If the surviving spouses life estate created in subsection (1) is disclaimed pursuant to chapter 739, the interests of the decedents descendants may not be divested. 75-220; s. 51, ch. A statement attesting that the total amount in all qualified accounts held by the decedent in all financial institutions known to the affiant does not exceed an aggregate total of $1,000. Award of fees and costs in elective share proceedings. A named beneficiary of a bond, life insurance policy, or other contractual arrangement who is convicted in any state or foreign jurisdiction of abuse, neglect, exploitation, or aggravated manslaughter of an elderly person or a disabled adult, as those terms are defined in s. 825.101, for conduct against the owner or principal obligee of the bond, life insurance policy, or other contractual arrangement or the person upon whose life such policy was issued is not entitled to any benefit under the bond, policy, or other contractual arrangement, and the bond, policy, or other contractual arrangement becomes payable as though the abuser, neglector, exploiter, or killer had predeceased the decedent. 74-106; s. 39, ch. s. 1, ch. 99-343; s. 23, ch. 2001-226. For the purpose of intestate succession in cases not covered by subsection (1), a person born out of wedlock is a descendant of his or her mother and is one of the natural kindred of all members of the mothers family. 2001-226; s. 12, ch. Words of survivorship in a devise or appointment to an individual, such as if he survives me, if she survives me, or to my surviving children, are a sufficient indication of an intent contrary to the application of subsections (1) and (2). The custodian of a will must deposit the will with the clerk of the court having venue of the estate of the decedent within 10 days after receiving information that the testator is dead. Sections 732.216-732.228 may be cited as the Florida Uniform Disposition of Community Property Rights at Death Act.. 2001-226; s. 1896, ch. When there is insufficient evidence that two joint tenants or tenants by the entirety died otherwise than simultaneously, the property so held shall be distributed one-half as if one had survived and one-half as if the other had survived. If property distributed in kind, or a security interest in that property, is acquired by a purchaser or lender for value from a person who has received a gift in violation of this section, the purchaser or lender takes title free of any claims arising under this section and incurs no personal liability by reason of this section, whether or not the gift is void under this section. Upon the death of a married person, one-half of the property to which ss. s. 1, ch. ALSO: PETITION DESIGNATING A RESTRICTED DEPOSITORY UNDER FLORIDA STATUTE 69.031 FOR CASH ASSETS WITH PROPOSED ORDER DESIGNATING THE DEPOSITORY (UNLESS ALREADY ON FILE). In the case of transfers in satisfaction of the elective share, the date of the decedents death. s. 14, ch. Property included in the gross estate of the decedent for federal estate tax purposes solely because the decedent possessed a general power of appointment. 2020-2. 117.05(5)(b)2.) The decedents interest in the asset shall pass as if the decedents former spouse predeceased the decedent. If there are one or more surviving descendants of the decedent, all of whom are also descendants of the surviving spouse, and the surviving spouse has one or more descendants who are not descendants of the decedent, one-half of the intestate estate. Remaining unsatisfied balance means the amount of liability initially apportioned to the trust or estate reduced by amounts or property previously contributed by any person in satisfaction of that liability. 75-220; s. 971, ch. s. 1, ch. The rights and remedies granted in this section are in addition to any other rights or remedies a person may have at law or in equity. 77-174; s. 14, ch. s. 1, ch. For this purpose, a general power to appoint by will is a qualifying power of appointment if the power may be exercised by the spouse in favor of the spouses estate without the consent of any other person. Devise also includes an alternative devise and a devise in the form of a class gift. During the spouses life, no person other than the spouse has the power to distribute income or principal to anyone other than the spouse. Household furniture, furnishings, and appliances in the decedents usual place of abode up to a net value of $20,000 as of the date of death. If a will has been revoked or if it is invalid for any other reason, it may be republished and made valid by its reexecution or the execution of a codicil republishing it with the formalities required by this law for the execution of wills. 732.216-732.228 apply. 92-200; s. 959, ch. Payment to successor without court proceedings. That portion of property, other than property described in subsections (2) and (3), transferred by the decedent to the extent that at the time of the decedents death the transfer was revocable by the decedent alone or in conjunction with any other person. 2001-226; s. 14, ch. s. 1, ch. The power may, but need not, provide that the other resources of the spouse are to be taken into account in any exercise of the power. If the affiant is an adult child of the decedent, the affidavit must attest that the decedent left no surviving spouse. Please include even the names of relatives who were deceased at the time of the Decedent's death, indicating that they are deceased and specifying the date of death. Before issuance of letters, any person may carry out written instructions of the decedent relating to the decedents body and funeral and burial arrangements. This section applies to all proceedings commenced on or after July 1, 2017, without regard to the date of the decedents death. 2001-226. s. 1, ch. Created from former ss. 75-220; s. 48, ch. The signing and witnessing of the instrument complies with the requirements of s. 117.285. A qualified custodian may not limit liability for such damages. Devises and appointments in trust, including to a testamentary trust, are subject to s. 736.1106. s. 1, ch. Any rights or benefits under a will, trust, or power of appointment, unless the surviving spouse is provided for by name, whether or not designated as the spouse, in the will, trust, or power of appointment. s. 1, ch. 75-220; s. 7, ch. In determining the testators original intent, the court may consider evidence relevant to the testators intent even though the evidence contradicts an apparent plain meaning of the will. 99-343; s. 26, ch. For this purpose, decedents fractional interest in property means the value of the property divided by the number of tenants. 732.216-732.228 apply, a purchaser for value or a lender taking a security interest in the property takes the interest in the property free of any rights of the personal representative or a beneficiary of the decedent. 77-87; s. 269, ch. The law in effect prior to October 1, 1999, applies to decedents dying before October 1, 2001. The execution or revocation of a will or trust by another person is such an event. A parent of the decedent if the decedent left no surviving spouse, no surviving adult child, and no surviving adult descendant. General power of appointment means a power of appointment under which the holder of the power, whether or not the holder has the capacity to exercise it, has the power to create a present or future interest in the holder, the holders estate, or the creditors of either. 92-200; s. 957, ch. Checklist for Closing Estate. (1) Any part of the estate of a decedent not effectively disposed of by will passes to the decedent's heirs as prescribed in the following sections of this code. 75-220; s. 13, ch. One-half of that property is the property of the decedent and is subject to testamentary disposition or distribution under the laws of succession of this state. 2001-226; s. 145, ch. The rights and remedies granted in this section are in addition to any other rights or remedies a person may have at law or equity. Order of contribution; personal representatives duty to collect contribution. A distribution from a trust is not subject to this subsection if the distribution is required by the terms of the governing instrument unless the event triggering the distribution is determined by reference to the death of the decedent and the court finds that a principal purpose of the terms of the governing instrument relating to the distribution is avoidance of the elective share. A financial institution in this state may pay to the family member of a decedent, without any court proceeding, order, or judgment, the funds on deposit in all qualified accounts of the decedent at the financial institution if the total amount of the combined funds in the qualified accounts at the financial institution do not exceed an aggregate total of $1,000. Property that escheats shall be sold as provided in the Florida Probate Rules and the proceeds paid to the Chief Financial Officer of the state and deposited in the State School Fund. If more than one otherwise effective writing exists, then, to the extent of any conflict among the writings, the provisions of the most recent writing revoke the inconsistent provisions of each prior writing. s. 1, ch. Any transfer of property to the extent not otherwise included in the elective estate, made to or for the benefit of any person, except: Any transfer of property for medical or educational expenses to the extent it qualifies for exclusion from the United States gift tax under s. 2503(e) of the Internal Revenue Code, as amended; and. Elective share trust means a trust under which: The surviving spouse is entitled for life to the use of the property or to all of the income payable at least as often as annually; The surviving spouse has the right under the terms of the trust or state law to require the trustee either to make the property productive or to convert it within a reasonable time; and. If you do not have an Affidavit of Heirs, your estate may not receive its fair share of the inheritance. The allowance shall not exceed a total of $18,000. A surviving adult descendant of the decedent, and the decedent left no surviving spouse and no surviving adult child. 74-106; s. 105, ch. (g)The affiant understands that he or she is personally liable to the creditors of the decedent and other persons rightfully entitled to the funds under the Florida Probate Code, to the extent the amount paid exceeds the amount properly attributable to the affiants share. Descent shall be per stirpes, whether to descendants or to collateral heirs. ESTATES AND TRUSTS. After the application of subparagraph 1., the first annual exclusion amount of property transferred to or for the benefit of each donee during the 1-year period, but only to the extent the transfer qualifies for exclusion from the United States gift tax under s. 2503(b) or (c) of the Internal Revenue Code, as amended. Any heir or devisee of the decedent who was lawfully entitled to share in the estate but who was not included in the distribution under this section may enforce all rights in appropriate proceedings against those who signed the affidavit or received distribution of personal property and, if successful, shall be awarded costs including reasonable attorney fees as in chancery actions. Now, if you don't have a will, the court will require an affidavit of heirs. The share of the estate that is assigned to the pretermitted spouse shall be obtained in accordance with s. 733.805. Probate estate means all property wherever located that is subject to estate administration in any state of the United States or in the District of Columbia. s. 1, ch. Joint Administrative Procedures Committee (JAPC), Joint Committee on Public Counsel Oversight(JCPO), Joint Legislative Auditing Committee (JLAC), Joint Legislative Budget Commission (JLBC), Joint Select Committee on Collective Bargaining (JSCB), Office of Program Policy Analysis & Government Accountability (OPPAGA), Florida Legislative Committee on Intergovernmental Relations (LCIR), Joint Legislative Committee on Everglades Oversight (JCEO), Joint Legislative Sunset Committee (JCSC), Copyright 1995-2023 The Florida Legislature . 2001-226; s. 10, ch. 75-220; s. 1, ch. All benefits paid pursuant to s. 112.1915. As provided by the Florida Constitution, the homestead shall not be subject to devise if the owner is survived by a spouse or a minor child or minor children, except that the homestead may be devised to the owners spouse if there is no minor child or minor children. If a person named in subsection (1) has died, is incapacitated, or is a minor, or has conveyed or transferred all interest in the property of the estate, then, as to that person, the petition must be signed and verified by: The personal representative, if any, of a deceased person or, if none, the surviving spouse, if any, and the beneficiaries; The guardian of an incapacitated person or a minor; or. 732.216-732.228 apply, a purchaser for value or a lender taking a security interest in the property takes that interest in the property free of any rights of the surviving spouse. A spouse waives his or her rights as a surviving spouse with respect to the devise restrictions under s. 4(c), Art. Within each of the classes described in s. 732.2075(2)(b) and (c), each direct recipient is liable in an amount equal to the value, as determined under s. 732.2055, of the proportional part of the liability for all members of the class. Any additional or other securities of the same entity owned by the testator because of action initiated by the entity, excluding any acquired by exercise of purchase options. Any part of a written instrument which makes a gift to a lawyer or a person related to the lawyer is void if the lawyer prepared or supervised the execution of the written instrument, or solicited the gift, unless the lawyer or other recipient of the gift is related to the person making the gift. 74-106; s. 43, ch. If the surviving spouse has an interest in a trust, or portion of a trust, which meets the requirements of an elective share trust, the value of the spouses interest is a percentage of the value of the principal of the trust, or trust portion, on the applicable valuation date as follows: One hundred percent if the trust instrument includes both a qualifying invasion power and a qualifying power of appointment. In the application of this subsection, a right to payments under a commercial or private annuity, an annuity trust, a unitrust, or a similar arrangement shall be treated as a right to that portion of the income of the property necessary to equal the annuity, unitrust, or other payment. s. 4, ch. Forfeiture for abuse, neglect, exploitation, or aggravated manslaughter of an elderly person or a disabled adult. The proceeds of any policy of insurance on the decedents life in excess of the net cash surrender value of the policy whether payable to the decedents estate, a trust, or in any other manner. 2001-226. 2019-71. A provision in a will purporting to penalize any interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable. When the insured and the beneficiary in a policy of life or accident insurance have died and there is insufficient evidence that they died otherwise than simultaneously, the proceeds of the policy shall be distributed as if the insured had survived the beneficiary. A designation made by or on behalf of the decedent providing for the payment or transfer at death of an interest in an asset to or for the benefit of the decedents former spouse is void as of the time the decedents marriage was judicially dissolved or declared invalid by court order prior to the decedents death, if the designation was made prior to the dissolution or court order. Sections 732.216-732.228 do not affect rights of creditors with respect to property to which ss. The total amount in all qualified accounts held by the decedent in all financial institutions known to the affiant does not exceed an aggregate total of $1,000. 85-79, the substantive rights of all persons which have vested prior to October 1, 1985, shall be determined as provided in s. 732.402, Florida Statutes, 1983.. For purposes of this subsection, value is determined on the applicable valuation date as defined in s. 732.2095(1)(a). 2001-226. For this purpose, spousal consent to split-gift treatment under the United States gift tax laws does not constitute written consent to the transfer by the decedent. Uniformity of application and construction. If the testator intended a specific devise of certain securities rather than their equivalent value, the specific devisee is entitled only to: As much of the devised securities as is a part of the estate at the time of the testators death. The contestant has the burden of establishing, by a preponderance of the evidence, that the marriage was procured by fraud, duress, or undue influence. The order is prima facie correct in proceedings in any court or jurisdiction. AFFIDAVIT OF HEIRS For purposes of this document, you must list ALL RELATIVES of the decedent, including yourself, if applicable. In the case of other property irrevocably transferred to or for the benefit of the surviving spouse during the decedents life, the date of the transfer. For the purpose of intestate succession by a natural or adoptive parent, a natural or adoptive parent is barred from inheriting from or through a child if the natural or adoptive parents parental rights were terminated pursuant to chapter 39 prior to the death of the child, and the natural or adoptive parent shall be treated as if the parent predeceased the child. All costs, damages, and a reasonable attorneys fee shall be adjudged to petitioner against the delinquent custodian if the court finds that the custodian had no just or reasonable cause for failing to deposit the will. A will is void if the execution is procured by fraud, duress, mistake, or undue influence. (Signature of Notary Public - State of Florida), (Print, Type, or Stamp Commissioned Name of Notary Public), My commission expires: (date of expiration of commission). . Such language may not be considered a waiver of the restrictions against alienation by mortgage, sale, gift, or deed without the joinder of the owners spouse. A qualified custodian who at any time maintains custody of the electronic record of an electronic will may elect to cease serving in such capacity by: Delivering the electronic will or the electronic record containing the electronic will to the testator, if then living, or, after the death of the testator, by filing the will with the court in accordance with s. 732.901; and. The court shall allow any such descendant to meet a reasonable, not unduly restrictive, standard of proof to substantiate his or her lineage. 75-220; s. 55, ch. 732.301 and 732.302, regardless of the prior will. s. 2, ch. Aliens shall have the same rights of inheritance as citizens. The family member may use an affidavit in substantially the following form to fulfill the requirements of subsection (3): The financial institution is not required to determine whether the contents of the sworn affidavit are truthful. Adoption of a child by a close relative, as defined in s. 63.172(2), has no effect on the relationship between the child and the families of the deceased natural parents. 2001-226. A surviving spouse who is found to have procured a marriage to the decedent by fraud, duress, or undue influence is not entitled to any of the following rights or benefits that inure solely by virtue of the marriage or the persons status as surviving spouse of the decedent unless the decedent and the surviving spouse voluntarily cohabited as husband and wife with full knowledge of the facts constituting the fraud, duress, or undue influence or both spouses otherwise subsequently ratified the marriage: Any rights or benefits under the Florida Probate Code, including, but not limited to, entitlement to elective share or family allowance; preference in appointment as personal representative; inheritance by intestacy, homestead, or exempt property; or inheritance as a pretermitted spouse. However, formal notice of the petition must be served on a beneficiary not joining in the petition. Unless a contrary intent appears in the will, if a devisee who is a grandparent, or a descendant of a grandparent, of the testator: Is dead at the time of the execution of the will; Is required by the will or by operation of law to be treated as having predeceased the testator. Such an agreement executed by a nonresident of Florida, either before or after this law takes effect, is valid in this state if valid when executed under the laws of the state or country where the agreement was executed, whether or not the agreeing party is a Florida resident at the time of death. 2006-217. The execution of a joint will or mutual wills neither creates a presumption of a contract to make a will nor creates a presumption of a contract not to revoke the will or wills. This subsection does not invalidate a provision of a will: Executed by the testator after the dissolution of the marriage; If there is a specific intention to the contrary stated in the will; or. Debtors of the decedent, those holding property of the decedent, and those with whom securities or other property of the decedent are registered are authorized and empowered to comply with the order by paying, delivering, or transferring to those specified in the order the parts of the decedents estate assigned to them by the order, and the persons so paying, delivering, or transferring shall not be accountable to anyone else for the property. If there is either no paternal kindred or no maternal kindred, the estate shall go to the other kindred who survive, in the order stated above. If the decedent is survived by one or more descendants, all of whom are also descendants of the surviving spouse, and the surviving spouse has no other descendant, the entire intestate estate. In the case of amounts includable under s. 732.2035(8), the transfer tax value of the amounts on the date of the decedents death. Sections 732.216-732.228 apply to the disposition at death of the following property acquired by a married person: Personal property, wherever located, which: Was acquired as, or became and remained, community property under the laws of another jurisdiction; Was acquired with the rents, issues, or income of, or the proceeds from, or in exchange for, community property; or. s. 1, ch. (c)The affiant is entitled to payment of the funds in the decedents depository accounts and certificates of deposit held by the financial institution (name of financial institution). 2006-217. 97-102. The elective share is an amount equal to 30 percent of the elective estate. 732.216-732.228 apply was held by the decedent at the time of the decedents death, title of the surviving spouse may be perfected by an order of the probate court or by execution of an instrument by the personal representative or the beneficiaries of the decedent with the approval of the probate court. 99-343; s. 22, ch. 97-102; s. 18, ch. If there are one or more surviving descendants of the decedent who are not lineal descendants of the surviving spouse, one-half of the intestate estate. May be administered in the same manner as other estates. The affidavit must be served in the manner of formal notice upon all heirs at law who have not joined in the affidavit; upon all known or reasonably ascertainable creditors of the decedent; and, if the decedent at the time of death was over the age of 55 years of age, upon the Agency for Health Care Administration. Unless the language creating a power of appointment expressly excludes the substitution of the descendants of an object of a power for the object, a surviving descendant of a deceased object of a power of appointment may be substituted for the object whether or not the descendant is an object of the power. Upon petition and notice, the custodian of any will may be compelled to produce and deposit the will. s. 1, ch. Before the undersigned authority personally appeared (name of affiant), of (residential address of affiant), who has been sworn and says the following statements are true: (a)The affiant is (initial one of the following responses): A surviving adult child of the decedent, and the decedent left no surviving spouse. Delivering to the successor qualified custodian an affidavit of the outgoing qualified custodian stating that: The outgoing qualified custodian is eligible to act as a qualified custodian in this state; The outgoing qualified custodian is the qualified custodian designated by the testator in the electronic will or appointed to act in such capacity under this paragraph; The electronic will has at all times been in the custody of one or more qualified custodians in compliance with this section since the time the electronic record was created, and identifying such qualified custodians; and. Has an affidavit of heirs been filed in this Intestate estate? Incorporated, organized, or have its principal place of business in this state. If the owner of homestead property transfers an interest in that property, including a transfer in trust, with or without consideration, to one or more persons during the owners lifetime, the transfer is not a devise for purposes of s. 731.201(10) or s. 732.4015, and the interest transferred does not descend as provided in s. 732.401 if the transferor fails to retain a power, held in any capacity, acting alone or in conjunction with any other person, to revoke or revest that interest in the transferor. If a personal representative or a beneficiary of the decedent has apparent title to property to which ss. However, persons to whom property has been specifically or demonstratively devised and who would otherwise be entitled to it as exempt property under this section may have the court determine the property to be exempt from claims, except for perfected security interests thereon, after complying with the provisions of subsection (6). In the case of property held in a qualifying special needs trust on the date of the decedents death, the date of the decedents death. If the death certificate is silent as to the decedents marital status at the time of his or her death, the payor is not liable for making a payment on account of, or for transferring an interest in, that portion of the asset to the secondary beneficiary upon delivery to the payor of an affidavit validly executed by the secondary beneficiary in substantially the following form: In the case of an asset described in paragraph (3)(d), paragraph (3)(e), or paragraph (3)(f), the payor is not liable for making any payment on account of, or transferring any interest in, the asset to any beneficiary. If, after the application of subsection (1), the elective share is not fully satisfied, the unsatisfied balance shall be allocated entirely to one class of direct recipients of the remaining elective estate and apportioned among those recipients, and if the elective share amount is not fully satisfied, to the next class of direct recipients, in the following order of priority, until the elective share amount is satisfied: If, after the application of subsections (1) and (2), the elective share amount is not fully satisfied, the additional amount due to the surviving spouse shall be determined and satisfied as follows: The remaining unsatisfied balance shall be satisfied from property described in paragraphs (1)(a) and (b) which passes or which has passed in a trust in which the surviving spouse has a beneficial interest, other than an elective share trust or a qualified special needs trust.
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