower, curtesy, etc.? If so, summarize. Provide statutory citations.

Yes. Pursuant to Section 689.15 of the Florida Statutes, Florida recognizes tenancy by the entirety. If property is held by the entireties, the property, upon the death of one spouse, automatically vests in the surviving spouse.

Florida also recognizes elective share in the surviving spouse pursuant to Section 732.201 of the Florida Statutes. Section 732.2055 provides that the surviving spouse is allowed an elective share for real property except homestead and real property held as tenants by the entirety which is located in this state and which (a) was acquired with rents, issues or income of the proceeds from or in exchange for property acquired as or which became and remained community property under the laws of another jurisdiction, or (b) is traceable to that community property. Under Section 732.219 of the Florida Statutes, on the death of a married person, one-half of the property subject to elective share is the property of the surviving spouse and is not subject to testamentary disposition by the decedent or distribution under the laws of succession of this state. The other one-half of that property is the property of the decedent and is subject to testamentary disposition and distribution under the laws of succession of this state. The decedent's one-half of the property is not subject to the surviving spouse's right to elect against the will. Pursuant to Section 732.222 of the Florida Statutes, if a personal representative or an heir, devisee or decedent has apparent title to the property to which the elective share applies, a purchaser for value or a lender taking a security interest in the property takes his interest in the property free of any rights of the surviving spouse.

Does your state recognize joint tenancies? If so, describe the procedure necessary to pass title held in joint tenancy upon the death of a joint tenant. Provide statutory citations.

Yes. Pursuant to Section 689.15 of the Florida Statutes, Florida recognizes both tenancy by the entirety between a married couple and joint tenancy with rights of survivorship. In order to establish a joint tenancy of survivorship, the deed must specifically state that there is a right of survivorship. Upon death, the property automatically vests in either the spouse or surviving tenant.

Does your state provide for any special benefits to a surviving spouse or family that allow them to take property contrary to will provisions? Provide statutory citations.

Yes. Article X, Section 4(b) of the Florida Constitution recognizes homestead property. Homestead property is defined as the primary residence of the decedent. The decedent cannot devise homestead property if he or she is survived by a spouse or a minor child. The only exception is if the decedent is survived by a spouse and no minor child, the decedent can devise the property to his or her surviving spouse. If the decedent is survived by a spouse and lineal descendants and the property is not devised to the spouse, the spouse takes a life estate in the property and the lineal descendants take the remainder. If the decedent is not survived by a spouse but is survived by a minor child, then the minor child and any other lineal descendants take the property in equal shares.

Pursuant to Section 732.403 of the Florida Statutes, Florida also recognizes a family allowance. If the decedent was domiciled in Florida at the time of his or her death, the surviving spouse and the decedent's lineal heirs whom the decedent was obligated to support or who were, in fact, being supported by him, are entitled to a reasonable allowance in money out of the estate for their maintenance during the administration. After notice of hearing, the court may order this allowance to be paid as a lump sum or periodic installments. The allowance may not exceed a total of $6,000.00.

Summarize the steps required for a testate administration. Provide statutory citations.

A testate administration is begun pursuant to Section 733.202 of the Florida Statutes by filing a petition for administration. A petition for administration may be filed by any interested party and shall contain the following:

  • A statement of interest of the petitioner, his name, address, and the name and office of his attorney.

  • The name, last known address, social security number, and date and place of death of the decedent, and the state and county of the decedent's domicile.

  • So far as known, the names and addresses of the beneficiaries and the relationship to the decedent and the dates of birth of any who are minors.

  • A statement showing venue.

  • The priority under Section 733.301 of the Florida Statutes of the person whose appointment as the personal representative is sought and a statement that he is qualified to serve under the laws of Florida.

  • If the decedent was a non-resident of Florida, the petition must state whether the domiciliary or principal proceedings are pending in another state.

  • A statement of the approximate value and nature of the assets of the estate.

  • Identify all unrevoked wills and codicils being presented for probate and must state that the petitioner is unaware of any other unrevoked will or codicil or, if the petitioner is aware of any other unrevoked wills or codicils, the petitioner shall state what other wills or codicils are not being probated.

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

    • Step 2

      The court will enter an order admitting the will based on the petition for administration.

    • Step 3

      The court will enter letters of administration appointing a personal representative to represent the estate. The court makes its determination as to who will be the personal representative based primarily on statutory preferences and of the court's examination of the petition submitted to it by the party or parties seeking letters.

    • Step 4

      Pursuant to Section 733.701 of the Florida Statutes, promptly after his appointment the personal representative must publish a notice of administration. Pursuant to Section 733.212 of the Florida Statutes, the notice of administration must contain the following:

      The name of the decedent.
      The file number of the estate.
      The designation and address of the court.
      The name and address of the personal representative and his attorney.
      The date of first publication.

      A statement requiring all interested persons to file with the court (a) all claims against the estate, and (b) any objection by an interested person on whom notice was served that challenges the validity of the will, the qualifications of the personal representative, venue or jurisdiction of the court within the latter of three months after the date of the first publication of notice or 30 days after the date of service of a copy of notice on that person or be forever barred. The notice of administration must be published once a week for two consecutive weeks in a newspaper published in the county where the estate is administered. The personal representative must make a diligent search to determine the names and addresses of creditors of the decedent who are reasonably ascertainable and must serve on those creditors a copy of the notice of administration within three months after the first publication of the notice.

    • Step 5

      The personal representative will then proceed to administer the estate which can include selling estate property, distributing property to beneficiaries of the estate, paying off creditors claims and paying off Florida and federal estate taxes if applicable.

    • Step 6

      Once the estate has been fully administered the court will issue an order of discharge releasing the personal representative from his duties.

    • Step 7

      The estate is closed by court order.

Summarize the steps required for an intestate administration. Provide statutory citations.

The procedure for intestate administration is the same as that for a testate administration except that the petition must contain a statement pursuant to Section 733.202 that after the exercise of reasonable diligence, the petitioner is unaware of any unrevoked wills or codicils, or if the petitioner is aware of any unrevoked wills or codicils, the petition shall state why the wills or codicils are not being probated, or otherwise give the facts concerning any such will or codicil.

Is there a procedure or documentation customarily accepted by the bar to indicate heirship which is not based on a statute or cases? (e.g. Affidavits of Heirship) If so, describe the procedure and furnish a sample of any forms.

No. In the State of Florida, the only proper way to determine heirs is by judicial determination. Affidavits are unacceptable.

Are there any short or abbreviated probate procedures provided for by statute? If so, summarize. Provide statutory citations.

Yes. Florida Statute Section 735.201 provides for summary administration. Summary administration may be had in the administration of either a resident or a non-resident decedent's estate when it appears (1) in a testate estate, that the decedent's will does not direct administration as required by Chapter 733; (2) that the value of the entire estate subject to administration in this state, less the value of property exempt from the claims of creditors, does not exceed $25,000 or the decedent has been dead for more than two years. The estate may be administered in the same manner as the administration of any other estate or it may be administered as provided for in the summary administration statute. A petition for summary administration may be filed by any beneficiary, heir-at-law or person nominated as personal representative in the decedent's will offered for probate and shall be signed and verified by the surviving spouse, if any; the heirs-at-law or beneficiaries who are not minors; and the guardians of any heirs-at-law or beneficiaries who are minors; the petition for summary administration must show facts demonstrating the petitioners are entitled to summary administration and must contain a complete list of all assets of the estate and their estimated value together with those assets claimed to be exempt. It also must contain a statement that the estate is not indebted or the provisions for payment of debts have been made and that the proposed schedule of distribution of all assets to those entitled thereto as surviving spouse, beneficiary or creditors. Upon filing the petition for summary administration, the will, if any, shall be proved in accordance with Chapter 733 and be admitted to probate. After such hearing as the court may require, an order of summary administration may be entered allowing immediate distribution of the assets to the persons entitled to them. One of the effects of such an order is that bona fide purchasers for value from those to whom the property of the decedent may have been assigned by the order shall take the property free of all claims of creditors (except estate taxes) of the decedent and all rights of surviving spouse and all other heirs and devisees.

Are there any other probate or alternative probate procedures available in your state that haven't been described? If so, summarize. Provide statutory citations.

No.

Does your state statutes provide for an ?inheritance? tax? If so, is it based on (a) an heir's share of the estate or (b) is it an estate tax on the total value of the estate, or (c) on another basis? When must the inheritance tax return be filed? Provide statutory citations.

Yes. Pursuant to Florida Statute Section 198.02, a Florida resident decedent's estate is subject to Florida state taxes in an amount equal to the credit for state death taxes allowable under Section 2011 of the Internal Revenue Code minus the total amount of all death taxes paid to states other than Florida.

Pursuant to Florida Statute 198.03, a non-resident decedent's Florida real estate interest and intangible personal property located in Florida are subject to tax in an amount equal to such proportion of the amount of the credit allowable against the federal estate tax for state death taxes as the property taxable in Florida bears to the entire gross estate wherever situated.

If the decedent died subsequent to January 1, 2000, estate taxes can be cleared by an affidavit executed by the personal representative stating that the estate is not subject to federal estate taxes. If the estate is required to file a federal estate tax return, the personal representative must file an executed copy of the return and all supplemental data with the Florida Department of Revenue by the due date for filing the federal estate tax return.

Do your statutes provide for an inheritance tax lien? If so, summarize, e.g. what are the requirements for (a) attachment; (b) perfection; and (c) enforcement of the inheritance tax lien. Is there a statute of limitations for the inheritance tax lien? If so, specify. Provide statutory citations.

Pursuant to Florida Statute Section 198.32, the estate of every decedent whose property is subject to the laws of Florida is deemed prima facie liable for Florida estate taxes. The presumption of liability begins on the date of the decedent's death and continues until full settlement of all estate taxes found to be due, such settlement to be shown by the final certificate issued by the department. Until paid in full, the Florida estate tax is a lien for twelve years on the decedent's gross estate. One exception is an asset of a Florida resident decedent that is transferred to a bona fide purchaser, mortgagee or pledgee for adequate full consideration is divested of the lien but the lien attaches to the consideration received for the asset.

Summarize the steps of the procedure for the sale of real property during the pendency of an intestate administration. Provide statutory citations.

Pursuant to Section 733.613 of the Florida Statutes, the personal representative cannot sell real property of the estate until the sale is authorized or confirmed by court order. The petition for authorization or confirmation of the sale shall set forth the reasons for the sale, a description of the property sold or to be sold, and the price and terms of the sale.

Can a personal representative for a testate administration sell real property of the estate without obtaining a court order? If so, please identify any requirements? Any limitations? Provide statutory citations.

Pursuant to Florida Statute Section 733.613, the personal representative in a testate administration in which the will provides the power to the personal representative to sell the property may sell the property without a court order. However, if the property is homestead property of the decedent and the real property was devised to heirs-at-law, the personal representative has no authority to sell said property since it is not considered part of the estate. That property can only be sold by the heirs-at-law. The only exception is if the will specifically authorizes the personal representative to sell homestead property.

When, if ever, must a personal representative of a testate administration obtain a court order to sell real property of the estate? Summarize the steps of such procedure. Provide statutory citations.

Pursuant to Section 733.613 of the Florida Statutes, if the will upon which the testate administration is based does not grant the power and authority to the personal representative to sell real property, a court order is required in order for the personal representative to sell the property.

Do your state statutes provide for the probate of foreign wills (wills of testators not domiciled in your state)? If so, summarize the provisions and procedures. Provide statutory citations.

Section 734.102 of the Florida Statutes provides for ancillary administration. If a non-resident dies leaving assets in this state, a personal representative specifically designated in decedent's will to administer the Florida property shall be entitled to having ancillary letters issued to him/her if qualified to act in Florida. Otherwise, the foreign personal representative of the decedent's estate shall be entitled to have the letters issued to him/her if qualified to act in Florida. To entitle the applicant to ancillary letters, an authenticated copy of so much of the domiciliary proceeding shall be filed as will show either (a) the will, petition for probate, order admitting will to probate, and letters if there are such; or (b) the petition for letters and the letters. On filing the authenticated copy of the probated will, including any probated codicils, the court shall determine if the will and the codicils, if any, comply with Florida law. If they comply, the court shall admit the will and codicils to record. The probate administration shall then proceed as if it were a Florida probate.

In the alternative, Section 734.104 of the Florida Statutes provides that an authenticated copy of the will of non-resident that devises real property in this state, or any right, title or interest in the property, may be admitted to record in any county of the state where the property is located at any time after two years from the death of the decedent or at any time after the domiciliary personal representative has been discharged. This is provided there has been no proceeding to administer the estate of the decedent in this state, the will complies with Florida law as to form and manner and execution, and the will has been admitted to probate in the proper court of any other state, territory or county.

A petition to admit a foreign will to record may be filed by any person and shall be accompanied by an authenticated copy of the foreign will, the petition for probate, and the order admitting the will to probate. If the court finds this section has been complied with, it shall enter an order admitting the foreign will to record. When admitted to record, the foreign will shall be as valid and effectual to pass title to real property and any right, title or interest therein as if the will had been admitted to probate in this state.

Caveat: This proceeding allows the beneficiaries in the will to convey title to real property. However, it does not allow the foreign personal representative to convey title to real property.