Intestate Succession Under Florida’s Probate Statute
733.101 Venue of probate proceedings.
733.103 Effect of probate.
733.104 Suspension of statutes of limitation in favor of the personal representative.
733.105 Determination of beneficiaries.
733.1051 Limited judicial construction of will with federal tax provisions.
733.106 Costs and attorney’s fees.
733.1061 Fees and costs; will reformation and modification.
733.107 Burden of proof in contests; presumption of undue influence.
733.109 Revocation of probate.
733.101 Venue of probate proceedings.—
(1) The venue for probate of wills and granting letters shall be:
(a) In the county in this state where the decedent was domiciled.
(b) If the decedent had no domicile in this state, then in any county where the decedent’s property is located.
(c) If the decedent had no domicile in this state and possessed no property in this state, then in the county where any debtor of the decedent resides.
(2) For the purpose of this section, a married woman whose husband is an alien or a nonresident of Florida may establish or designate a separate domicile in this state.
(3) Whenever a proceeding is filed laying venue in an improper county, the court may transfer the action in the same manner as provided in the Florida Rules of Civil Procedure. Any action taken by the court or the parties before the transfer is not affected by the improper venue.
733.103 Effect of probate.—
(1) Until admitted to probate in this state or in the state where the decedent was domiciled, the will shall be ineffective to prove title to, or the right to possession of, property of the testator.
(2) In any collateral action or proceeding relating to devised property, the probate of a will in Florida shall be conclusive of its due execution; that it was executed by a competent testator, free of fraud, duress, mistake, and undue influence; and that the will was unrevoked on the testator’s death.
733.104 Suspension of statutes of limitation in favor of the personal representative.—
(1) If a person entitled to bring an action dies before the expiration of the time limited for the commencement of the action and the cause of action survives, the action may be commenced by that person’s personal representative before the later of the expiration of the time limited for the commencement of the action or 12 months after the decedent’s death.
(2) If a person against whom a cause of action exists dies before the expiration of the time limited for commencement of the action and the cause of action survives, if a claim is timely filed, the expiration of the time limited for commencement of the action shall not apply.
733.105 Determination of beneficiaries.—
(1) When property passes by intestate succession or the will is unclear and there is doubt about:
(a) Who is entitled to receive any part of the property, or
(b) The shares and amounts that any person is entitled to receive,
any interested person may petition the court to determine beneficiaries or their shares.
(2) Any personal representative who makes distribution or takes any other action pursuant to an order determining beneficiaries shall be fully protected.
(3) A separate civil action to determine beneficiaries may be brought when an estate has not been administered.
733.1051 Limited judicial construction of will with federal tax provisions.—
(1) Upon the application of a personal representative or a person who is or may be a beneficiary who is affected by the outcome of the construction, a court at any time may construe the terms of a will to define the respective shares or determine beneficiaries, in accordance with the intention of a testator, if a disposition occurs during the applicable period and the will contains a provision that:
(a) Includes a disposition formula referring to the terms “unified credit,” “estate tax exemption,” “applicable exemption amount,” “applicable credit amount,” “applicable exclusion amount,” “generation-skipping transfer tax exemption,” “GST exemption,” “marital deduction,” “maximum marital deduction,” “unlimited marital deduction,” or “maximum charitable deduction”;
(b) Measures a share of an estate based on the amount that may pass free of federal estate tax or the amount that may pass free of federal generation-skipping transfer tax;
(c) Otherwise makes a disposition referring to a charitable deduction, marital deduction, or another provision of federal estate tax or generation-skipping transfer tax law; or
(d) Appears to be intended to reduce or minimize the federal estate tax or generation-skipping transfer tax.
(2) For purposes of this section:
(a) The term “applicable period” means a period beginning January 1, 2010, and ending on the end of the day on the earlier of December 31, 2010, or the day before the date that an act becomes law that repeals or otherwise modifies or has the effect of repealing or modifying s. 901 of the Economic Growth and Tax Relief Reconciliation Act of 2001.
(b) A “disposition occurs” when the testator dies.
(3) In construing the will, the court shall consider the terms and purposes of the will, the facts and circumstances surrounding the creation of the will, and the testator’s probable intent. In determining the testator’s probable intent, the court may consider evidence relevant to the testator’s intent even though the evidence contradicts an apparent plain meaning of the will.
(4) This section does not apply to a disposition that is specifically conditioned upon no federal estate or generation-skipping transfer tax being imposed.
(5)(a) Unless otherwise ordered by the court, during the applicable period and without court order, the personal representative administering a will containing one or more provisions described in subsection (1) may:
1. Delay or refrain from making any distribution.
2. Incur and pay fees and costs reasonably necessary to determine its duties and obligations, including compliance with provisions of existing and reasonably anticipated future federal tax laws.
3. Establish and maintain reserves for the payment of these fees and costs and federal taxes.
(b) The personal representative shall not be liable for its actions as provided in this subsection made or taken in good faith.
(6) The provisions of this section are in addition to, and not in derogation of, rights under the common law to construe a will.
(7) This section is remedial in nature and intended to provide a new or modified legal remedy. This section shall operate retroactively to January 1, 2010.
733.106 Costs and attorney’s fees.—
(1) In all probate proceedings costs may be awarded as in chancery actions.
(2) A person nominated as personal representative, or any proponent of a will if the person so nominated does not act within a reasonable time, if in good faith justified in offering the will in due form for probate, shall receive costs and attorney’s fees from the estate even though probate is denied or revoked.
(3) Any attorney who has rendered services to an estate may be awarded reasonable compensation from the estate.
(4) When costs and attorney’s fees are to be paid from the estate, the court may direct from what part of the estate they shall be paid.
733.1061 Fees and costs; will reformation and modification.—
(1) In a proceeding arising under s. 732.615 or s. 732.616, the court shall award taxable costs as in chancery actions, including attorney’s fees and guardian ad litem fees.
(2) When awarding taxable costs, including attorney’s fees and guardian ad litem fees, under this section, the court in its discretion may direct payment from a party’s interest, if any, in the estate or enter a judgment which may be satisfied from other property of the party, or both.
733.107 Burden of proof in contests; presumption of undue influence.—
(1) In all proceedings contesting the validity of a will, the burden shall be upon the proponent of the will to establish prima facie its formal execution and attestation. A self-proving affidavit executed in accordance with s. 732.503 or an oath of an attesting witness executed as required in s. 733.201(2) is admissible and establishes prima facie the formal execution and attestation of the will. Thereafter, the contestant shall have the burden of establishing the grounds on which the probate of the will is opposed or revocation is sought.
(2) The presumption of undue influence implements public policy against abuse of fiduciary or confidential relationships and is therefore a presumption shifting the burden of proof under ss. 90.301-90.304.
733.109 Revocation of probate.—
(1) A proceeding to revoke the probate of a will shall be brought in the court having jurisdiction over the administration. Any interested person, including a beneficiary under a prior will, unless barred under s. 733.212 or s. 733.2123, may commence the proceeding before final discharge of the personal representative.
(2) Pending the determination of any petition for revocation of probate, the personal representative shall proceed with the administration of the estate as if no revocation proceeding had been commenced, except that no distribution may be made to beneficiaries in contravention of the rights of those who, but for the will, would be entitled to the property disposed of.
(3) Revocation of probate of a will shall not affect or impair the title to property purchased in good faith for value from the personal representative prior to an order of revocation.
Barry E. Haimo, Esq.
Strategic Planning With Purpose
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