For purposes of the execution or filing of an electronic will, the acknowledgment of an electronic will by the testator and the affidavits of witnesses under s. 732.503, or any other instrument under the Florida Probate Code: Any requirement that an instrument be signed may be satisfied by an electronic signature. Any known or reasonably ascertainable creditor who did not consent to the proposed distribution and for whom provision for payment was not made may enforce the claim and, if the creditor prevails, shall be awarded costs, including reasonable attorney fees, against those who joined in the affidavit. Person includes an individual, trust, estate, partnership, association, company, or corporation. s. 1, ch. If the surviving spouse has an interest in a trust that does not meet the requirements of either an elective share trust or a qualifying special needs trust, the value of the spouses interest is the transfer tax value of the interest on the applicable valuation date; however, the aggregate value of all of the spouses interests in the trust shall not exceed one-half of the value of the trust principal on the applicable valuation date. In the Affidavit of Heirs filed in Fred's probate estate, Fred is shown to have no spouse, no children, and his parents are both deceased. 77-87; s. 1, ch. If a personal representative or a beneficiary of the decedent has apparent title to property to which ss. Only direct recipients of property included in the elective estate and the beneficiaries of the decedents probate estate or of any trust that is a direct recipient, are liable to contribute toward satisfaction of the elective share. 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. As used in ss. For purposes of this section, the term lineal heir or lineal heirs means lineal ascendants and lineal descendants of the decedent. s. 1, ch. This section applies to all proceedings commenced on or after July 1, 2017, without regard to the date of the decedents death. 98-421; s. 3, ch. 99-343; s. 23, ch. 75-220; s. 1, ch. s. 1, ch. 2001-226; s. 13, ch. 2001-226; s. 4, ch. 2. 2001-226. 2001-226; s. 107, ch. The Florida County where this petition will be filed must be named at the top of the page. s. 15, ch. The laws used to determine paternity and relationships for the purposes of intestate succession apply when determining whether class gift terminology and terms of relationship include adopted persons and persons born out of wedlock. 75-220; s. 1, ch. In the case of property described in s. 732.2035(2), (3), or (4), the date of the decedents death. In the case of a right to one or more payments from an annuity or under a similar contractual arrangement or under any plan or arrangement described in s. 732.2035(8), the value of the right to payments for purposes of s. 732.2075 and paragraphs (d), (e), and (f) is the transfer tax value of the right on the applicable valuation date. 2009-115; s. 3, ch. To the extent that controlling federal law provides otherwise; If the governing instrument is signed by the decedent, or on behalf of the decedent, after the order of dissolution or order declaring the marriage invalid and such governing instrument expressly provides that benefits will be payable to the decedents former spouse; To the extent a will or trust governs the disposition of the assets and s. 732.507(2) or s. 736.1105 applies; If the order of dissolution or order declaring the marriage invalid requires that the decedent acquire or maintain the asset for the benefit of a former spouse or children of the marriage, payable upon the death of the decedent either outright or in trust, only if other assets of the decedent fulfilling such a requirement for the benefit of the former spouse or children of the marriage do not exist upon the death of the decedent; If, under the terms of the order of dissolution or order declaring the marriage invalid, the decedent could not have unilaterally terminated or modified the ownership of the asset, or its disposition upon the death of the decedent; If the designation of the decedents former spouse as a beneficiary is irrevocable under applicable law; If the governing instrument is governed by the laws of a state other than this state; To an asset held in two or more names as to which the death of one co-owner vests ownership of the asset in the surviving co-owner or co-owners; If the decedent remarries the person whose interest would otherwise have been revoked under this section and the decedent and that person are married to one another at the time of the decedents death; or. The election must be made by filing a notice of election containing the legal description of the homestead property for recording in the official record books of the county or counties where the homestead property is located. 74-106; s. 8, ch. 97-102. This is because under Florida Statutes 733.301 the following priority applies: the person nominated by the will, then the spouse, then the person nominated by a majority in interest of heirs, or the heir nearest in . 2002-82; s. 31, ch. In the application of paragraph (a), the proportional part of all property received is determined separately for each class of priority under s. 732.2075(2). 81-238; s. 3, ch. Any other property or interest acquired as a result of the abuse, neglect, exploitation, or manslaughter must be returned in accordance with this section. s. 1, ch. 2001-226. Civil Indigence Application. If the surviving spouse validly waived his or her homestead rights as provided in s. 732.702 or otherwise under applicable law but nevertheless receives an interest in protected homestead, other than an interest described in s. 732.401, including, without limitation, an interest in trust, the value of the spouses interest is determined as property interests that are not protected homestead. Unless the will provides otherwise, the property devised shall not be held under a testamentary trust of the testator but shall become a part of the principal of the trust to which it is devised. 1, ch. 99-220; s. 3, ch. The share of the estate that is assigned to the pretermitted child shall be obtained in accordance with s. 733.805. Inter vivos transfer of homestead property. History.s. Any joint tenant who unlawfully and intentionally kills another joint tenant thereby effects a severance of the interest of the decedent so that the share of the decedent passes as the decedents property and the killer has no rights by survivorship. Transfer tax value means the value the interest would have for purposes of the United States estate and gift tax laws if it passed without consideration to an unrelated person on the applicable valuation date. Unless the will provides otherwise, all devises to descendants, issue, and other multigeneration classes shall be per stirpes. The transfer of an interest in homestead property described in subsection (1) may not be treated as a devise of that interest even if: The transferor retains a separate legal or equitable interest in the homestead property, directly or indirectly through a trust or other arrangement such as a term of years, life estate, reversion, possibility of reverter, or fractional fee interest; The interest transferred does not become a possessory interest until a date certain or upon a specified event, the occurrence or nonoccurrence of which does not constitute a power held by the transferor to revoke or revest the interest in the transferor, including, without limitation, the death of the transferor; or. Exempt property shall be in addition to protected homestead, statutory entitlements, and property passing under the decedents will or by intestate succession. Small Estate Affidavit Florida - EXPLAINED Watch on How to Write Download: Adobe PDF Florida Court Information (1) County Name. Any person who is of sound mind and who is either 18 or more years of age or an emancipated minor may make a will. PROBATE CODE: SMALL ESTATES. It shall be paid to the surviving spouse, if living, for the use of the spouse and dependent lineal heirs. A qualified custodian must provide a paper copy of an electronic will and the electronic record containing the electronic will to the testator immediately upon request. With the approval of a court having jurisdiction of the real property, by an attorney in fact or guardian of the property of the surviving spouse. 2001-226. It can then divide the estate among the heirs in accordance with those laws. 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. The probate court uses the Affidavit of Heirs to determine any eligible heirs. 74-106; s. 22, ch. 77-174; s. 2, ch. 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. 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. An Affidavit of Heirs or Affidavit of Heirship is a sworn statement, given under oath, that identifies the relatives who may be the heirs of a person who passes away. 732.216-732.228 apply 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. Notwithstanding anything in s. 732.2045(1)(a) to the contrary, any trust created by the decedent before the effective date of ss. 97-102; s. 51, ch. 2009-115; s. 1, ch. 75-220; s. 11, ch. In lieu of a life estate under subsection (1), the surviving spouse may elect to take an undivided one-half interest in the homestead as a tenant in common, with the remaining undivided one-half interest vesting in the decedents descendants in being at the time of the decedents death, per stirpes. Except as provided in s. 732.2045, the elective estate consists of the sum of the values as determined under s. 732.2055 of the following property interests: The decedents interest in property which constitutes the protected homestead of the decedent. 74-106; s. 16, ch. Words of survivorship used by the donor of the power in a power to appoint to an individual, such as the term if he survives the donee or if she survives the donee, or in a power to appoint to the donees then surviving children, are a sufficient indication of an intent contrary to the application of subsection (2). The paternity of the father is established by an adjudication before or after the death of the father. Sworn to and subscribed before me this day of by (name of affiant), who is personally known to me or produced as identification, and did take an oath. Any transfer of property by the decedent to the extent the decedent received adequate consideration in money or moneys worth for the transfer. 2002-387; s. 5, ch. s. 1, ch. If property within the possession or control of the personal representative is distributable to a beneficiary or trustee who is required to contribute in satisfaction of the elective share, the personal representative shall withhold from the distribution the contribution required of the beneficiary or trustee. 2. 2001-226; s. 10, ch. 732.41 and 732.602. 2009-115. 2001-226; s. 12, ch. The execution or revocation of a will or trust by another person is such an event. Devise includes a disposition by trust of that portion of the trust estate which, if titled in the name of the grantor of the trust, would be the grantors homestead. Disposition without administration of intestate property in small estates. Subscribed by me in the presence of the testator and the subscribing witnesses, by the means specified herein, all on (date). Real property located in this state, other than homestead and real property held as tenants by the entirety, and personal property wherever located acquired by a married person while domiciled in a jurisdiction under whose laws property could not then be acquired as community property and title to which was taken in a form which created rights of survivorship are presumed to be property to which these sections do not apply. Any policy of insurance on the decedents life maintained pursuant to a court order. (2) Name Of Deceased. 75-220; s. 55, ch. 2016-189. Eighty percent if the trust instrument includes a qualifying invasion power but no qualifying power of appointment. s. 1, ch. 3. Order of contribution; personal representatives duty to collect contribution. 732.216-732.228 apply. s. 1, ch. 85-79, provides in pertinent part that with respect to s. 3, ch. A writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification. s. 10, ch. Modification to achieve testators tax objectives. If the surviving spouse brings an action to enforce the order, the judgment shall include the surviving spouses costs and reasonable attorneys fees. Permissible methods of notice include first-class mail, personal delivery, delivery to the persons last known place of residence or place of business, or a properly directed facsimile or other electronic message. 97-102; s. 40, ch. This subsection does not apply if, subsequent to the sale, condemnation, or casualty, it is adjudicated that the disability of the testator has ceased and the testator survives the adjudication by 1 year. Governing instrument means a deed; will; trust; insurance or annuity policy; account with payable-on-death designation; security registered in beneficiary form (TOD); pension, profit-sharing, retirement, or similar benefit plan; an instrument creating or exercising a power of appointment or a power of attorney; or a dispositive, appointive, or nominative instrument of any similar type. A petition for summary administration may be filed by any beneficiary or person nominated as personal representative in the decedents will offered for probate. He also has a deceased brother who had one child (Fred's nephew). This subsection only applies to escheated property and shall cease to be effective for proceedings filed after December 31, 2004. s. 1, ch. 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. Any heir at law of the decedent entitled to a share of the intestate estate pursuant to s. 732.102 or s. 732.103 may by affidavit request distribution of assets of the decedent through informal application under this section. A valid devise may be made to the trustee of a trust that is evidenced by a written instrument in existence at the time of making the will, or by a written instrument subscribed concurrently with making of the will, if the written instrument is identified in the will. The payment of the funds by the financial institution to the affiant constitutes the financial institutions full release and discharge regarding the amount paid. In any case when the United States Treasury Department determines that an overpayment of federal income tax exists and the person in whose favor the overpayment is determined is dead at the time the overpayment of tax is to be refunded, and irrespective of whether the decedent had filed a joint and several or separate income tax return, the amount of the overpayment, if not in excess of $2,500, may be refunded as follows: Directly to the surviving spouse on his or her verified application; or. 2001-226; s. 145, ch. Because of any of the provisions of s. 689.075. Perfection of title of personal representative or beneficiary. Acknowledgments of the electronic wills by testators, affidavits of the witnesses, and the records described in s. 117.245(1) and (2) which pertain to the online notarization. A purchaser for value or a lender need not inquire whether a vendor or borrower acted properly. E-7 . Forms and Assistance. 2001-226; s. 10, ch. as identification, and sworn to and subscribed before me by each of the following witnesses: (type or print name of first witness) who is personally known to me or has produced (state type of identificationsee s. By a subsequent will, codicil, or other writing executed with the same formalities required for the execution of wills declaring the revocation. 2001-226; s. 1896, ch. 77-174; s. 16, ch. s. 1, ch. Personal property of the decedent that is not exempt from claims of creditors and that remains in the possession of those to whom it has been paid, delivered, transferred, or assigned shall continue to be liable for claims against the decedent until barred as provided in the Florida Probate Code. 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. 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. For this purpose, a beneficiary of an insurance policy on the decedents life, the net cash surrender value of which is included in the elective estate, is treated as having received property included in the elective estate. If the surviving spouse validly waived his or her homestead rights as provided under s. 732.702 or otherwise under applicable law, but nevertheless receives an interest in the protected homestead, other than an interest described in s. 732.401, including an interest in trust, the value of the spouses interest is determined as property interests that are not protected homestead. 92-200; s. 972, ch. 99-343; s. 21, ch. Sources from which elective share payable; abatement. County of . Persons entitled to exempt property shall be deemed to have waived their rights under this section unless a petition for determination of exempt property is filed by or on behalf of the persons entitled to the exempt property on or before the later of the date that is 4 months after the date of service of the notice of administration or the date that is 40 days after the date of termination of any proceeding involving the construction, admission to probate, or validity of the will or involving any other matter affecting any part of the estate subject to this section. as identification, by means of physical presence or online notarization. A statement acknowledging that 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. The decedents ownership interest in accounts or securities registered in Pay On Death, Transfer On Death, In Trust For, or co-ownership with right of survivorship form. s. 14, ch. Property that a testator gave to a person in the testators lifetime is treated as a satisfaction of a devise to that person, in whole or in part, only if the will provides for deduction of the lifetime gift, the testator declares in a contemporaneous writing that the gift is to be deducted from the devise or is in satisfaction of the devise, or the devisee acknowledges in writing that the gift is in satisfaction. Provisions relating to disposition of the body. The decedents fractional interest in property, other than property described in subsection (3) or subsection (8), held by the decedent in joint tenancy with right of survivorship or in tenancy by the entirety.
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