Florida's New Probate Law

Florida's began the year 2002 with a substantially revised Probate Code, and in May of 2002 the Supreme Court adopted corresponding amendments to the Probate Rules, so that now the state is operating under very different law and procedures from those that were in effect a year ago.

Among the most significant changes are those affecting the elective share of a spouse. Florida has long allowed a husband or wife of a decedent to take a share of the decedent's property if the spouse did not want to accept what the decedent provided in his or her will. Under the old law, that amount was 30% of the fair market value of all property belonging to the decedent on his date of death, except for real property not located in the state. Excluded from the property "belonging to the decedent" was property which passed outside of probate, such as assets owned as a joint tenant with right of survivorship, bank accounts and securities held "in trust for" someone else, "pay on death accounts" and assets actually in a formal trust.

The new law, which unlike some of the other changes to the Probate Code became effective on October 1, 1999, to apply to the estates of decedents dying on or after October 1, 2001, provides that the spouse may elect a share equal to 30% of the "elective estate", and defines "elective estate" all of the decedent's probate assets (as under the former law) plus all "pay on death", "transfer on death", "in trust for" or coownership with right of survival, including assets owned with the spouse as tenants by the entirety (the elective share portion being limited to the decedent's share of such property). There are exclusions, but basically everything the decedent owned is subject to the election, rather than simply the assets subject to probate. This is a major change.

Most of the other changes apply to estates of persons who died after January 1, 2002. As always, one responsibility of a personal representative of a decedent's estate is to notify creditors and persons who may be interested in the estate that the proceedings are in progress and that claims or objections must be brought within the statutory times. The new law provides for the publication of a notice to creditors, and of the service of a notice of administration on the spouse, beneficiaries, the trustee of any revocable living trust and persons who might be entitled to exempt property.

For smaller estates, the alternative to a "formal" probate proceeding is a summary administration. The old law allowed for what was termed a "family administration" for estates with assets less than $60,000, and summary administration for estates with assets less than $25,000 provided that certain other qualifying facts, including satisfaction of all creditor's claims, could be shown. The new summary administration is essentially the same, with a ceiling of $75,000. - Harry G. McConnell

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