Bill Text: FL S1544 | 2010 | Regular Session | Comm Sub

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Probate Procedures [SPSC]

Spectrum: Partisan Bill (Democrat 2-0)

Status: (Introduced - Dead) 2010-04-28 - Placed on Special Order Calendar; Read 2nd time -SJ 00931; Amendment(s) adopted (214602) -SJ 00932; Substituted CS/CS/HB 1237 -SJ 00932; Laid on Table, companion bill(s) passed, see CS/CS/HB 1237 (Ch. 2010-132), CS/CS/SB 998 (Ch. 2010-122) -SJ 00932 [S1544 Detail]

Download: Florida-2010-S1544-Comm_Sub.html

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Florida Senate - 2010                             CS for SB 1544 
 
By the Committee on Judiciary; and Senator Joyner 
590-03777-10                                          20101544c1 
1                        A bill to be entitled 
2         An act relating to probate procedures; amending s. 
3         655.934, F.S.; updating terminology relating to a 
4         durable power of attorney; amending s. 655.935, F.S.; 
5         imposing additional duties on the lessor of a safe 
6         deposit box relating to the contents of the box when 
7         the lessee has died; authorizing the lessor to charge 
8         fees for performing such duties; amending s. 731.110, 
9         F.S.; revising requirements relating to filing a 
10         caveat; providing that a caveat may be filed before or 
11         after a person’s death; providing for the expiration 
12         of the caveat; amending s. 731.201, F.S.; revising the 
13         definitions of “formal notice” and “informal notice”; 
14         amending s. 731.301, F.S.; clarifying provisions 
15         relating to notice; amending s. 732.2125, F.S.; 
16         clarifying a provision relating to the right of 
17         election; amending s. 732.401, F.S.; providing that a 
18         decedent’s spouse may elect to take an interest in a 
19         homestead as a tenant in common rather than a life 
20         estate; providing procedures and forms for filing 
21         notice of such election; providing that such election 
22         is irrevocable; providing for the allocation of 
23         expenses relating to the homestead; specifying that 
24         the interests of the decedent’s descendants in the 
25         homestead may not be divested if the spouse’s interest 
26         is disclaimed; amending s. 732.4015, F.S.; providing 
27         that if a spouse’s interest in a homestead has been 
28         disclaimed, the disclaimed interest passes in 
29         accordance with ch. 739, F.S.; creating s. 732.4017, 
30         F.S.; providing for the inter vivos transfer of 
31         homestead property; providing limitations; amending s. 
32         732.608, F.S.; clarifying provisions relating to which 
33         laws apply when determining intestate succession in 
34         certain circumstances; creating s. 732.805, F.S.; 
35         denying certain rights or benefits to a surviving 
36         spouse who procured a marriage by fraud, duress, or 
37         undue influence; providing procedures for challenging 
38         a surviving spouse; providing for the award of costs 
39         and fees; providing for notice to obligors; providing 
40         a time limitation on bringing such actions; creating 
41         s. 733.1051, F.S.; providing for the temporary 
42         construction of the terms of a will that has specified 
43         provisions with respect to federal tax; authorizing 
44         the court to define respective shares or determine 
45         beneficiaries during a specified period if the will 
46         contains certain provisions; providing that such 
47         provision is remedial in nature and operates 
48         retroactively to January 1, 2010; amending s. 733.107, 
49         F.S.; providing that, in a will contest, certain 
50         affidavits and oaths are prima facie evidence relating 
51         to execution and attestation of a will; amending s. 
52         733.2123, F.S.; deleting the requirement for attaching 
53         a copy of a will to a notice of a petition for 
54         administration; amending s. 733.608, F.S.; specifying 
55         the manner for serving notice of the personal 
56         representative’s lien for expenditures and obligations 
57         incurred; amending s. 735.203, F.S.; revising 
58         provisions relating to providing notice for a petition 
59         for summary administration; amending s. 736.1102, 
60         F.S.; clarifying provisions relating to which laws 
61         apply when determining intestate succession in certain 
62         circumstances; amending s. 744.444, F.S.; conforming 
63         provisions to changes made by the act; providing 
64         effective dates. 
65 
66  Be It Enacted by the Legislature of the State of Florida: 
67 
68         Section 1. Section 655.934, Florida Statutes, is amended to 
69  read: 
70         655.934 Effect of lessee’s death or incapacity.—If a lessor 
71  without knowledge of the death or of an order determining the 
72  incapacity of the lessee deals with the lessee’s agent in 
73  accordance with a written power of attorney or a durable family 
74  power of attorney signed by such lessee, the transaction binds 
75  the lessee’s estate and the lessee. 
76         Section 2. Section 655.935, Florida Statutes, is amended to 
77  read: 
78         655.935 Search procedure on death of lessee.—If 
79  satisfactory proof of the death of the lessee is presented, a 
80  lessor shall permit the person named in a court order for that 
81  the purpose, or if no order has been served upon the lessor, the 
82  spouse, a parent, an adult descendant, or a person named as a 
83  personal representative in a copy of a purported will produced 
84  by such person, to open and examine the contents of a safe 
85  deposit box leased or coleased by a decedent, or any documents 
86  delivered by a decedent for safekeeping, in the presence of an 
87  officer of the lessor.; and the lessor, 
88         (1) If so requested by such person, the lessor shall remove 
89  and deliver only shall deliver: 
90         (a)(1) Any writing purporting to be a will of the decedent, 
91  to the court having probate jurisdiction in the county in which 
92  the financial institution is located. 
93         (b)(2) Any writing purporting to be a deed to a burial plot 
94  or to give burial instructions, to the person making the request 
95  for a search. 
96         (c)(3) Any document purporting to be an insurance policy on 
97  the life of the decedent, to the beneficiary named therein. 
98         (2)� The officer of the lessor shall make a complete copy of 
99  any document removed and delivered pursuant to this section and 
100  place that copy, together with a memorandum of delivery 
101  identifying the name of the officer, the person to whom the 
102  document was delivered, the purported relationship of the person 
103  to whom the document was delivered, and the date of delivery, in 
104  the safe-deposit box leased or coleased by the decedent. 
105         (3) The lessor may charge reasonable fees to cover costs 
106  incurred pursuant to this section. 
107         (4) No other contents may be removed pursuant to this 
108  section. Access granted pursuant to this section is shall not be 
109  considered the initial opening of the safe-deposit box pursuant 
110  to s. 733.6065 by a personal representative appointed by a court 
111  in this state. 
112         Section 3. Section 731.110, Florida Statutes, is amended to 
113  read: 
114         731.110 Caveat; proceedings.— 
115         (1) Any interested person, including a creditor, who is 
116  apprehensive that an estate, either testate or intestate, will 
117  be administered or that a will may be admitted to probate 
118  without that the person’s knowledge may file a caveat with the 
119  court. The caveat of the interested person, other than a 
120  creditor, may be filed before or after the death of the person 
121  for whom the estate will be, or is being, administered. The 
122  caveat of a creditor may be filed only after the person’s death. 
123         (2) A caveat shall contain the decedent’s social security 
124  number, last known residence address, and date of birth, if they 
125  are known, as identification, a statement of the interest of the 
126  caveator in the estate, the name and specific residence address 
127  of the caveator, and, If the caveator, other than a state 
128  agency, is a nonresident and is not represented by an attorney 
129  admitted to practice in this state who has signed the caveat 
130  nonresident of the county, the caveator must designate 
131  additional name and specific residence address of some person 
132  residing in the county in which the caveat is filed, or office 
133  address of a member of The Florida Bar residing in Florida, 
134  designated as the agent of the caveator, upon whom service may 
135  be made; however, if the caveator is represented by an attorney 
136  admitted to practice in this state who has signed the caveat, it 
137  is not necessary to designate a resident agent. 
138         (3) If When a caveat has been filed by an interested person 
139  other than a creditor, the court may shall not admit a will of 
140  the decedent to probate or appoint a personal representative 
141  until formal notice of the petition for administration has been 
142  served on the caveator or the caveator’s designated agent by 
143  formal notice and the caveator has had the opportunity to 
144  participate in proceedings on the petition, as provided by the 
145  Florida Probate Rules. 
146         (4) A caveat filed before the death of the person for whom 
147  the estate will be administered expires 2 years after filing. 
148         Section 4. Subsections (18) and (22) of section 731.201, 
149  Florida Statutes, are amended to read: 
150         731.201 General definitions.—Subject to additional 
151  definitions in subsequent chapters that are applicable to 
152  specific chapters or parts, and unless the context otherwise 
153  requires, in this code, in s. 409.9101, and in chapters 736, 
154  738, 739, and 744, the term: 
155         (18) “Formal notice” means a form of formal notice that is 
156  described in and served by a method of services provided under 
157  rule 5.040(a) of the Florida Probate Rules. 
158         (22) “Informal notice” or “notice” means a method of 
159  service for pleadings or papers as provided informal notice 
160  under rule 5.040(b) of the Florida Probate Rules. 
161         Section 5. Section 731.301, Florida Statutes, is amended to 
162  read: 
163         731.301 Notice.— 
164         (1) If When notice to an interested person of a petition or 
165  other proceeding is required, the notice shall be given to the 
166  interested person or that person’s attorney as provided in the 
167  code or the Florida Probate Rules. 
168         (2) In a probate proceeding, formal notice is shall be 
169  sufficient to acquire jurisdiction over the person receiving 
170  formal notice to the extent of the person’s interest in the 
171  estate or in the decedent’s protected homestead. 
172         (3) Persons given proper notice of a any proceeding are 
173  shall be bound by all orders entered in that proceeding. 
174         Section 6. Subsection (2) of section 732.2125, Florida 
175  Statutes, is amended to read: 
176         732.2125 Right of election; by whom exercisable.—The right 
177  of election may be exercised: 
178         (2) With approval of the court having jurisdiction of the 
179  probate proceeding by an attorney in fact or a guardian of the 
180  property of the surviving spouse. Before approving the election, 
181  the court shall determine that the election is in as the best 
182  interests of the surviving spouse, during the spouse’s probable 
183  lifetime, require. 
184         Section 7. Section 732.401, Florida Statutes, is amended to 
185  read: 
186         732.401 Descent of homestead.— 
187         (1) If not devised as authorized permitted by law and the 
188  Florida constitution, the homestead shall descend in the same 
189  manner as other intestate property; but if the decedent is 
190  survived by a spouse and one or more descendants, the surviving 
191  spouse shall take a life estate in the homestead, with a vested 
192  remainder to the descendants in being at the time of the 
193  decedent’s death per stirpes. 
194         (2) In lieu of a life estate under subsection (1), the 
195  surviving spouse may elect to take an undivided one-half 
196  interest in the homestead as a tenant in common, with the 
197  remaining undivided one-half interest vesting in the decedent’s 
198  descendants in being at the time of the decedent’s death, per 
199  stirpes. 
200         (a) The right of election may be exercised: 
201         1. By the surviving spouse; or 
202         2. With the approval of a court having jurisdiction of the 
203  real property, by an attorney in fact or guardian of the 
204  property of the surviving spouse. Before approving the election, 
205  the court shall determine that the election is in the best 
206  interests of the surviving spouse during the spouse’s probable 
207  lifetime. 
208         (b) The election must be made within 6 months after the 
209  decedent’s death and during the surviving spouse’s lifetime. The 
210  time for making the election may not be extended except as 
211  provided in paragraph (c). 
212         (c) A petition by an attorney in fact or guardian of the 
213  property for approval to make the election tolls the time for 
214  making the election until 6 months after the decedent’s death or 
215  30 days after the rendition of an order authorizing the 
216  election, whichever occurs last. 
217         (d) Once made, the election is irrevocable. 
218         (e) The election shall be made by filing a notice of 
219  election containing the legal description of the homestead 
220  property for recording in the official record books of the 
221  county or counties where the homestead property is located. The 
222  notice must be in substantially the following form: 
223 
224                    ELECTION OF SURVIVING SPOUSE 
225                   TO TAKE A ONE-HALF INTEREST OF 
226              DECEDENT’S INTEREST IN HOMESTEAD PROPERTY 
227 
228  STATE OF............ 
229  COUNTY OF............ 
230 
231         1. The decedent, ______________, died on ______________. On 
232  the date of the decedent’s death, The decedent was married to 
233  ________________, who survived the decedent. 
234         2. At the time of the decedent’s death, the decedent owned 
235  an interest in real property that the affiant believes to be 
236  homestead property described in s. 4, Article X of the State 
237  Constitution, that real property being in _________County, 
238  Florida, and described as: ...(description of homestead 
239  property).... 
240         3. Affiant elects to take one-half of decedent’s interest 
241  in the homestead as a tenant in common in lieu of a life estate. 
242         4. If affiant is not the surviving spouse, affiant is the 
243  surviving spouse’s attorney in fact or guardian of the property 
244  and an order has been rendered by a court having jurisdiction of 
245  the real property authorizing the undersigned to make this 
246  election. 
247 
248  ................ 
249  ...(Affiant)... 
250 
251  Sworn to (or affirmed) and subscribed before me this .... day of 
252  ...(month)..., ...(year)..., by ...(affiant)... 
253 
254  ...(Signature of Notary Public-State of Florida)... 
255 
256  ...(Print, Type, or Stamp Commissioned Name of Notary Public)... 
257 
258  Personally Known OR Produced Identification 
259  ...(Type of Identification Produced)... 
260 
261         (3) Unless and until an election is made under subsection 
262  (2), expenses relating to the ownership of the homestead shall 
263  be allocated between the surviving spouse, as life tenant, and 
264  the decedent’s descendants, as remaindermen, in accordance with 
265  chapter 738. If an election is made, expenses relating to the 
266  ownership of the homestead shall be allocated between the 
267  surviving spouse and the descendants as tenants in common in 
268  proportion to their respective shares, effective as of the date 
269  the election is filed for recording. 
270         (4) If the surviving spouse’s life estate created in 
271  subsection (1) is disclaimed pursuant to chapter 739, the 
272  interests of the decedent’s descendants may not be divested. 
273         (5)(2) This section does Subsection (1) shall not apply to 
274  property that the decedent and the surviving spouse owned in 
275  tenancy by the entireties or joint tenancy with rights of 
276  survivorship as tenants by the entirety. 
277         Section 8. Subsection (3) is added to section 732.4015, 
278  Florida Statutes, to read: 
279         732.4015 Devise of homestead.— 
280         (3) If an interest in homestead has been devised to the 
281  surviving spouse as authorized by law and the constitution, and 
282  the surviving spouse’s interest is disclaimed, the disclaimed 
283  interest shall pass in accordance with chapter 739. 
284         Section 9. Section 732.4017, Florida Statutes, is created 
285  to read: 
286         732.4017 Inter vivos transfer of homestead property.— 
287         (1) If the owner of homestead property transfers an 
288  interest in that property, including a transfer in trust, with 
289  or without consideration, to one or more persons during the 
290  owner’s lifetime, the transfer is not a devise for purposes of 
291  s. 731.201(10) or s. 732.4015, and the interest transferred does 
292  not descend as provided in s. 732.401 if the transferor fails to 
293  retain a power, held in any capacity, acting alone or in 
294  conjunction with any other person, to revoke or revest that 
295  interest in the transferor. 
296         (2) As used in this section, the term “transfer in trust” 
297  refers to a trust under which the transferor of the homestead 
298  property, alone or in conjunction with another person, does not 
299  possess a right of revocation as that term is defined in s. 
300  733.707(3)(e). A power possessed by the transferor which is 
301  exercisable during the transferor’s lifetime to alter the 
302  beneficial use and enjoyment of the interest within a class of 
303  beneficiaries identified only in the trust instrument is not a 
304  right of revocation if the power may not be exercised in favor 
305  of the transferor, the transferor’s creditors, the transferor’s 
306  estate, or the creditors of the transferor’s estate or exercised 
307  to discharge the transferor’s legal obligations. This subsection 
308  does not create an inference that a power not described in this 
309  subsection is a power to revoke or revest an interest in the 
310  transferor. 
311         (3) The transfer of an interest in homestead property 
312  described in subsection (1) may not be treated as a devise of 
313  that interest even if: 
314         (a) The transferor retains a separate legal or equitable 
315  interest in the homestead property, directly or indirectly 
316  through a trust or other arrangement such as a term of years, 
317  life estate, reversion, possibility of reverter, or fractional 
318  fee interest; 
319         (b) The interest transferred does not become a possessory 
320  interest until a date certain or upon a specified event, the 
321  occurrence or nonoccurrence of which does not constitute a power 
322  held by the transferor to revoke or revest the interest in the 
323  transferor, including, without limitation, the death of the 
324  transferor; or 
325         (c) The interest transferred is subject to divestment, 
326  expiration, or lapse upon a date certain or upon a specified 
327  event, the occurrence or nonoccurrence of which does not 
328  constitute a power held by the transferor to revoke or revest 
329  the interest in the transferor, including, without limitation, 
330  survival of the transferor. 
331         (4) It is the intent of the Legislature that this section 
332  clarify existing law. 
333         Section 10. Section 732.608, Florida Statutes, is amended 
334  to read: 
335         732.608 Construction of generic terms.—The laws used to 
336  determine paternity and Adopted persons and persons born out of 
337  wedlock are included in class gift terminology and terms of 
338  relationship, in accordance with rules for determining 
339  relationships for the purposes of intestate succession apply 
340  when determining whether class gift terminology and terms of 
341  relationship include adopted persons and persons born out-of 
342  wedlock. 
343         Section 11. Section 732.805, Florida Statutes, is created 
344  to read: 
345         732.805 Spousal rights procured by fraud, duress, or undue 
346  influence.— 
347         (1) A surviving spouse who is found to have procured a 
348  marriage to the decedent by fraud, duress, or undue influence is 
349  not entitled to any of the following rights or benefits that 
350  inure solely by virtue of the marriage or the person’s status as 
351  surviving spouse of the decedent unless both spouses 
352  subsequently ratified the marriage: 
353         (a) Any rights or benefits under the Florida Probate Code, 
354  including, but not limited to, entitlement to elective share or 
355  family allowance; preference in appointment as personal 
356  representative; inheritance by intestacy, homestead, or exempt 
357  property; or inheritance as a pretermitted spouse. 
358         (b) Any rights or benefits under a bond, life insurance 
359  policy, or other contractual arrangement if the decedent is the 
360  principal obligee or the person upon whose life the policy is 
361  issued, unless the surviving spouse is provided for by name, 
362  whether or not designated as the spouse, in the bond, life 
363  insurance policy, or other contractual arrangement. 
364         (c) Any rights or benefits under a will, trust, or power of 
365  appointment, unless the surviving spouse is provided for by 
366  name, whether or not designated as the spouse, in the will, 
367  trust, or power of appointment. 
368         (d) Any immunity from the presumption of undue influence 
369  that a surviving spouse may have under state law. 
370         (2) Any of the rights or benefits listed in paragraphs 
371  (1)(a)-(c) which would have passed solely by virtue of the 
372  marriage to a surviving spouse who is found to have procured the 
373  marriage by fraud, duress, or undue influence shall pass as if 
374  the spouse had predeceased the decedent. 
375         (3) A challenge to a surviving spouse’s rights under this 
376  section may be maintained as a defense, objection, or cause of 
377  action by any interested person after the death of the decedent 
378  in any proceeding in which the fact of marriage may be directly 
379  or indirectly material. 
380         (4) The contestant has the burden of establishing, by a 
381  preponderance of the evidence, that the marriage was procured by 
382  fraud, duress, or undue influence. If ratification of the 
383  marriage is raised as a defense, the surviving spouse has the 
384  burden of establishing, by a preponderance of the evidence, the 
385  subsequent ratification by both spouses. 
386         (5) In all actions brought under this section, the court 
387  shall award taxable costs as in chancery actions, including 
388  attorney’s fees. When awarding taxable costs and attorney’s 
389  fees, the court may direct payment from a party’s interest, if 
390  any, in the estate, or enter a judgment that may be satisfied 
391  from other property of the party, or both. 
392         (6) An insurance company, financial institution, or other 
393  obligor making payment according to the terms of its policy or 
394  obligation is not liable by reason of this section unless, 
395  before payment, it received written notice of a claim pursuant 
396  to this subsection. 
397         (a) The notice must be in writing and must be accomplished 
398  in a reasonable manner under the circumstances and likely to 
399  result in receipt of the notice. Permissible methods include 
400  first-class mail, personal delivery, delivery to the person’s 
401  last known place of residence or place of business, or a 
402  properly directed facsimile or other electronic means. 
403         (b) Notice to an insurance company or financial institution 
404  must contain the name, address, and taxpayer identification 
405  number, or account or policy number, of the principal obligee or 
406  person whose life is insured and be directed to an officer or a 
407  manager of the insurance company or financial institution in 
408  this state. If the insurance company or financial institution 
409  does not have an office in this state, the notice must be 
410  directed to the insurance company’s or financial institution’s 
411  principal office. 
412         (c) Notice is effective when given, except that notice upon 
413  an insurance company or financial institution is not effective 
414  until 5 business days after it is given. 
415         (7) The rights and remedies granted in this section are in 
416  addition to any other rights or remedies a person may have at 
417  law or equity. 
418         (8) Unless sooner barred by adjudication, estoppel, or a 
419  provision of the Florida Probate Code or Florida Probate Rules, 
420  an interested person is barred from bringing an action under 
421  this section unless the action is commenced within 4 years after 
422  the decedent’s date of death. A cause of action under this 
423  section accrues on the decedent’s date of death. 
424         Section 12. Effective upon this act becoming a law, section 
425  733.1051, Florida Statutes, is created to read: 
426         733.1051 Limited judicial construction of will having 
427  federal tax provisions.— 
428         (1) For the purpose of this section: 
429         (a) “Applicable period” means a period beginning January 1, 
430  2010, and ending at the end of December 31, 2010, or the day 
431  before the date that a law having the effect of repealing or 
432  modifying s. 901 of the federal Economic Growth and Tax Relief 
433  Reconciliation Act of 2001 becomes effective, whichever occurs 
434  first. 
435         (b) A disposition occurs when the testator dies. 
436         (2) Upon application of a personal representative or a 
437  person who is or may be a beneficiary who is affected by the 
438  construction of a will, a court may at any time construe the 
439  terms of the will to define the respective shares or determine 
440  beneficiaries if a disposition occurs during the applicable 
441  period and the will contains a provision that: 
442         (a) Includes a formula disposition that refers to the 
443  unified credit, estate tax exemption, applicable exemption 
444  amount, applicable credit amount, applicable exclusion amount, 
445  generation-skipping transfer tax exemption, GST exemption, 
446  marital deduction, maximum marital deduction, unlimited marital 
447  deduction, or maximum charitable deduction; 
448         (b) Measures a share of an estate based on the amount that 
449  can pass free of federal estate tax or the amount that can pass 
450  free of federal generation-skipping transfer tax; 
451         (c) Otherwise makes a disposition referring to a charitable 
452  deduction, marital deduction, or another provision of federal 
453  estate tax or generation-skipping transfer tax law; or 
454         (d) Appears to be intended to reduce or minimize federal 
455  estate tax or generation-skipping transfer tax. 
456         (3) In construing a will under this section, the court 
457  shall consider the terms and purposes of the will, the facts and 
458  circumstances surrounding the creation of the will, and the 
459  testator’s probable intent. In determining probable intent, the 
460  court may consider evidence relevant to the testator’s intent 
461  even though the evidence contradicts the apparent plain meaning 
462  of the will. 
463         (4) This section does not apply to a disposition that is 
464  specifically conditioned upon a federal estate or generation 
465  skipping transfer tax not being imposed. 
466         (5) Unless otherwise ordered by the court, during the 
467  applicable period and without court order, the personal 
468  representative administering a will containing one or more 
469  provisions described in subsection (2) may: 
470         (a) Delay or refrain from making any distribution; 
471         (b) Incur and pay fees and costs reasonably necessary to 
472  determine his or her duties and obligations, including 
473  compliance with existing and reasonably anticipated future 
474  federal tax laws; and 
475         (c) Establish and maintain reserves for the payment of 
476  fees, costs, and federal taxes. 
477 
478  The personal representative is not liable for actions made in 
479  good faith pursuant to this subsection. 
480         (6) The provisions of this section are in addition to, and 
481  not in derogation of, rights under the common law to construe a 
482  will. 
483         (7) This section is remedial in nature and intended to 
484  provide a new or modified legal remedy. This section shall 
485  operate retroactively to January 1, 2010. 
486         Section 13. Subsection (1) of section 733.107, Florida 
487  Statutes, is amended to read: 
488         733.107 Burden of proof in contests; presumption of undue 
489  influence.— 
490         (1) In all proceedings contesting the validity of a will, 
491  the burden shall be upon the proponent of the will to establish 
492  prima facie its formal execution and attestation. A self-proving 
493  affidavit executed in accordance with s. 732.503 or an oath of 
494  an attesting witness executed as required in s. 733.201(2) is 
495  admissible and establishes prima facie the formal execution and 
496  attestation of the will. Thereafter, the contestant shall have 
497  the burden of establishing the grounds on which the probate of 
498  the will is opposed or revocation is sought. 
499         Section 14. Section 733.2123, Florida Statutes, is amended 
500  to read: 
501         733.2123 Adjudication before issuance of letters.—A 
502  petitioner may serve formal notice of the petition for 
503  administration on interested persons. A copy of the will offered 
504  for probate shall be attached to the notice. A No person who is 
505  served with such formal notice before of the petition for 
506  administration prior to the issuance of letters or who has 
507  waived notice may not challenge the validity of the will, 
508  testacy of the decedent, qualifications of the personal 
509  representative, venue, or jurisdiction of the court, except in 
510  the proceedings before issuance of letters. 
511         Section 15. Subsection (4) of section 733.608, Florida 
512  Statutes, is amended to read: 
513         733.608 General power of the personal representative.— 
514         (4) The personal representative’s lien shall attach to the 
515  property and take priority as of the date and time a notice of 
516  that lien is recorded in the official records of the county 
517  where that property is located, and the lien may secure 
518  expenditures and obligations incurred, including, but not 
519  limited to, fees and costs made before or after recording the 
520  notice. The notice of lien may be recorded before adjudicating 
521  prior to the adjudication of the amount of the debt. The notice 
522  of lien also shall also be filed in the probate proceeding, but 
523  failure to do so does shall not affect the validity of the lien. 
524  A copy of the notice of lien shall be served in the manner 
525  provided for service of by formal notice upon each person 
526  appearing to have an interest in the property. The notice of 
527  lien must shall state: 
528         (a) The name and address of the personal representative and 
529  the personal representative’s attorney; 
530         (b) The legal description of the property; 
531         (c) The name of the decedent and also, to the extent known 
532  to the personal representative, the name and address of each 
533  person appearing to have an interest in the property; and 
534         (d) That the personal representative has expended or is 
535  obligated to expend funds to preserve, maintain, insure, and 
536  protect the property and that the lien stands as security for 
537  recovery of those expenditures and obligations incurred, 
538  including, but not limited to, fees and costs. 
539 
540  Substantial compliance with the foregoing provisions renders 
541  shall render the notice in comportment with this section. 
542         Section 16. Subsections (1) and (3) of section 735.203, 
543  Florida Statutes, are amended to read: 
544         735.203 Petition for summary administration.— 
545         (1) A petition for summary administration may be filed by 
546  any beneficiary or person nominated as personal representative 
547  in the decedent’s will offered for probate. The petition must be 
548  signed and verified by the surviving spouse, if any, and any 
549  beneficiaries except that the joinder in a petition for summary 
550  administration is not required of a beneficiary who will receive 
551  a full distributive share under the proposed distribution. 
552  However, formal notice of the petition must be served on a Any 
553  beneficiary not joining in shall be served by formal notice with 
554  the petition. 
555         (3) If each trustee of a trust that is a beneficiary of the 
556  estate of the deceased person is also a petitioner, formal 
557  notice of the petition for summary administration shall be 
558  served on each qualified beneficiary of the trust as defined in 
559  s. 736.0103 shall be served by formal notice with the petition 
560  for summary administration unless joinder in, or consent to, the 
561  petition is obtained from each qualified beneficiary of the 
562  trust. 
563         Section 17. Section 736.1102, Florida Statutes, is amended 
564  to read: 
565         736.1102 Construction of generic terms.—The laws used to 
566  determine paternity and Adopted persons and persons born out of 
567  wedlock are included in class gift terminology and terms of 
568  relationship, in accordance with rules for determining 
569  relationships for the purposes of intestate succession apply 
570  when determining whether class gift terminology and terms of 
571  relationship include adopted persons and persons born out of 
572  wedlock. 
573         Section 18. Subsection (9) of section 744.444, Florida 
574  Statutes, is amended to read: 
575         744.444 Power of guardian without court approval.—Without 
576  obtaining court approval, a plenary guardian of the property, or 
577  a limited guardian of the property within the powers granted by 
578  the order appointing the guardian or an approved annual or 
579  amended guardianship report, may: 
580         (9) Elect whether to dissent from a will under the 
581  provisions of s. 732.2125(2), seek approval to make an election 
582  in accordance with s. 732.401, or assert any other right or 
583  choice available to a surviving spouse in the administration of 
584  a decedent’s estate. 
585         Section 19. Except as otherwise expressly provided in this 
586  act and except for this section, which shall take effect upon 
587  this act becoming a law, this act shall take effect October 1, 
588  2010.