WILLS, TRUSTS, AND

ESTATE ADMINISTRATION

FOR THE PARALEGAL

Sixth EditionDennis Hower & Peter Kahn

Florida SupplementPrepared by

Lisa F. Santos

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TABLE OF CONTENTS

Chapter 1 The Estate Plan and the Purpose and Need for a Will 3

Chapter 2 The Concept of Property Related to Wills, Trusts, and Estate Administration 4

Chapter 3 The Participants and the Proper Court 5

Chapter 4 The Law of Succession: Death Testate or Intestate 6

Chapter 5 Wills: Validity Requirements, Modification, Revocation, and Contests 9

Chapter 6 Preparation to Draft a Will: Checklists and the Conference with the Client 12

Chapter 7 Final Draft and Execution of a Valid Will 13

Chapter 8 Introduction to Trusts 14

Chapter 9 Classification of Trusts, the Living Trust, and Other Special Trusts 15

Chapter 10 Estate Planning 16

Chapter 11 Long-Term Care 17

Chapter 12 Personal Representatives: Types, Preprobate Duties, and Appointment 18

Chapter 13 Probate and Estate Administration 19

Chapter 14 Informal Probate Administration 22

Chapter 15 Tax Considerations in the Administration of Estates 23

Chapter 16 Ethical Principles Relevant to Practicing Legal Assistants 24

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CHAPTER 1

THE ESTATE PLAN AND THE PURPOSE

AND NEED FOR A WILL

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Chapter 1 of the textbook is applicable to Floridalaw. Florida has adopted and follows the UniformProbate Code (UPC). Florida Statutes relating to theFlorida Probate Code (FPC) are Chapters 731–735.The Florida Probate Code encompasses:

• Chapter 731, which includes information aboutwills and probate estates in general.

• Chapter 732, which deals with intestate succes-sion and wills. Topics that are covered by thischapter include intestate succession, electiveshare of surviving spouse, pretermitted spouseand children, exempt property and allowances,rules of construction, general provisions, pro-duction of wills, and anatomical gifts.

• Chapter 733, which covers the administration of estates and goes step by step through the

proceedings, including commencing administra-tion, priority to administer and qualifications of personal representative, appointment ofpersonal representative and bonds, curators,successor of personal representative, removalof personal representative, duties and powersof the personal representative, creditors’ claims,special provisions for distribution, and closingestates.

• Chapter 734, which deals with foreign personalrepresentatives and ancillary administration.

• Chapter 735, which discusses family adminis-tration and small estates, including summaryadministration and the disposition of personalproperty without administration.

CHAPTER 2

THE CONCEPT OF PROPERTY RELATED

TO WILLS, TRUSTS, AND ESTATE

ADMINISTRATION

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CONCURRENT OWNERSHIP

Joint Tenancy

A conveyance to two or more persons creates atenancy in common, unless the instrument creatingthe estate expressly provides for a right of survivor-ship. Fla. Stat. § 689.15.

Tenancy by the Entirety

Property conveyed to a husband and wife, to wit, atenancy by the entirety, contains a right of survivor-ship. Fla. Stat. § 689.15.

TYPES OF ESTATES

Fee Simple Estate or Fee SimpleAbsolute

Absent words of limitation in a conveyance, a feesimple estate is created. Fla. Stat. § 689.10.

Future Interests—Reversion andRemainder

Reverter and forfeiture provisions of unlimitedduration in a deed are considered to be a restraint

on alienation and against public policy. Fla. Stat. § 689.18. This does not apply to reverter and forfei-ture provisions in conveyances to any governmental,educational, literary, scientific, religious, public,charitable, or nonprofit corporation or association,which may be of unlimited duration. Fla. Stat. § 689.18(5).

Dower and Curtesy

Dower and curtesy have been statutorily abolished.Fla. Stat. § 732.111.

Spouse’s Right to Election or ElectiveForced Share

The elective share is an amount equal to 30 percentof the net probate estate. Fla. Stat. § 732.2065. Fla.Stat. § 732.2035 sets forth the property that is includedin the elective estate and Fla. Stat. § 732.2095 explainshow the elective share is valued. A surviving spousemust file for his or her elective share no later than6 months from the date of the first publication ofnotice of administration or 2 years after the date of the decedent’s death, whichever is earlier. Fla. Stat. § 732.2135.

CHAPTER 3

THE PARTICIPANTS

AND THE PROPER COURT

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THE PARTICIPANTS

The Personal Representative

The individual who administers the estate of adecedent is called the personal representative. Thepersonal representative must be a Florida resident;must be over the age of 18; and must not havebeen adjudicated a felon or incompetent. Fla. Stat.§§ 733.102-03.

The Role of the PersonalRepresentative

The personal representative is considered a fiduciaryas defined in Fla. Stat. § 737.302. The personal repre-sentative’s responsibility is to settle and distribute thedecedent’s estate as stated in the will and accordingto Florida law. Florida has adopted the UniformProbate Code (hereinafter “UPC”). Fla. Stat. § 733.612lists the various transactions that a personal repre-sentative is authorized to carry out. Letters of admin-istration are issued by the court to the personalrepresentative to act on behalf of the estate. Fla. Stat.§ 733.401 and Fla. Prob. R. 5.235 (2001).

The Attorney

All personal representatives shall be represented by alicensed Florida attorney. There are two exceptions tothis rule: (1) if the personal representative is the soleinterested individual, or (2) if the personal representa-tive is a Florida attorney. Fla. Prob. R. 5.030 (2001).

The Paralegal or Legal Assistant

In Florida, the lawyer is ultimately responsible forthe conduct and actions of the “nonlawyer assistant.”Florida Rules of Professional Conduct, Rule 4-5.3.

The Probate Court

The Circuit Court has exclusive original jurisdictionover probate proceedings. Fla. Stat. § 26.012.

The Clerk or Court Administrator

The keeper of all court records is called the clerkof the court. Fla. Stat. § 28.13.

CHAPTER 4

THE LAW OF SUCCESSION: DEATH

TESTATE OR INTESTATE

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DEATH WITH A WILL—TESTACY

Terminology Related to Wills

Since Florida has adopted the UPC, most of theterms used in the Florida Probate Code adhere tothe UPC terminology.

Validity of the Will

All wills must be in writing, signed by the testator andtwo attesting witnesses, signed in the presence ofeach other. Fla. Stat. § 732.502

Nuncupative (Oral) Will

Florida does not recognize oral wills. All wills mustadhere to Fla. Stat. § 732.502 in order to be consideredvalid.

TYPES OF DISPOSITIONS—ADEMPTION, LAPSES, ANDABATEMENT

Ademption

Fla. Stat. § 732.605 Change in securities; accessions;nonademptions.

(1) If the testator intended a specific devise of cer-tain securities rather than their equivalent value,the specific devisee is entitled to:

(a) As much of the devised securities as is a partof the estate at the time of the testator’s death.

(b) Any additional or other securities of thesame entity owned by the testator because

of action initiated by the entity, excluding anyacquired by exercise of purchase options.

(c) Securities of another entity owned by thetestator as a result of a merger, consolida-tion, reorganization, or other similar actioninitiated by the entity.

(2) Distributions before death of a specificallydevised security not provided for in subsection(1) are not part of the specific devise.

If, for some reason, a guardian of a specificdevise must sell the property to care for the testator,or if the property is condemned or destroyed byfire, the specific devisee has a right to a generalpecuniary (monetary) devise equal to the sale oraward or proceeds. The exception to this rule is ifthe testator had some type of disability, but thecourt has adjudged that the disability has ceased,and the testator survives such an adjudication by 1 year. Fla. Stat. § 732.606(1). If there is anyremaining specifically devised property, the specificdevisee has a right to the remainder, plus any pur-chase price owed by the testator at the time of death.A condemnation award results for the taking of theproperty unpaid at death, insurance proceeds for fireor casualty insurance, or property that was ownedby the testator at the time of death as a result offoreclosure. Fla. Stat. § 732.606(2).

Lapses

Florida has an antilapse statute that explains if adevisee dies before the testator, the devisee’s descen-dants will take per stirpes in the devisee’s place. If thetestator does not want a descendant to take under

the will, the testator must state his or her intentionsspecifically. In that way, the descendant will betreated as if he or she predeceased the testator. Fla. Stat. § 732.603.

Abatement

If the estate has insufficient assets to pay debtsand taxes owed, or no provisions were madewithin the will, property from the estate will beapplied to satisfy the debts of the decedent.Property will be taken from the estate in the following order:

1. Property not disposed off by the will

2. Property devised to the residuary devisee ordevisees

3. Property not specifically or demonstrativelydevised

4. Property specifically or demonstrativelydevised

Fla. Stat. § 733.805(1).

DEATH WITHOUT A WILL—INTESTACY

Per Stirpes Distribution

In Florida, inheritance, either by will or intestate,is presumed to be per stirpes. Fla. Stat. § 732.104.If a testator wants beneficiaries to share on a per capita basis, it must be specifically statedin the will.

General Rules of Distribution underIntestate Succession Statutes

The share that the surviving spouse will take:

1. If no lineal descendants survive, the spouse willtake the entire estate.

2. If the surviving lineal descendants are the children of both the decedent and the survivingspouse, the spouse will receive the first $20,000of the intestate estate, and one-half of the bal-ance of the intestate estate.

3. If those that survive are the spouse and linealdescendants of the decedent only, the survivingspouse will receive one-half of the estate.

Fla. Stat. § 732.102.

The share that other heirs of an intestate estatewill receive if there is no surviving spouse:

1. Lineal descendants of the decedent will share.

2. If no lineal descendants, then to ascendants(mother and father, equally), or to those thatsurvive them.

3. To the decedent’s brothers and sisters or theirdescendants if they are deceased and no parentsurvives.

4. If none of the above survive the decedent, then one-half of the estate will go to the kin-dred of the decedent’s paternal kindred and the other one-half to the maternal kindred inthe following order:

a. To the grandfather and grandmother equally,or to those that survive them.

b. If no surviving grandparents, then to aunts,uncles, and the descendants of the deceasedaunts and uncles.

c. If none of the above descendants survive, thento the kindred of the last deceased spouse.

d. If none of the above survive the intestate,the estate will escheat to the state.

Fla. Stat. § 732.103.

Rights of Children (Issue)

For purposes of intestate succession, an adoptedchild is treated the same as a biological child, as tothe adoptive parents. Fla. Stat. § 732.108(1). A childwho has been adopted is no longer an heir to hisor her biological parents. Id.

Nonmarital Children

In order for a child born out of wedlock to inheritfrom the estate of the natural father:1. The natural parents must have participated in

a marriage ceremony, whether the child out ofwedlock had been born or not. The marriagebetween the natural parents is still looked uponwith a favorable eye even if the marriage isvoid; or

2. Paternity of the natural father is established bythe court before or after the father’s death; or

3. The natural father acknowledged paternity inwriting.

Fla. Stat. § 732.108(2).

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Pretermitted (Omitted) Children

If a testator has not provided for a child born oradopted after the will was executed, the pretermit-ted child shall receive a share of the estate equal to his or her share if the parent had died intestate.Fla. Stat. 732.02. This section does not apply if it appears from the will that the omission wasintentional. Id.

ADDITIONAL RIGHTS OR PROTECTIONFOR A SURVIVING SPOUSE ANDCHILDREN

Homestead Exemption

A homestead in Florida is considered to be the resi-dence of the owner or the owner’s family. It cannotbe devised by the owner, if the owner is survivedby a spouse or minor children, unless it is devisedto the surviving spouse if there are no minor chil-dren. Fla. Stat. § 732.4015. In order to establish thatproperty was the homestead of the decedent, apetition must be filed with the appropriate court.The contents of the petition must include: (a) thedate of the decedent’s death; (b) where the dece-dent was domiciled at the time of death; (c) thename of the decedent’s surviving spouse and thenames and birth dates of the decedent’s survivinglineal descendants; (d) a legal description of the

land, and (e) any supporting facts. Fla. Prob. R.5.405 (2001).

If the court determines that the property is thehomestead, the court shall then identify who is enti-tled to the homestead property and define the shareof each. Id. If the decedent is survived by a spouseand lineal descendants, the surviving spouse takes alife estate in the homestead, with a vested remain-der going to the lineal descendants in being at thetime of the decedent’s death. Fla. Stat. § 732.401.

Exempt Property

Exempt property, as the name implies, is exemptfrom creditors, and goes to the surviving spouse andchildren. Exempt property includes household fur-nishings and/or appliances, with a maximum value of $10,000; the decedent’s automobiles; and FloridaPrepaid College accounts. Any of the aforementionedproperty, which is specifically devised, is not consid-ered exempt property. Fla. Stat. § 732.402. A proceed-ing similar to the one to determine homesteadproperty is also necessary. Fla. Prob. R. 5.406 (2001).

Family Allowance

A surviving spouse and dependent children mayalso petition the court for a family allowance, up to$18,000 of the estate, for their maintenance whilethe estate is being probated. Fla. Stat. § 732.403.

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CHAPTER 5

WILLS: VALIDITY REQUIREMENTS,MODIFICATION, REVOCATION, AND CONTESTS

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REQUIREMENTS FOR THE CREATIONOF A VALID WILL

Capacity of the Testator

Any individual who is of sound mind and 18 yearsor older, or an emancipated minor, may make awill. Fla. Stat. § 732.501.

Lucid Interval (Exclusive to Florida notFound in Hower & Kahn)

When the testator’s mental capacity is at issue, aproponent of a will must establish that, at the timethe will was executed, the testator was experiencinga “lucid interval.” In this lucid interval, the testatormust understand the nature and extent of his prop-erty; must know the identity of his family and otherloved ones; and must generally understand how hisproperty will be distributed pursuant to the will.See e.g., Raimi v. Furlong, 702 So.2d 1273 (Fla. 3d 1997).

Signature of the Testator

The signature of the testator or the person he orshe designates must be at the end of the will. Fla.Stat. § 732.502. Even if the testator had the intent tosign the will but did not by mistake, the will isinvalid. A will must be executed with all of thestatutory formalities in order to assure the authen-ticity of the will and to avoid fraud. Dalk v. Allen,774 So.2d 787 (Fla. 5th DCA 2000).

Signatures of Witnesses

The testator and two attesting witnesses must signin each other’s presence. Fla. Stat. § 732.502. If awitness signed the will prior to the testator, but saidwitness saw the testator sign the will, and each ofthe witnesses and the testator signed the will ineach other’s presence, the order of signing makesno difference. Bain v. Hill, 639 So.2d178 (Fla. 3rdDCA 1994).

Interested Persons (InterestedWitnesses )

Interested person “means any person who may rea-sonably be expected to be affected by the outcomeof the particular proceeding involved. In any proceeding affecting the estate or the rights of abeneficiary in the estate, the personal representativeof the estate shall be deemed to be an interestedperson. . . .” The term does not include a benefici-ary who has received complete distribution. Themeaning, as it relates to particular persons, mayvary from time to time and must be determinedaccording to the particular purpose of, and matterinvolved in, any proceedings. Fla. Stat. § 731.201(21).

If an individual who is designated an interestedperson unlawfully and intentionally kills or helps tokill the testator, he or she will not share in theestate. A conviction in any degree of murder willaffect the rights of the killer. The killer will betreated as if he or she had predeceased the dece-dent. Fla. Stat. § 732.802.

Self-Proved Wills (Exclusive to Florida;not found in Hower & Kahn)

Fla. Stat. § 732.503 provides the following:

(1) A will or codicil executed in conformity with s.732.502 may be made self-proved at the time of its execution or at any subsequent date by the

acknowledgment of it by the testator and the affi-davits of the witnesses, made before an officerauthorized to administer oaths and evidenced bythe officer’s certificate attached to or followingthe will, in substantially the following form:

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STATE OF FLORIDA COUNTY OF _______

I,_______________, declare to the officer taking my acknowledgment of this instrument, and to the sub-scribing witnesses, that I signed this instrument as my will.

Testator ______________________________

We,__________and__________, have been sworn by the officer signing below, and declare to that offi-cer on our oaths that the testator declared the instrument to be the testator’s will and signed it in ourpresence and that we each signed the instrument as a witness in the presence of the testator and ofeach other.

Witness ______________________________

Witness ______________________________

Acknowledged and subscribed before me by the testator, (type or print testator’s name), who is personallyknown to me or who has produced [state type of identification—see s. 117.05(5)(b)2.] as identification,and sworn to and subscribed before me by the witnesses, (type or print name of first witness) who ispersonally known to me or who has produced [state type of identification—see s. 117.05(5)(b)2.] asidentification and (type or print name of second witness) who is personally known to me or who hasproduced [state type of identification—see s. 117.05(5)(b)2.] as identification, and subscribed by me inthe presence of the testator and the subscribing witnesses, all on (date). (Signature of Officer)

(Print, type, or stamp commissioned name and affix official seal)

If a self-proved will is admitted to probate, no other proof of the legitimacy of the document isneeded. Fla. Stat. § 733.201.

A Will Written in a Foreign Language(Exclusive to Florida; not Found inHower & Kahn)

To probate a will written in a foreign language, itmust be accompanied by an English translation. Fla.Stat. § 733.204.

Codicils

A codicil shall be executed with the same formali-ties as a will. Fla. Stat. § 732.502. A codicil thatrefers to a previous will has the effect of republish-ing the will as modified by the codicil. Fla. Stat. § 732.5105.

Revocation and Rejection of a Will

In order to revoke a will or codicil, the testator musthave the intent to revoke and perform some act todemonstrate his or her intent, such as burn, tear,cancel, deface, obliterate, or destroy the will. Thetestator may direct another person to perform oneof the aforementioned acts to revoke the will. Fla. Stat. § 732.506.

The revocation of a will does not revive a priorwill. Fla. Stat. § 732.508. The specific revocation ofa codicil does not revoke the will itself. The will isinterpreted as if the codicil had not been executed.Fla. Stat. § 732.508(2). However, the inverse is nottrue, as the revocation of a will revokes all codicilsto that will. Fla. Stat. § 732.509.

If a later will or codicil is discovered andexpressly or impliedly revokes a will that is in themidst of probate, the latter will may be offered intoprobate by an interested person. Revocation of pro-bate proceedings will commence. It must be notedthat a later will or codicil may not be offered afterthe closing of the estate. Fla. Stat. § 733.208.

Lost Wills

Any interested person may establish the full andprecise terms of a lost or destroyed will and offerthe will for probate. The specific content of the willmust be proved by the testimony of two disinter-ested witnesses, or, if a correct copy is provided, itshall be proved by one disinterested witness. Fla.Stat. § 733.207.

Revocation by Operation of Law

Any provision of a will executed by a marriedperson that affects the testator’s spouse shall becomevoid upon dissolution of that marriage. The formerspouse will be treated as if he or she predeceasedthe testator. Fla. Stat. § 732.507.

WILL CONTESTS AND CLAIMSAGAINST THE ESTATE

A challenge to the validity of a will, the qualifica-tions of the personal representative, the venue, or aclaim against the estate, must be filed within thelater of 3 months after the first publication of thenotice of administration or 30 days after the date ofservice on the objecting party. Fla. Stat. §§ 733.212,733.703.

The personal representative has the ability tosettle claims against the estate, provided they havethe approval of the beneficiaries who could beadversely affected. Fla. Stat. § 733.702.

If a will is challenged due to the testator’s lackof testamentary capacity, the burden of proof is onthe contestant. American Red Cross v. In re Estate ofHaynsworth, 708 So.2d 602,606 (Fla. 3rd DCA1998). The test to determine testamentary capacityis as follows: The testator must understand the con-dition of his property; his relations to the personswho were, should, or might have been the objectsof his bounty; and the scope and bearing of theprovisions of his will. Id. at 605.

When a will is challenged on the grounds ofundue influence, the influence must amount toover-persuasion, duress, force, coercion, or artful orfraudulent contrivances to such an extent that thereis a destruction of free agency and willpower of thetestator. Raimi v. Furlong, 702 So.2d 1273, 1287(Fla. 3rd DCA 1998).

In Terrorem or “No Contest” Clause—A Forfeiture Clause

A provision that penalizes an interested person forcontesting the will or bringing any other type ofproceeding against the estate is not enforceable.Fla. Stat. § 732.517.

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CHAPTER 6

PREPARATION TO DRAFT A WILL:CHECKLISTS AND THE CONFERENCE

WITH THE CLIENT

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Chapter 6 in the textbook explains, step by step,the checklists and sequence one applies to preparea will. These concepts are applicable to Florida.

CHAPTER 7

FINAL DRAFT AND EXECUTION

OF A VALID WILL

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Appointment of PersonalRepresentative

Fla. Stat. § 733.301 sets forth the preference inappointment of personal representative, as follows:

1. In granting letters of administration, the follow-ing order of preference shall be observed:

(a) In testate estates:

i. The personal representative, or his or hersuccessor, nominated by the will or pur-suant to a power conferred in the will.

ii. The person selected by a majority in inter-est of the persons entitled to the estate.

iii. A devisee under the will. If more thanone devisee applies, the court mayselect the one best qualified.

(b) In intestate estates:

i. The surviving spouse.

ii. The person selected by a majority ininterest of the heirs.

iii. The heir nearest in degree. If more thanone applies, the court may select theone best qualified.

To qualify as a personal representative, onemust be at least 18 years of age, be mentally com-petent, and have no felony convictions. Fla. Stat. §733.303. In addition, the personal representativemust be a Florida resident or an enumerated relativeof the decedent, as set forth in Fla. Stat. § 733.304.National banks, trust companies incorporated inFlorida, savings and loan associations, and otherbanking organizations qualified to exercise fiduciary

powers in Florida may be named as a personal rep-resentative. Fla. Stat. § 733.305.

Florida Statute § 733.617 lists the rate of com-pensation that a personal representative is entitledto receive. If the personal representative takes itupon himself or herself to complete any “extraordi-nary services,” the court has the discretion to com-pensate for such tasks. Id. If there is a provision inthe will for the personal representative’s compensa-tion, that will be controlling.

Appointment of Personal and/orProperty Guardian

The provisions regarding guardianship of a minorand guardianship of property are found in the FloridaStatutes under Chapter 744, Domestic Relations.

Simultaneous Death Clause

Florida does not adhere to the UPC’s 120 HourSurvival Rule. Instead, Florida has enacted a Simulta-neous Death Law, Fla. Stat. § 732.601. If a beneficiarysurvives for even a few minutes, the beneficiary willinherit and the property will go to his or her estate.See e.g., Rimmer v. Tesla, 201 So. 2d 573 (Fla. 1st DCA1967). In cases where the deaths are deemed to besimultaneous, the statute provides for distribution in a variety of circumstances. Fla. Stat. § 732.601.

Living Will: Death with Dignity

Florida Statute § 765.302 provides the procedure formaking a living will and a sample is provided in Fla.Stat. § 765.303. Fla. Stat. § 765.203 suggests a form tobe used to designate a health-care surrogate.

CHAPTER 8

INTRODUCTION TO TRUSTS

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Provisions for trust administration in Florida can befound in Chapter 737 of the Florida Statutes. Thestatute mainly deals with trust administration, andthe powers, duties, and responsibilities of thetrustee. If no provisions regarding administration areset out in the trust, the trustee should rely on thestatute; it will automatically apply. In § 737.111(1) ofthe statute, it states that a trust must be executed bythe settlor with the same formalities required for theexecution of a will in order for the trust to be valid.

The trustee is considered a fiduciary. If theindividual is named trustee on the basis of special

skills or expertise, the trustee is under a duty touse those skills. Fla. Stat. § 737.302. As a fiduciary,the trustee is required to follow the standards setforth in Fla. Stat. § 518.11 in regards to investingtrust assets, otherwise known as the PrudentInvestor Rule. The Prudent Investor Rule states thata fiduciary has a duty (1) to invest and manageassets as a prudent investor would; (2) to diversifythe investments; (3) to review the investment port-folio and make decisions whether to keep or dis-pose of certain investments; and (4) to make thetrust productive. Id.

CHAPTER 9

CLASSIFICATION OF TRUSTS, THE LIVING

TRUST, AND OTHER SPECIAL TRUSTS

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CLASSIFICATION OF TRUSTS

Public Trust

Charitable trusts are governed by Fla. Stat. §§ 737.501 to 737.512, as well as relevant provisionsin the Internal Revenue Code.

EXPRESS TRUSTS—INTER VIVOS(LIVING) VERSUS TESTAMENTARY

An express trust that includes real property is gov-erned by Fla. Stat. §§ 689.05 to 689.075. The lattersection of this statute also discusses the powers thatare retained by the settlor. See Zuckerman v. Alter,615 So.2d 661 (Fla. 1993) (Determining the validityof an inter vivos trust.) A testamentary trust must beexecuted with the same formalities as a will. Fla.Stat. § 689.05.

Totten Trusts

The use of “Pay-on-death accounts” is a mechanismof estate planning, to avoid probating certain assets,as funds in these bank accounts are payabledirectly to a beneficiary upon the death of theaccount holder. Fla. Stat. § 655.82.

Revocable Living Trusts

The trustee must file a notice of trust with in thecounty of the settlor’s domicile when the settlordies. Fla. Stat. § 737.308.

CHAPTER 10

ESTATE PLANNING

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Hower & Kahn’s treatment of Estate Planning isapplicable in Florida.

CHAPTER 11

LONG-TERM CARE

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Florida has established the Office of State Long-Term Care Ombudsman, which is located in theDepartment of Elder Affairs. Fla. Stat. § 400.0063.The reason the Florida legislature established thisoffice is twofold: (1) a need for a mechanism

whereby a long-term care facility resident or his orher representative may make a complaint against afacility or its employees, and (2) to be able to receivefunds under the Federal Older Americans Act. Fla.Stat. § 400.0061.

CHAPTER 12

PERSONAL REPRESENTATIVES: TYPES, PREPROBATE DUTIES, AND APPOINTMENT

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TYPES OF PERSONALREPRESENTATIVES

In Florida, the individual who administers the estateis called the personal representative. The duties andpowers of the personal representative are discussedin Fla. Stat. §§ 733.601 to 733.619. Once the per-sonal representative is appointed, the court thengrants the authority to act on behalf of the estatethrough the issuance of letters of administration.Fla. Prob. R. 5.235

Sometimes a curator is appointed. This occurswhen there is a danger of the decedent’s property

being destroyed, wasted, or removed beyond thejurisdiction of the court. A curator may act as a per-sonal representative on special order of the court.The curator has 20 days to file an inventory of the property. The curator must turn over the prop-erty to the personal representative when one isappointed. If the curator does not account for anddeliver the property within the time limit, they areconsidered in default and are subject to provisionsin the statute that pertains to the removal of thepersonal representative. An individual who acts as acurator is allowed reasonable compensation for hisor her services. Fla. Stat. § 733.501.

CHAPTER 13

PROBATE AND ESTATE ADMINISTRATION

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Summary Administration

Summary administration can be utilized for theadministration of a resident or nonresident decedent’sestate if: (1) the decedent’s will does require adminis-tration; and (2) the property that makes up the estatedoes not exceed $25,000 or the decedent has beendead for more than 2 years. Fla. Stat. § 735.201.

A petition for summary administration may befiled by any beneficiary and signed by the survivingspouse, if any; the heirs at law or beneficiaries whoare sui juris; and the guardians of any heirs at lawor beneficiaries who are not sui juris. The petitionshall contain:1. The name, last known address, social security

number, and date and place of death of thedecedent and the state and county of the dece-dent domicile;

2. The names and addresses of the beneficiariesand the dates of birth of any who are minors;

3. Facts showing that the petitioners are entitledto summary administration;

4. A complete list of assets of the estate and theirestimated value and a list of assets claimed tobe exempt;

5. A statement that the estate is not indebted orthat provisions have been made for the debtsto be paid;

6. A proposed schedule of distribution of all assets.

Fla. Stat. §§ 735.201-03.When the petition is filed in a testate estate,

the decedent’s will shall be proved and admitted to probate. Fla. Prob. R. 5.530(b).The distribution of the assets in a summary administration are

discussed in Fla. Stat. § 735.206. Notice to creditorsin a summary administration proceeding is explainedin Fla. Stat. § 735.2063.

Family Settlement Agreements

Subject to the rights of creditors and taxing authori-ties, interested persons may enter into a writtenagreement to alter the share of the estate to whichthey are otherwise entitled. Fla. Stat. § 733.815.

Ancillary Administration (Exclusive toFlorida not Found in Hower & Kahn)

If a nonresident of Florida dies leaving assets in thisstate, or owes a resident of this state, ancillaryadministration is an alternative. If a qualified per-sonal representative is designated in the decedent’swill to administer the estate in Florida, ancillary let-ters will be issued to that individual. If the personalrepresentative is not qualified, and an alternate isnot stated in the will, someone who is entitled to amajority of the Florida property may have lettersissued to someone they select and who is qualifiedto act in Florida. Fla. Stat. §§ 734.10-1025.

Commencing Probate and EstateAdministration Proceedings

I. Petition for administration of the will—anyinterested person may file a Petition forAdministration. Fla. Stat. § 733.202.

II. Appointment of the personal representative—after the petition for administration is filed and

the will is admitted to probate, the court shallappoint the person qualified to be personalrepresentative. Fla. Stat. § 733.301.

III. Notice of Administration—the personal rep-resentative must publish a notice of administra-tion. The publication must be once a week fortwo consecutive weeks in the county where theestate is administered, or if there is no newspa-per published in the county, in a newspaper ofgeneral circulation. The personal representativemust serve a copy of the notice on the surviv-ing spouse, beneficiaries, and the trustee of anytrust described. The personal representativemust also make a diligent search of creditors ofthe decedent and serve them with a copy ofnotice within 3 months after the first publica-tion of the notice. Fla. Stat. § 733.21

Procedures Prior to Estate Distribution

1. The personal representative must prepare andfile an inventory of the estate property within60 days of the issuance of letters. The list ofproperty will be reasonably detailed and havelisted each item’s fair market value. Fla. Stat. § 733.604.

2. The personal representative may employappraisers to assist in determining the fairmarket value of any asset of the estate. Fla.Stat. § 733.612(19).

3. Accountings—a listing of all cash and propertytransactions since the date of the last account-ing. Two types: (a) interim accounting, and (b)fiduciary accounting. Fla. Prob. R. 5.345 and5.346 (includes form for an accounting).

DISTRIBUTION OF THE ESTATE ANDPAYMENT OF CLAIMS

1. Distribute family allowance

2. Homestead

3. Creditor’s claims

a. Caveat—if a creditor of the estate of thedecedent is apprehensive that an estate, tes-tate, or intestate will be administered with-out the creditor’s knowledge, he or she mayfile a caveat. The caveat must contain thedecedent’s social security number or date ofbirth as a type of identification, along with

information regarding the caveator of theestate. Fla. Stat. § 731.110.

b. Order of payment

i. Cost of administration and compensationof the personal representative and attorneys’ fees

ii. Funeral expenses not to exceed $6000

iii. Debts and taxes

iv. Expenses for medical care and hospital-ization of the last 60 days of the last ill-ness, compensation for persons attendingthe decedent in their last illness

v. Family allowance

vi. Any arrearage from court-ordered childsupport

vii. Debts acquired after death of the dece-dent that pertain to his or her business

viii. All other claims

Fla. Stat. § 733.707.

THE FINAL ACCOUNTING ANDCLOSING THE ESTATE

1 Distribution and discharge—when the per-sonal representative has completed all of therequirements prior to distribution, he or she shallfile a final accounting and a petition for discharge,which will include:1. A complete report of all receipts and disburse-

ments since the last accounting;

2. A statement that the personal representative hascompleted the administration of the estate;

3. The proposed distribution of the assets of theestate;

4. Any prior distributions;

5. A statement that objections to the proposed dis-tribution must be filed within 30 days.

The final accounting and petition for dischargemust be filed within 12 months after issuance of let-ters for estates not required to file a federal estatetax return; otherwise, it is due 12 months from thedate the return is expected. Fla. Stat. § 733.901.

An order of discharge of the personal represen-tative should be drafted to be filed with the petitionand final accounting. The court will sign this docu-ment, which will release the personal representativeand bar any action against him or her. Id.

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Subsequent Administration (Exclusiveto Florida not Found in Hower & Kahn)

Sometimes after an estate has been closed, addi-tional property of the decedent is found or if fur-ther administration of the estate is otherwise

necessary. In that event, an interested person mayfile a petition for further administration of theestate. The subsequent administration shall be filed in the original probate court file. Fla. Stat. § 733.903; Fla. Prob. R. 5.460.

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CHAPTER 14

INFORMAL PROBATE ADMINISTRATION

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If a decedent leaves only exempt personal propertyand nonexempt personal property whose valuedoes not exceed the sum of funeral expenses andmedical and hospital expenses for the last 60 daysof the last illness, no administration or formal pro-ceedings will be required. Fla. Stat. § 735.301. This

is called disposition without administration. Thecourt may authorize payment, transfer, or disposi-tion of the decedent’s personal property, if satisfiedwith the application by affidavit of an interestedparty indicating that the statutory requirements aremet. Id.

CHAPTER 15

TAX CONSIDERATIONS IN THE

ADMINISTRATION OF ESTATES

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Florida does not have an inheritance tax. Floridadoes have a tax that is imposed on generation-skipping transfers of property, both real and per-sonal, of residents and nonresidents. Fla. Stat. §§ 198.021 and 198.031.

The discussion in the textbook on FederalIncome Tax issues is thorough and is applicable tothe administration of estates in Florida.

CHAPTER 16

ETHICAL PRINCIPLES RELEVANT TO

PRACTICING LEGAL ASSISTANTS

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Ethical Guidelines and State Action

Florida paralegals are not self-regulating at thistime. The Florida Bar, through the Rules ofProfessional Conduct, regulates the lawyer’s respon-sibility for the conduct of paralegals in his or heremploy. Rule 4-5.3 states that the lawyer is ulti-mately responsible for a nonlawyer’s conduct andwork product.

Unauthorized Practice of Law

An important ethical issue for paralegals is avoidingthe unauthorized practice of law (“UPL”). UPLoccurs when a paralegal gives legal advice or other-wise provides legal services without the supervision

of an attorney. UPL is a FELONY in Florida andviolators have been vigorously pursued by theFlorida Bar. Fla. Stat. § 454.23; See also, The FloridaBar v. We the People Forms and Service Center, 883So. 2d 1280 (Fla. 2004); The Florida Bar v. Neiman,816 So.2d 587 (Fla. 2002).