Florida Statutes, Title XLII. Estates and Trusts (Chapters 731-739 of Florida Statutes)
Florida Probate Code: Florida Statutes, Sections 731-735.
To read a summary of the Florida Trust Code, Florida Statutes, Section 736, click on the link. The below summary of the Florida Probate Code is not exhaustive. I have only included the sections I believe to be more useful for Florida elder-law attorneys. Some sections have been omitted.
CHAPTER 731: GENERAL PROVISIONS
731.103. Evidence of Death. An authenticated copy of a death certificate can be used. A copy of record or report of a government agency (US or abroad) that a person is presumed dead can be used. Or if a person is absent from their last known domicile for over five years, which cannot be explained after diligent searching, can be used as a presumption of death. Can also show that person was exposed to a specific deadly peril may be used to determine death prior to 5 year period.
731.110. Caveat. Any person who has reason to believe that an estate (intestate or testate) will be administered or that a Last Will and Testament will be admitted to probate without that person’s knowledge may file a “caveat” with the court. The caveat (except for creditors) may be filed before death or after death.
Creditors can only file caveats after the person’s death.
When a caveat has been filed by an interested person (other than creditor), the court may not admit a Last Will and Testament to probate or appoint a personal representative until formal notice of the petition for administration has been served on the caveator or caveator’s designated agent and they have been given the opportunity to participate in the proceedings.
Beneficiary: heir-at-law in intestate estate or devisee in testate estate. A trustee of a trust may be a beneficiary.
Claim: liability of decedent (via contract, tort, etc…). This does not including expense of administration or death taxes.
Curator: person appointed by court to take charge of an estate until letters are issued (letters are authority granted by court to the personal representative to act on behalf of an estate, sometimes referred to as “letters testamentary” or “letters of administration”).
Devise: a testamentary disposition of real or personal property. How property is disposed of by
Will or Trust.
Domicile: a person’s usual place of dwelling (synonymous with residence).
Exempt Property: defined in Florida Statutes, 732.402.
Personal Representative: fiduciary appointed by court to administer the estate.
Petition: written request to the court for an order.
CHAPTER 732: INTESTATE SUCCESSION (What Happens When You Die Without a Will)
732.102. Spouse’s Share of Intestate Estate. If no surviving descendant’s or if deceased spouse and surviving spouse only have descendants together, the entire intestate estate goes to spouse.
If there are one or more surviving descendants who are not lineal descendants of the surviving spouse, those descendants get ½ of the intestate estate.
732.103. Share of Other Heirs of Intestate Estate. If part of the estate is not passing to surviving spouse (as explained above) or, if no surviving spouse, the estate descends to the descendants of the decedent. If no descendant, to the decedent’s father and mother equally. If no mother, but father, all goes to father. If no surviving parents, intestate estate goes to decedent’s brothers and sisters and the descendants of deceased brothers and sisters. This section and following details further contingencies.
732.1101. Aliens. Aliens have the same rights of inheritance as citizens.
732.2025. Definitions (Deals with Elective Share of Surviving Spouse; Rights in Community Property).
Elective Share Trust: refers to a trust where the surviving spouse is entitled (for life) to use of the property or to all of the income payable at least annually; surviving spouse can require the trustee to make property productive or convert it; and during surviving spouse’s life, no one other than the spouse has the power to distribute income or principal to anyone other than the spouse.
Governing Instrument: deed, will, trust, insurance/annuity policy, account with payable-on-death designation, security registered in beneficiary form (TOD), pension, profit-sharing, retirement plan, instrument creating power of attorney.
Person: individual, trust, estate, partnership, association, company or corporation.
Probate Estate: all property wherever located subject to estate administration.
*Qualifying Special Needs Trust or Supplemental Needs Trust: This refers to a trust established for an ill or disabled surviving spouse, with court approval, before or after a decedent’s death. If the SNT commences on the decedent’s death:
(a) Income and principal are distributable to/FBO spouse for life in the discretion of the trustee(s). Certain trustees are ineligible (decedent’s grandparents and descendants of decedent’s grandparents who are not also descendants of the surviving spouse; and
(b) during surviving spouse’s life, no person other than the spouse has the power to distribute income or principal to anyone other than the spouse.
Must obtain court approval of SNT unless aggregate value of all property in the SNT is less than $100,000.
Revocable Trust: a trust that is includable in the elective estate under 732.2035(4).
Transfer in Satisfaction of Elective Share: refers to an irrevocable transfer by the decedent during life to an elective share trust.
732.2035. Property Entering Into Elective Estate.
Elective estate will include decedent’s probate estate; accounts or securities registered in “pay on death” or “transfer on death” or “in trust for” or coownership with right of survivorship form; decedent’s fractional interest in property; decedent's interest in net cash surrender value immediately before death of any life insurance policy; value of amounts payable to survivors under any pension or retirement plan; property transferred during the 1-year preceding the decedent’s death.
732.2045. Exclusions to 732.2035. If transfer of property by decedent is irrevocable if made prior to date of decedent’s marriage to surviving spouse; any transfer by decedent if decedent received adequate consideration for the transferred property; proceeds of any life insurance policy in excess of net cash surrender value; decedent’s ½ of real property that is community property per
732.216 - 732.228.
732.2065. Amount of Elective Share. Elective share is 30% of the elective estate.
732.2085. Liability of Direct Recipients and Beneficiaries. These people are liable to contribute toward satisfaction of the elective share for their proportional part of the liability for all members of the class.
732.2105. Effect of Election on Other Interests. The elective share shall be in addition to homestead, exempt property and allowances as provided in part IV.
732.2135. Time of Election. Election must be filed the earlier of: 6 months after the date of service of a copy of the notice of administration on surviving spouse; or 2 years after the date of decedent’s death. Within this period, extensions may be granted by court for good cause.
Florida Statutes Sections 732.216 – 732.228 is the Florida Uniform Disposition of Community Property Rights at Death Act.
Purpose is to “preserve the rights of each spouse which was community property prior to change of domicile, as well as property substituted therfor where the spouses have not indicated an intention to sever or alter their ‘community rights.’” So if a married couple leaves a community property state, sells its personal property and moves to Florida where they acquire new personal property, all that new property will be deemed “community property.”
Refers to personal property which was acquired or became community property under the laws of another jurisdiction; was acquired with rents/income/proceeds from, or in exchange for, community property; or is traceable to that community property.
Refers to real property (except if real property is held as tenants by entirety) located in Florida and was acquired with rents/income/proceeds from or exchanged for property which became community property under the law of another jurisdiction; or is traceable to that community property.
732.218. Rebuttable Presumptions. Property acquired during marriage in a community property jurisdiction is presumed to have become and remain property to which these sections apply (and is deemed community property).
732.219. Disposition upon Death. ½ of the property to which 732.216 – 732-228 applies is the property of surviving spouse and not subject to testamentary disposition by the decedent or distribution under laws of succession. The other ½ is property of the decedent and subject to testamentary distribution or laws of succession. The decedent’s ½ of not in the elective estate.
732.224. Creditor’s Rights. These sections do not impact rights of creditors.
~end of community property section~
732.301. Pretermitted Spouse.
(pretermitted heir refers to a spouse or child omitted from a will…e.g. when testator makes a will only has two children, but subsequently has another child. The 3rd child is “pretermitted”).
When a person marries after making a will, and the spouse survives the testator, the surviving spouse shall receive a share of the estate equal in value to what the spouse would have received if the testator died intestate, unless: prenuptial/postnuptial agreement says otherwise; spouse is provided for in the will; or will discloses an intention not to provide for the spouse.
732.302. Pretermitted Children. Similar rules to above.
732.401. Treatment of Homestead (if owner passes intestate). Treated in same manner as other intestate property; but if decedent is survived by spouse and one or more descendants, then the surviving spouse takes a life estate in homestead, with vested remainder to descendants living at time of decedent’s death per stirpes.
In lieu of life estate, surviving spouse may elect to take an undivided ½ interest in homestead as tenant in common, with remaining undivided ½ interest vested in decedent’s descendants living at time of decedent’s death, per stirpes. This election must be made within 6 months of decedent’s death and during surviving spouse’s lifetime. Once made, the election is irrevocable.
Form providing notice of election to take ½ interest in homestead property is provided in this section.
732.4015. Devise of Homestead. Homestead shall not be subject to devise if the owner is survived by spouse or minor child, except homestead may be devised to owner’s spouse if there are no minor children. If homestead has been devised to surviving spouse and surviving spouse’s interest is disclaimed, the interest in homestead property shall pass in accordance with Florida Statutes Chapter 739.
732.4017. Inter-Vivos Transfer of Homestead Property. If the homestead property owner transfers an interest in homestead property (to individual or irrevocable trust) during their lifetime, the transfer is not a devise (devise is how property is disposed of per the terms of a Will or Trust), so the homestead property would not descend as described in Fla. Stat. 732.401.
732.402. Exempt Property. If decedent was domiciled in Florida at time of death, the spouse (or if no surviving spouse, the children of decedent) has the right to a share of the estate to be designated as “exempt property.”
(2)(a). Exempt property includes:household furniture, furnishings and appliances in residence up to a net value of $20,000.00
(2)(b). Two motor vehicles weighing no more than 15,000 pounds held in decedent’s name and regularly used by decedent or members of their immediate family.
(2)(c). Florida Prepaid College accounts.
(3). Exempt Property is exempt from all claims against the estate (unless there is a perfected security interest on such otherwise exempted property).
(4). Exempt Property is in addition to the homestead, property that passes per the decedent’s will or by intestate succession, and other statutory entitlements.
(5). Specific property devised by will is not included in exempt property.
(6). People entitled to exempt property will be deemed to have waived their right to same unless they petition within four months after service of notice of administration or 40 days after the date of any termination of proceeding involving admission to probate or validity of the will (whichever is later).
(7). Property determined to be exempt is excluded from the value of the estate (prior to when residuary, intestate, pretermitted or elective shares are determined.
732.403. Family Allowance. In addition to protected homestead and statutory entitlements, surviving spouse and lineal heirs that the decedent was supporting (or obligated to support) are entitled to an allowance to be paid as a lump sum or in periodic installments (not to exceed $18,000) to allow for their maintenance during the administration process.
PART V. --WILLS--
732.501. Who may make a Will. Anyone over age 18 and of sound mind.
732.502. Execution of Wills. All wills must be in writing, signed at the end (or subscribed at the end of the will by some other person in testator’s presence and by testator’s direction if unable to sign).
(1)(b) - (1)(c). Witnesses. Testator must sign (or be subscribed by another) in the presence of two witnesses. These two witnesses must sign in the presence of the testator and in the presence of each other.
(1)(c)(5). Codicils must be executed with the same formalities as a will.
732.503. Self Proof. Provides “self proving affidavit” form to be used as evidence that the will or codicil was executed per the strict requirements above.
732.504. Who can witness?. Any competent person, whether or not they have an interest in the will.
732.505 - 732.506. Revocation of Will. Subsequent writings that contain inconsistent provisions will only revoke and replace those inconsistent sections. Or the prior will may be revoked in its entirety if the revocation is declared in a subsequent will that is signed with all formalities required.
A will can also be revoked by act by burning, tearing or destroying with intent, and for the purpose of revocation.
732.508 - 732.509. Revival. Revoking a will that revoked a prior will, does not revive that prior will. However, revoking a codicil, does not revoke the original will (only the codicil) and the original will become reinstated. But revoking a will, revokes all codicils to that will.
732.5165. Effect of Fraud, Duress, Mistake, Undue Influence. This will void a will.
732.517. Penalty for contesting wills. Provisions in a will that attempt to penalize any interested person for contesting the will are not enforceable. 732.518. Wills cannot be contested until the testator has died.
732.702. Waiver of spousal rights. Rights of surviving spouse to an elective share, intestate share, pretermitted share, exempt property, family allowance, and preference in appointment as personal representative may be waived (wholly or partly, before or after marriage) by a written contract signed by waiving party in the presence of two witnesses.
(2) If the waiver is after marriage, each spouse must fairly disclose the other their estate (this is not required if the agreement for waiver is made before the marriage).
732.901. Production of Wills. The custodian of a will must deposit the will with the clerk of court within 10 days after receiving information that the testator is dead (along with the date of death and the last four digits of the testator’s social security number).
CHAPTER 733. PROBATE CODE: ADMINISTRATION OF ESTATES
733.101. Venue of Probate Proceedings. Venue for probate is the county in which the decedent was domiciled. If not domiciled in Florida, any county where they have property.
733.103. Effect of probate. Proves title of testator’s property and that the will was executed by a competent testator, not under duress / mistake / undue influence.
733.104. Suspends Statute of Limitations. If person entitled to bring cause of action dies before the running of the applicable statute of limitations, the person’s personal representative may bring such cause of action within a year of the person’s death, even if that time frame is after the original cause of action’s statute of limitations. If the statute of limitations does not run within a year of the person’s death, their personal representative may bring a cause of action with the original cause of action’s statute of limitations.
733.105. Determination of Beneficiaries. Any interested person may petition the court to determine whether they are entitled to receive any part of the property or if unclear, what amount.
733.1051(3). Construing of Will. The court will consider the black letter words in the will. It will also consider 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 related to intent even if the evidence contradicts the plain meaning of the will.
733.106. Attorney’s Fees and Costs. (3) any lawyer who has provided services to an estate may be awarded reasonable attorneys fees and costs from the estate. (4) Attorney fees may be awarded under 733.6171(4), 736.1005, or 736.1006.
(4)(a). If part of the estate is insufficient to pay the assessed attorneys fees, the court may direct payment from the person’s trust, if a pour-over will is involved.
733.107. Burden of Proof | Undue Influence. In all proceedings contesting the validity of a will, the burden shall be upon the proponent of the will to establish prima facie evidence of its formal execution and attestation by witnesses (this is why the self-proving affidavits, described in 732.503 and 733.201(2) are important as they will establish prima facie evidence that the will was executed with all required formalities.
If the self-proving affidavits are submitted, the burden of proof then shifts to the party contesting the validity of the will.
PART II. COMMENCING ADMINISTRATION
733.212. Notice of Administration and Filing Objections. The personal representative (PR) must serve a copy of the notice of administration onto the following people, if known, by the PR: (a) decedent’s surviving spouse; (b) beneficiaries; (c) trustee of any associated trust (and qualified beneficiaries of that trust); and anyone who may be entitled to exempt property.
733.212(a)-(e). Information the Notice of Administration Must Contain: name, file number of the estate, court information, whether the estate is testate or intestate, if testate, the date of any wills and codicils, name/contact info of the PR and contact info of the PR’s attorney.
The NOA should also state that interested persons have three months after the date of service to file objections that challenge the validity of the will, the venue or the jurisdiction of the court. The NOA should also state that the election to take an elective share must be made on or before six months after the date of service of the NOA or within two years after the date of decedent’s death (whichever is earlier).
733.212(7). If a will or codicil is subsequently admitted to probate, the PR will promptly serve a copy of a new NOA.
733.2121.Notice to Creditors. (1) Except for creditors claims barred by 733.710, the PR must publish notice to creditors (with relevant information about the decedent, estate file, etc…) and the date of first publication. The notice will state that creditors must file claims against the estate in the time period described in 733.702, or be forever barred.
(2) Publication shall be once a week for two consecutive weeks, in a newspaper published in the county where the estate is administered.
(3)(a). The PR will try to make a diligent search to determine names and addresses of reasonably-ascertainable creditors.
(3)(c). If PR, in good faith, fails to give notice to creditors as required, the PR is not liable to any person for the failure. Liability, if any, for the failure is on the estate.
(3)(d). If decedent was 55 years old or older, the PR must serve a copy of the NOA with copy of death certificate on the Agency for Health Care Administration within three months after the first publication of the notice to creditors.
PART III. PERSONAL REPRESENTATIVE: Preference in Appointment and Qualifications.
733.301. Preference in appointment of PR.
(1)(a). Testate estates. (1) PR nominated by the Will, (2) next the person selected by a majority of people entitled to estate; (3) A devisee under the will (court to select the one with best qualifications).
(1)(b). Intestate estates. (1) surviving spouse; (2) person selected by majority of heirs; (3) closest heir.
733.303. Persons not qualified to be PR. Convicted felon, mentally or physically unable to perform duties; under age of 18.
733.304. Nonresidents. Non-Floridians cannot be PR unless they are legally adopted child/parent or lineal relation (e.g. spouse, sibling, aunt/uncle/niece/nepher (or spouse thereof) of decedent.
733.308. Administrator-ad-litem. If an estate must be represented (and PR is unable to do so), court can appoint an administrator ad litem.
PART IV. FIDUCIARY BONDS
733.402. Bond of Fiduciary. Unless bond requirement is waived by the will (or court), every fiduciary to whom letters of administration are granted must execute and file a bond.
PART V. CURATORS; RESIGNATION/REMOVAL OF PR's
733.501. Curators. Court can appoint a curator to perform some or all of PR’s duties if PR has not accepted letters of administrations. This is a tool to prevent the estate from going to waste.
733.502. Resignation of Personal Representative. PRs may resign after providing notice to all interested persons. The resigning PR must file a final accounting of their administration of the estate (per 733.5036).
733.504. Removal/Causes of Removal of PR.
PART VI. DUTIES AND POWERS OF PERSONAL REPRESENTATIVE.
733.602. General Duties. The PR’s general duty is to settle and distribute the decedent’s estate in accordance with the Will and the Florida Probate Code and as efficiently as possible. PR is a fiduciary who must act pursuant to the standards of care applicable to trustees. The PR is not liable for any act of administration or distribution if authorized at the time (by the Florida Probate Code).
733.603. Personal Representative can proceed without court order. PR can invoke the jurisdiction of the court to resolve questions concerning the estate. But PR can proceed with settlement and distribution of estate without direction of court (unless court order or otherwise specified by Florida Probate Code).
733.604. Inventories and accountings.
(1)(a). Unless previously filed, PR must file a verified inventory of property of estate, listing with reasonable detail and including for each listed item estimated FMV at date of decedent’s death.
(1)(b)(1)-(3). Filed inventories of estate, elective shares and any accountings are all confidential.
(2). If PR learns of new property not previously disclosed, or learns that description/value is misleading, in original accounting...PR should file a verified amended or supplemental inventory.
(3). Upon written request, PR shall provide beneficiary with written explanation of how inventory value was determined (if appraised, provide copy of appraisal).
733.6065. Opening Safe Deposit Box. Initial opening must be done in presence of certain people - who will verify the contents of the box by signing a copy of the inventory. Safe deposit box inventory must be filed with court within 10 days after box is opened.
733.607. Possession of Estate. (1) Except as provided in the Will, every PR has the right to take possession / control of the decedent’s property. But, tangible personal property or real property (except homestead) may be left with, or surrendered to, the person presumptively entitled to it, unless possession of property by PR is necessary to administer the estate.
(2) If, after providing statutory entitlements and all devises (other than residuary devises), the assets of the estate are insufficient to pay the expenses of administration and obligations, the PR can obtain payment from the trustee of a trust described in Florida Statutes 733.707(3) in the amount necessary to satisfy the insufficiency, subject to exclusions and preferences under 736.05053.
733.608. General Power of Personal Representative.
(1). All real and personal property of decedent (except homestead) and rents/profits from it are all assets in the hands of the PR to use for (a) paying devises, family allowances, elective shares, estate and inheritance taxes, claims, charges and expenses of administration and obligations of the decedent’s estate; (b) to enforce contribution and equalize advancements; and for distribution.
(2). If property reasonably appears to the PR to be protected homestead, but is not occupied by anyone who appears to have an interest in the property, the PR is authorized (but not required) to take possession of the property for the limited purpose of preserving, insuring and protecting it for those who do have an interest in the property. The PR can, but does not have an obligation, to rent it out and make it productive.
(3). If PR advances funds or incurs obligations to preserve/maintain/insure or protect property referenced in (2), the PR is entitled to a lien on that property and its revenues to secure repayment. This constitutes a debt owed to the PR charged against and which may be secured by a lien on the protected homestead.
(rest of this subsection discusses the PR’s lien on homestead in more detail)
733.609. Improper Exercise of Power; Breach of Fiduciary Duty. PR’s fiduciary duty is same as that of a trustee and PR is liable to interested persons for damage or loss resulting from the breach of this duty.
733.610. Sale; Transactions Involving Conflicts of Interest. Conflict-of-interest transactions are voidable by interested persons unless interested person has consented after fair disclosure; or will/contract expressly authorizes the transaction; or transaction is approved by the court after notice to interested persons.
733.612. Transactions Authorized by PR. Perform, compromise or, when proper, refuse to perform on decedent’s contracts, convey real estate, receive assets, invest funds as provided in 518.10 - 518.14, acquire or dispose of assets, enter into leases beyond period of administration, abandon property when valueless,
733.613. PR’s right to sell real property. (1) If PR of intestate estate (or if testator has not conferred a power of sale, or such power cannot be conveniently exercised by the will or law), if in best interest of estate, property can still be sold (public or private sale). Title only passes when the court authorizes or confirms the sale. (2) If will provides specific power to sell real property or general power to sell any asset of the estate, PR may sell, lease, etc… without authorization or confirmation from the court.
733.615. Joint Personal Representatives.
733.617. Compensation of PR. PR is entitled to commission payable from the estate assets without court order as compensation for ordinary services (based on inventory value of the estate and income earned during administration).
(2). Commission computed on compensable (inventory) value is presumed to be reasonable if at 3% for first $1 Million; 2.5% for all above $1 Million; 2% for all above $1 Million not exceeding $5 Million….
(3) PR is also entitled to further compensation as is reasonable for extraordinary services including, but not limited to: (a) sale of real or personal property; (b) conduct of litigation on behalf of or in defense of the estate; (c) being involved in proceedings that involve adjustment or paying taxes; (d) carrying on the decedent’s business; (e) dealing with protected homestead; and (f) any other special services PR needs to provide.
(7) Upon petition of any interested person, the court may increase or decrease the compensation based on a variety of factors (a) - (i).
733.6171. Compensation of Lawyer for the Personal Representative.
(1) attorney for PR is entitled to reasonable compensation payable from estate assets without court order.
(2) the attorney, PR and persons impacted by compensation (i.e. beneficiaries) may agree to compensation determined in a different manner than provided in this section if the manner is disclosed to the parties impacted and if no objection is made as provided for in Florida Probate Rules.
(3) Compensation for ordinary services of lawyers in estate administration is presumed to be reasonable if based on the compensable value of the estate (i.e. inventory value of probatable estate assets and income earned by estate during the administration) per the following schedule:
(3)(a). $1,500 if estate has value of $40,000 or less.
(3)(b). $2,250 for estates valued more than $40,000 but not exceeding $70,000.
(3)(c). $3,000 for estate valued more than $70,000 but not exceeding $100,000.
(3)(d). For estates valued over $100,000, 3% on next $900,000 (i.e. 3% on $100,000 - $1,000,000)
(3)(e). 2.5% for all amounts between $1,000,000 and not exceeding $3,000,000.
(3)(f). 2% for all amounts above $3,000,000 and not exceeding $5,000,000.
(4). Additional compensation for extraordinary services to PR (above what is discussed in (3)) may be allowed. Extraordinary services include, but are not limited to: involvement in will contest, proceeding determining beneficiaries, elective share proceeding, contested claims, apportionment of estate taxes or any other adversarial proceeding.
(4)(f). Purchase, sale, lease of real property by PR
(4)(i). Legal advice regarding homestead status of real property or related proceedings.
(5). Upon petition of any interested person, court may increase or decrease compensation for ordinary services or award compensation for extraordinary services as facts and circumstances warrant. Multiple factors discussed in (5)(a)-(i).
733.6175. Proceedings to Review PR’s Employment of Agents. Court can review propriety of employment, and reasonableness of compensation, of any person hired by PR.
(3) PR always has burden of proof regarding propriety of employment and reasonableness of compensation. If someone is determined to have received excessive compensation from an estate, they may be ordered to make appropriate refunds.
733.620. Exculpation of PR. Provisions in wills that relieve a PR of personal liability are unenforceable if it relieves PR from liability for breach of fiduciary duty, or actions committed in bad faith.
PART VII. CREDITORS CLAIMS.
733.701. Notifying Creditors. Unless claims are otherwise barred by 733.710, PR must notice creditors via service and publication under 733.2121.
733.702. Limitation on Presentation of Claims. If not barred by 733.710, no claim or demand against estate that arose prior to the death of decedent (including claims of state or any subdivisions, even if claims are unmatured or contingent; no claim for funeral expenses; no claim for personal property in possession of PR; and no claims for damages, IBNLT actions based on fraud or other wrongful act of decedent) is binding on the estate, PR or beneficiary unless filed in the probate proceeding on or before the later of a date that is 3 months after the time of first publication of notice to creditors or, as to any creditor required to be served with a copy of the notice to creditors, 30 days after the date of service on the creditor (even if PR recognized the claim by paying part of it). PR may settle in full any claim without the necessity of claim being filed if settlement is approved by interested persons.
(4). Nothing in this section prevents or impacts (a) a proceeding to enforce any mortgage, security interest, or other lien on property of decedent; (b) to the limits of casualty insurance, any proceeding to establish liability that is protected by that same casualty insurance policy,
733.705. Payment of Claims; Objection to Claims. PR must pay all claims within 1 year from the date of first publication to creditors (unless extended by litigation or claim is unmatured). Court may extend time for payment upon showing of good cause. PR does not need to pay any of decedent’s debts until 5 months after first publication of notice to creditors.
(2). PR or other interested party may file a written objection to any creditor claim on or before 4 months from first publication of notice to creditors or within 30 days from the timely filing or amendment of a claim, whichever occurs later.
(3). If the objection is filed by someone other than PR, PR may apply for order relieving him/her from obligation to defend estate or ask for the appointment of the objector as administrator-ad-litem to defend the action. Fees for attorney for administrator-ad-litem may be awarded as provided in 733.106(3); which may be charged or apportioned as provided in 733.106(4).
733.707. Priority Order of Expenses and Obligations. PR shall pay the expenses of administration and obligations of the decedent’s estate in the following order:
Class 1. costs/expenses of administration, compensation of PR and their attorneys, and attorney’s fees awarded under 733.106(3).
Class 2. Reasonable funeral and related expenses not to exceed $6,000.
Class 3. Debts and taxes with claims under federal law, claims per F.S. 409.9101 and 414.28, and claims in favor of the state for unpaid court costs, fees or fines.
Class 4. Reasonable medical and hospital expenses of last 60 days of the last illness of decedent, including compensation of attendants.
Class 5. Family allowance.
Class 6. Arrearage from court-ordered child support.
Class 7. Debts acquired after death by continuation of decedent’s business, but only up to the value of assets of that business.
Class 8. All other claims, judgments against decedent during their lifetime.
733.707(2). After paying a preceding class, if estate is insufficient to pay next class, creditors of next class will be paid ratably in proportion to their respective claims.
(3) If there is a revocable trust (in name of decedent alone or in conjunction with any other person), that revocable trust is liable for expenses of administration and obligations of decedent’s estate if the estate is unable to pay all of them as provided in 733.607(2) and 736.05053.
(3)(a) trusts established to hold IRAs, Keogh, 401(k) or other retirement plans (and all income derived therefrom) are not considered a trust over which the decedent has a right of revocation.
(3)(d) Property held or received in a trust to the extent that the property would not have been subject to claims against decedent’s estate if it had been paid directly to a trust created under decedent’s will or other assets received from any trust other than a revocable trust, will not be deemed assets of the trust available to the decedent’s estate.
733.710. Limitations on Claims Against Estates. Two years after the death of a person, neither decedent’s estate, PR or beneficiaries are liable for any claim or cause of action against decedent, even if no letters of administration have been issued (unless claim already filed in accordance with this statute). This also does not apply to mortgages or security interests.
PART VIII. Special Provisions for Distribution (733.801 - 733.817)
PART IX. CLOSING ESTATES.
733.901. Final Discharge. After administration has been completed, PR will be discharged and this will release the PR and bar any action against the PR (and surety, if any).
PROBATE CODE: SMALL ESTATES (Chapter 735). For decedent’s estate when it appears that will does not direct administration as required by Chapter 733 and value of entire estate subject to administration is $75,000 or less (or decedent has been dead for over 2 years).