florida statutes 1963, volume 2 · 2014-10-01 · hlstol'j'.-u, ch. 16108, 1938; cgl 1936...

TITLE XLI ESTATES OF DECEDENTS

CHAPTER 731

FLORIDA PROBATE LAW, FIRST PART

731.01 Short title. 731.02 Application. 731.03 Definitions. 731.04 Who may make a will. 731.05 Property which may be devised. 731.051 Agreements to make a will, require-

ments. 731.06 Requisites of nuncupative wills. 731.07 Execution of wills. 731.08 Effect of fraud, duress, mistake or un-

due influence. 731.09 Revocation by fraud. 731.10 Marriage after execution of will. 731.101 Will void as affecting surviving di-

vorced spouse. 731.11 Children born after execution of will. 731.12 Implied revocation by subsequent in-

consistent will. 731.13 Revocation by written instrument. 731.14 Other revocation. 731.15 Revival by revocation.

731.01 Short title.-This chapter, together with the three chapters next following, shall be known and may be cited as the Florida probate law.

Hlstol'J'.-U, ch. 16108, 1938; CGL 1936 Supp. 6457(1) am. §1, ch. 22783, 1945.

731.02 Application.-This Florida probate law shall apply to and govern the estates of all decedents, whether dying prior to or after its enactment; provided, however, that estates of decedents dying prior to October 1, 1933, which are now in the process of administration may be completed and closed in accordance with the statutes and laws under which they have heretofore been administered.

HlstOI'J'.-§2, ch. 16103, 1933; CGL 1936 Supp. 5457(2); am. §1, ch. 22783, 1945.

731.03 Definitions.-In these statutes, when applied to wills and the probate thereof, descent and distribution of decedents' estates, dower, administration of decedents' estates, and practice and procedure relating thereto, where the context permits, the word, phrase or term:

(1) "Administration" refers to the administration of estates and to all probate proceedings;

(2) "Bequeath" means to dispose of personal property by will, but it may be used interchangeably with the word "devise";

(3) "Bequest" means a gift of personal property received by the beneficiary in a will, but it may refer to real estate also;

(4) "Curator" means a person appointed by

731.16 731.17 731.18 731.19 731.20 731.21 731.22 731.23 731.24 731.25 731.27 731.28 731.29 731.30 731.31 731.32 731.33 731.34 731.35 731.36

Revocation of codicil. Republication of wills by codicil. Republication of wills by re-execution. Charitable devises and bequests. Lapsed or void legacies or devises Vesting of legacies or devises. Income from legacies or devises. Order of succession. Half blood. Inheritance per stirpes. Descent of homesteads. Alien. Illegitimate child as heir. Adopted child. Murderer. Inheritance from persons 01 color. Escheat. Dower in realty and personalty. Election to take dower. Articles in addition to dower.

the county judge to take charge of the estate of a deceased person until letters testamentary or of administration are granted;

(5) "Devise" when used as a verb, means to dispose of real estate by will, but it may be used interchangeably with the word "bequeath";

(6) "Devise" when used as a noun, means a gift of real estate by will, but it may be used interchangeably with the word "bequest";

(7) "Gift" means either devise or bequest, or both;

(8) "Heir" and "heir at law" have the same meaning as "next of kin" ;

(9) "Interested persons" and "persons interested in the estate" mean heirs, legatees, devisees, distributees, spouses and creditors, or others having a property right in or claim against an estate being administered; and such words mean the persons entitled to the estate of a decedent in the event of intestacy;

(10) "Legacy" has the same meaning as "bequest," hereinbefore defined;

(11) "Legatee" and "devisee" may be construed as synonymous;

(12) "Letters" means letters of administration or letters testamentary;

(13) "Personal representative" means the executor or administrator;

(14) "Probate" means not only probate proceedings pertaining to wills, but also the administration of estates;

(15) "Property" means real estate, personal-

Ch. 731 FLORIDA PROBATE LAW, FmST PART Ch. 731

ty, choses in action, or any interest in the same, legal or equitable.

(16) The words "attesting witnesses" and the words "subscribing witnesses" as used in these statutes shall have the same meaning, and no witness shall be considered an attesting witness or a subscribing witness to a will unless he actually signs his name to such will.

History.-§8, ch. 16108, 1988: CGL 1986 Supp. 5457(3): f1, ch. 22783, 1945; Bub. 1(16) comp. II, ch. 29925. 1955.

731.04 Who may make a will.-Any person, male or female, married or single, who is eighteen years or more of age and who is of sound mind may make a will. No other person may make a will.

History.-§5, ch. 16108, 1988: CGL 1986 Supp. 5477 (1): am. §1, ch. 22788, 1946.

731.05 Property which may be devised.(1) Any property, real or personal, held by

any title, legal or equitable, with or without actual seisin, may be devised or bequeathed by will; provided, however, that whenever a person who is head of a family, residing in this state and having a homestead therein, dies and leaves either a widow or lineal descendants or both surviving him. the homestead shall not be the subject of devise, but shall descend as otherwise provided in this law for the descent of homesteads.

(2) . A will becomes effective at the time of the death of the testator, and all property, real or personal, acquired by the testator after making his will is transmissible under general expressions in the will showing such to be the intention of the testator. Every will containing a residuary clause shall transmit after-acquired property unless the testator expressly states in his will that such is not his intention.

History.-§6, ch. 16108, 1988; CGL 1986 Supp. 5477(2): am. §1. ch. 22783, 1945. ct.-§222.13, Lite insurance.

§7S1.27. Homestead. §781.34, Dower.

731.051 Agreements to make a will, requirements.-

(1) No agreement to make a will of real or personal property or to give a legacy or make a devise shall be binding or enforceable unless such agreement is in writing signed in the presence of two subscribing witnesses by the person whose executor or administrator is sought to be charged.

(2) This section shall apply to agreements made on, after or prior to January 1, 1958.

History.-Comp. §1, ch. 57-148.

731.06 Requisites of nuncupative wills.-No nuncupative will shall be good unless it is proved by the oaths of three witnesses present at the making thereof; nor unless it is proved by the said witnesses that the testator at the time of pronouncing the same did desire the persons present, or some of them, to bear witness that such was his will, or to that effect; nor unless such nuncupative will was made at the time of the last sickness of the deceased. Personal property only shall be subject to disposition by nuncupative wills.

History.-§7. ch. 16103, 1933; CGL 1986 Supp. 5477(8); am. §1. ch. 22783. 1945. ct.-§§7S2.39. 782.40, Time ot proot and probate.

731.07 Execution of wills.-Every will, other than a nuncupative will, must be in writing and must be executed as follows:

(1) The testator must sign his will at the end thereof, or some other person in his presence and by his direction must subscribe the name of the testator thereto.

(2) The testator, in the presence of at least two attesting witnesses present at the same time, must sign his will or cause his name to be signed as aforesaid or acknowledge his signature thereto.

(3) No will executed by a nonresident of Florida, either before or after this law takes effect, is valid as a will in this state unless it is executed in accordance with the laws of this state in force at the time of its execution, except that a will valid under the laws of the state or country in which the testator is domiciled at the time of his death is valid in this state, so far as it relates to personal property.

(4) A will executed by a resident of this state prior to October 1, 1933, is valid if executed according to the laws of this state in force at the time of its execution.

(5) All devises and bequests to subscribing witnesses are void unless there are at least two other disinterested subscribing witnesses to the will. If a subscribing witness would be entitled to any share of the estate of the testator in case the will were not established, he shall take such proportion of the devise or bequest made to him in the will as does not exceed the share of the estate which would be distributed to him if the will were not established.

(6) No particular form of words is necessary to the validity of a will if it is executed according to the formalities required by law.

(7) A codicil shall be executed with the same formalities as a will.

History.-§8, ch. 16108, 1983: CGL 1986 Supp. 5477(4): am. §1, ch. 22788, 1945.

731.08 Effect of fraud, duress, mistake or undue influence.-A will is void if the execution thereof is procured by fraud, duress, mistake, menace or undue influence. Likewise, any part of a will is void if so procured, but the remainder of the will not so procured shall be valid if the same is not invalid for other reasons.

Hist0J7.-§9. ch. 16103, 1988: CGL 1936 Supp. 5477(5); am. §1 , ch. 22788, 1945.

731.09 Revocation by fraud.-If the revocation of a will, or any part thereof, is procured by fraud, duress, menace or undue influence, such revocation shall be void. .

Hlstory.-§10, ch. 16108, 1933: CGL 1936 SuPP. 5477(6); am. §t, ch. 22788, 1945.

731.10 Marriage after execution of will.When a person marries after making a will and the spouse survives the testator, such surviving spouse shall receive a share in the estate of the testator equal in value to that which such surviving spouse would have received if the testator had died intestate, unless provision has been made for such spouse by marriage contract or unless such spouse is provided for in the will or unless the will discloses an intention not to m~ke such provision. The share of the estate which is assigned to such pretermitted spouse shall be

Ch. 731 FLORIDA PROBATE LAW, FIRST PART Ch. 731

raised in accordance with the order of appropriation of assets set forth in this law.

Hlstory.-U1, ch. 16103, 1938; CGL 1986 Supp. 6477(7); am. §I, ch. 22783, 1946.

731.101 Will void as affecting surviving divorced spouse.-All wills offered for and admitted to probate subsequent to June 11, 1951, made by husband or wife who have been divorced from each other subsequent to the date of said will, shall be made null and void by means of said divorce insofar as said will affects the surviving divorced spouse.

mstor:r.-§l, ch. 26914, 1951; tr. from §732.261, 1961.

731.11 Children born after execution of wilL -When a testator omits to provide in his will for any of his children born after the making of the will and such child has not had bestowed upon him by way of advancement a portion of the testator's property equivalent to a child's part, unless it appears from the will that such omission was intentional, such child shall receive a share in the estate of the testator equal in value to that which he would have received if the testator had died intestate. The share of the estate which is assigned to such pretermitted child shall be raised in accordance with the order of appropriation of assets set forth in this law.

Hlstory.-§12, ch. 16103, 1983; CGL 1936 Supp. 6477(8); am. §1. ch. 22783, 1946.

731.12 Implied revocation by subsequent inconsistent will.-A will is revoked by a subsequent inconsistent will, even though the last will does not expressly revoke all previous wills; but such revocation extends only so far as the inconsistency exists.

Hlstory.-§13, ch. 16103, 1938; CGL 1936 Supp. 6477(9); am. §1, ch. 22783, 1946.

731.13 Revocation by written instrument.A will or any part thereof may be revoked or altered by a subsequent written will, codicil or other writing, declaring such revocation or alteration; provided, that the same formalities required for the execution of wills under this law are observed in the execution of such will, codicil or other writing.


731.14 Other revocation.-(1) A will may be revoked by the testator

himself or by some other person in his presence and by his direction, by burning, tearing, canceling, defacing, obliterating or destroying the same, with the intent and for the purpose of revocation.

(2) Neither subsequent marriage nor subsequent marriage and birth of issue shall revoke the prior will of any person; but the pretermitted child or spouse shall inherit as set forth in this law regardless of such prior will.

Hlstory.-§15, ch. 16103, 1933; CGL 1936 SuPp. 5477(11); am. §I, ch. 22788, 1945.

731.15 Revival by revocation.-The revocation of a will expressly revoking a former will shall not revive the former will, even though such former will is in existence at the date of the revocation of the subsequent will.


731.16 Revocation of codicil.-The revocation of a will revokes all codicils thereto previously made.

History.-§17, ch. 16108, 1938; CGL 1936 Supp. 5477(18); am. §1, ch. 22783, 1945.

731.17 Republication of wills by codicil.The execution of a codicil referring to a previous will has the effect of republishing the will as modified by the codicil.

Hlstory.-§l8, ch. 16103, 1983; CGL 1986 Supp. 5477(14); am. §1, ch. 22783, 1946.

731.18 Republication of wills by re-execution.-If a will has been revoked or if it is invalid for any other reason, it may be republished and made valid by the re-execution of the same with the formalities required by this law for the execution of wills.

Blstor:y.- §19, ch. 16103, 1933; COL 1831 Supp. 5477(15); am. §t, ch. 22783. 1945.

731.19 Charitable devises and bequests.-If a testator dies leaving issue of his body or an adopted child, or the lineal descendents of either, or a spouse, and if the will of such testator devises or bequeaths the estate of such testator, or any part thereof, to a benevolent, charitable, literary, scientific, religious or missionary institution, corporation, association or purpose, or to this state, or to any other state or country, or to a county, city or town in this or any other state or country, or to a person in trust for any such purpose or beneficiary, whether or not such trust appears on the face of the instrument making such devise or bequest, such devise or bequest shall be avoided in its entirety within eight months from the death of the testator by one or more of the above specified persons who would receive any interest in the devise or bequest so avoided, by filing written notice thereof in the probate proceedings unless said will was duly executed at least six months prior to the death of the testator, or unless testator, by his will duly executed immediately next prior to such last will and more than six months before his death, made a valid charitable bequest or devise in substantially the same amount for the same purpose or to the same beneficiary, or to a person in trust for the same person or beneficiary as was made in such last will. The making of a codicil within the six-months period before testator's death, which codicil does not substantially change a charitable devise or bequest as herein defined, shall not render such charitable gift ineffective under this section. This section shall not be construed to apply to devises or bequests made to institutions of higher learning.

Hlatory.-§20. ch. 16108, 1933; CGL 1936 Supp. 6477(16); am. §1. ch. 22783, 1945; 11, ch. 57-243.

731.20 Lapsed or void legacies or devises.(1) If a devisee or legatee dies during the

lifetime of the testator, the testamentary disposition to such devisee or legatee lapses unless an intention appears from the will to substitute another in his place; but, when any property is devised or bequeathed to an adopted child or blood kindred of the testator, and when such devisee or


legatee dies before the testator, l~aving line~l d~ scendents, or is dead at the tIme the wlll. IS executed leaving lineal descendents who surVIve the testa'tor, such legacy or devise does not lapse, but such descendents take the property so glVen by the will in the same manner as the devisee or legatee would have done had he survived the testator.

(2) If a legacy or devise is void or lapses, it shall become a part of the residuum and shall pass to the residuary legatee or devisee unless. a contrary intent is expressed by the testator 10 his will.

Hi8tory.-§21. ch. 16108. 1988; CGL 1986 SuPP. 6477(17); am. §t. ch. 22788. 1945.

731.21 Vesting of legacies or devlses.-The death of the testator is the event which vests the right to legacies or devises unless the testator in his will has provided that some other event must happen before a legacy or devise shall vest.

HIBt0l7.-§22. ch. 16108. 1988; CGL 1986 SUPP. 6477(18); am. §1. ch. 22788. 1945.

731.22 Income from legacies or devises.The net income, interest or increase arising from property specifically devised or beq~eathed ~hall belong to the specific legatees and deVIsees entItled thereto from the date of the death of the testator. From and after the time ~ed by the county judge in an order of ~istributlOn, .gene~al legacies shall bear legal mterest untIl paId.

Hlstol7.-§28. ch. 16108. 1933; CGL 1936 Supp. 5477(19); am. §t. ch. 22788. 1945.

731.23 Order of succession.-The real and personal property of an intestate shall descend and be distributed as follows:

(1) To the surviving spouse and lineal descendants the surviving spouse taking the same as if he 0: she were one of the children.

(2) If there are no lineal descendants, to the surviving spouse.

(3) If there is no surviving spouse, to the lineal descendants.

(4) If there is none of the foregoing, to the father and mother equally, or to the survivor of them. .

(5) If there is none of the foregomg, to the brothers and sisters and the descendants of deceased brothers and sisters.

(6) If there is none of the foregoing, ~he estate shall be divided into moieties, one of whIch shall go to the paternal and. the other to the maternal kindred in the followmg course:

(a) To the grandfather and grandmother equally, or to the survivor of them.

(b) If there is no grandfather or grandmother, to the uncles and aunts and the descendants of such of them as may be deceased.

(c) If there is no grandparent, uncle or aunt, or their descendants, to the great-grandfathers and the great-grandmothers equally, or to the survivor of them.

(d) If there is no great-grandfather or greatgrandmother, then to the brothers and sisters of the grandfather and grandmother on the same side and to the descendants of such of them as may be deceased.

(e) And so in other cases without end, passing to the next lineal ancestor or ancestors, and, for want of them, to the descendants of such ancestors.

(7) Where the estate is hereinbefore directed to go by moieties to the paternal and the maternal kindred, if there are no such kindred on the one part, the whole shall go to the other part; and, if there are no kindred on either the one part or the other, the whole estate shall go to the kindred of the deceased spouse of the intestate in like course as if such deceased spouse had survived the intestate and then died entitled to the estate.

Hlstory.-§24. ch. 16103. 1933; CGL 1936 Supp. 6480(1); am. §1. ch. 22783. 1945. ct.-§§734.02-734.04. Distribution of estate.

731.24 Half blood.-In the cases before mentioned, where the estate is directed to pass to the collateral kindred of the intestate, if part of such collateral kindred are of the whole blood to the intestate and the other part of the half blood only, those of the half blood shall inherit only half as much as those of the whole blood; but, if all are of the half blood, they shall have whole portions.

Hlstor;r.-§25. ch. 16103. 1988; CGL 1936 Supp. 6480(2); am. §1. ch. 22783. 1945.

731.25 Inheritance per stirpes.-Descent and distribution, whether to lineal descendants or to collateral heirs, shall always be per stirpes.

History.-§26, ch. 16103. 1933; CGL 1936 Supp. 5480 (3); am. U. ch. 22783. 1945.

731.27 Descent of homesteads.-The homestead shall descend as other property; p,rovided, however, that if the decedent is survived by a widow and lineal descendants, the widow shall take a lift! estate in the homestead, with vested remainder to the lineal descendants in being at the time of the death of the decedent.

Bistory.-§28, ch. 16103. 1933; COL 1936 Supp. 5480(5); am. §1, ch. 22783. 1945. cf.-§734.08, Administration of exempt estates.

731.28 AIien.-(1) An alien may devise, bequeath, inherit

and transmit inheritance in real and personal property as if he were a citizen of the United States; and in making title by descent it shall be no bar to a party that the intestate or any ancestor through whom he derives his descent from the intestate is or has been an alien.

(2) When the county judge determines that any alien legatee, devisee, heir, beneficiary or distributee not residing within the territorial limits of the United States or any territory or possession thereof would not have the benefit or use or control of property due him and that special circumstances make it desirable that delivery to him be deferred, the county judge may order that such property be converted into available funds and paid into the state treasury, after such attorney's fees of the attorney for such legatee, devisee, heir, beneficiary or distributee, as the court shall set, have been paid therefrom, and said funds held in the state


treasury subject to such further orders as the said court may enter.

HI8tOry.-§29, ch. 16103, 1933; CGL 1936 Supp. 6480(6); am. §1, ch. 22783, 1945; (2)n. by §1, ch. 59-128.

731.29 Illegitimate child as heir.-(1) Every illegitimate child is an heir of his

mother, and also of the person who, in writing, signed in the presence of a competent witness, acknowledges himself to be the father. Such illegitimate child shall inherit from his mother and also, when so recognized, from his father, in the same manner as if the child had been born in lawful wedlock. However, such illegitimate child does not represent his father or mother by inheriting any part of the estate of the parents' kindred, either lineal or collateral, unless his parents have intermarried, in which event such illegitimate child shall be deemed legitimate for all purposes.

(2) If any illegitimate child dies intestate, without lawful issue or spouse, his estate shall descend to his mother, or, in case of her decease, to her heirs at law.

HI8tory .-§30, ch. 16103, 1933; CG L 1936 Supp. 6480 (7) ; am. §l, ch. 22783, 1945.

731.30 Adopted child.-An adopted child, whether adopted under the laws of Florida or of any other state or country, shall be an heir at law, and for the purpose of inheritance, shall be regarded as a lineal descendant of his adopting parents, and the adopting parents shall inherit from the adopted child. The adopted child shall be regarded as the natural brother or sister of the natural children and other adopted children of the adopting parents for the purpose of inheritance from or by them. The adopted child shall inherit the estate of his blood parents, but his blood parents shall not inherit from the adopted child.

HI8tory.-§31, ch. 16103, 1933; CGL 1936 Supp. 6480(8); § I, ch. 22783, 1945; am. § I, ch. 28223, 1953.

731.31 Murderer.-Any person convicted of the murder of a decedent shall not be entitled to inherit from the decedent or to take any portion of his estate as a legatee or devisee. The portion of the decedent's estate to which such murderer would otherwise be entitled shall pass to the persons entitled thereto as though such murderer had died during the lifetime of the decedent.

Hletory.-§32, ch. 16103, 1933; CGL 1936 Supp. 6480(9); am. §1, ch. 22783, 1946.

731.32 Inheritance from persons of color.(1) Whenever, upon the death of any person

of color seized or possessed of real or personal estate, there are persons in being who would inherit said property or any portion thereof under the several statutes of descent in this state but who are prevented from doing so on account of the legal incapacity of said persons of color to contract marriage in a state of slavery (which said estate would otherwise escheat to the state), all the right, title and interest of the state is vested in and waived in favor of those persons who would have inherited said estate if said parties had been competent to contract marriage.

(2) The fact that the said parties have failed to obtain a license to marry or have failed to be married according to the forms of law shall in no case affect the operations of this section, but the same shall be held to apply to all cases wherein the parties were known as husband and wife.

m.tory.-RS 1829; as 2305; 133, ch. 16103, 1933; COL 193. Supp. 5480(10); am. 11, ch. 22783, 1945.

731.33 Escheat.-(1) Whenever any person dies leaving prop

erty and without being survived by any person entitled to the same, such property shall escheat to the state.

(2) In any such case, or in any case where doubt exists as to the existence of any person entitled to the property, the personal representative shall, within one year after letters have been issued to him, institute a proceeding for the determination of beneficiaries as provided in this law, and citation shall be served upon the attorney general of the state. If the personal representative fails to institute such proceeding within the time herein fixed, the same may be instituted by the attorney general, and it is hereby made the duty of the attorney general to secure from each county judge of the state, and the duty of each such county judge to furnish to the attorney general, on or before January 15 of each year, a list of all estates being administered in such county judge's court wherein no person appears to be entitled to the assets thereof and in which the personal representative has instituted no proceedings for the determination of beneficiaries.

(3) If the county judge determines in such proceeding that there is no person entitled to the property and that the property escheats, said property shall, within a reasonable time to be fixed by the county judge, be sold and converted into money and paid to the treasurer of the state and by him deposited in the state school fund.

(4) Any person claiming to be entitled to the property of the decedent may, at any time within twenty years after the granting of letters, by petition filed with the county judge and service of citation upon the attorney general, reopen the administration and assert his rights. If such claimant is determined to be entitled to any of the property of the decedent, the county judge shall by order fix the amount to which he is entitled, and the same shall be repaid to him without interest by the officials charged with the disbursement of state school funds. If no such claim is asserted in the manner and within the time herein fixed, the title of the state to such property and the proceeds thereof shall become absolute.

(5) The attorney general shall represent the state in all proceedings with respect to escheated estates.

(6) Except as herein provided, escheated estates shall be administered as in other cases. .

HI.tory.-§33, ch. 16103, 1933; CGL 1936 Supp. 64110(10), am. §1, ch. 21994, 1943; am. §1, ch. 22783, 1945. cf.-§734.25, Determination of beneficiaries.

§ 192 .24, Disposition of unclaimed funda.


731.34 Dower in realty and personalty.Whenever the widow of any decedent shall not be satisfied with the portion of the estate of her husband to which she is entitled under the law of descent and distribution or under the will of her husband, or both, she may elect in the manner provided by law to take dower, which dower shall be one third in fee simple of the real prope:rl1;y which was owned by her husband at the time of his death or which he had before conveyed, whereof she had not relinquished her right of dower as provided by law, and one third part absolutely of the personal property owned by her husband at the time of his death, and in all cases the widow's dower shall be free from liability for all debts of the decedent and all costs, charges and expenses of administration; provided, however, that nothing herein contained shall be construed as exempting any personal property from liability for any debt secured by written assignment, pledge, mortgage or other security instrument mortgaging, assigning, or pledging, or otherwise granting, or imposing a lien upon, such personal property, whether or not possession of such property is delivered to such mortgagee, assignee, pledgee, or other security holder, and that nothing herein contained shall be construed as impairing the validity of any mortgage, pledge, assignment, or other lien so imposed or provided for in such security instrument, nor the rights therein created or provided for, and nothing herein contained shall be construed as impairing the validity of the lien of any duly recorded mortgage or the lien of any person in possession of personal property. The homestead shall not be included in the property subject to dower but shall descend as otherwise provided by law for the descent of homesteads. In any case where the dower interest of the widow shall have the effect of increasing the estate tax, her dower shall be ratably liable with the remainder of the estate for the estate taxes due by the estate of her deceased husband. Whenever the decedent has died intestate leaving no lineal descendants and the widow has duly elected dower, all property of the decedent not included in the widow's dower shall descend to her subject to the debts of the decedent except that the homestead of the decedent shall descend to her with the exemptions provided by the constitution.

History.-§35. ch. 16103. 1933; 11. ch. 17171. 1935; CGL 1936 Supp. 5607(1); 11. ch. 18066. 1937; 11. ch. 18999. 1939; 11. ch. 20844. 1941; am. §7. ch. 22000. 1948; am. §1. ch. 22783. § 1. ch. 22847. 1945; 11. ch. 26582. 1951; am. 11. ch. 28222. 1953; §1. ch. 63-119. ct.-§733.01. Possession ot estate during admlnistration.

§§733.09-733.14. Assignment ot dower. §734.041 Apportionment of estate taxes.

731.35 Election to take dower.-(1) In order to take dower, a widow must

so elect by an instrument in writing, signed by her and acknowledged or sworn to by her be-

fore any officer authorized to take acknowledgments or to administer oaths, and filed, within nine months after the first publication of the notice to creditors, in the office of the county judge in whose court the estate of the deceased husband is being administered. The county judge shall record all elections to take dower.

(2) Should the county judge extend the time in which creditors may file their claims, or should litigation occur involving the admission of the will to probate, or its validity or the construction thereof, or should any claim filed be contested, a widow shall have sixty days from the date to which such extension for filing claims is extended or from the date of a final judgment determining any litigation or contested claim or from the time allowed to the personal representative for filing his objection to any claim, in which to elect to take dower.

(3) The guardian of a widow suffering under disabilities may, at any time during which the widow might have done so, file an election on behalf of the widow to take dower in lieu of the provisions of the will of her husband or under the law of descent and distribution, and thereupon the county judge shall grant or deny such election as the best interest of the widow may require. If the widow shall die prior to the expiration of the time allowed for the filing of her election to take dower in lieu of the provisions of the will of her husband or under the law of descent and distribution, and shall not have filed such election, then the same may be filed at any time before the expiration of such period by any person who has a beneficial interest in the estate of such deceased widow, and such election shall be granted or rejected by the county judge as the best interest of the parties entitled to participate in the estate of the deceased widow may require.

History.-§36. ch. 16103. 1933; CGL 1936 Supp. 5607(2); 11. ch. 22783. 1945; §1. ch. 26948. 1951; (3) N. by §1. ch. 67-408; HI. 2. ch. 59-123.

731.36 Articles in addition to dower.-The widow of an intestate shall be entitled to receive and retain all wearing apparel and such household goods and farming utensils, provisions and clothing as may be necessary for her maintenance and that of the family, to be set apart by the county judge either upon her petition or upon the petition of the personal representative, with citation or notice to the other, special regard being had for the ability of the widow and children to provide for and maintain themselves. Such articles shall not be considered as part of the widow's dower or inheritance in any case.

Hlstory.-§37. ch. 16103. 1933; CGL 1936 Supp. 6607(8); am. 11. ch. 22788. 1846

Ch. 732 FLORIDA PROBATE LAW, SECOND PART Ch. 732

CHAPTER 732

FLORIDA PROBATE LAW, SECOND PART

732.01 Jurisdiction of county judge. 732.02 Court always open. 732.03 Power to enforce judgments. 732.04 Disqualification of county judge. 732.05 Substitution of circuit judge. 732.06 Venue of probate proceedings. 732.0.7 County judge's records. 732.08 Pleadings. 732.09 Citation and service. 732.10 Service or publication when not other

wise provided. 732.11 Duty to designate residence and post-

office address. 732.12 Testimony and subpoenas. 732.13 Depositions. 732.14 Costs. 732.15 Right of appeal. 732.21 Curators. 732.22 Production of wills. 732.23 Petition for probate of will. 732.24 Proof of wills. 732.25 Commission to prove will. 732.26 Effect of probate. 732.27 Establishment and probate of lost or

destroyed will. 732.28 Notice of probate. 732.281 Educational, charitable, and religious

beneficiaries to be notified. 732.29 Caveat; proceedings. 732.30 Revocation of probate. 732.31 Burden of proof in contests. 732.32 Discovery of later will. 732.33 Discovery of will after settlement of

estate. 732.34 Probate of will written in foreign lan

guage. 732.35 Probate of will of resident after foreign

probate. 732.36 Foreign probate prior to local probate

of estate of resident decedent prohibited.

732.01 Jurisdiction of county judge.-The county judge shall have jurisdiction of the administration, settlement and distribution of estates of decedents, of the probate of wills, of the establishment of lost or destroyed wills, of the granting of letters testamentary and of administration and of all other matters usually pertaining to courts of probate.

History.-§88, ch. 16103, 1933; CGL 1936 SuPp. 6541(1); am. §2, ch. 22783, 1945. ct.-§7S4.12, Jurisdiction In removal proceedings.

732.02 Court always open.-The court of the county judge, as a court of probate, shall be open at all times for the transaction of its business.


732.03 Power to enforce judgments.-In all cases where the county judge is authorized to enter orders, judgments or decrees, he may issue attachments of persons or property, executions, writs of possession, and all such other writs and

732.37 732.38

732.39 732.40 732.41 732.42

732.43 732.44

732.45

732.46 732.47 732.48 732.49

732.50 732.51

732.52 732.53 732.54 732.55 732.56 732.57

732.58

732.59 732.60 732.61 732.62 732.63 732.64 732.65 732.66 732.67 732.68 732.69

Probate of notarial will. Effect of probate of will after foreign

probate and of notarial will. Time of proof of nuncupative will. Probate of nuncupative will. Construction of will by probate court. Construction of wills by courts of eq-

uity. Petition for letters of administration. Preference in appointment of adminis

trator. Individuals who may be appointed per-

sonal representatives; resident agents.

Minor not qualified. Nonresidents. Married woman. Trust companies and other corpora

tions. Joint executors and administrators. Effect of appointment of debtor or cred-

itor. Succession of administration. Executor de son tort. Guardian ad litem. Administrator ad litem. Recovery of judgment; proceedings. Judgment in favor of personal repre-

sentative. Compensation of administrator ad li-

tem. Oath of personal representa:tive. Oaths and affidavits. Bond of personal representative. Bond by a surety company. Bond required of executor. Insufficiency of bond. Liability of surety. County judge to act on his own motion. Informality of bond. Release of surety. County judge may reduce bond.

orders as are necessary or appropriate to enforce such orders, judgments or decrees.

History.-HO, ch. 16103, 1933; CGL 1936 Supp. 5541(8); am. §2, ch. 22783, 1945. ct.-§§732.56, 732.57, Judgments tor estates.

732.04 Disqualification of county judge.The county judge shall be disqualified for interest in all instances in which judges generally are so disqualified and also in estates in which he is an heir of the decedent or is a legatee, devisee, trustee or executor under the will, or a witness thereto.


732.05 Substitution of circuit judge.-(1) In the case of the disqualification, ab

sence, sickness, or other disability of the county judge, any judge of the circuit court of the county may discharge all of the duties and powers of the county judge as a probate judge. In the event such circuit judge is disqualified, absent from the circuit, sick, or under other dis-


ability, then any other circuit judge in the state who is not disqualified, may discharge such duties and powers.

(2) The county judge, when disqualified for interest, shall file a certificate thereof. In no instance may he act as judge in any matter in which he is interested. Should he presume so to do, the circuit judge may, in his supervisory jurisdiction of probate matters, upon proper petition and short notice to the county judge, revise the action of the county judge.

(8) Sickness, absence, or disability cf the county judge shall be conclusively evidenced by the certificate of the clerk of the county judge's court. or otherwise evidenced prima facie by the affidavit of any interested party. No decree or order of the circuit judge in probate reciting the disqualification, sickness, absence, or disability of the county judge shall be collaterally attacked.

(4) No county judge, while holding such office, shall act as personal representative of any estate any part of which is required to be administered in his own court; provided, however, a county judge, individually in his personal capacity, on his certificate of disqualification and on appointment and continued supervision by a judge of the circuit court acting as county judge, may serve as personal representative of the estate of his deceased spouse, adoptive parent, adopted child, or the estate of any decedent related to him by lineal consanguinity.

Hlotory.-§42, ch. 16103, 1933; CGL 1936 Supp. 6541(5); am. §1, ch. 22767, 1945; §2, ch. 22783, 1946; am. §t, ch. 24294, 1947.

732.06 Venue of probate proceedings.-The venue of probate of all wills and granting of letters of administration shall be:

(1) In the county in this state where the decedent had his domicile.

(2) If the decedent had no domicile in this state, then in any county in which th@ decedent was possessed of any property.

(3) If the decedent had no domicile in this state and was possessed of no property in this state, then in the county where any debtor of the decedent resides.

(4) For the purpose of this section a married woman whose husband is an alien or a nonresident of Florida may establish or designate a separate domicile in this state.

Hlotory .-§43, ch. 16103, 1933; CG L 1936 Supp. 6541 (6) ; am. §2, ch. 22783, 1945.

732.07 County judge's records.-(1) Every county judge shall record, or cause

his clerk to record, distinctly and at full length, in books kept for that purpose, all wills, testaments and codicils of which probate shall be granted, all letters testamentary and of administration, all bonds of personal representatives (exclusive of supersedeas bonds), all orders and judgments made by him and all other writings in this law especially required to be recorded.

(2) Any interested person may, at his own cost and expense, have recorded as aforesaid any document or pleading filed in the office of the county judge; provided, that the cost of recording same shall not be taxed as costs against the

estate unless so ordered by the county judge. A duly certified transcript of the whole or any part of probate or administration proceedings before any court of this state or of any foreign state or country may, upon the payment of appropriate fees, be filed or recorded in the office of any county judge of this state.

(3) All such record books shall be indexed as to the various estates and as to the subject matter therein, and shall be open to the inspection of all persons.

(4) All records, files, orders, judgments and decrees of any court of this state heretofore exercising probate jurisdiction shall be taken and held to be those of the county judge as if made or rendered by said judge, and shall be placed and remain in his custody. Copies thereof certified by the county judge shall be competent evidence.

( 5 ) A progress docket of the proceedings in connection with each estate shall be kept by each county judge, in which docket shall be noted each pleading or document filed and each order entered, with notation of book and page of record of each writing recorded; and the residence and postoffice address of each party who has designated same.

(6) County judges shall, upon request and payment of their fees, make and deliver certified copies of any pleading or document filed in their offices or of any of the records of their offices.

(7) County judges, in making certified copies of letters testamentary or of letters of administration, may upon request further certify, whenever such is the fact, that the letters so certified stand unrevoked at the date of the certificate; and such certificate shall be prima facie evidence of such fact.

(8) No county judge shall permit any paper, instrument, document, pleading or file to be removed from his office or custody except under circumstances named in this law or for purposes of taking testimony.

(9) County judges may record any and all instruments entitled to record by such photographic process and with such equipment and supplies as may be recommended by the county judge and approved and designated by the board of county commissioners.

Hlotory.-§44, ch. 16103. 1933; CGL 1936 Supp. 6641(7); am. §2, ch. 22783. 1945.

732.08 Pleadings.-(1) The pleadings before the county judge in

probate matters shall be in writing and signed by the pleader or his attorney. All technical forms of pleadings are abolished. No defect of form shall impair substantial rights, and no defect in the statement of jurisdictional facts actually existing shall render void any proceedings.

(2) PETITION.-The petition shall state in short and simple manner the facts constituting jurisdiction of the court and the ground of the proceedings and shall pray for such relief as is desired. It shall be filed before any process shall issue.

(3) DEFENSE.-Defenses shall be filed 011

or before the return day specified in the notice or


citation. The answer shall, in short and simple manner, set up the facts constituting the defense.

(4) Upon the filing of a sufficient answer the cause shall be at issue, new matters being deemed denied; and the cause shall be tried at such early date as the county judge may direct.

(5) MOTIONS.-Either party may test the sufficiency of an adversary's pleading, or of any part thereof, by motion. Motions addressed to an answer shall be filed within ten days after the return day or within such other time as the county judge may in exceptional circumstances allow. Disposition of motions and all matters of amendment and pleading generally shall be in accordance with the direction of the county judge. Reasonable notice of not more than five days shall be given to the adversary or his counsel of the hearing of any motion. Ordinarily not more than ten days shall be allowed for further pleading.

(6) COPIES.-Copies of all pleadings shall be delivered or mailed to the adversary or his attorney.

HI.tory.-§45, ch. 16103, 1933; CGL 1936 Supp. 5541(8); am. §2, ch. 22783. 1945.

732.09 Citation and service.-(1) In all matters pertaining to the probate

jurisdiction of the county judge where process is necessary or is ordered by the county judge, parties in interest may be cited to answer any petition by a citation in substantially the following form, which may be served personally upon the respondent wherever found, within or without the state:

In the County Judge's Court _ _________ County, Florida

Estate oL _______________ , Deceased. The State of Florida to ____________________ : You are hereby notified that a petition has

been filed in said court, a true copy of which is hereto attached; and you are hereby required to file your written defenses thereto within twenty days after service hereof. Should you fail therein, judgment will be entered in due course upon the said petition.

WITNESS my hand and the seal of said Court aL ___________________________ , Florida, this __ day oL ______________________ , A. D. 19 ___ .

County Judge By _______________________ _

Clerk (2) A true copy of the petition shall be at

tached to each copy of the citation served personally.

(3) Service may be made within the state in the manner prescribed by law for the service of summons by any sheriff, constable, deputy sheriff, deputy constable or by any other person; provided, that if service is made by other than an officer, the return of service shall be by affidavit.

(4) Service may be made without the state by any person, by the delivery to the person to be served of a true copy of the citation and of attached copy of the petition, and the return of service shall be by affidavit.

(5) Service shall be made upon a minor or insane person by the delivery of a true copy of the citation and of attached copy of petition to such minor or insane person and also to the person in whose care and custody such minor or insane person is.

(6) The return of service of citation in every case shall state the date when it was received by the person making the return, the date when it was served, the place of service, the name of the person served and the manner of service. Returns shall be amendable 80 as to speak the truth, upon application to the court issuing the process: and when amended shall be effective as of the date of the original return.

(7) (a) If personal service is impracticable, then upon order of the county judge so adjudicating, based upon an affidavit setting forth the reasons thereof, citation may be published once a week for four consecutive weeks, four publications being sufficient, in a newspaper published in the county where the court is located.

(b) Whenever publication of any citation, notice, pleading or other writing is required by any section of this law, and there is no newspaper conforming to the requirements of the laws of Florida in the county of the administration, then, in lieu of such publication in a newspaper, the same may be published by posting a true copy thereof at the courthouse and a true copy at each of two other public places in the county of the administration, such places to be prescribed by the county judge.

(c) Proof of publication or of posting shall be by affidavit and shall be filed in the office of the county judge.

(d) Citation to be published shall be substantially as follows:

In the County Judge's Court _____________ _ __ County, Florida

Estate of ____________________________________ , Deceased. The State of Florida to __ _ _______ _

and all other persons concerned: You are hereby notified that a petition has

been filed in said court praying for _ _ ________ _

~~;-f-y~~--a~~-her~by-req~ired--t;;--fii~-y~~-~it~~ defenses thereto within forty days after the first publication or posting hereof. Should you fail therein, decree will be entered in due course upon said petition.

WITNESS my hand and the seal of said Court at __________________________________ County, Florida, this __ day of ______________________________ _____ , A. D. 19 ___ .

County Judge By ____________________ _ __ _ __ _

Clerk First published or posted on ____________ ____ _ __ _

(8) Service of citation or of any notice may be waived in writing by any party or person interested.

(9) If any person cited fails to file his defense to the petition within the time prescribed in the citation, or within such time as the county judge, under exceptional circumstances, may allow, then the matter shall proceed ex parte as to


such person, and judgment may be entered in accordance with the right and justice of the case.

Hlstory.-§46, ch. 16103, 1933; CGL 1936 Supp. 6541(11); am. f2, ch. 22783, 1945; I (3) am. 12, ch. 29737, 18511.

732.10 Service or publication when not other· wise provided.-Whenever any citation, notice, pleading or other writing is required by any section of this law to be served or published and the manner thereof is not specified in such section, such service or publication may be made as prO'vided in this law for the service or pUblication of citations.

HlstorT.-§47, ch. 16103, 1933; CGL 1936 Supp. 6641(10); am. 12, ch. 22783, 1945.

732.11 Duty to designate residence and post. office address.-

(1) Every creditor or claimant against the estate of a decedent and every heir, distributee, surviving spouse, legatee and devisee of such decedent shall file with the county judge of the county in which the estate of said decedent is in administration or in which such decedent's will may be probated a designation of the residence and post office address of such party, and, when there occurs a change of same, file likewise a designation of such change. Any party who has filed a claim, petition, answer, election or other pleading or appearance in any county judge's of· fice in relation to any estate, without having made the aforesaid designation, shall be entitled to no notices whatever of any further proceedings with reference to such estate.

(2) Service of any citation or notice upon any party who has designated his residence and post office address as hereinabove required may, at the option of the moving party, be made by registered mail addressed to such party at the post office address designated. Proof of service by mailing may be by certificate of the county judge or by affidavit of the person mailing the citation or notice.

Hlstory.-148, ch. 16108, 1933; CGL 1938 Supp. 6541(11); am. §2, ch. 22783, 1945. cf.-§732.47, Nonresident representatives to appoint reSi

dent agent. S 1.01 (13) defines registered man to Include certlfled mall with return receipt requested.

732.12 Testimony and subpoenas.-Testi. mony shall ordinarily be taken in open court. The county judge shall, upon application of any party, issue subpoenas and subpoenas duces tecum for the appearance of witnesses and production of documents upon any trial or hearing.

HlstorT.-§49, ch. 16108, 1933; CGL 1936 Supp. 5541(12); am. 52, ch. 22783, 1945.

732.13 Depositions.-(1) The testimony of any party or witness

may be taken in probate proceedings by deposition de bene esse at any time either before or after issue under either of the following methods:

(a) Said testimony may be taken under the method prescribed in the "Florida rules of civil proced ure."

(b) Said testimony may be taken before any notary public, not being of counselor attorney for any of the parties. nor interested in the event of the proceedings. The depositions may be taken either upon oral interrogatories or upon written

interrogatories furnished to the officer taking the depositions. Cross-interrogatories may likewise be either oral or written.

(2) Reasonable notice must first be given in writing by the party or attorney proposing to take such deposition to the opposite party or attorney, which notice shall state the names of the witnesses and the time and place of taking the testimony.

(3) The county judge shall upon application issue any necessary subpoenas running throughout the state to parties and witnesses who, upon being served, may be compelled to attend and testify as in other eases. The county judge may enforce this section by contempt or other proceedings.

(4) Any party failing to attend or to answer any lawful question or to subscribe the testimony given by him shall be liable, upon the mo· tion of the opponent and certificate of the notary evidencing such default, to have his pleading stricken as sham and be placed in the same situation as if he had failed to file his pleading.

(5) Every witness or party deposing under this section shall be sworn to testify the whole truth. His testimony shall be reduced to writing or typewriting by the notary taking the deposition or by some person under his personal supervision and shall thereupon be subscribed by such witness or party unless subscription is waived.

(6) Every deposition taken under this section shall be retained by the magistrate taking it until he delivers it by mail or by his own hand into the court for which it is taken. Upon receipt by the court, depositions shall be filed an~ open to inspection of all parties. Each deposition shall contain the notice given and the certificate of the magistrate taking it, showing that he is not of counsel in the cause, not related to any of the parties and not interested in the event and showing compliance herewith.

(7) No deposition taken hereunder may be used upon the trial if it is made to appear that the deponent is within the county and able to testify at the time of trial, except that in such case any part of any deposition of any party may be used as an admission against interest, and also except that in such case any witness may be impeached by any part of any deposition.

Hlstory.-§50, ch. 16103, 1933; CGL 1936 SupP. 6541(18); am. 12, ch. 22783, 1945; 12, ch. 29737, 1955. cf.-§732.25, Co=lsslon to prove will.

732.14 Costs.-(1) In all probate proceedings costs may be

awarded in the discretion of the county judge, ordinarily abiding the result of each particular proceeding, but otherwise when it would be unjust that the failing party pay costs.

(2) When such costs are to be paid out of the estate, the county judge may, in his discretion, direct from what portion of the estate they shall be paid.

(3) An executor, being prima facie justified in offering a will, in due form, for probate, shall generally receive his costs and attorney's fees out of the estate, even though he is unsuccessful.



732.15 Right of appeal.-All orders, judgments, and decrees of the county judge finally determining rights of any party in any particular proceedings in the administration of the estate of a decedent may, as a matter of right, be appealed to the appropriate district court of appeal except those appeals which may be taken direct to the supreme court as provided by §4, Art. V of the state constitution. Appeals provided by this section shall be governed by the Florida appellate rules including the right to supersedeas.

Hlstory.-§52, ch. 16103, 1933; CG L 1936 Supp. 5541 (15) ; §2, ch. 22767, 1945; §2, ch. 22783, 1945; §2, ch. 24294, 1947; (1) flO, ch. 26484, 1951; 131, ch. 63-559.

732.21 Curators.-(1) The county judge, whenever it is neces

sary, sua sponte or upon the application of any person, may appoint a curator to take charge of the estate of any deceased person until letters are granted. If, however, the person entitled to letters is a resident of the county where the property is situated, no such curator shall be appointed until after such notice as the county judge may direct to such person so entitled to letters. Upon the appointment, the county judge shall direct the person in possession of the effects of the deceased forthwith to deliver them into the possession of the curator, and this order, when not obeyed promptly, may be enforced by attachment and imprisonment for contempt.

(2) If it is made to appear to the county judge, upon sworn petition, that there is great danger that said property or any portion of it is likely to be wasted, destroyed or removed beyond the jurisdiction of the court, and if the appointment of a curator would be delayed by giving the notice herein provided, then it shall be lawful for such judge to appoint a curator without first giving such notice.

(3) Upon special orders of the county judge from time to time, the curator may be authorized to perform any duty or function of an administrator or executor.

(4) Such bond shall be required of the curator as the county judge deems necessary to secure the property or proceeds, in case of sale, and the county judge may make an order for the sale of such portion of the property as should be sold; provided, however, that no such bond shall be required of banks and trust companies as curators.

(5) The curator shall file immediately an inventory of the property. When the personal representative qualifies, the curator shall immediately account to the personal representative and deliver to him all assets of the estate in his hands, and in default thereof shall be subject to the provisions of this law relating to removed executors or administrators.

(6) Curators shall be allowed such compensation for their services as the county judge deems reasonable.

Hi8tory.-§58, ch. 16103, 1933; §6, ch. 17171, 1935; CGL 1936 Supp. 5541(140); am. §2, ch. 22783, 1945. cf.-§732.48, Married woman as curator.

§733.08, Continuance ot business by curator.

732.22 Production of wills.-(1) The custodian of a will, within ten days

after receiving information that the testator is dead, must deposit such will with the county judge having jurisdiction of the estate of the decedent. Willful failure to do so shall render such custodian responsible for all costs and damages sustained by anyone, in the event the court finds that such custodian had no just or reasonable cause for withholding the deposit of said will.

(2) By petition and citation, the custodian of any will, after ten days' notice of the death of the testator, may be compelled to produce and deposit the same as aforesaid. In such proceedings all costs, damages and a reasonable attorney's fee shall be decreed to petitioner against such delinquent custodian, in the event the court finds that such custodian had no just or reasonable cause for withholding the deposit of said will.

HI8tory.-§59, ch. 16103, 1933; CGL 1936 Supp. 5541(59); am. §2, ch. 22783, 1945. ct.-§732.32, Production ot later will atter probate ot prior.

5811.04, Larceny of testamentary Instrument.

732.23 Petition for probate of will.-(1) Every petition for the probate of a will

shall be sworn to by the petitioner, his agent or his attorney and shall contain statements to the best of the petitioner's information and belief showing:

(a) The domicile of the decedent at the time of his death;

(b) The date of his death; (c) The approximate value of his estate; (d) The residence or post-office address of the

petitioner; and, ( e) The names, ages and residences of the

surviving spouse and heirs at law of the decedent and their respective relationships to the decedent or averments showing that reasonable search has been made and that they cannot be ascertained without delay which would adversely affect the estate.

(2) No citation need be served before the probate of a will.

HI8tory.-§60, ch. 16103, 1933; CGL 1936 Supp. 5541(21); am. §2, ch. 22783, 1945. ct.-§732.48, Petition tor letters ot administration.

§734.32, Petition tor administration ot estate ot persons believed dead.

732.24 Proof of wills.--(1) Last wills and testaments may be ad

mitted to probate upon the oath of any attesting witness, taken before the county judge or before his clerk, or before a commissioner as provided in §732.25.

(2) When a will is offered for probate, if it appears to the court that the attesting witnesses have gone to parts unknown or are dead or have after its execution become incompetent or their testimony cannot be obtained within a reasonable time, it may be admitted to probate upon the oath, taken as above set forth, of the executor, whether he is interested in the estate or not, or of any person having no interest in the estate under the will, that he verily believes the writing exhibited to be the true last will and testament of the deceased.

HI8tory.-§61, ch. 16103, 1933; CGL 1936 Supp. 5541(60); am. §2, ch. 22783, 1945; §5, ch. 22847, 1945.


732.25 Commission to prove will.-(1) If any will is produced for probate and

any witness attesting the same cannot without inconvenience appear before the county judge, the county judge may issue a commission to which such will or a photographic copy thereof is annexed, directed to any person who, by the laws of the state or country where such witness may be found, is authorized to administer an oath, empowering him to take proof of the attestation of such witness and certify same.

(2) If the person to whom such commission is directed duly certifies that the witness personally appeared and made written oath or affirmation. as the case may be (such written oath or affirmation to be attached to said certificate), as to the execution by the testator of the last will and testament, the original or photographic copy of which is annexed to such commission, such written oath or affirmation shall have the same operation and effect as if such written oath or affirmation had been made in the court whence the commission issued.

Hlst017.-§62, ch. 16103, 1933; CGL 1936 Supp. 6641(61); am. §2, ch. 22783, 1945. ct.-§732.13, Depositions.

732.26 Effect of probate.-(1) The will of any person who heretofore

has died a resident of the state or any person who hereafter dies a resident of the state must be admitted to probate in an original proceeding in the state in order to establish its validity. Until so admitted to probate, such will shall be ineffective to convey title to, or the right to possession of, real or personal property of the testator; and, until such probate proceedings have been had, no personal representative shall acquire title to, or the right to possession of, any personal property owned by the decedent at the time of his death, notwithstanding that probate or administration proceedings have been had in some other state or country. None of the provisions of the two preceding sentences shall apply to or affect any will or any rights under any will admitted to probate in any other state or country prior to June 12, 1939. The title to personal property wheresoever situate of a person who hereafter dies a resident of the state shall not pass under his will to the legatee or legatees named or designated therein until after such personal property has been administered upon and distributed by the domiciliary personal representative of his estate; provided that this section shall not apply to any property as to which a valid order has been entered that no administration is necessary as to such property or as to the estate of which such property is a part.

(2) In any collateral suit or controversy relating to property, real or personal, thereby devised or bequeathed, the probate of a will in Florida, unless revoked or reversed upon appeal, shall be conclusive of the due execution of the will by a competent testator of his own free will and

of the fact that such will, at the date of the testator's death, was unrevoked.

HI8t ory.-§63, ch. 16103, 1933; CGL 1936 Supp. 5641(62) ; fl, ch. 19673, 1939; 12, ch. 22783, 19.5; 8ub. f (1) am. fl, ch. 29892, 1955. cf.-§732.32, Discovery of later wllI.

§732.38, Effect of prior foreign pro bate.

732.27 Establishment and probate of lost or destroyed will.-

(1) The establishment and probate of a lost or destroyed will shall be in one proceeding. Upon the probate of such a will, the county judge shall, as a part of his order admitting same to probate, recite, and thereby establish and preserve, the full and precise terms and provisions of such will.

(2) The petition for probate of a lost or destroyed will shall contain a copy of such will or the substance thereof. The testimony of each witness must be reduced to writing, signed by him and filed, and shall be evidence in any contest of the will if the witness has died or removed from the state.

(3) No probate of any lost or destroyed will shall be granted until citation has issued and been served upon those who, but for such will, would be entitled to the property thereby bequeathed or devised; or unless clearly and distinctly proved by the testimony of at least two disinterested witnesses, a correct copy being the equivalent of one witness.

H18tory.-§64, ch. 16103, 1933; CGL 1936 Supp. 6541(63); am. §2 ch. 22783, 1945. c1.-f732.32 Discovery of later will.

732.28 Notice of probate.-(1) Upon the admission of a will to probate,

the personal representative or any other interested party may, at his option, file in the office of the county judge a sworn statement containing the name and residence or post-office address of each legatee or devisee named in the will and of the surviving spouse and each heir at law of the decedent.

(2) Upon the filing thereof, the county judge shall cause to be duly mailed, postage prepaid, with the return address of the county judge upon each envelope, to each person named in said statement, a notice of the probate of said will. A certificate of such mailing shall be filed by the county judge.

(3) Thereupon, the county judge shall cause to be published once a week for four consecutive weeks in a newspaper published in the county, four publications being sufficient, a notice addressed to all persons interested, in substantially the following form:

In the County Judge's Court ______________________________ County, Florida.

Estate of _________________________________ , Deceased. The State of Florida to all persons interested

in the estate of said decedent: You are hereby notified that a written instru

ment purporting to be the last will and testament of said decedent has been admitted to probate in said court.

You are hereby commanded within six calendar months from the date of the first pUblication of this notice to appear in said court and show cause, if any you can, why the action of said court


in admitting said will to probate should not stand unrevoked.

County Judge ___________________ County, Florida. By ________________________ _

Clerk First publication on _______________ ___________________ _

(4) The expense of mailing and publication shall be advanced to the county judge by the moving party and shall be taxed as costs of administration, payable out of the assets of the estate.

(5) No person who has been served with citation upon the petition for probate or who has waived such citation need be notified hereunder; but such person shall be bound by the order admitting the will to probate, unless the probate is successfully appealed from. Any person may likewise waive notice of probate by an instrument in writing filed in the office of the county judge and such waiver shall bar any action for revocation of probate.

(6) If no petition for revocation of probate is filed within the time limited aforesaid, the order admitting such will to probate shall be conclusive without further order, upon proof of publication of notice of probate's being filed and recorded in the office of the county judge. No petition for revocation of probate may be maintained unless filed within said six-month period.

Hlstory.-§65, ch. 16103, 1933; CGL 1936 Supp. 5541(6.); am. §2, ch. 22783, 1945.

732.281 Educational, charitable, and religious beneficiaries to be notified.-Upon the admission to probate of any will in which an educational, religious, or charitable institution is named as a beneficiary, the personal representative shall, by registered mail, forthwith notify each such institution that it is so named. The notice herein required shall designate the court in which the will has been admitted to probate, and shall give the name and address of the personal representative.

Histor,'.-<:omp. II, ch. 29779, 1955.

732.29 Caveat; proceedings.-(1) If any state agency which is a creditor

of the estate of a decedent is apprehensive that an estate, either testate or intestate, will be administered without its knowledge, or if any heir or distributee of the estate of a decedent is apprehensive that a will may be admitted to probate without his knowledge, such agency or person may file a caveat in the office of the county judge.

(2) No caveat shall be effective unless it contains a statement of the interest of the caveator in the estate, the name and specific residence address of the caveator, and, if the caveator is a nonresident of the county, the additional name and specific residence address of some person residing in the county, designated as the agent of the caveator, upon whom service of citation may be made. After the filing of same, the county judge shall not admit the will of such decedent to probate, or discharge the personal representa-

tive of said estate without the issuance of a citation to the caveator.

(3) Such citation shall be served either upon the caveator or upon his agent named in the caveat for service of citation, whichever is stated to be a resident of the county. Upon a return that after diligent search the caveator, if he is a resident, or his resident agent, if the caveator is a nonresident, cannot be found, the county judge may proceed to admit the will to probate upon the expiration of fifteen days after mailing copies of the citation and petition to the caveator and to his agent, if any is named in the caveat, at the respective residence addresses given. Certificate of mailing shall be filed in such instances by the county judge.

(4) Upon the return day of the citation, the caveator may answer the petition for probate. In his answer he shall therein set forth his interest in the estate and the facts constituting the grounds upon which probate of the will is opposed; and the court shall, upon the issue made and the proof adduced, probate the will or deny probate, according to the law and justice of the case.

(5) Unless a will is offered for probate within thirty days after the filing of a caveat, letters of administration may be granted to those entitled to administer. Should a will be offered for probate after such letters of administration have been granted, citation shall also issue upon the petition to the administrator.

HI8tory.-§66, ch. 16103, 1933; CGL 1936 Supp. 6641(66) ; 52. ch. 22783, 1945; (1), (2), §i l. 2, ch. 63-4~G .

732.30 Revocation of probate.-(1) Any heir or distributee of the estate of a

decedent, including legatees or devisees under a prior will, except those who have been served with citation before probate or who are barred under §732.29, may, at any time before final discharge of the personal representative, make application by petition to the court in which the probate of any will may have been granted. for revocation of such probate. The petition shall set forth the interest of the petitioner in such estate and the facts constituting the grounds upon which revocation is demanded.

(2) Citation to appear and defend shall be served upon the personal representative; and the county judge shall, upon the issues made and the proof adduced, confirm or revoke the probate according to the law and justice of the case.

(3) Any legatee, devisee or other person interested in the estate shall, upon application, be permitted to appear and prosecute or defend as though he were a party to the proceedings.

(4) Pending the determination of any issue made for revocation of probate, the personal representative shall proceed with the administration of the estate as if no such issue had been made, except that no distribution may be made to legatees or devisees in contravention of the rights of those who, but for such will, would be entitled to the property disposed of thereby.

(5) Revocation of probate of a will shall not affect or impair the title to the property, real or personal, theretofore purchased in good faith for


value from the executor or administrator with the will annexed.

Hlstorr.-§67, ch. 16103, 1933; CGL 1936 Supp. 6541(66); am. §2, ch. 22783, 1945.

732.31 Burden of proof in contests.-In all proceedings contesting the validity of a purported will, whether before or after such will is admitted to probate, the burden of proof, in the first instance, shall be upon the proponent thereof to establish, prima facie, the formal execution and attestation thereof, whereupon the burden of proof shall shift to the contestant to establish the facts constituting the grounds upon which the probate of such purported will is opposed or revocat ion thereof is sought.

Hi8tOry.-§68, ch. 16103, 1933; CGL 1936 Supp. 6541(67); a m. §2, ch. 22783, 1945.

732.32 Discovery of later will.-Upon the discovery, pending probate proceedings, of a later will or codicil expressly revoking the probated will or impliedly revoking the same in whole or in part, any person interested may by petition offer same for probate. The proceedings shall be, as nearly as practicable, similar to those for revocat ion of probate generally.

Hi8tory.-§69, ch. 16103, 1933; CGL 1936 Supp. 6541(68); am. §2, ch. 22783, 1945.

732.33 Discovery of will after settlement of estate.-

(1) Upon the discovery, after the termination of administration or probate proceedings and the discharge of the personal representative, of an unknown will or a later will or codicil expressly revoking the probated will or impliedly revoking the same in whole or in part, anyone or more persons interested may, by suit in equity, impress a trust upon the funds or property received by an heir, legatee or distributee in the administration or probate proceedings recently terminated which, because of the newly discovered will, such recipient is not justly entitled to retain. All persons interested under the newly discovered will and all heirs, legatees or distributees under the former proceedings whose rights are affected by such new will may be made parties to one proceeding. A receiver of any or all of the property may be appointed. It shall be no objection to the complaint that it is multifarious. Such heir, legatee or distributee shall be held to account, not for the value of any such property spent or consumed by him, but only for the property actually remaining in his hands in its original form or as it may be traced into other form or property.

(2) Such proceedings shall neither invalidate any acts of the personal representatives theretofore performed in good faith nor affect the rights of bona fide purchasers for value of any of the property of the estate; nor shall any such proceeding be brought after three years from the date of the discharge of the personal representative.

Hi8tory.-§70, ch. 16103, 1933; CGL 1936 Supp. 6541(69); am. 12, ch. 22783, 1945; 12, ch. 29737. 1955.

732.34 Probate of will written in foreign language.-

(1) The petition for the probate of a will

written in a foreign language shall contain a true and complete English translation of the will. No probate of any will written in a foreign language shall be granted without citation to the surviving spouse, heirs at law of the testator and all beneficiaries under the will.

(2) ppon the probate of such a will, the county Judge shall, in his order admitting the will to probate, establish the correct translation thereof. If possible, the original will shall also be recorded by the county judge in its original form. Any person affected may at any time and from time to time, during the administration of the estate, by petition and by the citation of aU interested persons, have the correctness of the translation or of any portion thereof redetermined. No executor shall be held responsible for complia~ce at the t~me being with the English translation of the wIll as then established by the county judge's order.

Hi8tory .-171, ch. 16103, 1933; CG L 1936 Supp. 6541 (70) • am. §2, ch. 22783, 1945. •

732.35 Probate of will of resident after foreign probate.-

(1) In the event that the will of any person who heretofore has died a resident of this state or of any person who hereafter dies a resident of this state is, through inadvertence, error or omission, admitted to probate in any other state or country prior to the probate thereof in this state, the same may be established and admitted to. probate in this state if the original thereof mIght have been admitted to probate in this state, in like manner as though said will had been lost or destroyed, and the proceedings for the establishment and probate thereof shall, in all matters, be as nearly as possible similar to like proceedings in connection with the establishment and probate of lost or destroyed wills.

(2) An exemplified or a certified copy of such will, of the foreign order of probate and of the letters, if any, issued thereon, shall be filed in the office of the county judge where application is made for probate of such will, in lieu of the original will; and the same shall be prima facie evidence of its execution and admission to foreign probate.

(3) Any person cited may oppose the probate of suc~ w.ill as. in the case of the original probate of a wIll III thIS state. Any person interested adversely may apply for the revocation of the probate of such will in this state as in the case of the original probate of a will in this state.

Hi8tory.-§72, ch. 16103, 1933; 12, ch. 17171 1935' CGL t~~t Supp. 5541(71); fl, ch. 19674, 1939; am. §2, ch: 22783,

732.36 Foreign probate prior to local probate of estate of resident decedent prohibited.-

(1) From and after the effective date of this section no person or corporation shall procure, or aid, abet or assist another in procuring, the probate of the estate or will of a person who heretofore has died a resident of this state or of a person who hereafter dies a resident of this state in any other state or country prior to the probat~ of such estate or will in this state.

(2) Any person or corporation who shaH knowingly and intentionally procure, or aid, abet


or assist another in procuring, the probate of the estate or a will of a person who heretofore has died a resident of this state or of a person who hereafter dies a resident of this state, in any other state or country prior to probate of such estate or will in this state, shall be guilty of a misdemeanor, and upon conviction therefor, shall be subject to a fine not exceeding five thousand dollars.

(3) This section shall not apply to any such probate proceedings or anything heretofore or hereafter done in or in connection with any such probate proceedings instituted in any other state or country prior to June 12, 1940.

Hlstory.-§§1-3, ch. 19672, 1939; CGL 1940 Supp. 6541(7IA), 8135 (38) ; am. §2, ch. 22783, 1946.

732.37 Probate of notarial will.-(1) When a copy of a notarial will in the pos

session of a notary entitled to the custody thereof, in a foreign state or country (the laws of which state or country require that such will remain in the custody of such notary), duly authenticated by such notary, whose official position, signature and seal of office are further authenticated by an American consul, vice-consul or other American consular officer within whose jurisdiction such notary may be a resident, is presented by the executor or other person interested to the county judge having jurisdiction as prescribed by this law, the same may be admitted to probate if the original might have been admitted to probate in this state.

(2) Such duly authenticated copy shall be filed in the office of the county judge where application is made for probate thereof in lieu of the original will; and the same shall be prima facie evidence of its purported execution and of the facts stated in the certificate in compliance with the preceding subsection.

(3) Any person cited may oppose the probate of such foreign will as in the case of the original probate of a will in this state. Any person interested adversely may apply for revocation of probate of such foreign will as in the case of the original probate of a will in this state. All proceedings in connection with any such foreign will shall in all matters be, as nearly as possible, similar to like proceedings in connection with wills originally probated in this state.


732.38 Effect of probate of will after foreign probate and of notarial will.-The probate in this state of a will admitted to probate in any foreign state or country or of a notarial will shall have the same force and effect as though the original thereof had been probated in this state.

Hlatory.-§74, ch. 16103, 1933; §3, ch. 17171, 1936; CGL 1936 Supp. 5541 (73); am. §2, ch. 22783, 1946. ct.-§734.31, Ancillary Administration.

732.39 Time of proof of nuncupative will.No testimony shall be received to prove any nuncupative will after three months from the speaking of such testamentary words, unless the said testamentary words or the substance thereof have been reduced to writing and sworn to by the three witnesses to the will, before an officer au-

thorized to administer oaths, within six days from the speaking of said will.


732.40 Probate of nuncupative will.-(1) No probate of any nuncupative will shall

be granted until citation has issued and has been served upon those who, but for such will, would be entitled to the property thereby bequeathed.

(2) Upon the probate of a nuncupative will, the county judge shall, as a part of his order admitting same to probate, recite, and thereby establish and preserve, the full and precise terms and provisions of such will.


732.41 Construction of will by probate court. -The county judge in whose court the will has been probated shall have jurisdiction to entertain direct proceedings for the construction of such will or any part thereof. Such proceedings for construction shall be by petition filed by the executor or by any other person interested in the will, with citation and service as required by this law.


732.42 Construction of wills by courts of equity.-Courts of equity shall have concurrent jurisdiction with the county judges in the construction of wills or of any parts thereof, but the court first obtaining jurisdiction for construction shall retain the same. No petition or complaint for the construction of a will may be maintained in any court until the will has first been probated.

Hlstory.-§78, ch. 16103, 1933; CGL 1936 Supp. 6641(77); am. §2, ch. 22783, 1945; f2, ch. 29737, 1955.

732.43 Petition for letters of administration.-

(1) Every petition for letters of administration shall be sworn to by the petitioner, his agent or his attorney and shall contain statements to the best of petitioner's information and belief. showing the domicile of the decedent at the time of his death, the date of his death, the approximate value of the estate of the decedent, the residence and post-office address of the petitioner, and a statement that the decedent died intestate, and, if the decedent was a nonresident, whether there is a domiciliary administration pending or not, and if so, the name and post-office address of the domiciliary personal representative.

(2) Every such petition shall contain either a statement of the names, ages and residences of the surviving spouse and heirs at law of the decedent and their respective relationships to decedent, or averments showing that reasonable search has been made and that such information cannot be ascertained without delay which would adversely affect the estate.

(3) No citation need be served or notice given of the granting of letters of administration when it appears by the petition that the petitioner is entitled to preference of appointment; but, before letters shall be granted to any person who is not entitled to preference, citation shall issue to all


known persons qualified to act as administrator and entitled to preference over the person applying, unless those entitled to preference waive same in writing.

Hlstory.-§79, ch. 16103, 1933 ; CGL 1936 Supp. 6641 (22); am. 12, ch. 22783, 1946. c f .- §732.23, Petition for probate of will.

1734.32, Petition for a dministration of estate of person believed d ead.

732.44 Preference in appointment of administrator.-In the granting of letters of administration, the following preference shall be observed:

(1) The surviving spouse shall first be entitled to letters.

(2) The next of kin, at the time of the death of the decedent, shall next be entitled to letters.

(3) If there are several next of kin, equally near in degree, the one selected in writing by a majority of them who are sui juris shall be appointed. If no such selection is thus made, the county judge may exercise his discretion in selecting the one best qualified for ~he office.

(4) If no application is made by the next of kin, the county judge in his discretion, may appoint some capable person, but no person may be appointed under this subsectioIi. who works for such county judge or who holds pc.blic office under such county judge, nor any person who is employed by or holds office under a _1Y judge exercising probate jurisdiction.

(5) Persons entitled to an estate may select a disinterested person as administrator; and if such person is otherwise qualified, he shall be appointed.

(6) After letters of administration have been granted, if any person who is entitled to preference over the person appointed and upon whom citation was not served and who has not waived his preference seeks the appointment, letters granted may be revoked, and such person may have letters of administration granted to him after citation and hearing upon his application.

('1) After letters of administration have been granted, if any will is produced and probated, the aforesaid letters shall be revoked and letters testamentary shall be granted to the executor of said will, or letters of administration cum testamento annexo shall be granted, if there is no executor ready and willing to qualify, preference being given to the person, if otherwise qualified, who is selected by the persons beneficially interested in the estate. No such will shall be probated without citation to the administrator.

History.-§80, ch. 16103, 1983; CGL 1936 Supp. 6641(23); am. §2, ch. 22783, 1946; am. §1, ch. 23722, 1947.

732.45 Individuals who may be appointed personal representatives; resident agents.-

(1) Any person sui juris who is a citizen of the United States and a resident of Florida at the time of the death of the person whose estate he seeks to administer is qualified to act as personal representative in Florida. However, a person who has been convicted of a felony or who, from sickness, intemperance or want of understanding is incompetent to discharge the

duties of a personal representative, is not qualified to act as personal representative.

(2) If a resident personal representative removes his residence from the state, he shall have his new place of residence and postoffice address recorded in the office of the county judge of the county in which the administration is pending, and he shall designate some resident of said county as his agent or attorney for the service of process, whose name, residence and post-office address shall also be likewise recorded. Such designation, in whatever form it may be, shall be taken to constitute the consent of the person so designating that service of any process upon the designated agent or attorney shall be sufficient to bind the person so designating in any suit or action against such personal representative, either in his representative capacity or personally; provided, that such personal action must have accrued in the administration of such estate. Such designation must be in writing and must be filed in the office of the county judge.

H is tory.-§81, ch. 16103, 1933; CGL 1936 Supp. 6641(24); am. §2, ch. 22783, 1945; §6, ch. 22847, 1946. cf.-§§734.11-734.21. Removal of personal representative.

732.46 Minor not qualified.-(1) No person who is less than twenty-one

years of age shall be qualified or permitted to act as an executor or administrator. If a minor is named as executor in any last will and testament, letters testamentary shall be granted to the other executor or executors, if any is named in said will; if none other is named, letters of administration with the will annexed shall be granted to the next of kin or to such other person as the judge shall appoint according to the provisions of this law, until said minor comes of full age, when he may have letters testamentary as the executor if otherwise qualified. In such case, the letters of administration, if any have been granted, shall be revoked, and the said administrator shall render a true and faithful account of his administration to the county judge's court and surrender the estate to the said executor.

(2) The executor in such cases shall be entitled to all rights and proceedings provided for in this law for compelling an accounting from removed personal representatives.

Hi.tory.-§82, ch. 16103, 1933; CGL 1936 SuPp. 6641(26); am. §2, ch. 22783, 1946.

732.47 Nonresidents.-(1) A person Who is not an actual bona fide

resident of the state cannot qualify as a personal representative of an estate in Florida, unless such person is a legally adopted child of the decedent, an adoptive parent or is related by lineal consanguinity to the decedent or is a spouse or a brother, sister, unc!e, aunt, nephew or niece of the decedent. However, any person who has qualified in Florida as a personal representative prior to the effective date of this law may continue to serve in such capacity.

(2) Before any nonresident of Florida shall be issued letters upon any estate, such nonresident shall have his residence and postoffice address recorded in the office of the county judge


of the county in which the administration is pending, and shall designate some resident of said county as his agent or attorney for the service of process, whose name, residence, and postoffice address shall also be likewise recorded. Such designation, in whatever form it may be, shall be taken to constitute the consent of the person so designating that service of any process upon the designated agent or attorney shall be sufficient to bind the person so designating in any suit or action against such personal representative, either in his representative capacity or personally, provided, that such personal action must have accrued in the administration of such estate. Such designation must be in writing and must be filed in the offi~e of the county judge.

(3) Any qualified personal representative appointed after May 27, 1947, who becomes disqualified to act as such after his appointment immediately thereupon shall file, in the court where his letters were granted, his petition for resignation pursuant to the terms and provisions of §734.09, and immediately thereupon shall present said petition to said court and do any and all other things necessary or proper to procure an order approving such resignation.

(4) Anything contained in any will of a person who hereafter dies a resident of the state to the contrary notwithstanding, it shall be and constitute a violation of this section for any person or corporation to apply for or act under any letters testamentary or of administration with the will annexed issued in any other state or country for or in respect of personal property of a person who hereafter dies a resident of the state and which is located elsewhere than in the state, solely because of the fact that the will of such testator purports to name, constitute or appoint such person or corporation as a purported executor or administrator with the will annexed, when such person or corporation is not qualified to receive and act under domiciliary letters testamentary or of administration with the will annexed issued in the state.

(5) Any person who fails to comply with or who acts or continues to act in violation of any of the terms and provisions of this section shall be deemed guilty of a misdemeanor and, on conviction, be fined not to exceed one hundred dollars for each day his appointment as such personal representative remains in effect contrary to any of the terms and provisions of this section.

Hlstory.-§83, ch. 16103, 1983; U, ch. 19671, 1939; CGL 1940 Supp. 5541 (26), 8135 (38-a); am. §2, ch. 22783, 1946; 17, ch. 22847, 1945; am. §1, ch. 23819, 1947. U 1, 2, ch. 29961, 1955.

732.48 Married woman.-A married woman may act as personal representative or curator without the consent of her husband.

HI.tory.-§84, ch. 16103, 1933; CGL 1986 Supp. 6641(27); am. §2. ch. 22783, 1945.

732.49 Trust companies and other corporations.-

(1) All trust companies incorporated under the laws of the state and all national banking

associations authorized and qualified to exercise fiduciary powers in Florida shall be entitled to act as personal representatives and curators of estates under the laws of the state.

(2) When any such corporation has been named as an executor in a will and thereafter sells its business and assets to, or consolidates or merges with, or is in any manner provided by law succeeded by, another such corporation, the successor corporation may, upon the death of the testator, qualify, and the county judge may issue letters to the successor corporation unless the will provides otherwise.

(3) A corporation authorized and qualified to act as a personal representative resulting from merger or consolidation shall, upon filing proof thereof in the county judge's court and without a new appointment, succeed to the rights and duties of all predecessor corporations as the personal representatives of estates. A purchase of substantially all the assets and the assumption of substantially all the liabilities shall be deemed a merger for the purpose of this section.

Hlstory.-§85, ch. 16103, 1933; CGL 1936 SuPp. 6541(28); am. 12, ch. 22783, 1945 ; am. 17, ch. 24337, 1947.

732.50 Joint executors and administrators.If several executors are named in a will, one or more qualifying shall be entitled to execute all the powers and trusts confided to all in the will unless especially prohibited by the will; if more than one qualify, all must join in discharging the functions of executor unless the county judge gives special authority to one or more of such executors to discharge such functions. Each executor shall be responsible only for his own acts, unless by his own act or gross negligence he has enabled or permitted his coexecutor to waste the estate. The foregoing shall likewise apply to joint administrators.

HI.tory.-§86, ch. 16103, 1933; CGL 1936 Supp. 6641(29) ; am. §2, ch. 22783, 1945.

732.51 Effect of appointment of debtor or creditor.-The appointment of a debtor or of a creditor as personal representative shall not, either in law or in equity, be construed to operate as a release or extinguishment of the debt due to or by the decedent. This section shall not be construed to prevent a testator from releasing a debtor by last will and testament.


732.52 Succession of administration.-No executor of an executor shall, as such, be authorized to administer the estate of the first testator; but, on the death of the sole or surviving executor, the county judge shall appoint an administrator de bonis non to complete the administration of such estate.

Hlstory.-§88, ch. 16103, 1933 ; CGL 1986 Supp. 5541(81); am. §2, ch. 22783, 1945.

732.53 Executor de son tort.-No person shall be liable to a creditor of a decedent as executor de son tort, but any person taking, converting or intermeddling with the property of a decedent shall be liable to the personal representative or curator, when appointed, for the value of all the property so taken or converted and for

Ch. 732 FLORIDA PROBA TE LAW, SECOND PART Ch. 732

all damages to the estate of the deceased caused by his wrongful action; but this section shall not be construed to prevent a creditor of a deceased person from suing anyone in possession of property fraudently conveyed by such deceased person, for the purpose of setting aside such fraudulent conveyance.

HI8tOry.-§89, ch. 16103, 1933; CGL 1936 Supp. 6641(141); am. §2, ch. 22783, 1945.

732.54 Guardian ad litem.-Whenever a legal guardian is appointed or qualified in this state for any infant or person non compos mentis who is interested in the estate of a decedent, such guardian shall represent his ward in all proceedings affecting such estate in the county judge's court, except as to proceedings in which the guardian is interested in his own right. The county judge shall, without notice, appoint a guardian ad litem to represent any infant or person non compos mentis where there is no legal guardian appointed or qualified in this state, or where such guardian is interested in his own right, and to represent any unknown person interested in the estate. A guardian ad litem shall, upon appointment, make and file an oath to discharge his duties faithfully. Whenever a guardian ad litem is appointed, no process need be served upon him, but he shall appear and defend as directed by the county judge.


732.55 Administrator ad litem.-Whenever, in any proceeding before the county judge or in equity in the circuit court, it is necessary that the estate of a deceased person be represented and when there is no personal representative of such estate or when the personal representative is interested adversely to said estate or in such proceeding is enforcing his own debt or claim against the estate, the court in which the proceeding is pending shall appoint an adminstrator ad litem without bond for that particular proceeding. Whenever the facts authorizing such appointment appear of record or are otherwise made known to the court, the court shall without notice appoint such administrator ad litem. The administrator ad litem shall, upon appointment, make and tilt; an oath t<~ discharge his duties faithfully, and saId proceedmg shall then be further maintained, prosecuted or defended, insofar as said estate is concerned, by said administrator ad litem and in his name as such.

Hl8tory.-191, ch. 16103, 1933; CGL 1936 Supp. 6541(32)· am. §2, ch. 22783, 1945. '

732.56 Recovery of judgment; proceedings. -Whenever any such administrator ad litem shall recover any decree or other relief, it shall be enforced as other decrees, except that execucution which shall issue shall be in favor of the administrator ad litem for the use of the estate, and the money collected shall be paid to the personal representative of the estate, or, if there is none, then to the county judge when the proceeding is before him, or into the registry of the circuit court when the proceeding is in that court; and said funds, if paid into court, shall be held

to await the further order of the court. Hlstory.-§92, ch. 16108, 1933; CGL 1936 Supp. 6541(88);

am. §2, ch. 22783, 1945. cf.-§732.03, Enforcement ot judgmentll.

732.57 Judgment in favor of personal representative.-If the personal representative is an adverse party and in a proceeding in equity recovers a judgment or decree against the administrator ad litem, the court may grant him such relief as he may be lawfully entitled to under the provisions of this law.

Hlotory.-§93, ch. 16103, 1933; 14, ch. 17171, 1985; CGL 1936 Supp. 5541(139); am. 12, ch. 22783, 1945.

732.58 Compensation of administrator ad litem.-An administrator ad litem shall be allowed such compensation for his services as the judge in whose court the proceeding is pending deems just and reasonable, and the same shall be taxed as costs in the case unless the court thinks it equitable that the same should be paid out of the assets of the estate without reference to prevailing or losing parties in the cause.

Hi8tory.-§94, ch. 16103, 1933; CGL 1936 Supp. 5541(84); am. §2, ch. 22783, 1945; am. §10, ch. 26484, 1951. ot.-734.01, Expenses and compensation ot personal rep

resentatives.

732.59 Oath of personal representative.Before granting letters the county judge shall require the personal representative to make and file an oath in writing that he will faithfully administer the estate of the decedent, pay debts as far as the assets of the decedent will permit, make distribution of the estate according to law, and render due accounts of his administration.

Hlotory.-§95, ch. 16108, 1933; CGL 1936 Supp. 5541(85); am. §2, ch. 22783, 1945.

732.60 Oaths and affidavits.-Oaths, verifications, affirmations and affidavits required by law in probate proceedings may be made, either within or without the state, before any officer authorized by the laws of this state to administer oaths.


732.61 Bond of personal representative.(1) Every person to whom letters testamen

tary or of administration are directed to issue (unless the testator waived such requirement) shall be required by the judge, before such letters issue, to execute and file in his office a bond with two or more sufficient sureties, or an authorized surety company as surety, to be approved by the county judge, in such penal sum as the county judge may deem sufficient, respect being had to the value of the estate. Said bond shall be payable to the governor and his successors in office, conditioned to perform faithfully all duties as such personal representative according to law. In form the bond must be joint and several.

(2) The requirements of this section shall not be applicable to banks and trust companies authorized by law to act as personal representatives.

Hlstory.-§97, ch. 16108, 1983; 16, ch. 17171, 1936; CGL 1936 Supp. 5541(36); am. 12, ch. l!2788, 1945. cf.-§733.29, Additional bond upon sale ot assets.


732.62 Bond by a surety company.-Any surety company authorized to do business in this state may become surety upon the bonds of personal representatives, and in such cases there need be only one surety upon such bonds.

Hlst0l'7.-198, ch. 16103, 1933; CGL 1936 Supp. 6641(37); am.. §2, ch. 22783, 1946.

732.63 Bond required of executor.-When any person interested in the estate of a decedent files with the county judge of the county wherein a last will is admitted to probate a petition, from which petition and the evidence adduced thereon it is made to appear to the county judge that there is reasonable ground to apprehend that any such executor holding the assets of such decedent is mismanaging, wasting or diverting, or will mismanage, waste or divert said assets from their proper administration, the county judge shall require such executor to give a bond with sufficient secur ity conditioned as the law directs; and this bond may be required although the will may exempt said executor from giving the bond. The executor shall have such notice as the county judge may prescribe and the right to appear and defend the proceedings.

Hlst0l'7.-§99, ch. 16103, 1933; CGL 1936 Supp. 6641(88); am. §2, ch. 22783, 1945.

732.64 Insufficiency of bond.-When any person interested in the estate of a decedent files with the county judge of the county wherein the administration is pending a petition, from which petition and evidence adduced thereon it is made to appear to the county judge that the sureties on any bond given by a personal representative or curator are insolvent or insufficient or that the bond is insufficient in amount, said county judge shall enter an order requiring additional sureties or an additional bond, as the circumstances may require.

Hlst0l'7.-§l00, ch. 16103, 1933; CGL 1936 Supp. 6641(39); am.. §2, ch. 22783, 1945.

732.65 Liability of surety.-No surety for any personal representative or curator shall be charged beyond the assets of an estate by reason of any omission or mistake in pleading or of false pleading of such executor, administrator or curator.

Hlstory.-§101, ch. 16103, 1933 ; CGL 1936 Supp. 6641(40) ' a.m. §2, ch. ~2783, 1945. '

732.66 County judge to act on his own motion.-Whenever it is known to the county judge of a county where administration of any estate has been granted that cause exists which would authorize him upon the application of others to require a personal representative or curator to

give bond or to give additional surety, said judge shall, of his own motion, without the application of any other person, make such orders as he may deem proper.


732.67 Informality of bond.-N 0 bond executed by any personal representative or curator shall be void or invalid on account of any informality in it, or of informality or illegality in the appointment of such fiduciary. Such bond shall have the same force and effect as if the appointment had been legally made and the bond executed in proper form.

Hht0l'7.-§103, ch. 16108, 1933; CGL 1936 Supp. 6541(42); am. §2, ch. 22783, 1945.

732.68 Release of surety.-(1) The surety or sureties, or the personal

representative of any surety or sureties, upon the bond of any executor, administrator or curator, taken under the provisions of this law, shall be entitled as a matter of right to be released from future liability upon such bond, upon application to the county judge therefor and the giving of five days' written notice of application to the principal named in the bond.

(2) Pending the hearing of such application, the county judge may, in his discretion, restrain the principal from acting in his representativf> capacity, except to preserve the estate.

(3) Upon the hearing, the county judge shall enter an order prescribing the terms and amount of the new bond for such fiduciary and the date when same shall be filed. If the principal fails to give the new bond, he shall be removed at once and further proceedings be had as in cases of removal.

(4) The original surety or sureties shall be liable for all acts of the fiduciary until he has given the new bond and after the giving of the new bond shall remain liable for all the fiduciary'S acts to the time of the filing and approval of the new bond. The new surety shall be liable for the fiduciary's acts only from and after the filing and approval of the new bond. The costs of the proceeding shall be paid by the surety applying to be released.

Hlstory.-§l04, ch. 16103, 1938; CGL U36 Supp. 5641(43); am. §2, ch. 22783, 1945.

732.69 County judge may reduce bond.The county judge may, for good cause shown, reduce the amount of bond of personal representatives of estates.

Hlstory.----Comp. § I, eh. 29715, 1955.

Ch. 733 FLORIDA PROBATE LAW, THIRD PART

CHAPTER 733

FLORIDA PROBATE LAW, THIRD PART

733.01 Personal representative to take posses- 733.29 Additional bond upon sale. sion of entire estate and application 733.30 Sales upon terms.

Ch. 733

of estate income. 733.31 When personal representative may pur-733.02 Actions relating to real estate. chase. 733.03 Inventory. 733.32 Conveyances pursuant to contracts of 733.04 Inventories. decedent. 733.05 Duties of appraisers. 733.33 Sale of contract to purchase. 733.06 Inventories and appraisals as evidence. 733.34 Sale of real property subject 'to contract 733.07 Compensation of appraisers. to purchase. 733.08 Continuance of business of decedent. 733.35 Sale of real property subject to mort-733.09 Duty to assign dower. gage. 733.10 Petition for assignment. 733.36 Sale of stocks and bonds. 733.11 Petition by widow for assignment of 733.361 Stock held in name of personal repre-

dower. sentative. 733.12 Proceedings on the petition. 733.37 Interest in partnership. 733.13 Commissioners. 733.38 Lease of real property. 733.14 Final judgment. 733.39 Borrowing money and mortgaging prop-733.15 Notice to creditors. erty. 733.16 Form and manner of presenting claims; 733.40 Power of personal representative to

limitation. execute instruments. 733.17 Amendment of claims. 733.41 Purchaser protected. 733.18 Payment of and objections to claims. 733.42 Limitation in favor of purchaser from 733.19 Execution and levies prohibited. personal representative. 733.20 Order of payment of expenses of ad- 733.43 Annual returns.

ministration and claims against the 733.44 Contents of returns. estate; family allowance. 733.45 Objection to returns.

733.21 Compromise and settlement. 733.46 Trial of objections. 733.211 Claims undisposed of after three years 733.47 Examination of returns not objected to.

barred. 733.48 Recording settlement. 733.22 Sale pursuant to will. 733.49 Order requiring returns; contempt of 733.23 Sales where no power conferred. court. 733.24 Sale on petition of interested persons. 733.50 Compulsory settlements. 733.25 Sale of real property when widow sur- 733.51 Production of assets.

vives. 733.52 Devastavit. 733.26 When notice of sale required. 733.53 Who may suggest devastavit. 733.27 Hearing on application to sell. 733.54 Waiver of statute of limitations, inter-733.28 Order of sale. nal revenue matters.

733.01 Personal representative to take possession of entire estate and application of estate income.-

(1) The personal representative shall take possession of the personal property wheresoever situate of a person who hereafter dies a resident of the state, and shall take possession of the real estate (except homestead) within the state of such a deceased person, and the rents, income, issues and profits therefrom whether accruing before or after the death of the decedent, and of the proceeds arising from the sale, lease or mortgage of the same or any part thereof. The personal representative shall take possession of the real and personal property within the state of a person who hereafter dies a resident of some other state or country, and the rents, income, issues and profits therefrom whether accruing before or after the death of the decedent, and of the proceeds arising from the sale, lease or mortgage of the same or any part thereof. All such property and the rents, income, issues and profits therefrom shall be assets in the hands of the personal representative for the payment of legacies, debts, family allowance, estate and inheritance taxes, claims, charges and expenses

of administration, and to enforce contribution and to equalize advancement and for distribution.

(2) The net income earned by the assets of the estate after the death of the testator, and prior to the distribution of the estate, and not used for the purposes set forth in subsection (1) above shall in the absence of specific provision in the will to the contrary be paid and applied as follows:

(a) To either specific or demonstrative legatees and devisees the net income from the property specifically or demonstratively bequeathed and devised to them respectively;

(b) To general legatees, legal interest on their respective legacies from the time fixed by the county judge in an order of distribution for the payment thereof, or if no date is fixed by the county judge, from and after thirty days from the entry of such order of distribution, except that where the general legacy provides that the net income therefrom shall be paid to or for the benefit of or accumulated for one or more beneficiaries, then such general legatee or legatees shall be entitled to that proportion of the net income which the general legacy at appraised value bears to the appraised value

Ch. 733 FLORIDA PROBATE LAW, THIRD PART Ch. 733

of the entire probate estate, excluding specific and demonstrative legacies and devises, provided, however, that the appraised value shall be the court appraisal unless a United States estate tax return is required to be filed, in which event the appraised value shall be the value finally determined for such tax purposes.

(c) To the residuary legatees and devisees, all the rest and remainder of the net income earned after the death of the testator not hereinabove applied.

(3) If any part of the estate is bequeathed or devised to a trustee the proportion of the net income applied to such bequest or devise shall be paid by the executor to such trustee and shall be held and distributed by the trustee as income.

(4) This section shall apply to estates of all decedents dying on or after July 1, 1953.

History.-§105, ch. 16103, 1933; CGL 1936 Supp. 6541(87); I I I , 2, eb. 20413. 1941; §3, cb. 22783, 1945; am. II, ch. 28025, 1953; sub. I (1) am. II, cb. 29893, 1955. cf.-§734.07, Advancements.

733.02 Actions relating to real estate.-Personal representatives may bring and maintain actions or suits for the possession or recovery of real property of the estate, for the purpose of quieting the title thereto, for waste thereof and trespass thereon, and against cotenants of the decedent in real property for the partition thereof. Heirs and devisees of the decedent may themselves, or jointly with the personal representative, bring and maintain actions or suits for the possession or recovery of real property of the estate or for the purpose of quieting title thereto against anyone except the personal representative. In any suit to quiet title brought by an heir or devisee, the possession of the personal representative shall, for the purpose of such suit. be deemed the possession of the heir or devisee. In all actions or suits involving the title to real property, against an estate for the possession or recovery of real property or for the purpose of quieting title thereto, the personal representative and the heirs or devisees of such property shall be made parties.

HI8tory.-§106, cb. 16103, 1933; CGL 1936 Supp. 5541(88); am. 13, ch. 22783, 1945. cf.-§734.21, Survival of actions.

1734.3(), Actions by or against foreign representatives.

733.03 Inventory.-The personal representative shall file a complete inventory of the personal property wheresoever situate of a person who hereafter dies a resident of Florida, and of the real estate (except homestead) within the state of the estate of such a decedent. The personal representative shall file a complete inventory of the real and personal property within the state of a person who hereafter dies a resident of some other state or country. The inventory shall be filed within sixty days from the date of the granting of letters unless the time is extended by order of the county judge.

Hlstory.-§107, ch. 16103, 1933; CGL 1936 SuPP. 5541(79); §3, ch. 22783, 1945; II, eb. 29894, 1955. cf.-§733.37, Inventories; Interests In partnerships.

733.04 Inventories.-The county judge on granting letters testamentary or of administra-

tion shall appoint two or more competent person& not of kin to the deceased as appraisers of the property of the decedent, and said appraisers shall take oath truly and justly to view and appraise, according to the best of their ability, all the property of the decedent which to them shall be produced or which shall come to their knowledge. It shall not be necessary to appoint appraisers or to have any appraisement whenever the county judge dispenses with the appraisal of an estate.

Hlstory.-§108, ch. 16103, 1933; CGL 1936 Supp. 5541(80); am. §3, ch. 22783, 1945; §8, ch. 22847, 1945.

733.05 Duties of appraisers.-On the appointment of the appraisers they shall forthwith proceed to appraise all the property which has been produced to them and which has come to their knowledge and file the appraisal in tht: office of the county judge; and the appraisal thereupon made, if signed by the personal representative, may be considered as an inventory of such part of t he estate.


733.06 Inventories and appraisals as evidence.-Inventories and appraisals, or certified copies thereof, may be given in evidence in any suit by or against the personal representative; however, they shall not be conclusive, for or against him, as to the real value of the estate or any part thereof, or as to whether it or any part thereof was sold bona fide for more or less than the appraised amount.


733.07 Compensation of appraisers.-Each appraiser shall be entitled to receive for his services reasonable compensation, to be fixed by the county judge and paid by the personal representative. Application therefor shall be accompanied by an affidavit of each appraiser showing the services rendered by him as appraiser and the reasonable value thereof, and such application may be heard upon such notice as the county judge shall fix.

Hi8tory.-§111, ch. 16103, 1933; CGL 1936 Supp. 6541(83); am. §3, ch. 22783, 1945.

733.08 Continuance of business of decedent.-

(1) In every case where a person has died while engaged in any trade or business, the county judge may authorize the curator or the personal representative of the estate of such deceased person to continue and carryon such trade or business for a reasonable time under thE' supervision of the county judge and require such security or additional security of such curator or personal representative as the county judge may deem proper.

(2) Before any order shall be made authorizing the continuance of the trade or business of the deceased person, the curator or the personal representative of such estate, by a verified petition, shall affirmatively and clearly allege and set forth sufficient facts to make it appear to the county judge that, to prevent great loss to the


estate, it is necessary to continue such trade or business of the deceased.

(3) The order of the county judge authorizing the continuance of such trade or business of the deceased may empower the curator or the personal representative of such estate, in his representative capacity, to make such contracts as may be necessary to carryon and conduct such trade or business and to incur debts and to pay out money in the proper conduct of such trade or business, and the net profits of such trade or business only shall be assets of the said estate.

(4) In the conduct of such trade or business the curator or the personal representative shall keep full and accurate accounts of all receipts and expenditures, he shall make monthly reports thereof to the county judge, and he shall be allowed such compensation as the county judge may deem reasonable for his services in conducting such trade or business.

(5) Any person interested in the said estate at any time may apply to the county judge of the county where such order has been granted for an order requiring the curator or the personal representative of such estate to discontinue and to wind up the said trade or business, and upon due notice to the said curator or personal representative, such application shall be heard, and the county judge shall make such order thereon as he deems for the best interest of said estate.


733.09 Duty to assign dower.-The personal representative shall layoff and assign dower immediately after the widow has exercised her election to take dower.


733.10 Petition for assignment.-For the purpose of enabling the personal representative to layoff and assign dower, he shall file a petition therefor in the county judge's court in which the administration of the estate of the decedent is pending. Citation shall be served upon the widow and the heirs, devisees, legatees and distributees, or such of them as do not appear and join in the proceedings.

Hlstory.-§1l4, ch. 16103, 1933; CGL 1936 Supp. 6507(5); am. §3, ch. 22783, 1945.

733.11 Petition by widow for assignment of dower.-

(1) If the personal representative fails to file a petition for the assignment of dower, the widow may file such petition, setting forth her claim, specifying as particularly as may be known to her the property in which she claims dower and praying for the assignment of the same. Citation shall be served upon the personal representative, the heirs, devisees, legatees and distributees, or such of them as do not appear and join in the proceedings.

(2) The widow may in addition file her extraordinary petition or petitions for assignment of dower in the county judge's court of any county or counties in this state where any lands lie which her husband had before <conveyed, whereof she had not relinquished her right of

dower as provided by law. Citations shall be served upon all persons adversely interested. Proceedings thereupon shall be, as nearly as possible, similar to those for the ordinary assignment of dower.

Hlstory.-§115, ch. 16103, 1933; §7, ch. 17171, 1935; CGL 1936 Supp. 5507 (6); am. §3, ch. 22783, 1945.

733.12 Proceedings on the petition.-(1) The proceedings upon any petition for

assignment of dower shall be informal and summary.

(2) On any petition for assignment of dower, the right of dower as well as the admeasurement thereof, shall be determined, and mesne profits from the date of the death of the decedent shall be included in the judgment. The county judge in whose court the administration of the decedent's estate is pending shall have plenary jurisdiction to assign dower in all property, real or personal, located in any county in the state. But no such judgment shall become effective in any other county until a duly certified copy thereof has been recorded in such other county in the judgment lien record.

(3) Upon written demand of any party filed twenty-four hours before trial, the question of right of dower shall be submitted to a jury of six persons. The party demanding a jury trial shall, with the filing of his demand, deposit with the county judge sufficient funds to pay for summoning the jury and the fees of the jurors. Fifteen jurors shall be summoned from the body of the county and not from bystanders.

History.-§116, ch. 16103, 1933; CGL 1936 SuPP. 5607(7); am. §3, ch. 22783, 1945.

733.13 Commissioners.-If a judgment for dower is made, the county judge shall select (unless selected by mutual agreement of the parties) and appoint as commissioners three suitable persons who are entirely disinterested and not connected with the parties either by consanguinity or by affinity. Such commissioners may employ a surveyor and shall be allowed such sum as may be deemed reasonable by the county judge to be paid as part of the costs of administration of the estate. They may be removed by the county judge for good cause shown and others appointed in their places. They shall proceed, immediately upon taking oaths faithfully and impartially to execute the trust imposed in them, to allot and set off the widow's dower. All matters of mesne profits shall be decided by the court upon the pleadings and evidence; provided, however, that when the interested parties agree to the allotment of dower, or when the assets are of such value and such a nature that dower may be allotted without the appointment of commissioners, the county judge may, in his discretion, dispense with such appointment and set off and allot dower.

Hlstory.-§117, ch. 16103, 1933; CGL 1936 Supp. 5507(8); § 3, ch. 22783, 1945; II, ch. 29714. 1955.

733.14 Final judgment.-In all cases of assignment of dower, the county judge to whom application is made shall, upon hearing after notice, confirm, reject or modify the allotment or assignment made. Such judgment shall vest in


the widow a fee simple estate in the lands and the absolute ownership of the personal property allotted. She shall be entitled to writ of possession if necessary.

Hlstory.-§118, ch. 16103, 1933; CGL 1936 Supp. 5607(9); am. 13, ch. 22788, 1146.

733.15 Notice to creditors.-Every personal representative, after taking out letters testamentary or of administration, shall cause a notice to be published once a week for four consecutive weeks, four pUblications being sufficient, in a newspaper published in the county wherein said letters have been granted, notifying all persons having claims or demands against the estate of the decedent to file their claims in the office of the county judge granting such letters, at his office in the courthouse of said county, within six ca lendar months from the time of the first publication of said notice. If no newspaper conforming to the requirements of law is published in the county of the administration, then such publication shall be made by posting as provided for in this law. Proof of said publication or posting shall be filed with and recorded by the county judge.

Hlstory.-§119, ch. 16103, 1933; CGL 1936 Supp. 5541(91); §3, ch. 22783, 1945; §2, ch. 61-394.

733.16 Form and manner of presenting claims; limitation:-

(1) No claim or demand, whether due or not, direct or contingent, liquidated or unliquidated, or claim for personal property in the possession of the personal representative or for damages, including but not limited to actions founded upon fraud or other wrongful act or commission (if the decedent, shall be valid or binding upon an estate, or upon the personal representative thereof, or upon any heir, legatee or devisee of the decedent unless the same shall be in writing and contain the place of residence and postoffice address of the claimant, and shall be sworn to by the claimant, his agent or attorney, and be filed in the office of the county judge granting letters. Any such claim or demand not so filed within six months from the time of the first publication of the notice to creditors shall be void even though the personal representative has recognized such claim or demand by paying a portion thereof or interest thereon or otherwise; and no cause of action, at law or in equity, heretofore or hereafter accruing, including but not limited to actions founded upon fraud or other wrongful act or omission, shall survive the death of the person against whom such claim may be made, whether suit be pending at the time of the death of such person or not, unless such claim be filed in the manner and within the said six months as aforesaid;

(a) Provided, however, that if suit upon any such claim or demand is filed and service of process therein had upon such personal representative within six months from the time of the first publication of the notice to creditors, the claim or demand asserted by such suit shall not be impaired or affected by failure to file in the office of the county judge granting letters a claim or demand in manner and form as hereinabove provided, but such failure shall operate

to preclude the plaintiff in such suit from recovering any suit costs or attorneys fees as an incident thereto; and the personal representative shall file in the office of the county judge granting letters a suggestion of the pendency of such suit and the same shall be entered on the claim docket;

(b) Provided further, that the lien of any duly recorded mortgage and the lien of any person in possession of personal property and the right to foreclose and enforce such mortgage or lien shall not be impaired or affected by failure to file claim or demand as hereinabove provided, but such failure shall bar the right to enforce any personal liability against the estate, and the claimant shall be limited to the enforcement of the mortgage or lien against the specific property so mortgaged or held. Any suit heretofore commenced and in which service of process was had upon the personal representative within the period hereinabove specified, and which may now be pending in any court against the personal representative of any estate which has not been finally closed, shall not be subject to attack upon the ground that the claim or demand upon which such suit is based was not made in manner and form and filed in the office of the county judge granting letters, as otherwise hereinabove provided.

(c) Provided further that a creditor shall deliver a copy of such claims as recorded and filed to the county judge, who shall forthwith mail said copy to the personal representative, and note on the original such fact of mailing.

(2) Nothing herein contained shall be construed to require any legatee, devisee or heir at law to file any claim for the share or interest in estate to which he may be entitled.

(3) Any claim filed in any estate during the p-eriod of time between July 1, 1961, and July 1, 1963, which was filed within eight months from the first publication of notice to creditors but after six months from the first publication of notice to creditors, may, upon just cause shown to the county judge, be allowed as if it had been filed within six months from the first publication of notice to creditors provided there had not been ari order of final distribution entered prior to the actual filing of the claim or the effective date hereof and the claimant can show to the satisfaction of the county judge that the allowance of the claim as though properly filed within six months from the first publication of the notice to creditors will not materially adversely affect the orderly administration of the estate. Provided further the time for filing suit upon objections filed to claims filed under this section is extended to July 1, 1963.

Hlstory.-§120, ch. 16103, 1933; CGL 1936 Supp. 5641(92); §3, ch. 22783, 1945; 11, ch. 22889, 1945; §1, ch. 23970, 1947 ; (1) (e) n. §1, ch. 57-194; (1) a . §3, by 61-394; (3) n. §1, ch. 63-309. ct.-§§734.27-734.29, Suspension of statutes of limitations.

§733.35, Mortgages.

733.17 Amendment of claims.-If a bona fide attempt to file a claim is made by any creditor or other claimant but it is defective as to form, the county judge in his discretion may permit the


amendment of such claim at any time before payment.

HI.tory.-§l21, ch. 16103. 1933; CGL 1936 Supp. 6541(93); am. §3, ch. 22783, 1946.

733.18 Payment of and objections to claims. (1) No personal representative shall be com

pelled to pay the debts of the decedent until after the expiration of six calendar months from the granting of letters; and if any person brings any suit or action against any personal representative within said six calendar months upon any claim to which the personal representative has filed no objection, the plaintiff, although he obtains decree or judgment, shall not receive any costs of suit or attorneys' fees, nor shall such judgment change the class of such claim in any manner.

(2) On or before the expiration of eight calendar months from the first publication of notice to creditors any personal representative or other person interested in the estate may file in the office of the county judge written objection to any claim or demand filed. An objection filed to any unmatured claim matures the same for the purpose of the establishment of the validity and amount thereof by suit. If objection is filed, the person filing it shall, forthwith, but not later than thirty days after same has been filed, serve a copy of such objection by registered mail or personal service on the creditor or claimant to whose claim he objects and also on the personal representative if the objection is filed by any interested person other than the personal representative. Failure to serve copy of such objection as herein provided shall constitute an abandonment of the objection unless the time for service thereof be extended by the county judge for good cause shown. The creditor or claimant shall thereupon be limited to two calendar months from the date of such service within which to bring appropriate suit, action or proceedings upon such claim or demand. The county judge for good cause shown may extend the time for filing objection to any claim or demand or the time for serving such objection, and may likewise for good cause shown extend the time for filing appropriate suit, action or proceedings upon any such claim after objection is filed; but in any of said instances, said extension of time shall be granted only after due notice of such application. No suit, action or proceeding shall be brought against any personal representative after the time limited above. If objection is filed to the claim of any creditor and suit is brought by the creditor to establish his claim or demand, a judgment establishing such claim shall give it no priority over claims of the same general class to which it belongs.

(3) No interest shall be paid by the personal representative or allowed upon the claim of any creditor against the estate of a decedent until the expiration of eight calendar months from the granting of letters unless said claim is founded upon a written obligation of the decedent expressly providing for the payment of interest. Interest shall be allowed and paid by

the personal representative upon written obligations of the decedent expressly providing for the payment of interest. Upon all other claims interest shall be allowed and paid beginning eight months from said granting of letters.

HI.tory.-§122, ch. 16103, 1933; CGL 1936 Supp. 6541(94); f3, ch. 22783, 1945; (2) f1, ch. 28209, 1953; f1, ch. 61-394; (2) , 11, ch. 63-454. cf.-§ 1.01 (13) defines registered maU to include certified maU

with return receipt requested.

733.19 Execution and levies prohibited.-No execution shall issue upon or be levied under any judgment against a decedent or against the personal representative, nor shall any levy be made against any property, real or personal, of the estate of a decedent. Claims upon all judgments against the decedent shall be filed in the same manner as other claims against estates of decedents; provided, however, that the provisions of this section shall not be construed to prevent the enforcement of mortgages, pledges, liens or claims to specific property, real or personal.

HI.tory.-§12S, ch. 16103, 1933; §8, ch. 17171, 1935; CGL 1936 Supp. 5541(95); am. §3, ch. 22783, 1945.

733.20 Order of payment of expenses of administration and claims against the estate; family allowance.-

(1) The personal representative shall pay the expenses of administration and claims against the estate in the following order:

(a) Class one. Costs, expenses of administration, compensation of personal representatives and their attorneys' fees.

(b) Class two. Reasonable funeral expenses not to exceed the sum of seven hundred fifty dollars, any excess over the sum allowed herein for funeral expenses shall be considered as included in the payments specified to be made in class eight.

(c) Class three. Expenses of last illness of the decedent, including debts for board and lodging, for hospital, physicians, surgeons', and druggists' bills, and for nursing, attendance and medicine during the last sickness of the deceased, incurred within a period of sixty days prior to the death of the decedent.

(d) Class four. If necessary for support, a family allowance of one year's support for the widow or minor, mentally or physically incompetent children of said decedent, or both such widow and children, in addition to the homestead and exempt personal property. Upon petition of the widow, if any, or of the legal guardian or of the person having the care and custody of a minor child or children, upon notice to the personal representative, a reasonable allowance shall be fixed by the county judge in personal property or money, or both, for the support of said widow and minor children, considering the needs of the family and the value of the estate. Said allowance or the portion payable in money shall be payable in equal periodic payments to be fixed by the county judge and shall be payable to the widow, if any, for the support of herself and the minor child or children, if any. If there is no widow, then the same shall be payable to the legal guardian or to the person having


the care and custody of any minor child or children. Upon the petition of any person interested in the estate, the county judge may increase, decrease, discontinue or modify the allowance; but in no event shall such allowance exceed the sum or value of twelve hundred dollars.

(e) Class five. Wages to the extent of one hundred dollars for each employee of the decedent, for work done or services rendered within sixty days prior to the death of the employer.

(f) Class six. Judgments of record in this state during the lifetime of the decedent.

(g) Class seven. Mortgages, mechanics', material-men's, laborers', employees' and other liens where the value of the property of the estate encumbered by said liens exceeds the amount thereof.

(h) Class eight. All other debts without distinction of rank.

(i) Class nine. If, upon petition of the widow or minor children of decedent, upon notice to the personal representative, it shall appear that the family allowance provided under paragraph (d) of this subsection is insufficient for the reasonable support of said widow or minor children, or both, according to their previous standard of living, then the county judge may order the payment of a supplemental family allowance from the assets of decedent's estate remaining after full provision for payment of prior claims, which in his opinion will reasonably support said petitioners; provided, however, that such supplemental allowance shall not exceed the sum of three thousand dollars. Said supplemental allowance shall be payable in such manner as the county judge shall direct, and shall be subject to discontinuance or modification in the same manner as the family allowance provided for under paragraph (d) hereof.

(j) Class ten. In case the decedent, dying testate, leaves a natural or adopted child less than eighteen years of age without a legally responsible surviving natural or adoptive parent and without adequate means for support and maintenance in its own right by will, gift or trust, such child shall be deemed a dependent orphan child of the decedent. In addition to any temporary allowance for maintenance during the period of administration as provided by paragraph (d) hereof, the court, on petition of any interested party or on its own motion, shall make such additional provision for such child until its eighteenth birthday as the court deems reasonable and just, subject to the limitations hereinafter set forth. The court may increase, discontinue or modify such allowance, but before entering any order fixing or changing any allowance hereunder the court shall require notice to all interested parties.

This provision is designed to afford reasonable protection to any dependent minor child who has been excluded from the provisions of the parents' will under circumstances which deprive it of an effective legal substitute for

the continuing obligation of the parent, while living, for support and maintenance during the period of its minority. It is not intended that this provision should have the effect of creating in any child omitted from the provisions of its parent's will an estate which would exceed the value of its distributive share had the deceased parent died intestate.

The court in its discretion, and in order to conclude the administration of the estate, may order the entire allowance hereunder paid in a lump sum to a guardian of the child's property, and in fixing the amount thereof the court shall consider the net value of the estate subject to distribution and the reasonable requirements of the child prospectively in relation to its eighteenth birthday.

(2) If, after paying any preceding class, the estate shall be insufficient to pay all of the next succeeding class, the creditors or claimants of the latter class shall be paid ratably in proportion to their respective claims.

Hlstory.-§124, ch. 16103, 1933; CGL 1936 Supp. 6541(96); f3, ch. 22783. 1945; fl, ch. 25274, 1849; sub. I (1)(b) , am. II, ch. 29678, 1955; (1) (b) a . by §1, ch. 61-63; (l)(d) a. by fl. ch. 61-391. ct.-U734.02-734.04, Payment of legacies and distributive

shares. 1734.05, Order of appropriation of assets.

733.21 Compromise and settlement.-Whenever it is proposed to compromise or settle any claim, whether in suit or not, by or against the estate of a decedent or the personal representative thereof, or to compromise or settle any question or dispute concerning the distribution of a decedent's estate, the county judge having jurisdiction of said decedent's estate, on sworn petition setting forth the facts and circumstancel' of such claim, question or dispute and the proposed compromise or settlement may, if satisfied that such compromise or settlement will be for the best interests of the estate, enter an order ex parte authorizing the same to be made, which order shall operate to relieve the said personal representative of any and all liability or responsibility in the premises; provided, however, that claims against the estate may not be compromised until after the time for filing objections to claims has expired and then only upon notice to those who have filed objection to the claim proposed to be compromised.

Hlstory.-§126, ch. 16103, 1933; CGL 1936 Supp. 6541(97); am. 13, ch. 22783, 1946.

733.211 Claims undisposed of after three years barred.-

(1) Whenever anyone shall have filed a claim against any estate in any probate proceedings in this state, in accordance with this chapter, and which claim has not had objection filed thereto or has not been paid, settled or otherwise disposed of and no proceeding is pending for the enforcement or compulsory payment thereof, then at the expiration of three years from the date such claim is filed such claim shall be forever barred and foreclosed and have no further force or effect and no proceeding or action shall thereafter ever be brought for enforcement or payment of same. This section


shall not affect the lien of any duly recorded mortgage or the lien of any person in possession of personal property or the right to foreclose and enforce such mortgage or lien.

(2) This section shall not apply to any claim upon which legal proceedings are brought for enforcement or compulsory payment of same on or before January 1, 1954.

Blstor,..---<:omp. § I I, 2, ch. 28180, 1953.

733.22 Sale pursuant to will.-In every case where a power is given in a will to sell or dispose of property of the estate, or any interest therein, a sale made under authority of such will shall be valid. The sale and disposition of property under such power may be made by the executors, or such of them as qualify, or by the surviving executor or executors, or by the administrator with the will annexed, or by the administrator de bonis non, if no other person is appointed in the will for such purpose, or, if the person .so appointed refuses to perform the trust or dIes before he has completed the same or is otherwise rendered incompetent.

Hlstory.-§126, ch. 16103, 1933; CGL 1936 Supp. 6541(98) ; am. §3, ch. 22783, 1946.

733.23 Sales where no power conferre~.Whenever any administrator of a ?e.cedent dYI?g intestate, or any executor or admIlllstrator WIth the will annexed whose testator has not conferred upon him a power of sale or whose testator has granted such power but that power is ~o limited by the will or by operation of law that It cannot be conveniently exercised, shall consider that it is for the best interest of the estate and of those interested therein that the property of the estate be sold for distribution or for any other purpose, the personal representative may sell the same at public or private sale; provided, however, that no title shall pass until by order of the county judge the sale shall be authorized or confirmed. Sales may be authorized before made or confirmed after made. Application for authorization or confirmation of sale shall be made by the sworn petition of the personal representat~ve setting forth the reasons for such sale, a deSCription of the property sold or proposed to be sold, and except when authorization or confirmation of the sale at the current market of stocks or bonds listed upon an established exchange is applied for, the price and terms of such sale.

Hiatory.-§127, ch. 16103, 1933; CGL 1936 Supp. 6641(99); am. §3, ch. 22783, 1946 ; §9, ch. 22847, 1946. ct.-§733.36, Sale ot stocks and bonds.

1733.40, Execution ot instruments by representative.

733.24 Sale on petition of interested persons.-If a personal representative neglects or refuses to sell property of an estate when it is expedient or necessary to do so or when a testator has directed a sale to be made, any person interested may, by petition, apply to the county judge for an order requiring the personal representative to sell. Notice of such petition shall be given to the personal representative and to such persons as would be entitled to notice in case of the application of the personal representative for authorization or confirmation of a sale of such property.


733.25 Sale of real property when widow survives.-In any case when a decedent is survived by a widow, no sale or disposition of real property shall be made, whether pursuant to the powers contained in the decedent's will or under the provisions of this law, until it appears that the widow will not have dower assigned to her, or, if she takes dower, until after her dower has been assigned, unless the widow consents to such sale and joins with the personal representative in the execution of a deed of conveyance to the purchaser thereof.

H18tory.-§129, ch. 16103, 1933; CGL 1936 Supp. 6641(101); am. §3, ch. 22783, 1946.

733.26 When notice of sale required.-(1) No notice of any application for the

authorization or confirmation of any sale shall be required when it shall appear that the personal property involved is perishable or rapidly depreciating.

(2) No notice of any application for the authorization or confirmation of any sale shall be required in any other case except as follows:

(a) Whenever it shall appear to the county judge that notice is necessary or desirable, notice shall be given to such persons as the county judge shall by order direct.

(b) Whenever application is made for the authorization or confirmation of the sale of property which has been specifically devised or bequeathed, notice shall be given to the devisee or legatee, unless he waive such notice or consent to such sale.

(c) Whenever any person interested in the estate shall serve upon the personal representative a written demand for notice of sale, containing the post-office address of such person, and file a copy of such demand and proof of the service thereof in the office of the county judge, notice of every application thereafter made for the authorization or confirmation of any sale shall be given to such person, unless he waive such notice or consent to such sale.

(d) Whenever the will of a decedent shall contain a direction or express a desire that any described or designated property be not sold, notice of application for the authorization or confirmation of the sale of any such property shall be given to the legatee or devisee of such property, unless he waive such notice or consent to such sale.

(e) Whenever application is made for the authorization or confirmation of the sale of any property for distribution.

Hlstory.-§130, ch. 16103, 1933; CGL 1936 Supp. 6641(102); am. §3, ch. 22783, 1946; §lO, ch. 22847, 1946.

733.27 Hearing on application to sell.Where no notice is required, the county judge may hear and determine petitions for the sale of property ex parte. Where notice is required, such hearings shall be as in other cases. At any such hearing the county judge may in his discretion require an appraisal or new appraisal of the property.

History .-§131, ch. 16103, 1933; CG L 1936 Supp. 6641 (103) ; am. §3, ch. 22783, 1945.

733.28 Order of sale.-(1) SALE GENERALLY.-After the hear-


ing upon a petition to sell or confirm the sale of property, the county judge shall make and enter an order thereon, and if the sale is authorized or confirmed, the order shall describe the property, and if said property is authorized to be sold at private sale, the order shall fix the price and the terms of sale. Such order shall be prima facie evidence of the validity of the proceedings and of the authority of the personal representative to make a conveyance or transfer of the property. A certified copy of such order relating to real property may be recorded in the judgment lien record in the office of the clerk of the circuit court in each county wherein such real property or any part thereof is situated. When an order authorizing a sale is obtained, it may provide for the public or private sale of any of the property described therein, in parcels or as a whole. If public sale is ordered, the personal representative shall give such notice as the order may require.

(2) SALE BY COMMISSIONER.-In the order of sale, or at any time before a sale authorized to be made by an executor or by an administrator, the county judge, whenever he deems it necessary, may appoint a commissioner to make the sale and to execute whatever instruments may be necessary to consummate it. Any sale made by such commissioner shall be in compliance with the law governing sales by executors and administrators. Any sale so made by a commissioner under such an order shall be as valid as though made by the executor or administrator.

IDstory.-§132, ch. 16103, 1933; CGL 1936 Supp. 5541(104). am. 13, ch. 22783, 1945; Ill, ch. 22847, 1945.

733.29 Additional bond upon sale.-Whenever the county judge makes an order authorizing or confirming a sale of property of an estate, he may in his discretion require the personal representative to execute a bond or an additional bond, with sureties as provided in this law, in such amount as the county judge may deem necessary, conditioned for the faithful accounting of the proceeds of such sale. No such bond shall, in any case, be required where the personal representative is a bank or trust company. All such bonds shall be recorded in the office of the county judge.

H18tory.-§133, ch. 16103, 1933; CGL 5641(106); am. 13, ch. 22783, 1946. cf.-1732.62, Bond by a surety company.

733.30 Sales upon terms.-When so provided by the order of the county judge authorizing or confirming a sale of property, personal representatives may sell upon such terms as the order prescribes. If credit is given, it shall be for not more than sixty per cent of the purchase price nor for longer than five years, unless the county judge, in his discretion by written order, authorizes a larger per cent of credit. The county judge, in his discretion by written order, may also enlarge the time for payment. The exercise of such discretion shall be evidenced by written order duly recorded. The deferred purchase price shall be evidenced by the promissory note of the purchaser payable to the personal representative and secured by mortgage upon the property sold, if real property, or by such security as may be approved by the court in any case. The taking of

any such promissory note and mortgage or other security shall not defer the final settlement of the estate, but, in the event of final settlement before the payment in full of such note, the same, together with the mortgage or other security, may be assigned and transferred without recourse to such person or persons who, but for such sale, would have been entitled to the property so sold.

Hlstory.-§134, ch. 16103, 1933; CGL 6541(106); am. 13, ch. 22783, 1946; 112, ch. 22847, 1946.

733.31 When personal representative may purchase.-Any personal representative having an interest in the estate which he represents, either in his own right or in the right of his wife or infant child, as creditor, devisee, legatee or heir at law may, at any public sale of the real or personal property of his testator or intestate made as provided by law under the order of the county judge, become a bidder therefor; and, if such personal representative is the highest bidder at such sale, he may purchase the same, and said property shall be sold to such executor or administrator, but such sale shall always be subject to confirmation by the county judge.

H18tory.-§136, ch. 16103, 1933; CGL 6641(107); am. 13, ch. 22783, 1946.

733.32 Conveyances pursuant to contracts of decedent.-In all cases where written agreements have been made for the sale and conveyance or transfer of real property in this state or of personal property, and the vendor has died before making such conveyance or transfer, the personal representative or person claiming the right to such conveyance or transfer may file with the county judge before whom the administration of the estate is pending a sworn petition setting forth the facts upon which the claim is predicated and annexing thereto the agreement or a copy thereof. The county judge, if he deems notice of hearing on said petition necessary or desirable, shall direct who should have the same and the manner in which it should be given. After a hearing upon such petition and the defenses, if any, made thereto, the county judge may make an order directing the personal representative to make, execute and deliver the conveyance or transfer to the person entitled to the same, or otherwise as justice may require. Such order shall describe the property to be conveyed or transferred. Said order shall be prima facie evidence of the validity of the proceedings and of the authority of the personal representative to make the conveyance or transfer. A certified copy of any such order relating to real property may be recorded in the miscellaneous records in the office of the clerk of the circuit court in any county wherein such real property or any part thereof is situated.

H18tory.-§136, ch. 16103, 1933; CGL 6541(108); am. 13, ch. 22783, 1945; am. II, ch. 23717, 1947.

733.33 Sale of contract to purchase.-If a decedent at the time of his death was possessed of a contract for the purchase of real property, the interest of the estate in such property and under such contract may be sold by the personal representative in the same manner as if the de-


cedent had been the owner in fee simple of such property; provided, the holder of the fee simple title to such property and of the vendor's interest thereto shall execute a release to the personal representative relieving the estate from liability upon such contract. Such release shall not be required if no claim has been filed on such contract and if the time for filing claims has expired. In lieu of such release the personal representative may, upon order of the county judge, take from the purchaser of such contract a bond approved by the county judge with sureties in a penal sum double the amount due and to become due under such contract, conditioned that the purchaser will make all payments upon such contract and perform all agreements therein contained according to the tenor thereof and indemnify and save harmless the personal representative and all persons interested in the estate against all demands, costs, charges and expenses by reason of such contract.

Hi.tory.-§137, ch. 16103, 1933; CGL 1936 Supp. 5541(109); am. §3, ch. 22783, 1945.

733.34 Sale of real property subject to contract to purchase.-If a decedent at the time of his death was the owner of real property subject to a contract to sell and convey said property, the interest of the estate in such property and such contract may be sold under order of the county judge in the same manner as other real estate. No recourse shall be had against the estate or the personal representative for the nonpayment or nonperformance by the vendee under any such contract. The consent of the vendee under any such contract to the sale thereof shall discharge the estate and the personal representative from all obligations, duties and liabilities with respect to such contract, but such consent shall not be required if no claim has been filed thereon and the time for filing claims has expired.

H18t017.-§138, ch. 16103, 1933; CGL 1936 Supp. 5541(110); am. §3, ch. 22783, 1945.

733.35 Sale of real property subject to mortgage.-The county judge may, upon petition of the personal representative and with the written consent of the holder of the mortgage, authorize the sale of real property of the estate subject to mortgage, whether such mortgage was made by the decedent, the personal representative or any other person. The consent of the mortgagee shall discharge the estate and the personal representative from liability for the mortgage indebtedness or obligation. Such consent shall not be required if no claim has been filed upon the mortgage indebtedness and the time for filing claims has expired.

Hi.t017.-§139, ch. 16103, 1938; CGL 1936 Supp. 5541(111); am. §3, ch. 22783, 1945. cf.-§733.16, Presenting claims.

733.36 Sale of stocks and bonds.-The county judge may, upon petition of the personal representative, make an order authorizing the sale, at the current market price, of any stocks or bonds which are listed upon an established stock or bond exchange, and such order need not otherwise designate the price at which such sale shall be made.

Hi8torT.-1140, ch. 16103, 1933; CGL 1936 Supp. 6Ml.(112); am. §3, ch. 22783, 1945.

733.361 Stock held in name of personal representative.-Upon entry of an order or decree of a court of competent jurisdiction, the personal representative or representatives shall have the power and authority to hold any corporate stock or mutual investment trust shares in the name of the sole personal representative or in the name of one or more of the several personal representatives, or in the name of a nominee, with or without disclosing any fiduciary relationship; but for all acts and omissions of the personal representative or representatives in whose names such property is held, and of such nominee, relating to such property, all the personal representatives shall be jointly and severally responsible.

Histor7.-§ 1, ch. 61-329.

733.37 Interest in partnership.-When at the time of his death, a partnership existed between the decedent and any other person, the surviving partner shall, in the absence of a partnership agreement providing otherwise, without delay, wind up and settle the business and the affairs of the partnership, account to the personal representative and pay over to him all balances due the estate. If, however, at date of the partner's death, there existed a partnership agreement specifying the terms and conditions of termination of the partnership upon death of a partner, then such agreement shall be binding with respect to all matters, duties, rights and obligations relating to the partnership, including the determination of its final accounting period. The interest of the decedent in the partnership shall be included in the inventory of the estate. The personal representative may bring and maintain again st the surviving partner any action, suit or proceeding relating to the partnership which the decedent could have brought. Any interest of an estate existing by virtue of a partnership between the decedent and any other person may be sold in the same manner as other property of the estate.

H18tory.-§141, ch. 16103, 1933; CGL 1986 Supp. 6Ml.(143); am. §3, ch. 22783, 1945.

Am. 11, ch. 26583, 1951.

733.38 Lease of real property.-Whenever it appears expedient and for the best interest of the estate to lease any real property of the estate, the county judge may authorize the personal representative to make such lease. The proceedings in such cases shall be, as nearly as possible, the same as in cases of application for the sale of property, except that notice shall be given to all persons interested in the estate. The personal representative may lease real property without an order of court when the tenancy is from month to month or for a term not extending beyond the time for filing claims against the estate.

H18t017.-§142, ch. 16103, 1933; CGL 1936 Supp. 5541(118); am. §3, ch. 22783, 1945.

733.39 Borrowing money and mortg-aging property.-Whenever it appears expedient or necessary and for the best interest of the estate to borrow money upon a promissory note, either unsecured or to be secured by a mortgage, pledge


or other lien upon the property of the estate or any part thereof, the county judge may by order authorize the personal representative to borrow such sum as the county judge shall deem proper. The proceedings in such cases shall be, as nearly as possible, the same as in cases of applications for the sale of property, except that notice shall be given to all persons interested in the estate. In like manner the county judge may authorize the personal representative to extend or renew any existing obligation of the estate or to extend or renew any existing mortgage, pledge or other lien. The signing of promissory notes or the execution of any agreement or other instrument creating a pledge or other lien by the personal representative, as such, shall create no personal liability against the person so signing or executing.

HI8t ory.-§143, ch. 16103, 1933; CGL 1936 Supp. 6541(114); a m. §3, ch. 22783, 1945. cf.-§733.23, Sales where no power conferred.

§734.30, Mortgages held by foreign representatives.

733.40 Power of personal representative to execute instruments.-Whenever the county judge authorizes or confirms any sale, authorizes the borrowing of money or the execution of any mortgage, agreement or other instrument creating a lien or a lease, or authorizes the distribut ion in kind of any property, the personal representative may make, execute, sign, seal, acknowledge and deliver in his name as such personal representative all deeds, bills of sale, assignments, instruments of transfer, promissory notes, mortgages, pledges, leases or any instruments necessary or proper to carry out and give effect to such orders.

HI8tory.-§144, ch. 16103, 1933; CGL 1936 Supp. 5541(115); am. §3, ch. 22783, 1945.

733.41 Purchaser protected.-No person purchasing or leasing from, or taking a mortgage, pledge or other lien from a personal representative shall be bound or concerned to see that the money or other things of value paid to such per sonal representative are actually needed or properly applied; nor shall such person be otherwise obligated as to the proprieties or expediences of the acts of such personal representative. In all such transactions the acts of the personal repr esentative pursuant to the powers of a will or the order of the county judge shall be prima facie valid.

H I8tory.-§145, ch. 1610S, 1933; CGL 1936 Supp. 6541(116); am. §3, ch. 22783, 1946.

733.42 Limitation in favor of purchaser from personal representative.-The title of any purchaser, or of anyone holding under him, who has held possession for three years or more, of any property, real or personal, purchased at any sale made under this law by an executor or administrator, free from fraud, shall not be questioned by any person upon any ground.

Hlstory.-§146, ch. 16103, 1933; CGL 1936 SuPp. 5541(117); am. §3, ch. 22783, 1945.

733.43 Annual returns.-A personal representative, unless otherwise ordered by the court, shall make his annual returns on or before ninety days after the expiration of the fiscal year, the election whereof he shall sig-

nify by filing notice thereof with the court within ninety days of his appointment, or, in the absence of such notice of election, on or before April first of each year for the calendar year or fraction of a calendar year expiring on December thirty-first preceding. If he fails to make such returns before the time applicable he shall, in the discretion of the county judge, forfeit all commissions on such returns so to be made; provided, however, that if the time for filing claims against the estate has expired prior to the end of the fiscal or calendar year, or shall expire within thirty days thereafter, the personal representative, may, in lieu of making annual returns, file his final returns within ninety days from the expiration of the fiscal year or on or before April 1 after expiration of the calendar year and apply for a discharge. If he fails to make his annual reports within such times as above specified, then, when such returns are made, he shall immediately give written notice of the filing of such returns to all persons interested in the estate being administered by him.

When there is a single heir or beneficiary, or where all of the heirs or beneficiaries are sui juris and consent thereto in writing, it shall not be necessary to file a final accounting, nor to advertise notice thereof, nor shall it be necessary to file annual accountings, unless required in either case by the county judge.

Hlstory.-§147, ch. 16103, 1933; CGL 1936 SuPp. 5541(118); 13, ch. 22783, 1945; §13, ch. 22847, 1945; II, ch. 26735, 1951 ; §2, ch. 29714, 1955; § I, ch. 59-267. cf.-§734.16, Accounting upon removal.

§734.22, Final settlement and discharge.

733.44 Contents of returns.-A personal representative in his returns shall render a full and correct account of the receipts and expenditures of all the estate of which he may have control, and include therein a statement of the assets of the estate.

Substantiating papers shall not be filed with accountings, but pertinent substantiating papers and records shall be available at a trial of objections to accountings, and all substantiating papers and records shall be preserved by the personal representative for three years after his discharge.

HI8tory.-§148, ch. 16103, 1933; CGL 1936 Supp. 5541(119); am. §3, ch. 22783, 1945; 2nd par. n. by §2, ch. 59-267.

733.45 Objection to retums.-Upon the filing of returns with the county judge by a personal representative, any person interested as creditor, legatee, distributee, devisee or heir at law may, within thirty days after the time limited by law for filing the same, file objection in writing to the account or any item thereof, specifying the ground of objection. No item previously approved by order of the county judge upon notice shall be subject to objection. If any personal representative fails to file his annual returns on or before the first day of April in any year, any person interested in the estate may file in the office of the county judge a written demand for service of a copy of the returns, which demand shall contain the post-office address 01 the person filing the same. If any demand is on


file at the time the returns are filed, the personal representative shall serve a copy of the returns upon the person who filed the demand therefor and shall file proof of the service thereof in the office of the county judge. Objection may be filed to the returns at any time within thirty days after the service of copy thereof.

Hlatory.-§149, ch. 16103, 1933; 19, ch. 17171, 1986; CGL 1936 Supp. 6641(120); am. 13, ch. 2278S, 1946.

733.46 Trial of objections.-If objections to accounts are filed, the personal representative or the objecting party may, after the expiration of the time limited for filing objections upon reasonable notice to the other, apply to the county judge who shall fix a day for the hearing. Upon the conclusion of the hearing, an order shall be entered by the county judge finally sustaining or overruling the objections, and he shall thereupon proceed to enter his order thereon.

Hlatory.-§150, ch. 16103, 1933; CGL 1936 Supp. 6641(121); a m. §3, ch. 22783, 1945; 13, ch. 89-26'1.

733.47 Examination of returns not objected to.-If no objection is filed to returns within the time limited by law for filing objections, the county judge shall proceed to examine said returns and enter his order approving the same or requiring such proof of the items contained therein as the county judge shall find desirable.

Hiotory.-§151, ch. 16103, 1933; 110, ch. 17171, 1935; CGL 1936 Supp. 5541(122); am. §3, ch. 22783, 1945; 14, ch. 59-267.

733.48 Recording settlement.-There may be recorded in the office of the county judge any instrument settling an account in whole or in part, executed by the personal representative and anyone or more legatees, devisees, heirs or claimants. To be entitled to record, any such instrument shall be acknowledged or sworn to by the parties before any officer authorized to take acknowledgments or to administer oaths, and the record thereof or a duly certified copy shall be admitted as prima facie evidence thereof and of its due execution without requiring proof of the execution.

History .-§152, ch. 16103, 1933; CG L 1936 Supp. 6541 (123) ; am. 13, ch. 22783, 1945.

733.49 Order requiring returns; contempt of court.-When any personal representative fails or neglects to make the annual returns as required by this law, the county judge shall issue an order directing said personal representative to make such returns within fifteen days from the service upon him of such order, or show cause why he should not be compelled to do so. A copy of such order shall be served upon the personal representative. If the said personal representative fails, neglects or refuses without good cause shown to file such returns within the time specified by said order, the county judge shall forthwith issue a citation directed to said personal representative to show cause why he should not be adjudged in contempt of court for such failure or neglect; and if such personal representative fails to show just cause, the county judge may forthwith adjudge said personal representative to be in contempt of court, and said person shall stand committed for contempt until he makes the an-

nual returns. Hlstory.-§153, ch. 16103, 1933; CGL 1936 SuPP. 6541(124);

am. §3, ch. 22783, 1945 ; §5, ch. 59-26'1.

733.50 Compulsory settlements.-Although an executor may, by the terms of the will appointing him, be exempted from making settlements with returns to the county judge, and although no mismanagement or waste is charged against him, upon the application of any creditor, legatee, distributee, devisee, heir or surety, the county judge shall make an order directing the personal representative to file such accounts and to make such settlements and distribution in whole or in part as is deemed necessary for the proper administration of said estate. Such order may also be made by the county judge upon his own motion.

Hlstory.-§154, ch. 16103, 1933; CGL 1936 Supp. 6541(125); am. §3, ch. 22783, 1945. cf.-§734.15-734.19, Settlement upon removal.

733.51 Production of assets.-Upon the petition of any creditor, legatee, distributee, devisee or heir at law, or upon his own motion if he deems it necessary for the proper administration of said estate, the county judge may require any personal representative to produce satisfactory evidence that the assets of the estate are in his possession or under his control and, if necessary or proper, may order the production of such assets for the inspection of such creditor, legatee, distributee, devisee or heir at law. or of said judge.

Hlstory.-§155, ch. 16103, 1933; CGL 1936 SupP. 5541(84); am. §3, ch. 22783, 1945.

733.52 Devastavit.-When an action suggesting a devastavit is brought against any personal representative, if such personal representative cannot show that he has fully administered according to law, he and his sureties shall be personally charged to the extent of assets not duly administered by him.

Hlstory.-§156, ch. 16103, 1933; CGL 1936 Supp. 6641(86) ; am. §3, ch. 22783, 1946.

733.53 Who may suggest devastavit.-An action suggesting devastavit may be brought against the personal representative by any person interested in the estate. When a personal representative resigns, dies or is removed. an action suggesting devastavit may also be brought against him or his executors or administrators and against his surety or sureties by the remaining or successor personal representative.

H lstory.-§157, ch. 16103, 1933; CGL 1986 Supp. 6641(86); am. §3, ch. 22783. 1946.

733.54 Waiver of statute of limitations, internal revenue matters.-Any executor or administrator, duly appointed by any county judge in the state and qualified to act under such appointment, may enter into agreements with the proper officer or department head, commissioner or agent, of any department of the government of the United States waiving the statute of limitations with respect to the assessment and collection of any federal tax or any deficiency in any federal tax; provided, however, that any such agreement shall be first approved by the county judge having jurisdiction of the administration of the estate.

History.-Comp. §1, ch. 25108, 1949.

Ch. 734 FLORIDA PROBATE LAW, FOURTH PART Ch. 734

CHAPTER 734

FLORIDA PROBATE LAW, FOURTH PART

734.01 Expenses and compensation. 734.02 Delivery of legacies and distributive

shares. 734.03 Proceedings for the payment of legacies

or distributive interest. 734.04 Distribution. 734.041 Apportionment of estate taxes. 734.05 Order in which assets are appropriated. 734.06 Abatement and contribution. 734.07 Advancements. 734.08 Exempt estates. 734.09 Resignation of personal representative. 734.10 Appointment of successor upon res-

ignation. 734.11 Causes of removal of personal repre-

sentative. 734.12 Jurisdiction in removal proceedings. 734.13 Proceedings for removal. 734.14 Administration following removal. 734.15 Accounting upon removal. 734.16 Surrender of assets upon removal. 734.17 Proceedings for commitment. 734.18 Commitment proceedings; by whom in

stituted. 734.19 Order on proceedings for commitment. 734.20 Proceedings on bond of removed per

sonal representatives. 734.21 Survival of action upon resignation or

removal.

734.01 Expenses and compensation.-(1) A personal representative shall be al

lowed all necessary expenses and attorney's fees paid in the care, management and settlement of the estate. A personal representative shall be allowed commissions upon the amount of the estate, real and personal, accounted for by him as compensation for his ordinary services as follows:

(a) For the first one thousand dollars at the ra.te of six per cent; all above that sum and not exceeding five thousand dollars at the rate of four per cent; and all above five thousand dollars at the rate of two and one-half per cent.

(b) In addition to the aforesaid commissions a personal representative shall be allowed such further compensation as the court may deem just and reasonable for any extraordinary services including the sale of real estate or personal property, the conduct of litigation on behalf of or against the estate, the adjustment and payment of extensive or complicated estate or inheritance taxes, the carrying on of the decedent's business pursuant to an order of court, and any other special services which may be necessary for the personal representative to perform.

(c) When provision is made by the will of the decedent for compensation to a personal representative, the compensation fixed by such will shall be in full satisfaction for his services in lieu of the compensation provided, unless by an instrument filed with the county judge he

734.22 Final settlement and discharge. 734.23 Effect of discharge. 734.24 Suit upon bond. 734.25 Determination of beneficiaries. 734.26 Subsequent administration. 734.27 Suspension of statutes of limitations in

favor of personal representative. 734.28 Suspension of statutes of limitations in

favor of claimants. 734.29 Limitations against unadministered

estates. 734.30 Foreign personal representatives. 734.31 Ancillary administration. 734.32 Application for administration upon

estates of persons believed to be dead. 734.33 Evidence of presumption. 734.34 Order of presumption. 734.35 Letters of administration; force and

effect. 734.36 Revocation of letters on proof that sup

posed decedent is alive. 734.37 Substitution of supposed decedent in

actions. 734.38 Probate of will of person believed to be

dead. 734.39 Notice to administrator and other per

sons. 734.40 Letters to executor of will of supposed

decedent.

renounces all claim to the compensation given by the will.

(d) If there be more than one personal representative, each shall be allowed such compensation for his services as the court shall determine to be just and reasonable; provided, however, that the compensation allowed any one of such multiple personal representatives for ordinary services shall not exceed the compensation specified in paragraph (a), nor the total compensation allowed all such multiple personal representatives for ordinary services be less than one commission computed in accordance with paragraph (a) hereunder nor more than the sum of two such commissions.

(2) Any attorney who has rendered services to an estate or the personal representative may apply to the court by petition for an order making an allowance for attorney's fees, and, after notice to persons adversely affected, the court shall make such order with respect thereto as shall be proper.

(3) In annual and final returns, the personal representative shall be entitled to credit for such reasonable sums as he may have paid for the services rendered to the estate by an attorney and his expenses in connection therewith. Objections may be made to the allowance of such items as in other cases, unless the said items have been previously allowed by the county judge.

(4) If the personal representative is a practicing attorney at law of this state and has rendered legal services in connection with his


official duties, he shall be allowed such fees therefor as shall be just and reasonable.

Hlstory.-§168, ch. 16103, 1933; CGL 1936 Supp. 6541(90); am. §4, ch. 22783, 1945; am. §1, ch. 24296, 1947. (2) a.. §10, ch. 26484, 1951; (1) (d) by §1, ch. 59-59; (1) (a.) II.. by §1, ch. 61-163. ct.-§732.68, Compensation of administrators ad litem.

734.02 Delivery of legacies and distributive shares.-N 0 personal representative shall be required to payor deliver any legacy or distributive share or to surrender possession of any land to any heir or devisee until the expiration of eight calendar months from the granting of letters. Any payment, delivery or surrender made by the personal representative prior to that time shall be made at his risk.

Hlstory.- §169, ch. 16103, 1933; CGL 1936 Supp. 6641(127); I', ch. 22783, 1945; 14. ch. 61-394. cf.-§731.23. Descent a.nd distribution; order.

§733.40. Power of representative to execute instruments.

734.03 Proceedings for the payment of legacies or distributive interest.-

(1) Before any personal representative is compelled to pay, prior to the final settlement of his accounts, any legacy in money or to deliver any specific personal property bequeathed to any person (unless such personal property is exempt personal property) which may have come into his hands, or to pay all or any part of any dist ributive share in the personal estate of said decedent, or to surrender any land to any heir or devisee, the heir, devisee, legatee or distributee shall file in the office of the county judge a petition setting forth the facts which entitle him to the relief prayed and stating that the property will not be required for the payment of debts, family allowance, estate and inheritance taxes, claims, charges and expenses of administration, or for providing funds for contribution or enforcing equalization in case of advancements; and citation shall be served upon or notice given to the personal representative. Upon the return day, or upon such other day as may be fixed by the county judge, he shall make appropriate order as he shall deem proper under the circumstances.

(2) An order directing the surrender of real estate or the delivery of any specific personal property shall describe the property to be surrendered or delivered; and such order, unless and until revoked or unless reversed on appeal, shall be conclusive in favor of bona fide purchasers for value from such heir, devisee, legatee or distributee as against the personal representative and all other persons claiming by, through, under or against the decedent or his estate.

(3) If the administration of the estate, except the distribution thereof, has not been completed prior to the entry of any order of distribution, the county judge in his discretion may require the person entitled to such distribution to give a bond with adequate sureties, to be approved by the county judge, conditioned to make due contribution for the payment of legacies, debts, demands and all costs which may be awarded, if any such debt or demand is duly presented within the time limited by law, and for family allowance, estate and inheritance taxes, claims, charges, expenses of administra-

tion and equalization in case of advancements. History.-§160, ch. 16103, 1933; CGL 1936 Supp. 6541(128);

am. §4. ch. 22783, 1946.

734.04 Distribution.-After the time for filing claims against the estate has expired and all debts, claims, estate and inheritance taxes, family allowance, charges and expenses of administration have been paid or provision made for the payment thereof, and before the final settlement of the accounts of the personal representative, he may apply by petition for an order authorizing him to surrender the possession of any designated or described real estate to the heir or devisee or to deliver any specific property or to make any distribution of the assets of the estate, and an order entered upon such petition shall have the same effect as though entered upon the petition of the heir or devisee as hereinbefore provided. Upon the approval of the final accounts of the personal representative, he shall surrender the possession of all real estate to the heir or devisee entitled thereto and pay over and distribute all personal property to those entitled thereto. An order of final discharge of the personal representative shall be evidence of such surrender or distribution, and unless revoked or unless reversed on appeal, shall be conclusive as to the rights of all heirs, devisees, legatees and distributees.

H lstory.-§161, ch. 16103, 1933; CGL 1936 Supp. 6641(129) ; am. H, ch. 22783, 1946.

734.041 Apportionment of estate taxes.(1) Any estate, inheritance, or other death

tax levied or assessed under the provisions of the tax laws of this or any other state or of any United States revenue act, with respect to any property required to be included in the gross estate of a decedent under the provisions of any such law, shall be apportioned in the following manner:

(a) If any portion of the estate passed under the will of a decedent as a specific bequest or devise, or general legacy, or in any other nonresiduary form (exclusive of property over which the decedent had a power of appointment as defined from time to time under the estate tax laws of the United States), the net amount of the tax attributable thereto shall, except as otherwise directed by the will, be charged to and paid from the residuary estate of the testator without requiring contribution from persons receiving such interests. In the event the residuary estate is insufficient to pay the tax attributable to such interests, any balance of such tax shall, except as otherwise directed by the will, be equitably apportioned among the recipients of such interests in the proportions that the value of each such interest included in the measure of such tax bears to the total of all such interests so included.

(b) If any portion of the estate passed under the will of the decedent as a residuary interest (exclusive of property over which the decedent had any such power of appointment), the net amount of the tax attributable thereto shall, except as otherwise directed by the decedent's will, be equitably apportioned among the residuary beneficiaries in the proportions that


the value of the residuary interest of each included in the measure of such tax bears to the total of all residuary interests so included.

(c) If any portion of the property with respect to which such tax is levied or assessed is held under the terms of any trust created inter vivos or is subject to such a power of appointment, the net amount of the tax attributable thereto shall, except as otherwise directed by the trust instrument with respect to the fund established thereby, or by the decedent's will, be charged to and paid from the corpus of the trust property or the property subject to such power of appointment, as the case may be, and shall not be apportioned between temporary and remainder estates.

(d) Real property homesteads which are exempt from execution as defined by the laws of Florida shall be exempt from apportionment of taxes. Persons taking an interest in such homesteads shall not be liable for apportionment of taxes on account of such homesteads. The net amount of the tax attributable to such homestead property shall be paid from other assets of the probate or intestate estate in the order provided by §734.05, and the homestead shall not be subjected to contribution to such tax until the estate's assets are exhausted.

(e) The balance of the net amount of the tax, including, but not limited to, any tax imposed with respect to gifts in contemplation of death, jointly held properties passing by survivorship, property passing by intestacy, or insurance, shall, except as otherwise directed by the decedent's will, be equitably apportioned among and charged to and paid by the recipients and beneficiaries of such properties or interests in the proportion that the value of the property or interest of each included in the measure of such tax bears to the total value of all such properties and interests included in the measure of such tax; provided, that where any such property or interest is an interest in income or an estate for years or for life or other temporary interest, the amount so charged to such recipients or beneficiaries shall not be apportioned between temporary and remainder estates but shall be charged to and paid out of the corpus of such property or fund.

(2) As used in this section: (a) The net amount of tax attributable to

the interests encompassed by anyone of paragraphs (a) through (e) of subsection (1) shall be such portion of the net amount of the tax as finally determined, together with interest thereon, as the value of interests included in the measure of such tax and included in such paragraph bears to the amount of the net estate.

(b) The term net estate shall mean the gross estate as defined by the estate tax laws of the United States less the deductions, other than the specific exemption, allowed by such laws. All proportions based on net estate shall be determined without regard to any diminution in deductions resulting from the charge of any portion of the tax to a deductible interest.

(c) The term included in the measure of such tax shall not include any property or

interest whether passing under the will or not to the extent such property or interest is exempt, or is initially deductible from the gross estate, without regard to any subsequent diminution of such deduction by reason of the charge of any portion of the tax to such property or interest.

(d) The word value shall mean the pecuniary worth of the interest involved as finally determined for purposes of federal estate tax without regard to any diminution thereof by reason of the charge of any portion of tax thereto.

(3) Unless otherwise directed by the will of the decedent, the tax shall be paid by the executor or administrator out of the estate. In all cases in which any property required to be included in the gross estate does not come into the possession of the executor or administrator, he shall, in cases where property of a trust created inter vivos or property subject to a power of appointment is included in such gross estate, be entitled, and it shall be his duty, to recover from the fiduciary in possession of the corpus of such trust or of property subject to such power of appointment, and in all other cases from the recipients or beneficiaries of property or interests with respect to which such tax is levied or assessed, the proportionate amount of such tax payable by such fiduciary or persons with which they are chargeable under the provisions of this act, unless relieved of such duty as provided in subsection (6); provided that this subsection shall not authorize the recovery of any taxes hereunder from any company issuing any policy of insurance included in the gross estate, or from any bank, trust company, savings and loan association, or similar institution with respect to any account of which it is a depositary standing in the names of the decedent and any other person or persons which passed by operation 6f law on the death of the decedent. In any case where the fiduciary brings an action to recover a share of tax apportioned to an interest not within his control, any judgment he may obtain may, in the discretion of the court, include costs and reasonable attorney's fees.

(4) No executor, administrator, or other fiduciary shall be required to transfer any property until the amount of any tax due from the transferee is paid, or, if the apportionment of tax has not been determined, adequate security is furnished for such payment; provided, that in no event shall the fiduciary be required to distribute assets which he reasonably anticipates may be necessary to pay any state or federal taxes.

(5) After the amount of all estate, inheritance and death taxes is finally determined, the executor, administrator or other fiduciary shall petition the county judge's court having jurisdiction of the estate for an order of apportionment and shall give notice of such petition and the hearing thereon by pUblication once a week for four consecutive weeks, such hearing to be at least twenty-eight days after the first date of such publication, except that where all persons

...


affected by such order are sui juris or properly represented by a natural or legal guardian and consent thereto in writing, such notice shall not be necessary. The fiduciary shall be entitled to, and it shall be his duty (except as provided in subsection (6», to attempt to effect apportionment as determined by the order entered upon such hearing, and such apportionment shall be prima facie correct in proceedings in any court or jurisdiction. The fiduciary shall not be required to seek collection of any portion of tax attributable to any interest not within his control until after the entry of such order of apportionment.

(6) Any executor, administrator, or oth~r fiduciary who shall have the duty under thIs act of collecting the apportioned tax from persons interested in the estate, may be relieved of such duty to collect the tax or to attempt to collect the same if the county judge enters an order, after notice and hearing as provided in subsection (5), on a petition filed by such fiduciary finding one or more of the following:

(a) That the estimated court costs and attorney fees in collecting the apportioned tax from a person interested in the estate will approximate the amount of the recovery.

(b) That the person interested in the estate is a resident of a foreign country other than Canada and refuses to pay the apportioned tax on demand.

(c) That it is impracticable to enforce contribution of the apportioned tax against any person interested in the estate in view of the improbability of obtaining a judgment or the improbability of collection under any judgment that might be obtained, or otherwise.

Provided, that in no event shall the fiduciary be liable for failure to attempt to enforce such collection if such attempt would in fact have been economically impracticable; and provided, further, that nothing herein contained shall limit the right of any person who shall have been charged with more than the amount of the tax apportionable to him to obtain contribution from those who shall not have paid the full amount of the tax apportion able to them, respectively, which right is hereby expressly conferred.

In the event the fiduciary obtains an order as hereinabove contemplated, the share of tax to which it refers shall be paid from assets of the probate or intestate estate in the order provided by §734.05. Any apportioned tax which is not collected shall also be paid from such assets in such order.

(7) This section shall apply: (a) To estates of decedents dying after the

effective date hereof; (b) To estates of decedents dying after May

13, 1957, provided such decedent had by will directed apportionment of taxes to non probate assets consistent with the provisions hereof, and, provided, further, either that the taxes on such estate had been charged and paid consistent with such provision, or that such estate is still in the process of administration and the estate

tax has not been finally determined and paid. History.-§§l-4. ch. 25435. 1949; §1. ch. 57-87; U. ch. 57-1976;

fl, ch. 63-106. ct.-§198 .26 No discharge ot executor untU tax Is paid.

§731.34 Dower in realty and personalty.

734.05 Order in which assets are appropriated.-

(1) If a testator makes provision by his will or designates the funds or property to be used for the payment of debts, estate and inheritance taxes, family allowance, charges and expenses of administration and legacies, the same shall be paid out of the funds, or from the property or proceeds thereof, as provided or designated by the will so far as sufficient. If no provision is made nor any fund designated, or if it is insufficient, the property of the estate shall be used for such purposes and to raise the shares of pretermitted spouse and children in the following order:

(a) Property not disposed of by the will. (b) Property devised or bequeathed to the

residuary legatee or legatees. (c) Property not specifically bequeathed or

devised. (d) Property specifically bequeathed or de

vised. (2) No priority shall exist as between real

and personal property. HI.tory.-§162. ch. 16103. 1933; CGL 1936 Supp. 6541(130);

am. §4. ch. 22783, 1945; (1) by f24. ch. 57-1. cf.-1733.20. Order of payment of claims.

734.06 Abatement and contribution.-Whenever the assets of a testate estate are insufficient for the full payment of debts, estate and inheritance taxes, family allowance, charges and expenses of administration, devises and legacies and when the will directs or discloses an intention as to the order of abatement, effect shall be given to such directions or intentions. Unless such directions are given or such intention appears, residuary legacies and devises shall first abate; general legacies and devises shall next abate, and specific and demonstrative legacies and devises shall abate last. Demonstrative legacies shall be classed as general legacies, upon the failure or insufficiency of fund or property out of which payment should be made, to the extent of such insufficiency. Legacies or devises to the decedent's widow given in satisfaction of or in lieu of her dower or statutory rights in the estate shall not abate until other legacies and devises of the same class are exhausted. Legacies and devises given for a valuable consideration shall abate with other legacies of the same class only to the extent of the excess thereof over the amount of value of the consideration until all others of the same class are exhausted. Except as herein provided, legacies and devises shall abate equally and ratably and without preference or priority as between real and personal property. When property, real or personal, which has been specifically devised or bequeathed or charged with a legacy is sold or taken by the personal representative, other legatees or devisees shall contribute according to their respective interests to the legatee or devisee whose legacy or devise has been sold or taken, and the county judge shall,


before distribution, determine the amounts of the respective contributions, and the same shall be paid or withheld before distribution is made.

History.-§l63, ch. 16103, 1933; CGL 1986 Bupp. 6&u(181); am. §4, ch. 22783, 1945. cf.-§733.01, Possession of estate of decedent.

734.07 Advancements.-When any person has received any advancements from an intestate in his lifetime and any of the next of kin, by petition, alleges that such advancement has been made, the same shall be determined by the county judge upon hearing after citation or notice to the personal representative and other persons interested and, unless the person to whom such advancement was made or those claiming through him renounce his or their interest in the estate, such advancement as of the value at the time made, without interest, shall be taken into account in determining the distribution of the estate and charged against the person to whom such advancement was made or those claiming through him. No personal representative shall be held responsible for having made distribution before such a petition has been filed and citation served upon or notice given to him. The statute of limitations shall not apply to advancements.

mstor,..-§164, ch. 18103, 1933; COL 1938 Supp, 5541 (132); am. §4, ch. 22783, 1945.

734.08 Exempt estates.-If at any time during the course of administration it is made to appear to the county judge by petition that the estate consists of no more than the homestead and exempt personal property of the decedent, or in the event the allegations of said petition are denied by trial of the issues made, he may thereupon direct and order the distribution of said estate among the persons entitled to receive the same, and upon said distribution, may thereupon enter his order relieving, releasing and discharging the personal representative.

mstor,..-§164, ch. 16103, 1933; COL 1936 Supp. 5541 (132); am. §4, ch. 22783, 1945. cf.-§731.27, Homesteads.

§731.34, Dower. §§735.01-735.051, When administration unnecessary.

734.09 Resignation of personal representative.-Any personal representative may, upon petition to and with the approval of the county judge of the county where letters were granted, resign and be relieved of his office; provided, that notice is given to all interested persons of the filing of said petition; and provided, further, that before making an order relieving the personal representative from the duties and obligations as such the county judge shall require him to make and file a true and correct account of his administration and to pay over and deliver to his successor or to his coexecutor or coadministrator or both, as the case may be, any and all of the property of the deceased and all books of account, bonds, notes or other securities, documents, papers or other property of or concerning' the estate, together with all the sums of money due the estate by him; and provided, always, that the acceptance of such resignation shall not be construed to exonerate any personal representative or his sureties from any liabilities previously incurred. The county judge, before making such

order, shall be satisfied that the interest of the estate will not be placed in jeopardy by such action.

History.-§166, ch. 16103, 1988; CGL 19311 Bupp. 5541(44); am. H, ch. 22783. 1945.

734.10 Appointment of successor upon resignation.-When there is no coexecutor or coadministrator, a successor must be appointed and duly qualified before a personal representative shall be relieved of his duties and obligations as provided in §734.09.

Hlstory.-§167. ch. 16103, 1988; CGL 1936 Supp. 5541(45); am. H, ch. 22783, 1945.

734.11 Causes of removal of personal representative.-Any personal representative may be removed and his letters revoked for any of the following causes, and such removal shall be in addition to, and not in lieu of, any other penalties prescribed by law:

(1) Insanity. (2) Habitual drunkenness or continued sick

ness rendering him incapable of the discharge of his duties.

(3) Failure to comply with any order of the county judge, unless such order has been superseded on appeal.

(4) Failure to return schedules of property sold or accounts of sales of property, real or personal, or to produce and exhibit the assets of the estate when so required.

(5) The wasting, embezzlement or other maladministration of the estate.

(6) Failure to give bond or security for any purpose, when so required by the county judge in accordance with the requirements of law.

(7) Conviction of a felony. (8) Failure of the resident personal repre

sentative removing from the state to designate a resident agent or representative with his residence and post-office address.

(9) The appointment of a receiver or liquidator for any corporate executor or administrator.

(10) Conflicting or adverse interest held by the personal representative against the estate, but this shall not apply to the widow because of electing to take dower or claiming family allowance or exemptions.

Hlstory.-§168, ch. 16103, 1938; CGL 1986 Supp. 5541(411); It, ch. 22783, 1945; sub. § (10), compo fl, ch. 29716, 1955. cf.-§§7S2.45-732.49, Who may be appointed personal rep

resentative.

734.12 Jurisdiction in removal proceedings. -Petition for removal must be made to the court from which the letters were issued.

Hlstory.-§169, ch. 16103, 1933; CGL 1936 Supp. 6541(47); am. §4, ch. 22783, 1945. cf.-§732.01, Jurlsdictl<m generally.

734.13 Proceedings for removaI.-Proceedings for removal may be instituted by the county judge of his own motion or by any creditor, legatee, devisee, heir, distributee, coexecutor, coadministrator or by any surety upon the bond of the personal representative. Such notice shall be given to the personal representative as the county judge may direct.

History.-§170, ch. 16103, 1933; CGL 1936 Supp. 5541(48): am. §4, ch. 22783, 1945.


734.14 Administration following removal.When a personal representative is removed for any cause and there is a remaining executor or administrator, no other executor or administrator shall be appointed; but such remaining executor or administrator shall complete the administration of the estate. If the executor or administrator so removed is a sole executor or administrator, the county judge shall appoint an administrator cum testamento annexo de bonis non, or an administrator de bonis non, as the case may require, in which event a bond shall be required as in the case of an original administration, the condition of the bond being modified to suit the nature of the case.

Hlatory.-II71. ch. 16108. 1933; CGL 1936 Supp. 6641(49); am. 14. ch. 22783. 1946.

734.15 Accounting upon removal.-A removed personal representative shall file a true, perfect and final account of his administration in the court of the county judge within twenty days after his removal.

Hlstor;,-.-1172. ch. 16103. 1933; CGL 1936 Supp. 6641(60); am. §4. ch. 22783. 1946. cf.-t733.4B. Annual returruJ.

734.16 Surrender of assets upon removal.The remaining executor or administrator with the will annexed of the property not administered or the administrator of the property not administered shall demand of the removed executor or administrator or of his heirs, personal representatives or sureties, all of the property of the deceased and all books of account, bonds, notes or other securities, documents, papers or other property of or concerning the estate, together with all the sums of money due the estate by him. The removed personal representative, his heirs, personal representatives or sureties shall turn over to his successor all said property, upon qualification of his successor and upon demand made as aforesaid.

Hlstory.-§173. ch. 16103. 1933; CGL 1936 Supp. 6641(61); am. §4. ch. 22783. 1946.

734.17 Proceedings for commitment.-If a removed executor or administrator fails or refuses to file a true, perfect and final account of his administration as required, or fails to turn over to his successor all the goods, property and effects of the deceased, and all books of accounts, bonds, notes or other securities or documents and papers that are in his control and which concern the estate, upon demand, or fails to pay over to such new administrator, or remaining executor or administrator all the sums of money due the estate by him, the county judge, in any event, shall issue an order addressed to such personal representative, directing a compliance with the laws in the respects mentioned, or any of them, as the case may be, within ten days after service of a copy of the order. In case of failure or neglect of the removed personal representative to comply with this order within the time required, the judge may-and when such default is not attributable to a cause which is justifiable, he shall--eommit such removed personal representative until he complies fully with the requirements of the law in the respects indicated. If sufficient cause is shown for the default, the judge shall then indicate a reasonable time in

which a compliance with the law shall be required; and upon failure of the removed personal representative to comply with this or any subsequent like order, the judge may commit the party in default until he does comply.

Hlstor;,-.-§174. ch. 16103. 1933; CGL 1936 Supp. 6641(62) ; am. §4. ch. 22783. 1946.

734.18 Commitment proceedings; by whom instituted.-Proceedings for the commitment of such defaulting personal representative may be instituted by the county judge sua sponte or by any creditor, legatee, devisee, heir or distributee, or by the sureties of any of them; or, in the case of a sole personal representative, such proceedings may be instituted by his successor in office as well as the parties above named. In cases where there is more than one personal reI"resentative such proceedings may be instituted by the one remaining in office, or, if more than one remain in office, then by any or all remaining.

Hlstory.-§176. ch. 16103. 1933; CGL 1936 Supp. 6541(63) ; am. §4. ch. 22783. 1946.

734.19 Order on proceedings for commit· ment.-If proceedings for commitment are instituted by the county judge sua sponte, the order so entered, addressed to such personal representative, directing compliance with the law. shall be sufficient of itself. If proceedings are instituted by a person or persons other than the county judge, they shall be by written petition filed with the county judge, stating the facts upon which the proceedings are based and shall be sworn to by the person so proceeding. Upon the filing of such petition under oath, the county judge shall, if he deems the facts stated sufficient, issue his said order and proceed in accordance with the provisions of this law.

Hlstor;,-.-§l76. ch. 16103. 1933; CGL 1936 Supp. 5641(64); am. §4. ch. 22783. 1946.

734.20 Proceedings on bond of removed personal representatives.-In all cases where a personal representative is removed and he is in default for thirty days, either in the delivery of any portion of the estate or in the payment of the balances due to the new personal representative or the remaining personal representative, the bond of such removed personal representative shall be put in suit. In all cases where there is no bond, the new personal representative or the remaining personal representative shall institute an action for the recovery of the money due or of the value of the property retained, or both, as the case may be. In either of the cases stated, an attachment may issue against the property of the removed personal representative upon the affidavit of the new or remaining personal representative, his agent or his attorney, that the removed personal representative is in default for thirty days in delivering any portion of the estate, specifying what portion and its value, or in the payment of the balance due, specifying the amount. When this attachment is issued, bond shall be given as in other cases of attachment.

Hlstory.-§177. ch. 16103. 1933; CGL 1986 Supp. 6641(65); am. §4. ch. 22783. 1946.

734.21 Survival of action upon resignation or removal.-All cases pending before any court in favor of or against two or more personal rep-


resentatives, if one or more is removed, resigns or dies, shall survive to or against the remaining personal representative, if any, and if there is none, then to or against the successor or successors of such personal representatives; but no remaining or successor personal representative shall be liable for any default on the part of any predecessor nor for any amount beyond the value of the property or assets coming into the hands of the remaining or successor personal representative.

History.-§178, ch. 16103, 1933; CGL 1936 Supp. 6641(66); am. §4, ch. 22783, 1945.

734.22 Final settlement and discharge.When a personal representative has completed the administration and nothing remains to be done except to make distribution, he shall file his final report and make application for discharge. After filing a report of his accounts as aforesaid and his application for discharge, the personal representative shall then publish a notice once a week for four consecutive weeks, four publications being sufficient, notifying all persons of the filing of his report and of his application for discharge. After filing the proof of publication, if no objection is filed and if it appears to the county judge that said applicant has faithfully administered the estate, he shall be entitled to an order approving his accounts and shall be directed to make distribution. No distribution of estate assets to a testamentary trustee shall be authorized until proof of qualification of the trustee under the law of the state wherein the testamentary trust is to be administered has been obtained and filed unless it is made to appear to the satisfaction of the county judge that there is no trust qualification law in existence in the state wherein the testamentary trust is to be administered. If objection is filed, trial shall be had as provided in this law for the trial of objections to annual returns. Said personal representative may retain from the funds in his hands before making distribution a sufficient amount to pay the expenses accrued since the filing of his final report and his application for discharge.

It shall not be necessary to file an annual accounting, a final accounting, nor to advertise notice of the filing of final accounting, petition for distribution and discharge when there is a single heir or beneficiary of an estate or where all of the heirs or beneficiaries are sui juris and such heir or heirs consent thereto in writing. When the interest of a minor heir or beneficiary does not exceed the amount authorized by Florida law to be received by his natural guardian, such natural guardian may execute a valid written consent to the foregoing for and on behalf of such minor heir or beneficiary. The county judge in his discretion may require the filing of an annual or final accounting and the advertisement of notice thereof and of petition for distribution and discharge, notwithstanding the waivers aforesaid.

History.-§179, ch. 16103, 1933; CGL 1936 Supp. 6541(126); §4, ch. 22783, 1945; 12, ch. 29716, 1955; 11, ch. 63-262.

734.23 Effect of discharge.-Upon the filing of evidence satisfactory to the county judge that

distribution has been made as ordered, the county judge shall enter an order of discharge. Such discharge so obtained shall operate as a release from the duties of personal representative of the estate and as a bar to any suit against said personal representative as such, or as an individual or corporation, and his surety or sureties, unless such suit is commenced within one year from the date of the discharge.

History.-§180, ch. 16103, 1933; CGL 1936 Supp. 6641(57); am. §4, ch. 22783, 1945; §1, ch. 57-124.

734.24 Suit upon bond.-Any bond given by a personal representative or a curator, upon the breach thereof may be put in suit and prosecuted from time to time by the party damaged, in the name of the governor of the state for the use of the party damaged, until the whole penalty of said bond is recovered. The county judge shall deliver to any person on request and on payment of his legal fees for the same, a true copy of any bond given by any personal representative or curator, and such copy certified by said judge, with the seal of the court annexed, shall be prima facie proof of the bond.

History.-§181, ch. 16108, 1933; CGL 1936 SupP. 6541(68); am. §4, ch. 22783, 1945.

734.25 Determination of beneficiaries.(1) Whenever property passes by the laws

of descent and distribution or under a will to a person not sufficiently identified in such will, and the personal representative is in doubt as to who is entitled to receive said property, or any part thereof, or if he is in doubt as to shares and amounts which any person is entitled to receive, such personal representative may file with the county judge of the court out of which his letters were issued, his sworn petition setting forth the names, residences and post-office addresses, so far as known or ascertainable by diligent search and inquiry, of all persons in interest, except creditors of the decedent or the estate, and the nature and character of their respective interests and claims so far as known, designating those who are believed by him to be minors or non compos mentis, and stating whether those so designated are under legal guardianship in this state. If the personal representative believes that there are or may be persons who have claims against or interest in such estate as next of kin, distributees, legatees or beneficiaries whose names are not known to him, the petition shall so state.

(2) Upon the filing of such petition, the county judge shall appoint a guardian or guardians ad litem if necessary and shall issue a citation to all claimants and persons in interest whose names are set forth in said petition.

(3) If said petition sets forth that there are or may be persons whose names are not known who have claims against or interests in such estate, citation shall be published, directed to all persons claiming any beneficial interest in the estate of such decedent. Such publication of citation may also include all persons whose names are known and set forth in said petition but who cannot be personally served.

(4) After a hearing upon such petition and defenses thereto and upon such testimony and


evidence as may be produced before the cour~ the county judge shall make and enter an order finding and adjudging who are entitled to such property and the shares and amounts which they, respectively, are entitled to receive. Any personal representative who makes distribution or takes any other action pursuant to such an order shall be fully protected thereby.

(5) Whenever it is necessary to determine who are or were the heirs, legatees or devisees of a deceased person, on the petition of any interested party or like proceedings, the county judge may make a determination thereof, irrespective of whether the estate of such deceased person is administered, or if administered whether the administration of the estate has been closed or the personal representative discharged.

Hlatory.-§182, ch. 16103, 1933; CGL 1936 supp. 5641(134); am. 14, ch. 22783, 1945.

734.26 Subsequent administration. - The final settlement of an estate and the discharge of the personal representative shall not prevent a revocation of the order of discharge or the subsequent issuance of letters testamentary or of administration if other property of the estate is discovered or if it becomes necessary or proper for any cause that further administration of the estate be had.

Hlstory.-§l83, ch. 16103, 1933; CGL 1936 Supp. 5541(144); am. 14, ch. 22783, 1945.

734.27 Suspension of statutes of limitations in favor of personal representative.-If a person entitled to bring an action dies before the expiration of the time limited for the commencement thereof and the cause of action survives, the action may be cOD1D1enced by his personal representative after such expiration and within twelve months from the granting of letters.

History .-§184, ch. 16103, 1938; CG L 1936 Supp. 5541 (135) ; am. §4, ch. 22783, 1945.

734.28 Suspension of statutes of limitations in favor of claimants.-If a person against whom a cause of action exists dies before the expiration of the time limited for commencement thereof and the cause of action survives, claim shall be filed thereon and like proceedings had as in the case of other claims against the estate.

Hiotory.-§185, ch. 16103, 1933; CGL 1936 Supp. 5541(136); am. 14, ch. 22783, 1945.

734.29 Limitations against unadministered estates.-

(1) After three years from the death of any person his estate shall not -be liable for any obligation or upon any cause of action if no letters testamentary or of administration with respect thereto have been taken out in Florida within said three years, or if such letters have been taken out but neither proof of publication of notice to creditors, nor the claim of any creditor has been filed in the office of the county judge within said period; provided, however, that the lien of any duly recorded mortgage and the lien of any person in possession of any personal property of the decedent, and the right to foreclose and enforce the same with respect to the property encumbered thereby, shall not be impaired by said limitation.

(2) Where a nonresident decedent leaves property in this state, the domiciliary personal representative of his estate, in order to determine the question of claims in Florida before the expiration of said three year period, may file in the office of the county judge of the county where any such property may be situated a duly certified or exemplified transcript of so much of the domiciliary proceedings as will show:

(a) In a testate estate, the probated will and all probated codicils of the decedent and the order admitting same to record, the letters testamentary or the equivalent thereof, and such portion of the record as will show the names of the legatees, devisees and heirs of the decedent, or an affidavit of the domiciliary representative reciting that said names are not shown or fully disclosed by the domiciliary record and specifying the same.

Upon petition and presentation of such transcript and any supporting affidavit of the domiciliary representative, the county judge shall make and enter an order admitting the said will and codicils, if any, to probate and record if he finds that the same complies with the laws of Florida so as to entitle them to probate in this state, and said transcript shall be recorded.

(b) In an intestate estate, the certified letters of administration or the equivalent thereof, shall be included in the transcript of domiciliary proceedings, together with such portions of the record as will show the names of the heirs of the decedent, which names in case of necessity may be supplied by affidavit of the domiciliary representative as provided in paragraph (a) hereof. Upon petition and presentation of such transcript and any supporting affidavit of the domiciliary representative, the county judge shall cause the same to be filed and recorded.

(3) After complying with the foregoing requirements, with respect to any testate or intestate estate, as the case may be, the domiciliary representative may cause a notice to be published once a week for four consecutive weeks, four publications being sufficient, in a newspaper published in said county, notifying all persons having claims or demands against the estate of such decedent to file same in the office of the county judge within six calendar months from the date of the first publication of said notice.

(4) Any claims against said estate must be filed in the form and manner prescribed by law with respect to the regular administration of estates in Florida. If any claim is filed within the period of six months aforesaid, the county judge shall, upon application of any claimant or other person interested in the estate and after ten days written notice by registered mail to the domiciliary representative at his address as shown by the records, appoint an administrator for the estate according to law. If no claim is filed within said period of six months, the property of the decedent in this state shall not be liable for any obligation of said decedent or upon any cause of action


against the decedent other than duly recorded mortgages and liens, and claims of persons in possession of property of the decedent as pledgees, lienors or purchasers.

(5) If no claims are filed against the estate, within six months as herein limited, the county judge shall enter an order adjudging that notice to creditors has been duly published, filed and recorded and that no claims have been filed against the estate.

Hlstory.-§186, ch. 16108, 1988; §1, ch. 19552, 1939; CGL 1986 Supp. 6641(137); am. H, ch. 22783, 1946; 114, ch. 22847, 1945; §7, ch. 22858. 1945; §1, ch. 25031, 1949; (3)-(5) a. by §5, ch. 61-394. cf.-§1.01(13) defines registered maU to Include certified maU


734.30 Foreign personal representatives.(1) Personal representatives who produce

probate of wills or letters of administration duly obtained in any of the states or territories in the United States and authenticated under the act of congress of May 26, 1790, shall be authorized to maintain actions in the several courts of this state under the same rules and regulations as other plaintiffs.

(2) Personal representatives appointed in any state or country may be sued in this state with reference to property, real or personal, in this state, and may defend any suit, action or proceeding in any court of this state.

(3) Debtors who have received no written demand for payment from a personal representative or curator appointed in thia state, within three months after the appointment of a personal representative in any state or country other than this state, and whose property in Florida is subject to a mortgage or other lien securing such debt held by such foreign personal representative may make payment to the foreign personal representative after the expiration of three months from the date of his appointment. A proper satisfaction of such mortgage or lien executed and acknowledged by the foreign personal representative after said three months has expired, in the manner and form entitling the same to record in this state, with a duly authenticated copy of the letters or other evidence of authority of such foreign personal representative attached thereto, may be recorded in the public records of this state in like manner as other satisfactions, and when so recorded. shall constitute an effective discharge of any such mortgage or lien, irrespective of whether the debtor making payment had received such written demand before paying the same.

(4) All persons indebted to the estate of a decedent or having possession of personal property, either tangible or intangible, belonging to the estate of a decedent, who have received no written demand from a personal representative or curator appointed in this state, for payment of such indebtedness ' or the delivery of such property, are authorized to make payment of such indebtedness or to deliver such personal property to the foreign personal representative after the expiration of three months from the date of his appointment.

HI8tory.-§187, ch. 16108, 1938; §l1, ch. 17171, 1935; CGL 1936 Supp. 65U(138); am. H. ch. 22783, 1945. ct.-§660.10 Trustees. powers and duties.

734.31 Ancillary administration.-(1) Upon the death of a nonresident of this

state leaving assets in this state, credits due him from residents of this state, or liens upon property in this state, the domiciliary personal representative of such decedent may, upon application, have ancillary letters issued to him, if qualified to act. Otherwise, the preference of appointment prescribed in this law shall be applicable. It ancillary letters are applied for by other than the domiciliary personal representative, citation shall be served upon the domiciliary personal representative.

(2) To entitle such applicant to ancillary letters, there shall be filed with the petition a duly certified copy of so much of the domiciliary proceedings as will show either (a) the will, petition for probate, order admitting the will to probate and letters testamentary, if there are such; or, (b) the petition for letters of administration and letters of administration.

(3) Upon the filing of a certified copy of a probated will, including any probated codicils thereto, and of the parts of the record of the domiciliary proceedings as aforesaid, the county judge may, upon petition therefor being filed, if he finds that the said will and codicils, if any, comply with the laws of this state so as to entitle them to probate, make and enter an order admitting said will and codicils, if any, to probate and record in this state.

(4) The ancillary personal representative shall give like bond as personal representatives generally, and all proceedings for appointment and in the administration of the estate shall be, as nearly as possible, similar to those in original administrations.

(5) After the payment of all expenses of administration and claims against the estate in accordance with this law, the county judge may, upon petition, order the remaining personal property in the hands of the ancillary personal representative to be transferred to the domiciliary personal representative.

(6) Ancillary personal representatives shall have the same rights, powers and authority as other personal representatives in Florida with reference to the management and settlement of the estate, and in addition, may sell, lease or mortgage local property in the manner provided in this law, to raise funds for the payment of debts, claims and legacies in the domiciliary jurisdiction. Provided, however, that no such property shall be sold, leased or mortgaged to pay any debt or claim which is barred by any statute of limitation, or of nonclaim, of this state.

HI8tory.-§188, ch. 16103, 1933; CGL 1936 Supp. 6641(146); am. §4. ch. 22783, 1945; §1, ch. 22890, 1945. cf.-§732.26, Effect of prior foreign probate.

§§732.35-732.36, Probate of will after foreign probate. §732.47, Nonresidents as personal representatives.

734.32 Application for administration upon estates of persons believed to be dead.-Letters of administration on the estate of any person believed to be dead, on account of absence for seven years or more from the place of his last domicile, may be applied for; and if the county


judge (of the county in which the estate of such person could be administered were the supposed decedent known to be dead) is satisfied that the applicant would be entitled thereto were such supposed decedent known to be dead, he shall order a notice to be published as provided in this law, giving notice therein that on the day of said application said county judge will hear evidence concerning the alleged absence of the supposed decedent and the circumstances and duration thereof.

Hlstory.-§189, ch. 16103, 1933; CGL 1936 Supp. 6641(146); am. §4, ch. 22783, 1945. ct.-§732.09, Process and service.

§§732.23. 732.43. Petition tor letters.

734.33 Evidence of presumption.-At the hearing, the county judge shall take such evidence as shall be offered, for the purpose of ascertaining whether the presumption of death is established, and no person shall be disqualified to testify by reason of his relationship as husband or wife to the supposed decedent or of his interest in the estate of the person believed to be dead.

Hlstory.-§190, ch. 16103, 1933; CGL 1936 Supp. 6541(147); am. §4, ch. 22783. 1945.

734.34 Order of presumption.-If satisfied, upon the hearing, that the legal presumption of death is established, the county judge shall so order, and shall forthwitl. cause notice thereof to be published as provided in this law, and also once a week for four consecutive weeks in a newspaper published at or nearest the place where the supposed decedent was last heard from. The said notice shall require the supposed decedent, if alive, or any person for him, to produce, within three months from the date of its first insertion, satisfactory evidence of his continuance in life.

Hlstory.-§191. ch. 16103, 1933; CGL 1936 Supp. 6541(148); a m. §4. ch. 22783, 1945.

734.35 Letters of administration; force and effect.-If, within the said period of three months, evidence satisfactory to the county judge of the continuance of life of the said decedent has not been produced, the county judge shaH issue letters to the party entitled thereto; and the said letters, until revoked, and all acts done in pursuance thereof and in reliance thereupon, shall be as valid as if the supposed decedent were dead.

Hlstory.-§192, ch. 16103, 1933; CGL 1936 SupP. 5541(149); am. §4, ch. 22783, 1945.

734.36 Revocation of letters on proof that supposed decedent is alive.-The county judge, upon application of the supposed decedent, shall revoke the said letters at any time, on due and satisfactory proof that the supposed decedent is in fact alive; after which revocation all the powers of the administrator shall cease, but all receipts or disbursements of assets and other acts previously done by the administrator shall remain valid; and the administrator shall settle an account of his administration to the time of such revocation and shall transfer all assets remaining in his hands to the person as whose administrator he had acted, or to his duly authorized agent or attorney; provided, nothing herein contained shall validate the title of any person

to any money or property received as widow, next of kin or heir of such supposed decedent, but the same may be recovered from such person in all cases in which said recovery would be had if there had been no such administration.


734.37 Substitution of supposed decedent in actions.-After revocation of the letters of administration, the person erroneously supposed to be dead may, on suggestion filed of record of the proper fact, be substituted as plaintiff in all actions brought by the administrator, whether prosecuted to judgment or otherwise. He may, in all actions previously brought against his administrator, be substituted as defendant, on proper suggestion filed by himself or by the plaintiff therein, but shall not be compelled to go to trial in less than three months from the time of such suggestion filed. Judgments at law and decrees in equity against the administrator, before revocation, as aforesaid, of the letters, may be opened, on application by the supposed decedent made within three months from the said revocation and supported by affidavit, denying specifically, on the knowledge of the affiant, the cause of action or specifically alleging the existence of facts which would be a valid defense; but, if within the said three months such application is not made, or, if being made, the facts exhibited are adjudged an insufficient defense, the judgment or decree shall be conclusive to all intents, saving the defendant's right to have it reviewed, as in other cases, by appropriate appellate proceedings. After the substitution of the supposed decedent as defendant in any proceeding in which any judgment or decree may be procured as aforesaid, the said judgment or decree shall become a lien with like effect as other judgments.

Hlstory.-§194, ch. 16103, 1933; CGL 1936 SuPp. 5541(151); am. §4, ch. 22783, 1945.

734.38 Probate of will of person believed to be dead.-After letters of administration have been granted upon the estate of a person believed to be dead, the person having the custody of any will which may have been left by such person may produce said will in the county judge's court of the county in which the proceedings to establish the presumptive death of the supposed decedent hl:j.ve been held, and proceedings may be had as in the case of other wills.

Hlstory.-§195, ch. 16103. 1933; CGL 1936 Supp. 5641(162)' am. §4. ch. 22783, 1945. •

734.39 Notice to administrator and other persons.-Upon the filing of such petition, the county judge shall issue a citation to the person to whom letters of administration have been issued, as aforesaid, and to the surviving spouse and next of kin of the decedent, entitled under the laws of descent and distribution to his estate, to appear and show cause why the said alleged will should not be admitted to probate.

Hhtory.-§196, ch. 16103. 1933; CGL 1988 SUI'P. 5641(153); am. §4, ch. 22783, 1945.

734.40 Letters to executor of will of supposed decedent.-Upon the hearing, if it ap-


pears that the proposed will was in fact the last will and testament of the supposed decedent, the said will shall be admitted to probate, and said will shall be annexed to the letters of administration theretofore issued; and thereafter the administrator shall execute the said will according to its terms; provided, that nothing herein sh411 prevent the county judge from revoking the said letters, and in case of such revocation the powers of the personal representative and the rights of the legatees and devisees under said will shall cease, and all receipts and disbursements of assets, and other acts previously done by them shall remain as valid as if the said letters were unrevoked; and provided, further, that legatees and

devisees may be called upon at any time by the supposed decedent to account for any property which they may have received, in the same manner as is provided in this law, and the administrator may be called upon to render an accounting as to all assets which have come into his custody or control; and provided, further, that if upon probate of the last will and testament of the decedent it appears that an executor is named in the will, the letters of administration shall be revoked and letters testamentary shall be issued to the executor named in said last will and testament.

HlstolT.-§197. ch. 16103. 1933; CGL 1938 Supp. 6541(154): am. 14. ch. 22783. 1945.

Ch. 735 SMALL ESTATES; ADMINISTRATION UNNECESSARY Ch. 735

CHAPTER 735

SMALL ESTATES; ADMINISTRATION

735.01 Small e!!tates. 735.02 May be administered in the same man

ner a8 other estates. 735.03 Certain administrative steps may be dis

pensed with. 735.04 When administration unnecessary; tes

tate or intestate estates. 735.05 Petition for order of administration un-

necessary. 735.051 Filing of petition. 735.06 Hearing by county judge. 735.07 Order of administration unnecessary.

735.01 Small estates:-Any testate or intestate estate having a gross value of not more than three thousand dollars, exclusive of the property exempt under the constitution and statutes of the state or any estate of a decedent who has been dead for more than three years, may be administered or not administered as set forth in this chapter; provided that proof satisfactory to the county judge, by affidavit or otherwise, is first produced to show that the estate to be administered comes within said value except where the decedent has been dead for more than three years.

mstory.-§l, ch. 16992, 1935; CGL 1936 SUPP. 5541(155); f15, ch. 22847, 1945; am. §1, ch. 23716, 1947.

735.02 May be administered in the same manner as other estates.--Such estate may be administered in the same manner and under the same rules and regulations as provided by law for the administration of any other estate, or it may be administered as provided in the next section of this chapter.

H18tory.-§2, ch. 16992, 1935; CGL 1986 Supp. 5541(168); §l5, ch. 22847, 1945.

735.03 Certain administrative steps may be dispensed with.-

(1) In the administration of such an estate the county judge may in his discretion dispense with any steps and proceedings in the administration of such estate which are merely procedural or administrative and which do not affect the substantial rights of the heirs, devisees, legatees and creditors. - (2) The county judge may dispense with the appointment of appraisers and the filing of a warrant of ,appraisement and may require the personal representative to give a surety bond or a personal bond without sureties. The county judge may authorize notice to creditors t<? be published in a newspaper, as elsewhere prOVIded by the probate act, or may authorize the notice to creditors to be published by notices posted at the front door of the courthouse and at two or more public places in the county, to be designated by the county judge, He shall require presentation of claims and demands within six calendar months from the time of such posting. He may also relieve the personal representative from filing annual returns and may require the per<Sonal representative to file only final returns. He may also authorize the notice of final dis-

UNNECESSARY IN CERTAIN ESTATES

735.08 County judge's discretion to deny petition.

735.09 Legal effect of order of administration unnecessary.

735.10 Optional publication of notice of entry of order.

735.11 Rights and remedies of those affected by order of administration unnecessary.

735.12 Will subsequently discovered. 735.13 County judge's fees. 735.14 Joinder of heirs, etc., in small estates.

charge to be published in a newspaper as elsewhere provided in the probate act, or he may authorize the notice of final discharge to be published by notices posted at the front door of the courthouse and at two or more public places in the county to be designated by the county judge.

(3) The procedural steps which may be eliminated by the county judge as set forth above shall not be construed as exclusive, as it is intended hereby to vest broad powers of discretion in the county judge to the end that he may, in the interest of economy, dispense with any procedural step in the administration of small estates, as defined above, when such step appears to him not to be essential to proper and safe administration and to due process of law. Cases pending on the effective date of this act may be concluded under prior law or under this section.

mstorY.-§2, ch. 16992, 1935 ; CGL 1936 Supp. 5541(156) ; §15, ch. 22847, 1945; (2) §31, ch. 63-572.

735.04 When administration unnecessary; testate or intestate estates.-The county judge may dispense with administration upon the estate of any testate or intestate:

(1) When such testate or intestate died a resident of this state and the entire estate is exempt from the claims of creditors under the constitution and statutes of the state; or,

(2) When such testate or intestate died a resident or nonresident of this State and the estate is not indebted and does not, in the judgment of the county judge, exceed in the aggregate five thousand dollars in value in this State, exclusive of property exempt under the constitution and statutes of the state, and there is a sole heir or surviving spouse, or the surviving spouse, if any, and all the heirs agree upon the distribution of the estate, or in case the decedent died testate and the beneficiaries and the widow, if any, agree upon the djstribution of the estate upon the probate of the will; or,

(3) When the decedent, whether he died testate or intestate and whether he died a resident or nonresident of this state, has been dead for more than three years and no letters testamentary or letters of administration have been issued on his estate, and his last will and testament, if any, has not been admitted to probate


in this state or elsewhere and there is a sole heir or surviving spouse, or the surviving spouse, if any, and all the heirs agree upon the distribution of the estate, or in case the decedent died testate and the beneficiaries and the widow, if any, agree upon the distribution of the estate upon the probate of the will.

Blstory.-§2, ch. 16992, 1935; CGL 1936 Supp. 5541(156); U5, ch. 22847, 1945; §2, ch. 23716, 1947.

Am. §1, ch. 25010, 1949.

735.05 Petition for order of administration unnecessary.-

(1) INTESTATE ESTATES.-The petition for an order of administration unnecessary on an intestate estate shall be signed and sworn to by all the heirs who are sui juris and by the surviving spouse of the decedent and by the guardians of heirs not sui juris. The petition shall be filed in the office of the county judge of the county where the decedent resided at the time of his death, and shall set forth the name, residence, date and place of death of the decedent; the names, ages and residences of the heirs and surviving spouse of the decedent and their respective relationships to the decedent; a detailed schedule of all the decedent's property, real and personal, showing the cash value of each item, and a statement of the agreed distribution of same among the petitioners; and if the entire estate is claimed to be exempt under the constitution and statutes of the state, the names and addresses of all known general creditors and judgment creditors of the decedent.

(2) TESTATE ESTATES.-The petition for an order of administration unnecessary on a testate estate may be filed only after the will has been probated, and shall be filed in the same case in which the will was probated. The petition shall be sworn to by the widow and by all the legatees and devisees who are sui juris and by the guardian of any of those who are not sui juris. The petition shall be filed in the office of the county judge of the county where the decedent resided at the time of his death, and shall set forth the same information as that specified in the preceding subsection of this section for petitions relating to intestate estates, except that, in lieu of the names, ages and residences of the heirs and the surviving spouse, the petition shall set forth the names, ages and residences of the legatees, devisees and the widow, if any, of the decedent.

(3) GUARDIAN AS PETITIONER.-If any heir, legatee or devisee of the decedent is not sui juris, the legal guardian of the estate of such incompetent shall be a party to the petition and shall have power to accept such distribution as the county judge may order, in full satisfaction and discharge of the interest of such incompetent in the estate. Natural guardians of a minor are authorized to act for such minor in the same manner as a legal guardian appointed by the county judge, where the interest of the minor in the estate does not exceed the amount authorized by the laws of Florida to be received by a natural guardian.

Hlstory.-§4, ch. 16992, 1935; CGL 1936 Supp. 5541(158); U5, ch. 22847, 1945.

735.051 Filing of petition.-The petition for an order of administration unnecessary may be filed at any stage of the administration of any estate in accordance with the procedure as set forth in §735.05 and an order for administration unnecessary entered in accordance with §735.07 if it appears that at the time of such petition the estate would qualify for such an order of administration unnecessary.

Bistory.-§l, ch. 59-308.

735.06 Hearing by county judge.-Upon the filing of the petition, if it appears that the entire estate of the decedent is claimed to be exempt under the constitution and statutes of the state, the county judge shall promptly notify each known creditor of the decedent, by registered mail, of the entry of his order, and shall make and file a certificate of such mailing.

Hlstory.-§3, ch. 16992, 1935; CGL 1936 Supp. 6541(157); §15, ch. 22847, 1945. cf.-§LOI (13) defines registered mail to Include certified mail


735.07 Order of administration unnecessary.-

(1) After the hearing the county judge, if fully satisfied that the estate is entitled to the special benefits of this law, that the averments of the petition are true, and that there has been no concealment of material facts, shall make and enter his order that administration of the estate of the decedent is unnecessary. Such order shall contain a finding by the county judge of the true cash value of the estate.

(2) In such order, if the estate is an intestate estate, he shall set forth (a) the names and residences of the heirs and surviving spouse 'of the decedent who are entitled to have distribution of the estate without administration; (b) what particular properties shall be distributed to each; and, (c) if the entire estate is exempt, of what the estate consists and what debts are known to exist against the estate.

(3) If the estate is a testate estate, the order shall set forth (a) the names and residences of the legatees, devisees and the widow, if any; (b) what particular properties shall be distributed to each; and, (c) if the entire estate is exempt, of what the estate consists and what debts are known to exist against the estate.

Hlstory.-§15, ch. 22847, 1945.

735.08 County judge's discretion to deny petition.-The county judge in his discretion may deny the petition and forthwith appoint an administrator of the intestate estate in any case in which he has doubt as to the truth of the averments of the petition; and in the case of a testate estate, if he has doubt as to the truth of such averments, he may order the executor of the will, or his successor, to proceed with the administration.

Hlstory.-§15, ch. 22847, 1945.

735.09 Legal effect of order of administration unnecessary.-The county judge's order that administration of the estate of the decedent is unnecessary shall have the following effect:

(1) Those to whom specified portions of the decedent's estate may be assigned by the order

Ch. 735 SMALL ESTATES; ADMINISTRATION UNNECESSARY

shall be entitled to receive and collect the same and to have the same transferred to them; they may maintain suits to enforce such rights.

(2) Debtors of the decedent, those holding property of the decedent and those with whom securities or other property of the decedent are registered, are authorized and empowered to comply with such order by paying, delivering and transferring to those specified in the order the respective portions of the decedent's estate assigned to them by the order, and such persons shall not be accountable to anyone else for such property.

(3) From and after the entry of such order, bona fide purchasers for value from those respectively to whom properties of the decedent may be assigned by the order shall take the same free. clear and discharged of all claims and demands of creditors of the decedent and all rights of the widow of the decedent and all other heirs, legatees, devisees and claimants against the estate.

(4) Property of the decedent (not exempt from forced sale under process) remaining in the hands of those to whom it may be assigned by such order shall continue to be liable for the debts of the decedent and for all the other claims whatsoever against the estate of the decedent, if any such claims exist, until barred as herein elsewhere provided.

(5) The petitioners for an order of administration unnecessary shall, if the petition is granted, thereby become personally liable, jointly and severally, for all lawful claims and demands against the estate of the decedent, but only to the aggregate gross value of the estate of the decedent, exclusive of the property exempt from process under the constitution and statutes of Florida.

(6) After three years from the death of the decedent, his estate and those to whom it may be assigned shall not be liable for any obligation or liability of the decedent unless in the meantime proceedings are taken for the enforcement of same.

(7) Claimants against the estate of the decedent, if any, shall thenceforth be limited to the remedies prescribed in §735.11

Hlstory.-§16, ch. 22847, 1945.

735.10 Optional publication of notice of entry of order.-

(1) Those who shall have procured the entry of the order of administration unnecessary, or anyone or more of them may, at their election, publish a notice to all persons having claims or demands against the estate of the decedent, that an order of administration unnecessary has been entered by the county judge. Such notice shall specify the total cash value of the estate and the names and addresses of those to whom it has been assigned by such order. Such notice, if published, shall be published once a week for four consecutive weeks in a newspaper published in the county wherein such order was entered, and proof of publication of such notice shall be filed with the county judge.

(2) If proof of publicati(}n of such notice is duly filed in the office of the county judge, all

claims and demands of creditors against the estate of the decedent shall be forever barred unless such claims and demands are duly sworn to and filed in the office of the county judge within six months of the first publication of such notice.

History.-§15, ch. 22847, 1945; (2), U, ch. 63-1'6.

735.11 Rights and remedies of those affected by order of administration unnecessary.-

(1) Any creditor or claimant against the estate of a decedent may by bill in chancery, filed at any time within three years from the death of the decedent, or within six months of the first publication of the notice of entry of the order of administration unnecessary, if same shall have been duly published and proof of publication filed, impress a trust upon all property of the decedent (exclusive of property exempt under the constitution and statutes of Florida and exclusive of the widow's exemption) remaining in the possession of the heirs, legatees, devisees and surviving spouse; require such parties to account for the value of all such property alienated, consumed, spent or donated by them, and have deficiency decrees to the extent of the undischarged liability of such parties, together with legal interest from the date of the filing of suit, and costs.

(2) Such suit or suits may be brought by one or more claimants or creditors; other claimants or creditors may intervene and share ratably in the recovery, and anyone directly or indirectly affected by the order of administration unnecessary may also intervene in the pr(}Ceeding or himself institute suit for his own protection. Any one or more of the petitioners who pr(}Cured the order of administration unnecessary may be made party defendant. Any such defendant may implead other heirs, legatees or devisees for contribution or exoneration. A receiver may be appointed as a matter of course. It shall be no objection that the bill or other pleading is multifarious. Such suits may be brought only in the county in which the order of administration shall have been entered. If more than one suit is brought, such suits shall be consolidated.

(3) Any heir, legatee or devisee of the decedent who was lawfully entitled to share in the estate but who was excluded by the order of administration unnecessary may enforce his rights against those who pr(}Cured such order in the manner hereinabove prescribed for creditors and claimants; or he may intervene in the suit of a creditor for the enforcement of his rights, subject, however, to the superior rights of creditors.

(4) In all such cases plaintiffs shall be awarded reasonable attorneys' fees as an element of costs.

Hlstory.-§ 15, ch. 22847, 1945; (1) B. by §6, ch. 61-394.

735.12 Will subsequently discovered.-If, after the entry of an order of administration unnecessary on an intestate estate, a will of the decedent is discovered, pr(}Ceedings may be had in accordance with §732.33. But in such cases, those who have procured the entry of the order of administration unnecessary shall be ac-


countable, jointly and severally, not only for the property of the decedent remaining in their hands but also for the proceeds of that which they have alienated and for the value of that which they have consumed, spent or donated.

HistOI'J'.-§16, ch. 22847, 1945.

735.13 County judge's fees.-The county judge shall receive a fee of seven dollars and fifty cents for all proceedings to and including the entry of an order of administration unnecessary, and fifty cents for each notice given by registered mail, and such fees as are allowed in probate proceedings for any other subsequent services.

Hletol'J'.-U6, ch. 22847, 1946 ct.-§I.OI (13) defines registered maU to include certitled maU


735.14 Joinder of heirs, etc., in small estates.

-That whenever any heir, devisee, legatee, widow or surviving spouse is authorized or required under chapter 735, to join in any agreement or petition and any such person shall have died or shall have become incompetent or shall be a minor or shall have conveyed or transferred all of his or her interest in the property of the estate, then the heirs, devisees, legatees and surviving spouse, if any, and the executor or administrator, if any, of the estate of any such deceased person or the guardian of any such incompetent or minor or the grantee or tranferee of any such person, as the case may be, shall be authorized to join in such agreement or petition in lieu of any such heir, devisee, legatee, widow or surviving spouse.

Hlstor,..-U, ch. 23872, 1947.

Ch. 736 MISCELLANEOUS PROBATE PROVISIONS Ch. 736

CHAPTER 736

MISCELLANEOUS PROBATE AND SIMILAR PROVISIONS

736.01 Receipts for debts due minors; effect. 736.02 Compulsory settlement by persons hold

ing interests of minors. 736.03 Enforcement of order for compulsory

settlement. 736.04 Mortgaging p.roperty of certain estates

for the purpose of paying existing mortgages and liens.

736.041 Presumption of order of death. 736.05 Uniform simultaneous de'ath law. 736.06 Foreign wills; record and effect after

three years from death of testator. 736.07 Effect of chapter 22783, acts 1945. 736.08 Eyes; donation for eyesight restoration.

736.01 Receipts for debts due minors; effect.-If any executor, administrator or trustee receives and gives discharges for debts, rents, dues or sums of money belonging to any orphan or minor, for whom the said executor, administrator or trustee is acting, all such discharges and receipts shall be binding upon the orphan or minor and his heirs, when he shall come to full age, and shall be effectual in law to discharge the person taking the same. But nothing herein contained shall discharge the executor, administrator or trustee from accounting to the orphan or minor where such receipt or discharge has not been legally given, or has been given for a fraudulent purpose.

History.-§40, Nov. 20, 1828; RS 1869 ; GS 2355; RGS 3678; CGL 5542; am. §5, ch. 22783, 1945.

736.02 Compulsory settlement by persons holding interests of minors.-The county judge may award process to cause to come before him every person who as executor or administrator, tutor, trustee or otherwise is or may be concerned and entrusted or in anywise accountable for any estate, real or personal, belonging to any orphan or minor, to cause him to make within a reasonable time true and perfect inventories of said estate and to render just and true accounts of the same.

Hlstory.-§37, Nov. 20, 1828; RS 1879; GS 2371; RGS 3698; CGL 6668; am. 16, <lh. 22783, 1945.

736.08 Enforcement of order for compulsory settlement.-If any person directed neglects to account to said court, the court shall immediately issue an attachment against such person, to be executed by the sheriff of the county where such person lives, which sheriff shall, together with his return, produce the delinquent who shall pay all the costs of the attachment; and said person shall stand committed for contempt until he makes such account.

Hlstory.-§1880 RS 1892; GS 2372; RGS 3694; CGL 6569; am. 16, <lh. 22783, 1946.

736.04 Mortgaging property of certain estates for the purpose of paying existing mortgages and Hens.-In estates of decedents in the process of administration on June 10, 1935, who died prior to October 1, 1933, leaving real estate encumbered by mortgage, lien or taxes, when it is made to appear to the county judge having charge of the administration of such

736.09 Eye bank; establishment and maintenance.

736.10 Donee of eyes may be designated. 736.11 Written statement required to effect

donation. 736.12 More than one person signing written

statement. 736.13 Donation of eyes by will. 736.14 Authority for use of eyes. 736.15 Co·st to donee for eyes. 736.16 Registration of persons in need of eye-

sight restoration. 736.17 Bequests and devises to trustee. 736.18 Donation or bequest of parts of body.

estate, at any time before the final settlement of such estate, that it is expedient or necessary and for the best interests of the estate to borrow money upon a mortgage upon the real estate belonging to the estate or any part thereof, in order to payoff and discharge such mortgages or liens upon the real estate of the deceased, the county judge may by order authorize the personal representative to borrow such sum as the judge shall deem proper or necessary for such purpose and to execute such mortgage as may be necessary to secure the same. Such mortgage. when so executed by such authority, shall be effective in law to bind the real estate described therein as effectually as the same was bound by the mortgage or lien which is discharged and paid off by such loan, with the same rights, equities and priorities as existed in favor of the debts and liens so discharged.

History.-§l, ch. 17105, 1935; CGL 1936 Supp. 5541(114A): am. §5, ch. 22783, 1945.

736.041 Presumption of order of death.When there is no sufficient evidence of the order in which the deaths of two or more persons occurred, no one of such persons shall be presumed to have died first; provided, however, that where the title to property or the devolution thereof depends upon priority of death ,and there is no sufficient evidence of the order in which the deaths of such persons occurred, the provisions of §736.05 shall control.

History.-§2, ch. 63-183.

736.05 Uniform simultaneous death law.(1) NO SUFFICIENT EVIDENCE OF

SURVIVORSHIP.-Where the title to property or the devolution thereof depends upon priority of death and there is no sufficient evidence that the persons have died otherwise than simultaneously, the property of each person shall be disposed of as if he had survived, except as provided otherwise in this law.

(2) BENEFICIARIES OF ANOTHER PERSON'S DISPOSITION OF PROPERTY.-Where two or more beneficiaries are designated to take successively by reason of survivorship under another person's disposition of property and there is no sufficient evidence that these beneficiaries have died otherwise than simultaneously, the property thus disposed of shall be divided into as many equal portions as there


are successive beneficiaries, and these portions shall be distributed respectively to those who would have taken in the event that each designated beneficiary had survived.

(8) JOINT TENANTS OR TENANTS BY THE ENTIRETY.-Where there is no sufficient evidence that two joint tenants or tenants by the entirety have died otherwise than simultaneously, the property so held shall be distributed one-half as if one had survived and onehalf as if the other had survived. If there are more than two joint tenants and all of them have so died, the property thus distributed shall be in the proportion that one bears to the whole number of joint tenants.

(4) INSURANCE POLICIES.-Where the insured and the beneficiary in a policy of life or accident insurance have died and there is no sufficient evidence that they have died othel" wise than simultaneously, the proceeds of the policy shall be distributed as if the insured had survived the beneficiary.

(5) NOT RETROACTIVE.-This law shall not apply to the distribution of the property of a person who has died before June 12, 1941.

(6) DOES NOT APPLY IF DECEDENT PROVIDES OTHERW1SE.-This law shall not apply in the case of wills, living trusts, deeds or contracts of insurance wherein provision has been made for distribution of property different from the proviSIOns ot this law.

(7) UNIFORMITY OF INTERPRETATION.-This law shall be so construed and interpreted as to effectuate its general purpose to make uniform the law in those states which enact it.

(8) SHORT TITLE.-This section may be cited as the uniform simultaneous death law.

HI8tory.-§§1-8, ch. 20884, 1941; am. §5, ch. 22783, 1945.

736.06 Foreign wills; record and effect after three years from death of testator.-

(1) A duly authenticated copy of any will, including any codicils thereto, of a nonresident, which devises real property in this state, or any right, title or interest therein, and which conforms to the laws of this state as to form and manner of execution, when duly proved and admitted to probate in the proper court of any other state, territory or country, when accompanied by a duly authenticated copy of the petition for probate and order admitting it to probate, may be admitted to record in t~e office ?f the county judge of any county of thIS state III which such real property is situated, at any time after three years from the death of the testator or at any time after the domiciliary personal representative has been discharged, when there has been no probate of such will in this state. Provided, however, if in the jurisdiction where the will of the nonresident was probated no petition is required as a prerequisit~ to the p~obate of a will, upon proof by affidaVIt or certI~c~te of the judge of said court that no such petItIOn is required in such jurisdictiOI:, a duly authenticated copy of any such will, when accompani~d by a duly authenticated copy of the order admItting it to probate, may be admitted to record, as

herein provided, without being accompanied by duly authenticated copy of petition for probate, and the order of court admitting such will to record in Florida shall recite that in the state of original probate no petition was required.

(2) The said duly authenticated copies of will, codicil and order admitting t o probate, may be admitted to record by the county judge upon the petition of any person. If the court finds that the will and any codicils thereto conform to the laws of this state as to form and manner of execution and that the said copies are duly authenticated, he shall, by short order, admit the same to record.

(3) All orders heretofore made for the record of such wills and codicils and all proceedings had under §736.06 unaccompanied by an authenticated copy of the petition for probate are hereby validated and such wills and codicils shall be as valid and effectual to pass title to the real property therein described or referred to as if said wills and codicils had beeD accompanied by an authenticated copy of the petition for probate.

(4) When so admitted to record, such will and any codicils thereto, and all such as may have heretofore been recorded in the office of the county judge, whether admitted by order of the county judge or not, shall be as valid and effectual to pass title to real property, and any right, title or interest therein, as if such will had been duly proved and admitted to probate in the proper court in this state.

(5) The record of such copy, or a duly certified transcript thereof shall be presumptive evidence of the authority of any person authorized by such will, or any codicil thereto, to convey or otherwise dispose of any such real property or any right, title or interest therein.

Hlstory.-§l, ch. 22884, 1945; am. §1, ch. 24341, 1947.

736.07 Effect of chapter 22783, acts 1945.-Laws passed at the regular session of the legislature of 1945 shall not be repealed or affected by chapter 22783, acts of 1945 (revision of chap· ters 731, 732, 733, 734 and 736) but shall have full effect as if passed after the enactment of said chapter.

History.-§6, ch. 22783, 1945.

736.08 Eyes; donation for eyesight restoration.-Persons desiring to donate and give their eyes for eyesight restoration purposes may do so by a written instrument declaring such gift, or by their last will and testament, as in §736.11 provided.

Hlstory.-§l, ch. 23805, 1947.

736.09 Eye bank; establishment and maintenance.-Any state, county, district, or other public hospital may purchase and provide the necessary facilities and equipment to establish and maintain an eye bank for restoration of sight purposes.

Hlstory.-§2, ch. 23805, 1947.

736.10 Donee of eyes may be designated.Persons so donating and bequeathing their eyes for eyesight restoration purposes may designate


the donee, but such shall not be necessary. If no donee is named by the donor in such written instrument or last will and testament, then any hospital in which the donor may depart this life, or any available physician or surgeon shall be considered the donee and have full authority to take and remove the eyes of the donor upon his death, and thereafter to use such donated eyes for restoration of sight of the person designated by the donor, or if such donee be not available, or no donee named by the donor, then the use of such eyes for said restoration of eyesight purposes shall be made available to any person in need thereof. No consent shall be required of the personal representative or heirs of the deceased nor shall any physician, hospital or institution have any liability for the removal of any eyes so donated by any subsequent invalidation by any court of the written instrument declaring such gift, or any last will and testament.

Bistory.-§3, ch. 23805, 1947; §1, ch. 61-346.

736.11 Written statement required to effect donation.-No particular form or words shall be necessary or required but any such written statement or last will and testament or codicil shall be liberally construed to effectuate the intent and purpose of the persons wishing to donate and bequeath their eyes for eyesight restoration purposes.

The following shall be held and considered sufficient and legal for any person to give and donate their eyes for eyesight restoration purposes, to wit:

"DONATION OF EYES FOR EYESIGHT RESTORATION PURPOSES

I, the undersigned, desiring that my eyes may be made available upon death for eyesight restoration purposes, do hereby give and donate my eyes for said purpose to __________________ __ ,

Name

Address Telephone Numbe; if living, and if not, then my eyes may be used for such purpose by any person.

I hereby authorize any physician, surgeon, or hospital to remove and use my eyes for said purpose.

Name "

Address Telephone Number Such written statement need not be witnessed

or acknowledged and the said donor may execute more than one copy thereof.

Hlstory.-§4, ch. 23805, 1947.

736.12 More than one person signing written statement.-Such written statement so donating and giving eyes for eyesight restoration purposes may be signed by more than one person. Hospitals and other institutions and organizations are hereby authorized to prepare and have made available such written statements in the form of an eye bank register for persons desiring to give and donate their eyes for such purpose.

HI.tory.-§5, ch. 23805. 1947.

736.13 Donation of eyes by will.-Persons may by their last will and testament or codicil bequeath their eyes for eyesight restoration purposes and any such provision in any last will and testament or codicil, but no other, shall become effective immediately upon death of the testator.

HI8tory.-§6, ch. 23805. 1947.

736.14 Authority for use of eyes.-The authority for any hospital, physician or surgeon to so remove, and thereafter use the eyes of any person so donating or bequeathing their eyes shall be such written statement or last will and testament or codicil.

HI8tory.-§7, ch. 23805. 1947.

736.15 Cost to donee for eyes.-No charge or cost whatsoever shall be made to the donee for such eyee to be so used for eyesight restoration purposes, provided that nothing herein shall be construed to prohibit the payment of a reasonable fee to any physician or surgeon for performing an operation whereby the donee of such eyes has his or her eyesight restored.

HI8tory.-§8. ch. 23805, 1947.

736.16 Registration of persons in need of eyesight restoration.-The Florida council for the blind is hereby authorized to help and assist in the execution and furtherance of the purposes of §§736.08-736.16, and may provide for the registration of persons in need of having their eyesight restored.

The Florida council for the blind may have prepared, printed, and thereafter distributed:

(1) Said written statement, (2) Said eye bank register, and (3) Wallet cards reciting such written

atatement. HI8tory.-§9. ch. 23805, 1947.

ct.- §413.011, CreatIng FlorIda councll tor the bUnd.

736.17 Bequests and devises to trustee.(1) An otherwise valid bequest or devise

~ay !:>e made to the .trustee of a trust which IS eVIdenced by a Written instrument in existence at the time of the making of the will or by a written instrument subscribed concurrently with ~he m~king of the will, provided that s~ch written Instrument is identified in the WIll.

(~) Such devise or bequest shall not be invalId for any or all of the following reasons:

(a) Because the trust is amendable or revocable or both by any person whomsoever' or

(b) ~ecause the trust has been amended or rev?k!!d In part after execution of the will or COdICIl thereto; or

(c) Because the trust instrument or any amendment thereto was not executed in the manner required for wills; or

.(d) Because the possible expectancy of re~eIVIng benefi~s as named beneficiary of a life In.surance pohcy.deposited, or to be deposited WIth the trustee IS the only trust res and even though the testator or other perso~ has re~erved any or all rights of ownership in such Insurance contracts, including the right to change the beneficiary.

(3) Such devise or bequest shall operate to


dispose of property under the terms of the instrument which created the trust as theretofore or thereafter amended.

(4) An entire revocation of the trust by an instrument in writing prior to the testator's death shall invalidate the devise or bequest.

(5) Unless the will provides otherwise, the property so devised or bequeathed shall not be deemed held under a testamentary trust of the testator and thus shall not be subject to the terms of chapter 737, Florida trust accounting law, but shall become a part of the principal of the trust to which it is devised or bequeathed.

(6) This section shall not be construed as repealing or amendatory of, but as cumulative to, all laws touching upon the subject matter hereof and now in force and effect.

(7) This act shall take effect immediately upon the date the same becomes law and shall be applicable to wills executed before and after said date by persons who are living on or after said date.

Blstory.-§l, ch. 59-57; H2, 3, ch. 61-427. Note: §1, ch. 61-427 repeals thls section and S2 reenacts the

same section.

736.18 Donation or bequest of parts of body.-

(1) Any person may donate or bequeath to another person any part of his body for grafting or transplantation by written instrument or by his last will and testament, and may further by such written instrument or his last will and testament donate and give his body or any part thereof for experimentation and scientific research purposes.

(2) Any state, county or district hospital or medical school may use and expend public moneys, donations and devises for the necessary facilities and equipment to establish and maintain banks and repositories for any part of the human body and also for experimentation and scientific research. Donations and devises may also be made for the same purpose to private hospitals, medical schools and body banks.

(3) Any state, county or district hospital or medical school may expend public moneys, donations and devises for experimentation and scientific research designed to find ways and means whereby various parts and components of the human body may be grafted and transplanted from a living or deceased donor or testator to a living person. Donations and devises may also be made for the same purpose to private hospitals, medical schools and body banks.

(4) The following form of written instrument shall be sufficient and legal for any person to donate and give his body or any part thereof for the purposes recited in this act:

I, the undersigned, desiring that my eyes, ears, bones or any other part of my body be made available upon my death for grafting and transplantation purposes, do hereby donate and give any needed part of my body to _________________________________ of

(name)

(address) (telephone) if living at the time of my death, or to _______ hospital or to _____________ _

(name) (name) medical school or to ________ ~--

(name of eye ___________________________________ bank. I do

or other body bank) hereby donate any part of my body for immediate grafting and transplantation purposes if so needed and if not, then the same may be, if possible, reposited and banked for future use, otherwise any part or all of my body may be used for experimental and scientific research purposes as provided by the laws of the state. If no donee is named in this written instrument, then any part of my body may be made available and used by any person needing the same for grafting or transplantation and/or used for experimental and scientific research purposes. I do hereby authorize any physician, surgeon, hospital or medical school to remove and dismember any part of my body for said uses and purposes, and do further authorize any such physician, surgeon, hospital or medical school to examine and, if necessary, make copies of my medical history and records.

(name. of donor) (address) (It is suggested that the donor keep one copy of this written instrument and give signed copies to named donee, his physician, hospital and next of kin.) (5) Said written statement need not be wit

nessed or .81cknowledged, and the donor may execute more than one copy thereof. The written statement may be in the form and size of wallet cards. No particular form or wording shall be necessary and said written instrument or last will and testament shall be liberally construed to effectuate the intended purpose of the person wishing to make any such donation or devise. The written instrument may be in such form and so worded that more than one person may sign the same. The donor may deliver signed copies of such written instrument to the donee, donor's physician, hospital or available body bank.

(6) All hospitals, doctors, surgeons, civic clubs, welfare organizations and the state board of health are hereby authorized to prepare and make available for free use and distribution copies of such written instrument and copies of this act.

(7) Any person may by his last will and testament devise any part of his body for grafting and transplantation. The testator may designate the beneficiary but if the testator names no beneficiary, or if such beneficiary be deceased or unavailable, then the part of the testator's body authorized to be used for grafting and transplantation may be made available for any person needing the same, or it may be banked and reposited, if possible, for future use.


The testator may authorize, by his last will and testament, the use of his body or any part thereof for experimental and scientific research purposes as provided in this act.

(8) It shall not be necessary for any person so donating or devising his body, or any part thereof for the purposes designated in this act, to name the donee thereof. If no person is so named by the donor or testator, or if the named person is deceased or unavaHable, then the hospital where the donor or testator dies, or any physician or surgeon ·shall have full authority to remove the designated part of the body of the donor or testator for said grafting and transplantation purposes, and if not then needed therefor, the same may be so used for experimentation and scientific research purposes unless such can be expediently reposited and banked for future use.

(9) Said written instrument or ,s'aid last will and testament shall be full authority for any such bank, h()spital, medical school, physician or surgeon to act and proceed under the terms of any such written instrument or last will and testament. No consent or permission from the personal representative or the heirs of the deceased shall be required for such bank, hospital, medical school, physician or surgeon to so proceed and act under the terms of this act.

(10) The judgment by any court of competent jurisdiction declaring any such written instrument or last will and testament to be invalid shall not create a liability against such bank, hospital, medic'al school, physician or surgeon who acts and proceeds under the terms and provisions of any such written instrument or last will and testament.

(11) All donations and devises for the furtherance and purposes of this act shall constitute a charitable public trust for the welfare and benefit of the public and as such shall be exempt from all taxation.

(12) Thi·s act shall not prevent, limit or restrict civic organizations, clubs and chartered nonprofit corporations from continuing and furthering eyebank and eyesight restoration projects and programs.

(13) This act shall not repeal or limit chapter 245 and shall be held and construed to be supplemental thereto. No provision or section of said chapter 245 shall be held to restrict or limit the terms and provisions of this act.

(14) This act shall not repeal or limit §§736.08 to 736.16 inclusive and shall be held and construed to be supplemental and in addition thereto.

IDstory.-§§1-14. ch. 63-386.

florida statutes 1963, volume 2 · 2014-10-01 · hlstol'j'.-u, ch. 16108, 1938; cgl 1936...

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