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TITLE XLII

ESTATES AND TRUSTS

Last update: 2013-11-01


  • Probate Code: General Provisions
    • Short Title; Construction (ss. 731.005-731.155)
    • Definitions (s. 731.201)
    • Notice And Representation (ss. 731.301-731.401)
  • Probate Code: Intestate Succession And Wills
    • Intestate Succession (ss. 732.101-732.111)
    • Elective Share Of Surviving Spouse; Rights In Community Property (ss. 732.201-732.228)
    • Pretermitted Spouse And Children (ss. 732.301, 732.302)
    • Exempt Property And Allowances (ss. 732.401-732.403)
    • Wills (ss. 732.501-732.518)
    • Rules Of Construction (ss. 732.6005-732.616)
    • Contractual Arrangements Relating To Death (ss. 732.701-732.703)
    • General Provisions (ss. 732.802-732.806)
    • Production Of Wills (s. 732.901)
  • Probate Code: Administration Of Estates
    • General Provisions (ss. 733.101-733.109)
    • Commencing Administration (ss. 733.201-733.213)
    • Preference In Appointment And Qualifications Of Personal Representative (ss. 733.301-733.3101)
    • Fiduciary Bonds (ss. 733.402-733.406)
    • Curators; Resignation And Removal Of Personal Representatives (ss. 733.501-733.509)
    • Duties And Powers Of Personal Representative (ss. 733.601-733.620)
    • Creditors' Claims (ss. 733.701-733.710)
    • Special Provisions For Distribution (ss. 733.801-733.817)
    • Closing Estates (ss. 733.901, 733.903)
  • Probate Code: Foreign Personal Representatives; Ancillary Administration
    • General Provisions (ss. 734.101-734.104)
    • Jurisdiction Over Foreign Personal Representatives (ss. 734.201, 734.202)
  • Probate Code: Small Estates
    • Summary Administration (ss. 735.201-735.2063)
    • Disposition Of Personal Property Without Administration (ss. 735.301, 735.302)
  • Florida Trust Code
    • General Provisions And Definitions (ss. 736.0101-736.0112)
    • Judicial Proceedings (ss. 736.0201-736.0207)
    • Representation (ss. 736.0301-736.0306)
    • Creation, Validity, Modification, And Termination (ss. 736.0401-736.0417)
    • Creditors' Claims; Spendthrift And Discretionary Trusts (ss. 736.0501-736.0507)
    • Revocable Trusts (ss. 736.0601-736.0604)
    • Office Of Trustee (ss. 736.0701-736.0709)
    • Duties And Powers Of Trustee (ss. 736.0801-736.0817)
    • Trust Investments (ss. 736.0901, 736.0902)
    • Liability Of Trustee And Rights Of Persons Dealing With Trustee (ss. 736.1001-736.1018)
    • Rules Of Construction (ss. 736.1101-736.1108)
    • Charitable Trusts (ss. 736.1201-736.1211)
    • Miscellaneous (ss. 736.1301-736.1303)
  • Principal And Income
  • Florida Uniform Disclaimer Of Property Interests Act
  • Version 2013-11-01
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  • Version 2011-11-08

Chapter 731

PROBATE CODE: GENERAL PROVISIONS

Part I

SHORT TITLE; CONSTRUCTION

731.005 - Short title

Chapters 731-735 shall be known and may be cited as the Florida Probate Code and referred to as the “code.”


History.- s. 1, ch. 74-106; s. 1, ch. 75-220; s. 4, ch. 2001-226.

731.011 - Determination of substantive rights; procedures

The code became effective on January 1, 1976. The substantive rights of all persons that vested prior to January 1, 1976, shall be determined as provided in former chapters 731-737 and 744-746. The procedures for the enforcement of vested substantive rights shall be as provided in the Florida Probate Rules.


History.- s. 4, ch. 74-106; ss. 2, 113, ch. 75-220; s. 5, ch. 2001-226.

731.102 - Construction against implied repeal

This code is intended as unified coverage of its subject matter. No part of it shall be impliedly repealed by subsequent legislation if that construction can reasonably be avoided.


History.- s. 1, ch. 74-106; s. 2, ch. 75-220.

731.103 - Evidence as to death or status

In proceedings under this code and under chapter 736, the following additional rules relating to determination of death and status are applicable:
  • (1) An authenticated copy of a death certificate issued by an official or agency of the place where the death purportedly occurred is prima facie proof of the fact, place, date, and time of death and the identity of the decedent.

  • (2) A copy of any record or report of a governmental agency, domestic or foreign, that a person is alive, missing, detained, or, from the facts related, presumed dead is prima facie evidence of the status and of the dates, circumstances, and places disclosed by the record or report.

  • (3) A person who is absent from the place of his or her last known domicile for a continuous period of 5 years and whose absence is not satisfactorily explained after diligent search and inquiry is presumed to be dead. The person’s death is presumed to have occurred at the end of the period unless there is evidence establishing that death occurred earlier. Evidence showing that the absent person was exposed to a specific peril of death may be a sufficient basis for the court determining at any time after such exposure that he or she died less than 5 years after the date on which his or her absence commenced. A petition for this determination shall be filed in the county in Florida where the decedent maintained his or her domicile or in any county of this state if the decedent was not a resident of Florida at the time his or her absence commenced.

  • (4) This section does not preclude the establishment of death by direct or circumstantial evidence prior to expiration of the 5-year time period set forth in subsection (3).

History.- s. 1, ch. 74-106; s. 2, ch. 75-220; s. 946, ch. 97-102; s. 1, ch. 2003-154; s. 27, ch. 2006-217.

Note.- Created from former s. 734.34.


731.1035 - Applicable rules of evidence

In proceedings under this code, the rules of evidence in civil actions are applicable unless specifically changed by the code.


History.- s. 28, ch. 2006-217.

731.104 - Verification of documents

When verification of a document is required in this code or by rule, the document filed shall include an oath or affirmation as provided in the Florida Probate Rules. Any person who willfully includes a false statement in the document shall be guilty of perjury.


History.- s. 1, ch. 74-106; s. 2, ch. 75-220; s. 6, ch. 2001-226.

731.105 - In rem proceeding

Probate proceedings are in rem proceedings.


History.- s. 3, ch. 75-220.

731.106 - Assets of nondomiciliaries

  • (1) A debt in favor of a nondomiciliary, other than one evidenced by investment or commercial paper or other instrument, is located in the county where the debtor resides or, if the debtor is not an individual, at the place where the debtor has its principal office. Commercial paper, investment paper, and other instruments are located where the instrument is at the time of death.

  • (2) When a nonresident decedent, whether or not a citizen of the United States, provides by will that the testamentary disposition of tangible or intangible personal property having a situs within this state, or of real property in this state, shall be construed and regulated by the laws of this state, the validity and effect of the dispositions shall be determined by Florida law. The court may, and in the case of a decedent who was at the time of death a resident of a foreign country the court shall, direct the personal representative appointed in this state to make distribution directly to those designated by the decedent’s will as beneficiaries of the tangible or intangible property or to the persons entitled to receive the decedent’s personal estate under the laws of the decedent’s domicile.

History.- s. 3, ch. 75-220; s. 1, ch. 77-174; s. 947, ch. 97-102; s. 7, ch. 2001-226.

731.109 - Seal of the court

For the purposes of this code, the seal of the clerk of the circuit court is the seal of the court.


History.- s. 3, ch. 75-220.

731.110 - Caveat; proceedings

  • (1) Any interested person who is apprehensive that an estate, either testate or intestate, will be administered or that a will may be admitted to probate without that person’s knowledge may file a caveat with the court. The caveat of the interested person, other than a creditor, may be filed before or after the death of the person for whom the estate will be, or is being, administered. The caveat of a creditor may be filed only after the person’s death.

  • (2) If the caveator is a nonresident and is not represented by an attorney admitted to practice in this state who has signed the caveat, the caveator must designate some person residing in the county in which the caveat is filed as the agent of the caveator, upon whom service may be made; however, if the caveator is represented by an attorney admitted to practice in this state who has signed the caveat, it is not necessary to designate a resident agent.

  • (3) If a caveat has been filed by an interested person other than a creditor, the court may not admit a will of the decedent to probate or appoint a personal representative until formal notice of the petition for administration has been served on the caveator or the caveator’s designated agent and the caveator has had the opportunity to participate in proceedings on the petition, as provided by the Florida Probate Rules. This subsection does not require a caveator to be served with formal notice of its own petition for administration.

  • (4) A caveat filed before the death of the person for whom the estate will be administered expires 2 years after filing.

History.- s. 3, ch. 75-220; s. 2, ch. 77-87; s. 1, ch. 85-79; s. 2, ch. 92-200; s. 948, ch. 97-102; s. 9, ch. 2001-226; s. 2, ch. 2007-74; s. 3, ch. 2010-132; s. 5, ch. 2013-172.

731.155 - Applicability

This act shall take effect January 1, 2002. The substantive rights of all persons that have vested prior to January 1, 2002, shall be determined as provided in former chapters 63, 215, 409, 660, and 731-737 as they existed prior to January 1, 2002. The procedures for the enforcement of substantive rights which have vested prior to January 1, 2002, shall be as provided in this act, except that any Family Administration filed before January 1, 2002, may be completed as a Family Administration.


History.- s. 195, ch. 2001-226.

Part II

DEFINITIONS

731.201 - General definitions

Subject to additional definitions in subsequent chapters that are applicable to specific chapters or parts, and unless the context otherwise requires, in this code, in s. 409.9101, and in chapters 736, 738, 739, and 744, the term:
  • (1) “Authenticated,” when referring to copies of documents or judicial proceedings required to be filed with the court under this code, means a certified copy or a copy authenticated according to the Federal Rules of Civil Procedure.

  • (2) “Beneficiary” means heir at law in an intestate estate and devisee in a testate estate. The term “beneficiary” does not apply to an heir at law or a devisee after that person’s interest in the estate has been satisfied. In the case of a devise to an existing trust or trustee, or to a trust or trustee described by will, the trustee is a beneficiary of the estate. Except as otherwise provided in this subsection, the beneficiary of the trust is not a beneficiary of the estate of which that trust or the trustee of that trust is a beneficiary. However, if each trustee is also a personal representative of the estate, each qualified beneficiary of the trust as defined in s. 736.0103 shall be regarded as a beneficiary of the estate.

  • (3) “Child” includes a person entitled to take as a child under this code by intestate succession from the parent whose relationship is involved, and excludes any person who is only a stepchild, a foster child, a grandchild, or a more remote descendant.

  • (4) “Claim” means a liability of the decedent, whether arising in contract, tort, or otherwise, and funeral expense. The term does not include an expense of administration or estate, inheritance, succession, or other death taxes.

  • (5) “Clerk” means the clerk or deputy clerk of the court.

  • (6) “Collateral heir” means an heir who is related to the decedent through a common ancestor but who is not an ancestor or descendant of the decedent.

  • (7) “Court” means the circuit court.

  • (8) “Curator” means a person appointed by the court to take charge of the estate of a decedent until letters are issued.

  • (9) “Descendant” means a person in any generational level down the applicable individual’s descending line and includes children, grandchildren, and more remote descendants. The term “descendant” is synonymous with the terms “lineal descendant” and “issue” but excludes collateral heirs.

  • (10) “Devise,” when used as a noun, means a testamentary disposition of real or personal property and, when used as a verb, means to dispose of real or personal property by will or trust. The term includes “gift,” “give,” “bequeath,” “bequest,” and “legacy.” A devise is subject to charges for debts, expenses, and taxes as provided in this code, the will, or the trust.

  • (11) “Devisee” means a person designated in a will or trust to receive a devise. Except as otherwise provided in this subsection, in the case of a devise to an existing trust or trustee, or to a trust or trustee of a trust described by will, the trust or trustee, rather than the beneficiaries of the trust, is the devisee. However, if each trustee is also a personal representative of the estate, each qualified beneficiary of the trust as defined in s. 736.0103 shall be regarded as a devisee.

  • (12) “Distributee” means a person who has received estate property from a personal representative or other fiduciary other than as a creditor or purchaser. A testamentary trustee is a distributee only to the extent of distributed assets or increments to them remaining in the trustee’s hands. A beneficiary of a testamentary trust to whom the trustee has distributed property received from a personal representative is a distributee. For purposes of this provision, “testamentary trustee” includes a trustee to whom assets are transferred by will, to the extent of the devised assets.

  • (13) “Domicile” means a person’s usual place of dwelling and shall be synonymous with residence.

  • (14) “Estate” means the property of a decedent that is the subject of administration.

  • (15) “Exempt property” means the property of a decedent’s estate which is described in s. 732.402.

  • (16) “File” means to file with the court or clerk.

  • (17) “Foreign personal representative” means a personal representative of another state or a foreign country.

  • (18) “Formal notice” means a form of notice that is described in and served by a method of service provided under rule 5.040(a) of the Florida Probate Rules.

  • (19) “Grantor” means one who creates or adds to a trust and includes “settlor” or “trustor” and a testator who creates or adds to a trust.

  • (20) “Heirs” or “heirs at law” means those persons, including the surviving spouse, who are entitled under the statutes of intestate succession to the property of a decedent.

  • (21) “Incapacitated” means a judicial determination that a person lacks the capacity to manage at least some of the person’s property or to meet at least some of the person’s essential health and safety requirements. A minor shall be treated as being incapacitated.

  • (22) “Informal notice” or “notice” means a method of service for pleadings or papers as provided under rule 5.040(b) of the Florida Probate Rules.

  • (23) “Interested person” means any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved. In any proceeding affecting the estate or the rights of a beneficiary in the estate, the personal representative of the estate shall be deemed to be an interested person. In any proceeding affecting the expenses of the administration and obligations of a decedent’s estate, or any claims described in s. 733.702(1), the trustee of a trust described in s. 733.707(3) is an interested person in the administration of the grantor’s estate. The term does not include a beneficiary who has received complete distribution. The meaning, as it relates to particular persons, may vary from time to time and must be determined according to the particular purpose of, and matter involved in, any proceedings.

  • (24) “Letters” means authority granted by the court to the personal representative to act on behalf of the estate of the decedent and refers to what has been known as letters testamentary and letters of administration. All letters shall be designated “letters of administration.”

  • (25) “Minor” means a person under 18 years of age whose disabilities have not been removed by marriage or otherwise.

  • (26) “Other state” means any state of the United States other than Florida and includes the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession subject to the legislative authority of the United States.

  • (27) “Parent” excludes any person who is only a stepparent, foster parent, or grandparent.

  • (28) “Personal representative” means the fiduciary appointed by the court to administer the estate and refers to what has been known as an administrator, administrator cum testamento annexo, administrator de bonis non, ancillary administrator, ancillary executor, or executor.

  • (29) “Petition” means a written request to the court for an order.

  • (30) “Power of appointment” means an authority, other than as an incident of the beneficial ownership of property, to designate recipients of beneficial interests in property.

  • (31) “Probate of will” means all steps necessary to establish the validity of a will and to admit a will to probate.

  • (32) “Property” means both real and personal property or any interest in it and anything that may be the subject of ownership.

  • (33) “Protected homestead” means the property described in s. 4(a)(1), Art. X of the State Constitution on which at the death of the owner the exemption inures to the owner’s surviving spouse or heirs under s. 4(b), Art. X of the State Constitution. For purposes of the code, real property owned in tenancy by the entireties or in joint tenancy with rights of survivorship is not protected homestead.

  • (34) “Residence” means a person’s place of dwelling.

  • (35) “Residuary devise” means a devise of the assets of the estate which remain after the provision for any devise which is to be satisfied by reference to a specific property or type of property, fund, sum, or statutory amount. If the will contains no devise which is to be satisfied by reference to a specific property or type of property, fund, sum, or statutory amount, “residuary devise” or “residue” means a devise of all assets remaining after satisfying the obligations of the estate.

  • (36) “Security” means a security as defined in s. 517.021.

  • (37) “Security interest” means a security interest as defined in s. 671.201.

  • (38) “Trust” means an express trust, private or charitable, with additions to it, wherever and however created. It also includes a trust created or determined by a judgment or decree under which the trust is to be administered in the manner of an express trust. “Trust” excludes other constructive trusts, and it excludes resulting trusts; conservatorships; custodial arrangements pursuant to the Florida Uniform Transfers to Minors Act; business trusts providing for certificates to be issued to beneficiaries; common trust funds; land trusts under s. 689.071, except to the extent provided in s. 689.071(7); trusts created by the form of the account or by the deposit agreement at a financial institution; voting trusts; security arrangements; liquidation trusts; trusts for the primary purpose of paying debts, dividends, interest, salaries, wages, profits, pensions, or employee benefits of any kind; and any arrangement under which a person is nominee or escrowee for another.

  • (39) “Trustee” includes an original, additional, surviving, or successor trustee, whether or not appointed or confirmed by court.

  • (40) “Will” means an instrument, including a codicil, executed by a person in the manner prescribed by this code, which disposes of the person’s property on or after his or her death and includes an instrument which merely appoints a personal representative or revokes or revises another will.

History.- s. 1, ch. 74-106; s. 4, ch. 75-220; s. 1, ch. 77-174; s. 2, ch. 85-79; s. 66, ch. 87-226; s. 1, ch. 88-340; s. 7, ch. 93-257; s. 6, ch. 95-401; s. 949, ch. 97-102; s. 52, ch. 98-421; s. 11, ch. 2001-226; s. 106, ch. 2002-1; s. 2, ch. 2003-154; s. 2, ch. 2005-108; s. 29, ch. 2006-217; s. 3, ch. 2007-74; s. 8, ch. 2007-153; s. 1, ch. 2009-115; s. 4, ch. 2010-132; s. 1, ch. 2012-109; s. 16, ch. 2013-172.

Note.- Created from former s. 731.03.