Wills - Florida
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Description/Scope
Purpose
Who This Applies to
When to Perform
Special Circumstances
Why This Is Important
General Benefits 7 Objectives
Text as an intro
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Tuesday, November 02, 2004 08:52 AM
If the retiree has executed a living trust, the Florida Will is likely to be relatively short and basically provide for all of the assets to be "poured over" into the living trust upon the retiree's death. However, most retirees will not have a living trust and will implement their estate plan directly in their Will. It is important that the New York estate planner be generally familiar with the manner in which Florida Wills are executed and be familiar with the rules of construction applicable to Florida Wills so that they can work closely with the Florida attorney in drafting the new Florida Will.
In Florida, any person eighteen or more years of age who is of sound mind may make a Will.(2) The Will must be in writing and the testator must sign his name at the end of the Will or his name must be subscribed at the end of the Will by some other person in his presence and by his direction. The testator's signing or his acknowledgement that he has previously signed the Will, or that another person has subscribed the testator's name to it, must be in the presence of at least two attesting witnesses. The attesting witnesses must sign the Will in the presence of the testator and in the presence of each other.(3) Any person competent to be a witness may act as a witness to a Will, and the Will, or any part of it, is not invalid because it is signed by an interested witness.(4) The better practice, however, is to have the Will witnessed by disinterested persons since that may be a factor in a Will revocation proceeding claiming undue influence. To simplify probate, a Florida Will may be "self-proved" at the time of execution. In order to "self prove" a Will, an affidavit must be attached to the Will when it is executed or at any subsequent date. The affidavit must be signed, and sworn to, by the testator and the witnesses before a notary public or other officer authorized to administer oaths and recite that they signed the Will and that the testator, in the presence of the witnesses, either signed the instrument as his last will or directed another to sign for him, and that each of the witnesses, in the presence of the testator and in the presence of each other, signed the Will as a witness.(5) This avoids locating witnesses when the testator dies. Where the retiree's Will is executed in New York, it is likely that the witnesses will reside in New York. If the Will is not "self proved", it may be necessary to have the Florida court appoint a New York notary public as a commissioner to take the oath of a New York witness.(6)
The practice in many counties in New York State is to have a "self-proved" affidavit executed only by the witnesses and not the testator. Such an instrument is not acceptable in Florida. The testator must also sign the affidavit.
Frequently, the retiree will be an elderly person and one or more of his children may wish to be of some assistance in his estate planning. The estate planner must be very cautious that there is no undue influence exerted on the testator. Under Florida law, mere affection, kindness or attachment of one person for another does not itself constitute undue influence. But undue influence may be found where there is over-persuasion, duress, force, coercion, or artful or fraudulent contrivances to such degree that there is destruction of the free agency and willpower of the retiree. There are several tests that a Florida court examines in determining whether there are sufficient factors existing to raise a presumption of undue influence.(7) These include:
* Presence of the beneficiary at the execution of the Will.
* Presence of the beneficiary on the occasion when the testator expressed the desire to make a Will.
* Recommendation by the beneficiary of an attorney to draw the Will.
* Knowledge of the contents of the Will by the beneficiary prior to its execution.
* The beneficiary's instructions on the preparation of Will to the attorney.
* Safeguarding of the Will by the beneficiary subsequent to execution.
* The beneficiary securing the witnesses to the Will.
The estate planner should be concerned that a claim of undue influence may be asserted under circumstances where most of these factors are present. Where most of the factors are present, it may even be advisable to execute a new Will under more favorable circumstances.
Both the retiree and his New York estate planner should be aware of provisions of Florida law which may affect dispositions under the retiree's new Florida Will. Some terminology may be different. Some Florida Wills will refer to personal representative rather than executor or executrix since that is the statutory term. A New York Will will refer to a devise of real property, such as a home, and a bequest of personal property such as money, securities and personal belongings. The Florida statutes refer to transfer of both real and personal property as a devise and some Florida Wills may do likewise.
As with most states, Florida has various rules of construction which control unless a contrary intention is indicated by the Will. Since the retiree may later change his mind and return to New York, it is generally a prudent drafting technique to spell out a specific intent rather than to rely on rules of construction, some of which may differ depending on whether the retiree is domiciled in New York or Florida at the time of his death.(8) This session summarizes some of the rules of construction that will govern Florida Wills unless a contrary intention appears in the Will. It also summarizes various other rules applicable to Florida Wills. The rules are rather technical. This session has been included in this Seminar primarily for the New York attorney who is reviewing a draft of a retiree's new Florida Will prepared by Florida counsel. It may also be useful to the Florida counsel reviewing a client's prior New York Will.
Simultaneous death. Under Florida law, where there is insufficient evidence that a decedent has died otherwise than simultaneously with the beneficiary, the property of each person is disposed of as if he had survived. When two or more beneficiaries are designated to take successively by reason of survivorship under another person's disposition of property and there is a simultaneous death, the property is divided in equal parts and the parts are distributed to those who would take if the designated beneficiary had survived. Where there is insufficient evidence that two joint tenants died otherwise than simultaneously, the property is divided. One-half passes as if one had survived and one-half passes as if the other had survived. When the insured and the beneficiary of a policy of life insurance have died, and there is no evidence that they died otherwise than simultaneously, the proceeds are distributed as if the insured had survived the beneficiary.(9) The New York law is substantially the same.(10)
Antilapse; deceased devisee; class gifts; failure of testamentary provision. Under Florida law, if a devisee who is a grandparent or a lineal descendant of a grandparent fails to survive the testator, then the descendants of the devisee take per stirpes in place of the deceased devisee, including a person who would have been a devisee under a class gift. If a devisee who is not a grandparent or a descendant of a grandparent fails to survive the testator, then the testamentary disposition lapses.(11) If a devise lapses or otherwise fails it becomes part of the residue, and where the share of one of the residuary devises fails, it passes to the other residuary devises.(12)
New York law limits substitute takers to the issue or to a brother or sister of the testator.(13) For example: Assume a retiree's Will bequeaths $1,000 to his first cousin and the first cousin predeceases the retiree leaving children surviving. Under Florida law, the children of the cousin receive the $1,000. Under New York law, they do not. Of course, if either the New York Will or the Florida Will specifies who receives the $1,000 if the first cousin predeceases the retiree, such a provision would prevail.
Changes in securities; accession; nonademption. Under Florida law, if the testator intended a specific devise of certain securities rather than their equivalent value, the specific devisee is generally entitled only to as much of the devised securities as is a part of the estate at the time of the testator's death.(14) New York law has a similar provision.(15)
Exercise and release of power of appointment. Under Florida law, a general residuary clause in a Will, or a Will making general disposition of all the testator's property, does not exercise a power of appointment held by the testator unless specific reference is made to the power or there is some other indication of intent to include the property subject to the power.(16) Under New York law, a power is effectively exercised if the testator executes a Will disposing of all of his property unless a contrary intention appears in the Will or the donor of the power directed that it could only be exercised by specific reference to the power.(17) In Florida, a release of a power of appointment over any property must be by a written instrument signed by the donee of the power in the presence of two witnesses, but need not be acknowledged or recorded to be valid. If the property subject to the power of appointment is held in trust by other than the donee of the power, the release must be delivered to the trustee before it becomes effective.(18) The procedure to be followed in New York to release a power of appointment is found in NYEPTL §10-9.2.
A power of appointment may be governed by New York or Florida law depending on whether it is exercisable solely by Will.(19)
Ademption by satisfaction. Under Florida law, property that a testator gave to a person in his lifetime is treated as a satisfaction of a devise only if the Will provides for deduction, the testator declares in a contemporaneous writing that the gift is to be deducted, or the devisee acknowledges in writing that the gift is in satisfaction.(20) New York treats advancements in a somewhat similar manner.(21)
Adopted children. Under Florida law, adopted children and persons born out of wedlock are included in class gift terminology(22) and terms of relationship in accordance with the same rules for determining relationships when a person dies without a Will. Generally, under such circumstances, the adopted person is a lineal descendant of the adopting parent and is one of the natural kindred of all members of the adopting parent's family. He is not a lineal descendant of his natural parents, nor is he one of the kindred of any member of his natural parent's family. Adoption of a child by the spouse of a natural parent has no effect on the relationship between the child and the natural parent or the natural parent's family. Adoption of a child by a natural parent's spouse who married the natural parent after the death of the other natural parent has no effect on the relationship between the child and the family of the deceased natural parent. Adoption of a child by a close relative also has no effect on the relationship between the child and the families of the deceased natural parents.(23) New York law includes adopted children in the terms "issue", "descendants", "children", "heirs" and "distributees".(24) Under New York law, an adopted out person benefits as a member of a class of a natural relative only where (1) such person would have been a member of such class prior to adoption, and (2) such person was adopted by a stepparent who is married to a natural parent, by a natural grandparent or by a descendant of a natural grandparent, and (3) the testator is the natural grandparent of the adopted-out person or descendant of such grandparent.(25) Of course, in both Florida and New York, where the adopted person is specifically named in the Will, the person would benefit in the manner described in the Will.
Per stirpes. Under Florida law, unless the Will otherwise provides, all devises are per stirpes(26) For example: Assume the Will contains a devise of $30,000 "to Mary Smith if she survives the testator and if she does not survive the testator to her issue in equal shares", and Mary Smith has one deceased son (who had three children) and one deceased daughter (who had two children). If the distribution is "per capita", each child will each receive $6,000. Under a "per stirpes" distribution, the son's children each receive $5,000 and each child of the daughter receives $7,500.(27) New York law was the same. However, effective September 1, 1992, a big change occurred . If the instrument was executed prior to that date the rule is: Whenever a disposition of property is made to "issue", such issue, if in equal degree of consanguinity to their common ancestor, take per capita, but if in unequal degree, per stirpes, unless a contrary intention is expressed. The presumption is quite different with respect to instruments executed on or after that date. The rule is: Whenever a disposition of property is made to "issue", such issue take by representation unless a contrary intention is expressed. When issue take by representation and not per stirpes the following occurs: The property so passing is divided into as many equal shares as there are (i) surviving issue in the generation nearest to the deceased ancestor which contains one or more surviving issue and (ii) deceased issue in the same generation who left surviving issue, if any. Each surviving member in such nearest generation is allocated one share. The remaining shares, if any, are combined and then divided in the same manner among the surviving issue of the deceased issue as if surviving issue who are allocated a share had predeceased the decedent, without issue.(28)
After acquired property. Under Florida law, a Will is construed to pass all property which the testator owns at his death, including property acquired after the execution of the Will.(29) The same rule applies in New York State.(30)
Testamentary trusts. If the retiree is domiciled in Florida when he dies, a testamentary trust contained in his Will that is probated in Florida will probably be construed under the laws of Florida even if the assets of the trust are subsequently moved to New York State and there is a New York trustee.(31) Therefore, if there is any expectation that the trust will be administered in New York State, the testamentary trust should include a provision providing for its construction under New York law, if that is the testator's desire.
Sale of real property. In Florida, in the absence of a general power of sale contained in the Will, a court order is required for every sale, either authorizing the sale before the transaction is closed or confirming it afterwards.(32) Under New York law, unless prohibited in the Will, an executor may sell real property owned by the estate at public or private sale, and on such terms as in the opinion of the executor will be most advantageous.(33)
Specific writing identifying devises of tangible property. Some testators would prefer to set forth in a separate writing the various jewelry, heirlooms and other special personal property they own and state who should receive the items on the testator's death. A Florida Will may refer to a written statement or list to dispose of items of tangible personal property not otherwise specifically disposed of by the Will, other than money and property used in a trade or business. The writing must be signed by the testator and must describe the items and the devises with reasonable certainty. The writing may be referred to as one in existence at the time of the testator's death. It may be prepared before or after the execution of the Will and may be altered by the testator after its preparation.(34) New York law does not permit a Will to incorporate by reference such a list even though the list was written prior to the execution of the Will.(35)
Penalty clause for contest. A provision in a Florida Will purporting to penalize any interested person for contesting the Will or instituting other proceedings relating to the estate is unenforceable.(36) Under New York law,(37) a condition designed to prevent a disposition from taking effect in case the Will is contested by the beneficiary is operative even though there is probable cause to contest the Will subject to the following:
* The beneficiary can claim the Will is a forgery or was revoked by a later Will without forfeiting any rights if there is probable cause.
* An infant or incompetent can contest a Will without forfeiting any rights.
New York law specifically provides that the following can take place without forfeiting any rights:
* Disclosure of information.
* Refusal to consent to probate.
* Pursuing a preliminary examination of a witness to a Will.
* Requesting a construction of the will.
Charitable bequests. A retiree who has accumulated substantial assets may wish to make large bequests to charity. In New York, a testator may do so even though the Will is executed shortly before his death.(38) Until recently, in Florida all charitable gifts which first appeared in a Will of a testator within six months before his death could be voided in their entirety by a lineal descendant or a spouse who would receive a greater interest if the charitable bequests were voided.(39) The statute was declared unconstitutional by the Florida Supreme Court.
Even before the decision, the charitable devise could sustain attack if the testator made a valid charitable devise in substantially the same amount for the same purpose, or to the same beneficiary, or to a person in trust for the same purpose or beneficiary, as was made in his last Will or series of Wills executed immediately prior to the last Will, one of which was executed more than six months before the testator's death.(40)
Apportionment of estate taxes. Both Florida and New York have rules concerning the apportionment of estate taxes among the beneficiaries where the Will does not have any specific apportionment clause.(41) In New York, subject to limited exceptions, all beneficiaries share the tax burden on a pro rata basis. In Florida, the tax attributable to a specific or general devise or bequest is charged to the residuary estate.(42) The retiree should decide whether a non-residuary beneficiary should pay some of the tax cost out of his inheritance and, if he desires to require this, the Will should specifically so provide.
The apportionment of taxes attributable to property owned by a retiree who is domiciled in Florida and who dies in Florida will be governed by Florida law unless specific tax apportionment provisions are included in his Will. Provisions that appear in the decedent's living trust, but that are omitted from his Will, may not apply.(43) It is advisable, nevertheless, for a living trust to have a tax apportionment provision if the trust is funded or will be funded with the grantor's property subject to federal estate tax but not included in his probate estate, especially if the trust has a New York trustee. The retiree's Will should also have an identical provision or specifically direct that the provision in the living trust is to apply instead of Florida law.
Because the rules of construction relating to the apportionment of estate taxes are so drastically different, it is very important that the attorney focus on the distinctions in converting a "New York Will" to a "Florida Will". As noted above, in the absence of contrary directions in a Florida Will, the estate taxes attributable to specific devises, general devises, and any other preresiduary gifts under a Will are payable from the residuary estate. Within the residuary devise, only those gifts which generate estate taxes bear a pro rata portion of the tax. Therefore, assets which are transferred under the residuary clause, but qualify for a charitable or marital deduction, do not bear any portion of estate taxes. On the other hand, property which is transferred outside the Will does bear a pro rata portion of estate tax if the property contributes to the amount of the tax. A homestead that is exempt from execution is exempt from apportionment of estate taxes regardless of whether it passes pursuant to the provisions of the Will or outside the Will.
Like other rules of construction, the testator may override the statutory apportionment rules and give contrary directions in his Will. It is not uncommon for a testator to direct that all estate taxes be charged to the residuary estate. Such a direction may be ambiguous where the residuary estate contains property which passes pursuant to the residuary clause but qualifies for the marital or charitable deduction. The issue arises as to whether or not the testator has directed that the entire residuary estate be charged with the estate taxes. If there is not such a clear direction, those assets which do not qualify for the marital or charitable deduction will bear the entire burden of the estate taxes. Two recent conflicting Florida cases emphasize the importance of indicating with clarity the portion of the estate which bears the burden of estate taxes. (44)
In Florida, the decedent's will and revocable trust are treated as if they are a common instrument for the purpose of apportionment of estate taxes if the instruments do not otherwise provide. Thus, assets passing by will and assets passing by revocable trust are treated as if they are one fund and the will and revocable trust are one instrument.
Effect of subsequent marriage, birth, or dissolution of marriage. Assume a person marries after making a Will and the Will does not mention the spouse. If Florida law applies, and the spouse survives the testator, the surviving spouse receives a share in the estate equal in value to that which the surviving spouse would have received if the testator had died without a Will, unless there has been a pre-nuptial or post-nuptial agreement or the Will discloses an intention not to make any provision for the spouse.(45) Under New York law, if a retiree marries after executing a Will and the spouse is not mentioned in the Will, the surviving spouse may exercise her statutory right of election to take against the Will unless there is an ante-nuptial agreement.(46) The surviving spouse may waive her intestate share and accept whatever she may receive under the Will.(47)
Under Florida law, where a testator omits to provide in his Will for any child born or adopted after making the Will and the child has not received a part of the testator's property by advancement, the child receives a share of the estate equivalent to what he would have received if there was no Will, unless it appears from the Will that the omission was intentional or the testator had one or more children when the Will was executed and devised substantially all his estate to the other parent of the pretermitted child.(48) New York has a somewhat similar provision.(49) Under Florida law, all Wills made by a husband and wife whose marriage has been subsequently dissolved or who become divorced are void to the extent that the Will affects the surviving divorced spouse.(50) Under New York law, unless the Will expressly provides otherwise, the provisions made in the Will take effect as if the former spouse had died immediately before the testator.(51)
Rule against perpetuities. Care must be exercised in drafting a testamentary trust, as well as a living trust, that the duration of the trust does not violate the rule against perpetuities in effect under the governing state law. In 1988, Florida enacted the Florida Uniform Statutory Rule Against Perpetuities.(52) Under the Uniform Act, a nonvested property interest in real or personal property is invalid unless (a) when the interest is created it is certain to vest or terminate no later than 21 years after the death of an individual then alive; or (b) the interest either vests or terminates within 90 years after its creation. There are special rules with regard to general and non-general powers of appointment and for determining when a nonvested property interest or power of appointment is created. The Uniform Act specifically provides for reformation in certain instances and specifies eight areas where the Uniform Act is not applicable.(53)
New York replaced its "two life" rule with the common law "lives in being plus a minority" rule in 1958. The permissive period now allows the New York draftsman to employ any number of measuring lives, provided they are not so numerous as to make proof of their end unreasonably difficult.(54) Both New York and Florida laws concerning perpetuities and accumulations are complicated and where there appears to be a problem in either area the matter should be adequately researched to assure compliance.
Underproductive property held in trust. Under Florida law, if "underproductive property" is held in a trust, the trustee is required to pay the income beneficiary an amount equal to three percent of the value of the principal, based on the market value at the end of the calendar year. If the total principal of the trust does not yield in any year a net income of at least three percent of its market value, payments from principal must be made using the first principal cash available.(55) "Underproductive property" may place a substantial burden on the trustee and create increased administrative costs because of the necessity for annual appraisals and other problems created in determining the yield of various assets in the trust. An example of underproductive property may be large holdings of vacant land and stock of closely-held corporations. It may be good estate planning to negate the "underproductive property" rule by the inclusion of an appropriate clause in the trust instrument. This should be permissible.(56) Under New York law, a portion of the net proceeds of a sale by a fiduciary of any principal property of an estate or trust (other than publicly held stock) held for more than a year, which has not produced over the period held an average net income of 1% per annum of its inventory value, is allocated to income as delayed income. The sum allocated as delayed income is the difference between the net proceeds of sale and the amount which, had such amount been invested at 5% simple interest, would have produced the amount of the net proceeds. New York law specifies certain circumstances where the governing instrument will be construed as not requiring delayed income.(57)
Anatomical gifts. In both New York and Florida, a testator may give all or any part of his body for medical research and the gift may be by Will. Both substantially follow the Uniform Anatomical Gifts Act.(58)
Disclaimers. It may be advantageous for tax purposes for a beneficiary to disclaim the interest he would otherwise take under the retiree's Will. Florida law generally permits any person who would succeed to an interest in property to disclaim his succession when the property would otherwise pass to him.(59) The disclaimer may be made for a minor, incompetent, incapacitated person or deceased beneficiary by the guardian or personal representative if the court finds that it was in the best interests of others and is not detrimental to the best interests of the beneficiary. A disclaimer must be recorded within nine months after the event giving rise to the right to disclaim, including the death of the decedent, or under certain circumstances not later than six months after the event that would cause him to become finally ascertained and his interest to become indefeasibly fixed. However, a disclaimer may be recorded at any time after the creation of the interest, upon the written consent of all interested parties. The right to disclaim is barred under certain limited circumstances where the beneficiary is insolvent. Unless the Will otherwise provides, the interest disclaimed is disposed of in the same manner as if the disclaimant had died immediately preceding the death or other event that caused him to become finally ascertained as a beneficiary and his interest to become indefeasibly fixed both in quality and quantity.(60) New York also has detailed statutory provisions applicable to the renunciation of property interests. Among other things, the renunciation must be signed, acknowledged and filed within nine months after the effective date of the disposition.(61)
Presumption of revocation when Will is lost. As suggested in the checklist in this Seminar, the retiree may close out his New York safe deposit box and place all of his valuables in a safe deposit box at a Florida bank. The retiree may indicate that he intends to place his newly executed Will in the new safe deposit box. This is not a good practice. Especially in the case of a second marriage where the spouse may have access to the box, a better procedure would be to have the retiree's attorney retain the Will in his Will vault. Although individuals may meticulously carry out lifetime transfers and retain for safekeeping receipts, checks and other documents evidencing such transfer, they often do not exercise such caution in safeguarding their Will which may direct the transfer of millions of dollars after their death. In Florida, there is a well-established rule that when a Will has been lost or destroyed, the presumption of law is that the testator destroyed it with the intention of revoking it, and the burden of proving to the contrary is on the propounder of the Will. The contents of a lost or destroyed Will can be proved by the testimony of two disinterested witnesses or by the testimony of one disinterested witness and a "correct copy" of the lost or destroyed Will.(62) It has not been unknown for an elderly retiree to misplace the original of his Will, even though there was no intention to revoke it. The attorney who supervises the execution of the Will by the retiree should make a conformed copy of the Will after it has been executed and retain a copy in his file if he is not given the original for safekeeping.
Under New York law a lost or destroyed Will may be admitted to probate only (a) if it is established that the Will has not been revoked (b) the execution of the Will is proved in the manner required for the probate of an existing Will and (c) all of the provisions of the Will are clearly and distinctly proved by each of at least two credible witnesses or by a copy or draft of the Will proved to be true and complete.(63)
Fiduciary powers. A Will customarily sets forth various specific powers of the personal representative. In addition, assuming that there is no contrary provision in the Will, a personal representative under Florida law has twenty-seven enumerated powers.(64) Among them are the right:
* to retain assets owned by the decedent in which the executor is personally interested or that are otherwise improper for trust investments
* to acquire or dispose of personal property in any state for cash or credit
* to employ himself or an associate as an attorney, accountant or investment advisor to the estate and
* to continue any unincorporated business or venture for four months without court approval
A New York attorney reviewing a draft of a Will prepared by a Florida attorney may wish to review the statutory powers to ascertain if any are set forth which he wishes to expand or limit. For example, he may suggest that the fiduciary be granted additional powers not automatically included under the Florida Probate Code, such as the power to sell real property.(65) On the other hand, he may suggest a limitation on the statutory powers. For example, under New York law, a personal representative cannot lease property for a term to exceed three years without court approval, whereas, in Florida, there is no such limitation and the retiree may wish to limit the term. If there is substantial uncertainty as to the state in which the retiree may be domiciled at the time of his death, the better practice is to specifically set forth in the Will all powers the testator wishes to grant to the personal representative. This is especially important where the testator is engaged in an unincorporated business or venture. Under Florida law, unless court approval is obtained, the business cannot be continued in the same business form for more than four months from the date of the personal representative's appointment.(66)
Florida recently adopted, in modified form, the Uniform Prudent Investor Act promulgated by the National Conference of Commissions on Uniform State Laws.(67) A Florida fiduciary may delegate investment functions to an investment agent if the fiduciary gives written notice of his intention to delegate to the beneficiaries eligible to receive income for the trust or distributions from the estate.(68) Effective January 1, 1995, New York replaced the former "Prudent Person Rule" with its own "Prudent Investors Rule".(69) It focuses on the need to provide for "appropriate present and future distributions to or for the benefit of the present and future beneficiaries." The New York Act does not incorporate former New York legal distinctions between principal and trust accounting income. A fiduciary should not assume that the "rule" is exactly the same in both states.
CAUTION: The rules of construction discussed in this session frequently change as a result of new laws or judicial decisions. When a Will or trust agreement is drafted the most recent laws should be reviewed.
Ancillary Probate in Florida. A retiree who does not change his domicile from New York to Florida should anticipate that if it is desirable to sell his Florida home shortly after his death that it will be necessary to appoint an ancillary personal representative in Florida for such purpose. Where the retiree's Will confers specifically power to sell real property or a general power to sell any assets of the estate, authorization or confirmation of a Florida court to exercise the power is not required.(70) However, ancillary administration in Florida will probably be necessary to admit the Will to probate, appoint the ancillary personal representative and eliminate claims of creditors as potential liens on the property.
An alternative proceeding may be undertaken when the real property is to be sold three years after the death of the retiree or at any time after the New York executor has been discharged.(71)
To convey good title to Florida realty, the claims of creditors must be satisfied or cutoff. Proper notice and the expiration of pertinent statutory filing periods are required. Therefore, as a practical matter, a purchaser of real property from the retiree's estate will require ancillary probate.(72)
Where it is necessary or desirable to have an ancillary personal representative appointed in Florida, if the New York executor is qualified to act in Florida, he will generally be appointed. However, if the New York executor is not qualified to act in Florida, the order of preference provided under Florida law will be followed.(73) If someone other than the New York executor applies for ancillary letters, notice must be given to the New York executor.(74)
Unless there is a waiver provided in the Will, the ancillary personal representative must provide a bond.(75)
The Florida ancillary personal representative has the same authority as other personal representatives in Florida to manage and settle the estate.(76) The Florida ancillary personal representative must file an informational income tax return (Form 1041) with the Internal Revenue Service and furnish a copy to the New York executor.(77) After the payment of all expenses of Florida administration and Florida claims against the estate, the Florida court may order the remaining property held by the Florida ancillary personal representative transferred to the New York executor or distributed to the heirs or devisees. A final accounting and petition for discharge should be made by the Florida ancillary personal representative.(78)
The retiree should anticipate the necessity of proceedings in Florida to clear title to real property owned by him and make specific provisions in the Will for the appointment of an ancillary personal representative and the waiver of a bond for such fiduciary.
In an ancillary probate proceeding in New York it is
necessary to cite the New York State Tax Commissioner. The Commissioner will generally
appear but reserve the right to review the domicile issue at a later date.
1. Fla. Stat. § 732.502. Note, however, that the section does not appear to apply to a retiree who is already domiciled in Florida when he executes a Will in New York State.
7. In re Estate of Carpenter, 253 So.2d 697 (1971); Williamson v. Kirby, 379 So.2d 693 (Fla. 2d DCA 1980); In re Estate of Lightfoot, 433 So.2d 607 (Fla. 4th DCA. 1983).
8. NY EPTL § 3-5.1(e) provides that the interpretation of a testamentary disposition of personal property shall be made in accordance with the local law of the jurisdiction in which the testator was domiciled at the time the Will was executed.
10. NYEPTL § 2-1.6.
11. Fla. Stat. § 732.603.
12. Fla. Stat. § 732.604.
13. NYEPTL § 3-3.3.
14. Fla. Stat. § 732.605.
15. NYEPTL § 3-4.3.
17. NYEPTL § 10-6.1.
18. Fla. Stat. §§ 709.02 and 709.03.
19. NYEPTL § 3-5.1(g).
20. Fla. Stat. § 732.609.
21. NYEPTL § 2-1.5.
22. Fla. Stat. § 737.623.
23. Fla. Stat. § 732.608 and § 732.108.
24. NYEPTL § 1-2.10 and § 2-1.3.
25. N.Y. Domestic Relations Law § 117(2).
26. Fla. Stat. § 707.624. Fla Stat. 737.624 eff. Oct. 1, 1993 provides that unless the trust investment provides otherwise, all class gifts shall be per stirpes.
28. NYEPTL § 2-1.2., 1-2.16.
30. NYEPTL § 3-3.1.
31. See discussion in Henderson v. Usher, 118 Fla. 688, 160 So.9 (1935).
34. Fla. Stat. § 732.515.
35. See Warren's Heaton on Surrogate's Courts, Vol. 7, § 2, paragraph 4.
36. Fla. Stat. § 732.517.
37. NYEPTL § 3-3.5.
38. 38 NY EPTL § 5-3.3, which gave a family member a right to contest a charitable bequest under certain circumstances, was repealed effective July 7, 1981.
39. Fla. Stat. § 732.803.
40. Fla. Stat. § 732.803.
41. Fla. Stat. § 733.817; NY EPTL § 2-1.8.
42. Fla. Stat. § 733.817.
43. See, Guidry v. Pinellas Central Bank & Trust Co., 310 So.2d 386 (Fla. 2d DCA 1975).
44. See Ferrone v. Soffes, 558 So. 2d 146 (Fla. 3d DCA 1990), Estate of Collin, 368 So. 2d 1350 (Fla. 4th DCA 1975)
45. Fla. Stat. § 732.301.
46. See Practice Commentary in New York McKinney's Consolidated Laws at NYEPTL §5-1.3. Note that a different rule applies if the Will was executed prior to 1931.
47. NYEPTL § 5-1.3.
48. Fla. Stat. § 732.302.
49. NYEPTL § 5-3.2.
50. Fla. Stat. § 732.507.
51. NYEPTL § 5-1.4.
54. NYEPTL Article 9
55. Fla. Stat. § 738.12(1)(a).
56. See, Fla. Stat. § 738.02(1) and (2). Where underproductive property is involve the estate planner should also consider its effect on the availability of the marital deduction.
57. NYEPTL § 11-2.1(k).
58. NY Public Health Law Article 43; Fla. Stat. § 732.910 et seq.
59. Fla. Stat. § 732.801.
60. Fla. Stat. § 732.801.
61. NYEPTL § 2-1.11.
62. Fla. Stat. § 733.207.
63. NYSCPA § 1407.
64. Fla. Stat. § 733.612.
65. NY EPTL §ll-l.l grants the fiduciary the right to sell real property without court order.
68. Fla. Stat. § 518.112.
69. L.1994, C.609, § 5; NYEPTL § 11-2.3.
70. Fla. Stat. § 733.613(2) and § 734.102(6) .
71. Fla. Stat. § 734.104.
72. No ancillary probate will normally be required where there is no Florida real property but the retiree is the sole owner of savings accounts. The New York executor must furnish the bank with certified copies of letters of authority and an affidavit that the retiree was domiciled in New York, that there are no letters of authority outstanding in Florida; and that there are no creditors in Florida. Likewise, anyone else having possession of personal property belonging to the estate who has received no written demand from a Florida personal representative is authorized to deliver the personal property to the New York executor after the expiration of 60 days from the date of his appointment. (Fla. Stat. § 734.101(4))
73. Fla. Stat. § 734.102(1); § 733.301(2) and (4).
75. Fla. Stat. § 733.402.
77. See, Treas. Regs. § 1.6012-3(a)(3) .
78. See, Fla. Stat. § 733.901; Fla. R.P.&.G.P. § 5.400. In some instances, the Florida retiree who continues to be domiciled in New York does not have any probate assets in New York. Under such circumstances, there may not be any original probate proceedings in New York State. Under such circumstances, interested persons may procure the original administration in Florida of the retiree's Florida estate even though such proceedings will not be ancillary to the proceedings in New York State. (See Fla. Stat. 733.202).
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This is about Activity Based Taxplanning - maximizing deductions, minimizing cash outlay and maximizing the amount of cash retained and the net worth.
Tax is a subject that many view in order to cut costs. Taxes are a cost just as any other cost. It happens this cost is somewhat intangible and is defined by legislation without a tangible item to view and control. The money is spent and the control of the expenditure is more appropriately administered by someone trained in the law.
This is about Activity Based Costing - methods to cut costs, management accounting, management information systems, decision support systems - in general about being a manager.
From Banking Records
From Customer Records
From Signed Documents
From Your Other Business, or Financial Records
From Corporation or Organization Records (meetings, etc.)
Assistance - What to do
Forms - Checklists - Etc.
Financial Statement Presentation
Notes to Financial Statements
How to Make Entries
What Kind of Records to Keep
Bookkeeping Methods - Cash, Accrual and Other
How the Business Entity Affects the Recording
Sole Proprietor
Corporation - C & S
Partnerships - General, Limited, Limited Liability Company, Registered Limited Liability Partnership or Company
Trusts
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Alerts & Dangers - Risks
Asset Protection
Your Defense
wills_fl.htm
