Blogs from July, 2009


The Florida Probate Code recently underwent some critical revisions sponsored by the Governmental Affairs Policy Committee.  These revisions were approved by the Governor and took effect July 1, 2009.  Trust and Estate practitioners will want to take note of these changes in the Code:

The Code added a definition of “incapacitated person” at §731.201(21) to mean “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.” 

Formerly, the Code only included a definition of “incompetent” to include those persons adjudicated as such.  This more expansive definition of “incapacitated” should afford more protection to those who have, for example, been the subject of a limited guardianship or after a judicial determination that a power of attorney was used in favor of the principal because the principal could no longer handle his affairs.

The Code now defines a “minor” as a person under 18 years of age whose disabilities have not been removed by marriage or otherwise.  Fla.Stat. §731.201(25).

Amended the statute of limitations in paternity in probate proceedings by adding a provision to 732.108(2)(b) regarding Adopted persons and persons born out of wedlock—that Chapter 95 shall not apply in determining heirs in a probate proceeding under this paragraph.

Clarified the elective share definition of “transfer in satisfaction of the elective share” to mean an irrevocable transfer by the decedent during life to elective share trust.  See Fla.Stat. §721.2025((10).

The abatement procedure regarding the sources from which the elective share is payable, addressed in Fla.Stat. §732.2075(1)(a) was amended to now read: “Property interests included in the elective estate that passes or has passed to or for the benefit of the surviving spouse, including interests that are contingent upon making the election, but only to the extent that such contingent interests  do not diminish other property interests that would be applied to satisfy the elective share in the absence of the contingent  interests.”  Section (1)(d) of this statute was also amended to add “To the extent paid to or for the benefit of the surviving spouse, the proceeds of any term or other policy of  insurance on the decedent’s life if, at the time of decedent’s death, the policy was owned by any person other than the  surviving spouse.”

Fla.Stat.§732.2135(5) was added to provide that “if the court determines that an election is made or pursued in bad faith, the court may assess attorney’s fees and costs against the surviving spouse or the surviving spouse’s estate.”

The Proof of Wills provision of the Probate Code was amended to include the aforementioned substitution of an “incapacitated” person for what was formerly defined as “incompetent” when it appears the witnesses to a will cannot be found.  This substituted definition also now appears in the section of the Code dealing with reasons for disqualification of a personal representative. 

The Code is now clarified to provide that when a petitioner for summary administration is also the trustee of a trust that is a beneficiary of the decedent’s estate, the beneficiaries of the trust are to be made aware of the petition for summary administration.  Fla.Stat. §735.203.


Most Recent Posts from July, 2009