• TABLE OF CONTENTS
HIDE
 Title Page
 Introduction
 Distribution of assets after expenses...
 Federal estate taxes
 Summary
 Glossary of legal terms






Title: For Florida women
CITATION PAGE IMAGE ZOOMABLE PAGE TEXT
Full Citation
STANDARD VIEW MARC VIEW
Permanent Link: http://ufdc.ufl.edu/UF00027987/00001
 Material Information
Title: For Florida women
Series Title: Florida Cooperative Extension Service Circular 614
Physical Description: Book
Language: English
Creator: Stern, Paul Elihu.
Gladwin, Christina
Affiliation: University of Florida -- Florida Cooperative Extension Service -- Institute of Food and Agricultural Sciences
Publisher: Florida Cooperative Extension Service, Institute of Food and Agricultural Sciences, University of Florida,
Publication Date: 1985
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Record Information
Bibliographic ID: UF00027987
Volume ID: VID00001
Source Institution: Marston Science Library, George A. Smathers Libraries, University of Florida
Holding Location: Florida Agricultural Experiment Station, Florida Cooperative Extension Service, Florida Department of Agriculture and Consumer Services, and the Engineering and Industrial Experiment Station; Institute for Food and Agricultural Services (IFAS), University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Table of Contents
    Title Page
        Page 1
        Page 2
    Introduction
        Page 3
        Page 4
    Distribution of assets after expenses and debts have been paid
        Page 5
        Page 6
    Federal estate taxes
        Page 7
    Summary
        Page 8
    Glossary of legal terms
        Page 8
        Page 9
        Page 10
        Page 11
Full Text
oC
Circular 614




For Florida Women:

What You Should Know

About Florida Law

When Your Husband Dies




Paul Elihu Stern
Christina Gladwin






-fl n l ?^ Fioridai


Florida Cooperative Extension Service
Institute of Food and Agricultural Sciences
University of Florida, Gainesville
John T. Woeste, Dean for Extension


















































Ie




3

























J3

-va









FOR FLORIDA WOMEN: WHAT YOU
SHOULD KNOW ABOUT FLORIDA LAW
WHEN YOUR HUSBAND DIES

by
Paul Elihu Stern
Christina Gladwin*


How many times have you heard, "If ever a man must attest to its validity. If the person died in-
died at the wrong time, he did?" Or "I wish I knew testate, that is, without a will, probate is initiated
before his death what I know now about estate mat- by filing evidence of the death in the circuit court.
ters." This paper is intended to inform you about The judge of the court will then appoint a personal
Florida law regarding estate administration. It should representative, who will manage the estate proper-
not be misconstrued as a comprehensive treatment ty during the administration process.
with specific information applicable to each in- Usually the personal representative is named in the
'ividual case. Rather, it is only intended to be an will, and that person will be appointed by the court
verview of the process that you, as a surviving as long as she is 18 years of age or older, physically
louse, may go through. In no way can it serve as and mentally competent, and not a convicted felon.
a substitute for a skilled lawyer who can point out (A non-resident of Florida may serve only if she was
'he intricacies and exceptions to the law. Although the decedent's child, parent, or other close relative.)
he specific steps you will follow as a surviving In the event there is no will or the named personal
pouse will depend on your individual situation, the representative cannot serve, the personal represen-
eneral procedure that you can expect to follow is tative will be appointed by the court from a statutory
outlined below, preference list as follows:
An estate is the collection of property which is own- ,
ed by anyone, real estate as well as personal proper- 1) where there is a will, the personal represen-
ty. The estate of a decedent is disposed of by a pro- tatve will preferably be selected by a majori-
cedure called an administration. Administration ty of those entitled to share in the estate or
consists of the collection of the decedent's assets, the simply by one of them; and
payment of debts and claims against the estate, pay- 2) where there is no will, the surviving spouse
ment of estate taxes, and distribution of assets to is preferred as personal representative,
those who are entitled. The state courts must oversee followed by someone selected by those en-
the administration of estates in a procedure called titled to share in the estate, or the one en-
robate. titled to share in the estate who is most close-
After your husband dies, you should contact your ly related to the decedent.
.wyer who will assist you in the administration pro- Once the personal representative is chosen, the
'dure. The role of the lawyer is important; he or judge will determine whether a bond is necessary
ae will make sure time limits are adhered to, pro- and its amount; he will then issue letters of ad-
-r notice is filed, and technical legal requirements ministration. Letters of administration constitute
; followed. The first step of administration is to the authority to act on behalf of the decedent's
,cate the will of the decedent. After the will is estate, which is granted by the court to the personal
ated, it should be taken to the circuit court in the representative. If you are the personal represen-
Junty in which the decedent lived. If the will was tative and there are no complications, this procedure
not notarized during execution, one of the witnesses should not require more than several days.

*Paul Elihu Stern is Assistant in Law for the Institute of Food and Agricultural Sciences df the University
of Florida and member of the Florida and District of Columbia Bars. Christina H. Gladwin is an Assistant
Professor in Food and Resource Economics Department. Both authors are grateful for careful reviews of this
circular by Albert L. Starr, an Extension Agent in Community Resource Development for Citrus, Hernando
and Sumter Counties and a graduate of the University of Florida College of Law, James S. Wershow, Pro-
fessor of Agricultural Law in Food and Resource Economics Department, University of Florida, Gainesville,
and member of the Florida Bar, and Dr. Walter Milon, Associate Professor of Natural Resource Economics
in the Food and Resource Economics Department, University of Florida, Gainesville.


3









The personal representative, often called an ad- life insurance proceeds, property held under joint t,-
ministratrix (or administrator), executrix (or ex- tie, homestead property, and property which is ex-
ecutor), is a fiduciary, which is any person or entity empt by reason of statutory exemption.
that stands in a position of trust. The charge of the Upon proof of death, a parent, spouse, adult child,
personal representative is to gather the assets of the or one named as personal representative in a pur-
decedent, direct the payment of just claims, debts, ported will of a decedent may open and examine the
and taxes, and distribute the assets to those entitl- contents of a safe deposit box with an officer of the
ed, who are called beneficiaries. As a fiduciary, the bank. The court may also authorize a person to
personal representative must act as a careful, pru- receive from a bank officer any writings which repre-
dent trustee would in the management of the funds sent a decedent's will, burial instructions, or life in-
of another. In a testate estate, that is, when there is surance policy which are held for safekeeping in a
a will, the will provides the ultimate authority. In safe deposit box. A person examining the contents
an intestate estate, or when there is no direction from of a safe deposit box should make an inventory of
a will, the judge of the circuit court acts as the the contents with the assistance of the bank official
ultimate authority. When there is no guidance from and file it in the court. If a safe deposit box is jointly
the will or the court, and an interested party ques- owned, any joint tenant may enter the box and
tions any actions of the personal representative, she remove its contents before or after the death of the
will be judged according to the standards of a pru- decedent. Provision for joint tenants will be contain-
dent trustee. ed in the specific lease within the bank. Further-
The personal representative must gather all the more, a personal representative may remove any or
decedent's property and take the necessary steps to all the contents of a safe deposit box of a decedent
maintain and protect the property. She should inven- upon presentation of a certified copy of her letters
tory all items and publish notice in the newspaper of administration.
of the county where the estate is being probated.
This notice must be run once a week for two con-
secutive weeks, and the spouse and all known
beneficiaries should be notified of this publication.
The purpose of this notice is to direct all who have (
outstanding claims against the decedent to file such
claims with the court within three months. Any
claims not filed within three months are barred. Also,
any objections to the validity of the will, to the. \ 1
qualifications of the personal representative, or to
the particular court in which the proceedings occur
should also be filed at that time.
It is the duty of the personal representative to take
custody of all the decedent's assets. While title to the
property vests in the beneficiaries at the time of the
decedent's death, title cannot be proven until pro-
bate is completed. It may be important to sell any
perishable or rapidly deteriorating property im-
mediately in order to prevent any economic loss to Whether a surviving spouse can write checks on
the estate. If there is real property of the decedent a joint bank account depends upon the terms of the
that is located outside of Florida, the personal account agreement with the bank. An account which
representative should institute any out of state ac- contains a right of survivorship agreement would
tions, called ancillary administration. After pass directly to the survivor without being ad-
carefully and thoroughly searching the records of the ministered in the estate of the decedent. Right of sur-
decedent and taking possession of all the decedent's vivorship is presumed, given no contrary evidence.
assets, the personal representative must determine Another form of bank account which would pass out-
which assets will be subject to the administration of side of administration proceedings is one which is
the estate. held in trust for another. If an account bears the
Many assets in which the decedent had an owner- words "held in trust for" it will be passed directly
ship interest will not be subject to the administra- to the person the decedent designated.
tion of his estate. These assets might include contents Life insurance which is payable to a named
of a safe deposit box, money in joint bank accounts, beneficiary will pass outside of administration of the


4









decedent's estate, unless the insurance policy maintenance of his family or for other purposes, will
declares otherwise. If the policy is payable to the likewise pass directly to those who are designated
decedent's estate, however, it will be disposed of like in the trust instruments.
any other asset of the estate. Other benefits such as The personal representative must examine any
social security or other death benefits, will also pass partnership or business interests the decedents may
outside the estate. have had. Partnership agreements usually contain
Real estate which is held in the names of both hus- provisions which govern what will happen to the
band and wife is presumed in Florida to be held by partnership at the death of a partner. It may be
tenancy by the entirety. In a tenancy by the entire- necessary to continue the business of a decedent or
ty, after either the husband or wife dies, the survivor if it is not profitable, to sell the business.
will be the sole owner of the property subject to no After all assets have been gathered and the initial
claims of the decedent. Persons other than husband steps have been made to protect them, the personal
and wife may hold title to property with a right of representative will file an inventory in court. This
survivorship, but that right must be specifically should be carried out within 60 days of the issuance
stated. Similarly, that property will not be subject of letters. The estate assets will then be used to pay
to administration in the decedent's estate. A dece- claims and expenses of administration. These include
dent's share in other jointly held property, that is, costs and expenses of actually carrying out ad-
property with no right of survivorship, will be ad- ministration, compensation of the personal represen-
ministered with the other assets of the estate, tative and attorney's fees, reasonable funeral, inter-
The decedent's homestead is also transferred out- ment, and grave marker expenses (not to exceed
side the administrative proceedings of the estate. $1,500), debts and taxes, and family allowance.
Homestead consists of 160 acres of contiguous pro- To emphasize, the general duties of the personal
perty (1/2 acre within a municipality), and im- representative include the payment of all creditors
provements thereon (only improvements to the of the estate and the distribution of the rest of the
residence within a municipality), which is owned by estate to the beneficiaries. The personal represen-
the head of a household. The homestead carries with tative must keep estate funds separate from her per-
it certain restrictions which are mandated by the sonal funds; she should keep accurate records and
Constitution of the State of Florida and the Florida establish adequate bookkeeping methods; she is
Statutes. When a person dies, his homestead will pass obliged to file tax returns and notices for the estate;
directly to his spouse and to his children when she she must maintain estate assets to the extent
dies. If he is not survived by his spouse, the necessary to prevent deterioration, loss, or damage;
homestead will pass directly to his children. Other and she must act as a trustee for all who are in-
than the mortgagee, creditors cannot reach the terested in the estate. In performing these duties, the
homestead property for payment of debts. personal representative has the power to hire
For a residence to constitute homestead property, secretaries, accountants, tax specialists, attorneys,
the head of the household must have been living and other experts who will then be entitled to
there along with at least one family member whom reasonable compensation out of the estate.
it was his legal duty to support. In this situation the
legal protections will be enforced.
Florida law also provides for certain other proper- Distribution of Assets After Expenses
ty that will pass outside of the probate estate. The and Debts Have Been Paid
surviving spouse (or minor children if there is no sur-
viving spouse) is entitled to household furnishings If there is no will, the Florida Statutes have
and appliances up to a value of $10,000 plus all per- prescribed the disposition of estate assets through
sonal automobiles. Additionally, the surviving spouse the laws of intestate succession. If the decedent has
is entitled to up to $1,000 in value of personal ef- no lineal descendants (children, grandchildren, great
fects of the decedent, unless they are specifically grandchildren, etc.), the entire estate is given to the
provided for in the will. surviving spouse. For example, suppose John and
Along with the homestead and exempt property, Mary, husband and wife, have no children. When
the surviving spouse and children of the decedent John suddenly dies without leaving a will, the total
are entitled to a reasonable allowance of up to $6,000 estate is valued at $150,000. Mary therefore receives
from the estate for their maintenance during the ad- the entire estate ($150,000). If, however, there are
ministration period. This is called the family surviving lineal descendants of both the decedent
allowance. Any property that the decedent may have and the surviving spouse, the first $20,000 of the
left in trust during his lifetime, either for the estate plus half of the remaining assets of the estate


5









are distributed to the surviving spouse, the remain- of the son will receive one-half of the estate, or one
ing half to the lineal descendants. Now assume that fourth each. For example, suppose that Mary, Mark,
John and Mary have a son Mark and a daughter Alice and Alice all die before John, who then dies leaving
when John dies, leaving no will but an estate valued an estate valued at $150,000. Mark has left one child,
at $150,000. Mary now receives the first $20,000 of Will, and Alice has left Roy and Debra. When John
the estate. The remaining $130,000 is then split dies, the estate is split so that Will receives $75,000
equally between Mary, on one hand, and Alice and and Roy and Debra each receive $37,500.
Mark, on the other. This means that Mary receives If there is a will, however, the personal represen-
$65,000 in addition to the first $20,000; and Alice tative shall distribute the assets as instructed by the
and Mark each receive $32,500. decedent. In the event there are insufficient assets
Assets are distributed differently, however, in the to satisfy all gifts in the will (called devises), proper-
event the surviving children are not descendants of ty will be disposed of according to statutory
the surviving spouse. Now the surviving spouse will preference. Specific gifts to individuals will be
receive half the estate, the lineal descendants the distributed first, and when there are remaining
other half. Using the example of John and Mary assets they will be distributed afterwards among
again, we now assume that John has a son Mark and those who are entitled to lump sums of money and
a daughter Alice by a previous marriage. John dies, the remainder.
leaving an estate valued at $150,000. Mary now A surviving spouse may elect to receive a share of
receives half the estate or $75,000, and Alice and the estate other than that prescribed in the statute
Mark each receive $37,500. of intestate succession or that devised to her in a will.
When there is no surviving spouse, the distribution This is called elective share and consists of 30% of
of the assets is simpler: the entire estate is distributed the fair market value of all assets subject to ad-
to the lineal descendants. In our example, Mary now ministration minus all valid claims against the estate.
dies before John, who then dies leaving an estate The election must be made within four months of the
valued at $150,000. When John dies, the entire first notice of administration. The decision to take
estate is split between son Mark and daughter Alice, the elective share rather than either the testate or
who each receive $75,000. If the estate owner dies intestate share does not affect the surviving spouse's
without a spouse or lineal descendants, however, the right to exempt property or family allowance,
estate goes in equal shares to his father and mother although it can be barred by prior written agreement.
or to the survivor of them. If both father and mother After all distributions have been made, the per-
are deceased, the estate will descend to the dece- sonal representative should review the court file for
dent's brothers and sisters and their descendants. If completeness. Receipts for all payments and distribu-
there are no brothers and sisters or their descen- tions should be secured to assure the court that
dants, the estate will go to more remote relatives as creditors or beneficiaries are entitled to receive their
provided by law. money or property. All federal estate taxes should
It is important to note that the share of the estate be paid and a final accounting filed in court. A final
the descendants will receive is based on their place accounting and petition for discharge shall be filed
in the family tree; the estate is not simply divided and served on all interested parties within 12 months
evenly among the individual beneficiaries. This of the issuance of letters of administration, unless
means that when a decedent is survived by a son as an extension of time has been granted by the court.
well as the children of a deceased daughter, the son The judge will then execute an order of distribution
will receive one-half of the estate, and the grand- and final discharge. In an ordinary, uncomplicated
children will receive the other half. Now our exam- estate, administration may require about a year.
pie gets a bit complicated. Again, John and Mary
have two children, Mark and Alice. Let's now assume
Small Estates
that Mary and Alice die before John, who then dies
leaving an estate valued at $150,000. Meanwhile, Certain smaller estates are entitled to abbreviated
Alice has left two children, Roy and Debra. Mark, forms of administration which result in almost im-
the surviving son, now receives one-half of the estate mediate distribution of assets from the estate to the
or $75,000, and the other half is split between Roy beneficiaries without the appointment of a personal
and Debra. Let's examine another situation to fur- representative or the filing of notice. In some cases
their drive home this point. Assume the survivors are a hearing in court will be necessary.
one child of a deceased daughter and two children When the only beneficiaries are the surviving
of a deceased son. The child of the daughter will spouse and lineal descendants or ascendants (and
receive one-half of the estate, and the two children others whose devise constitutes only a minor part),


6









the estate may not require formal administration, administration proceeding. To summarize, the ma-
When the value of the gross estate for federal estate jor steps in a regular proceeding are the following:
tax purposes does not exceed $60,000, the estate 1. Production and proof of will if there is one.
consists solely of personal property, and the estate 2. Designation of personal representative (ex-
is not indebted, the estate may be disposed of in ecutor or administrator).
family administration. The will, if there is one, 3. Posting of bond by personal representative.
must be proved in a procedure similar to that of a This requirement may be waived in a will and
formal administration, which means a witness of the thereby save probate costs.
will must attest to its validity if it had not been 4. Taking possession of estate by personal
notarized. All beneficiaries must sign the petition to representative.
the court for family administration. Distributees 5. Publication of notice to creditors.
under family administration shall be responsible for 6. Filing of estate inventory by personal
claims of creditors up to the value of their devise for representative.
a period of three years. Additionally, any 7. Appraisal of value of property in estate by ap-
beneficiaries who were excluded from administra- praisors appointed by circuit judge.
tion may enforce their rights at any time against 8. Assignment of elective share and family
those who participated in the distribution, allowance.
9. Payment of expenses of administration and
claims against estate.
10. Distribution of balance of estate to heirs.
S.j. 11. Annual and final reports of personal
representative.
In order to determine the proper administration pro-
cedure, a careful evaluation of the assets of the
estate is necessary.


Federal Estate Taxes
'\ The decedent's estate for tax purposes differs to
Sa considerable degree from the estate for administra-
tion purposes. In general, the property of the dece-
dent which is not subject to administration is includ-
Sed in the so-called "gross estate" for tax purposes.
The estate of every decedent who dies after 1986 is
Florida law provides summary administration for allowed a credit, called the unified credit, of
estates whose assets subject to administration are $192,000 against the estate tax. A tax credit is simp-
less than $25,000 in value. To qualify, the debts of ly an amount which is subtracted from a tax bill after
the estate must all be provided for or satisfied. The it has been determined. This credit allows estates
petition for summary administration must be signed which are below $600,000 in value to escape estate
by all beneficiaries. The responsibility of the tax liability. (In 1984 the credit is $96,300, which will
beneficiaries to creditors and excluded beneficiaries exempt estates of up to $325,000; for 1985 the credit
is the same as the family administration, is $121,800 and will exempt estates valued up to
Some estates will be entitled to disposition without $400,000; and the 1986 credit of $155,800 will ex-
administration. To qualify, an estate must consist en- empt estates valued up to $500,000.) The maximum
tirely of exempt personal property plus non-exempt rate of tax is 55 percent, which is applicable to
personal property which is worth less than the sum estates in excess of $3 million. Beginning in 1985, a
of funeral expenses and reasonable and necessary maximum rate of 50 percent will be applicable to
medical expenses of the last 60 days of the dece- estates exceeding $2.5 million. For lesser estates the
dent's last illness. All that is necessary for this tax rate is graduated, with the lowest being 18 per-
disposition is a letter to the court stating the re- cent for estates valued at $10,000 or less.
quirements. The court will then authorize payment, Various deductions are allowed by the Internal
transfer and disposition of property. Revenue Code. A deduction is an amount subtracted
Unless an estate qualifies for the exceptions pro- from the estate prior to determining the amount of
vided for small estates, it will go through a regular tax. The provisions of the Internal Revenue Code and


7









their legal interpretations determine the qualifica- to exclude the benefits derived from the agricui.
tions for the various deductions. These provisions use valuation.
and their interpretations are too many and too com- Significant savings in estate taxes can be exact
plicated to fully discuss here. through proper use of the unified credit and th<
The one important deduction is called the marital marital deduction. Careful planning can mean tl
deduction. This deduction permits all amounts which preservation of a family farm operation. The a.i
are transferred from one spouse to another to escape plicable provisions of the Internal Revenue Code ar
tax liability. For example, when John gives his en- complicated, and each individual has different asst
tire $1 million estate to Mary in his will, no tax will and distinct goals. A qualified attorney should i
be paid because the entire amount is subject to the consulted in the formulation of your will and in t;
marital deduction. However, when Mary dies and planning of your estate.
leaves the estate to her children, the $1 million will
be subject to estate tax liability.
The value of property included in a decedent's Summary
gross estate is determined by the fair market value
at the time of the decedent's death. Because this After a person dies, his or her estate is passed down
valuation could lead to harsh results when one's to the surviving generation through a process called
estate consists largely of land used in a farming administration which is supervised by the court in
operation, the tax law provides that the value of a a procedure called probate. The personal represen-
farm for estate tax purposes will be determined ac- tative of the decedent is responsible for: (1) collec-
cording to its agricultural use value, not the highest ting and managing the estate property while it is in
and best bid. There are several prerequisites to administration, (2) paying debts of the decedent out
receiving the agricultural use valuation. To qualify, of estate assets, (3) paying estate taxes out of estate
the estate must consist of at least 50 percent of pro- assets, and (4) distributing the remaining assets of
perty, both real and personal, devoted to use as a the estate to the proper beneficiaries. The personal
farm or for farming purposes. At least 25 percent of representative maintains a position of trust, and
the estate must consist of farmland. The ownership should manage the estate in a prudent manner. Many
of the property is limited to the decedent or members assets of an estate are not distributed through ad-
of his family. Additionally, the decedent or members ministration. These assets include life insurance pro-
of his family must have "materially participated" in ceeds, social security benefits, and property held by
the operation of the farm business for at least a total joint ownership. The assets of the estate will be
of five years during the eight year period immediate- distributed to the beneficiaries as the will instructs
ly preceding the decedent's death, his retirement, or, when there is no will, by virtue of the laws of
or his becoming disabled. Unfortunately the courts intestate succession. Federal estate taxes generally
have not yet specifically defined "material participa- are imposed upon all assets of the estate, including
tion." The definition of family member is limited to those assets which pass outside administration.
children, parents, spouse, and parents of the spouse. Every estate is entitled to a unified credit, and all
The amount by which the estate is reduced due to gifts to one's spouse are deducted from the estate
agricultural use valuation cannot exceed $750,000. for tax purposes. After all debts and taxes of the
For 10 years after the decedent's death, family estate are paid, and the assets are distributed to the
members who receive the property must continue to beneficiaries, the personal representative files a final
use or "materially participate" in the farming opera- accounting with the court, and administration of the
tion, or the federal estate tax will be redetermined estate ends.



Glossary Of Legal Terms
These terms are used in various phases of estate ad-
ministration and settlement; their exact meanings may dif-
fer in different situations.

Abatement When assets are insufficient to satisfy devises of an estate, those devises will abate. Abat
ment is the diminution in the value of the estate.
Ademption The extinction or withdrawal of assets in an estate which were subject to devise in a will
tion can occur either through extinction, that is, the asset simply does not exist at the time of c'


8









their legal interpretations determine the qualifica- to exclude the benefits derived from the agricui.
tions for the various deductions. These provisions use valuation.
and their interpretations are too many and too com- Significant savings in estate taxes can be exact
plicated to fully discuss here. through proper use of the unified credit and th<
The one important deduction is called the marital marital deduction. Careful planning can mean tl
deduction. This deduction permits all amounts which preservation of a family farm operation. The a.i
are transferred from one spouse to another to escape plicable provisions of the Internal Revenue Code ar
tax liability. For example, when John gives his en- complicated, and each individual has different asst
tire $1 million estate to Mary in his will, no tax will and distinct goals. A qualified attorney should i
be paid because the entire amount is subject to the consulted in the formulation of your will and in t;
marital deduction. However, when Mary dies and planning of your estate.
leaves the estate to her children, the $1 million will
be subject to estate tax liability.
The value of property included in a decedent's Summary
gross estate is determined by the fair market value
at the time of the decedent's death. Because this After a person dies, his or her estate is passed down
valuation could lead to harsh results when one's to the surviving generation through a process called
estate consists largely of land used in a farming administration which is supervised by the court in
operation, the tax law provides that the value of a a procedure called probate. The personal represen-
farm for estate tax purposes will be determined ac- tative of the decedent is responsible for: (1) collec-
cording to its agricultural use value, not the highest ting and managing the estate property while it is in
and best bid. There are several prerequisites to administration, (2) paying debts of the decedent out
receiving the agricultural use valuation. To qualify, of estate assets, (3) paying estate taxes out of estate
the estate must consist of at least 50 percent of pro- assets, and (4) distributing the remaining assets of
perty, both real and personal, devoted to use as a the estate to the proper beneficiaries. The personal
farm or for farming purposes. At least 25 percent of representative maintains a position of trust, and
the estate must consist of farmland. The ownership should manage the estate in a prudent manner. Many
of the property is limited to the decedent or members assets of an estate are not distributed through ad-
of his family. Additionally, the decedent or members ministration. These assets include life insurance pro-
of his family must have "materially participated" in ceeds, social security benefits, and property held by
the operation of the farm business for at least a total joint ownership. The assets of the estate will be
of five years during the eight year period immediate- distributed to the beneficiaries as the will instructs
ly preceding the decedent's death, his retirement, or, when there is no will, by virtue of the laws of
or his becoming disabled. Unfortunately the courts intestate succession. Federal estate taxes generally
have not yet specifically defined "material participa- are imposed upon all assets of the estate, including
tion." The definition of family member is limited to those assets which pass outside administration.
children, parents, spouse, and parents of the spouse. Every estate is entitled to a unified credit, and all
The amount by which the estate is reduced due to gifts to one's spouse are deducted from the estate
agricultural use valuation cannot exceed $750,000. for tax purposes. After all debts and taxes of the
For 10 years after the decedent's death, family estate are paid, and the assets are distributed to the
members who receive the property must continue to beneficiaries, the personal representative files a final
use or "materially participate" in the farming opera- accounting with the court, and administration of the
tion, or the federal estate tax will be redetermined estate ends.



Glossary Of Legal Terms
These terms are used in various phases of estate ad-
ministration and settlement; their exact meanings may dif-
fer in different situations.

Abatement When assets are insufficient to satisfy devises of an estate, those devises will abate. Abat
ment is the diminution in the value of the estate.
Ademption The extinction or withdrawal of assets in an estate which were subject to devise in a will
tion can occur either through extinction, that is, the asset simply does not exist at the time of c'


8









,.:4,jath, or by satisfaction, which occurs when a gift of the devise is made to the intended beneficiary during
the lifetime of the testator.
;Jministration The supervision and management of an estate by a personal representative. Administra-
9 tion involves the collection, maintenance, and distribution of assets, including the payment of debts. An-
, cillary administration is the out of state administration of real property which is located in another state.
ieneficiary One entitled to the enjoyment of property. The term includes a devisee in a testate estate,
. an heir-at-law in an intestate estate, and an owner of the right to the enjoyment of a trust.
iqueath To give personal property by will to another.
Quest A gift of personal property by will to another; a legacy.
,,' itis Liabilities of the decedent, whether out of contract, tort, or otherwise. The term includes funeral
expenses, but not expenses of administration or estate, inheritance, succession, or other taxes.
Class gift A devise of an aggregate sum to a group of persons uncertain in number at the time of execution
of the will, who are to receive equal or definite proportions, the amount of each share being dependent
upon the ultimate number in the group, for example, "to my sons," "to my nephews," "to my sisters," etc.
Codicil Instrument by which one may amend or change an existing will.
Devise The testamentary disposition of real property. However, in Florida law, the term also refers to the
testamentary disposition of personal property and includes the terms gift, give, bequeath, bequest, and
legacy.
Devisee Person, trust, or trustee designated in a will to receive a devise.
Distributee One who has received estate property from a personal representative other than as a creditor
or purchaser.
Elective share A share of the estate which a surviving spouse is entitled to choose instead of her testate
or intestate share. In Florida, this is 30 percent of the estate after expenses and debts have been paid.
Escheat The surrender of property to the state because there exists no one to inherit.
Estate The interest in one's total property. The probate estate exists of property which is the subject of
administration by the personal representative. The gross estate of the decedent will include not only the
probate estate but also the life insurance policy, jointly owned property, and exempt property. This is im-
portant when determining tax liabilities.
Exempt property Property of the decedent which is transferred outside of the probate estate to the sur-
viving spouse and lineal descendants. In Florida, this consists of household furnishings and appliances up
to a value of $10,000, all personal automobiles, and personal effects up to a value of $1,000.
Family allowance The amount of money permitted to be paid out of the estate to the surviving spouse
and lineal descendants or ascendants for their maintenance and support during the period of estate ad-
ministration. In Florida, this consists of a reasonable amount not to exceed $6,000.
Heir or heir-at-law A person who inherits property by rule of law because of her relationship to the dece-
dent. Beneficiary by intestate succession.
Holographic will A will which is written entirely by the testator with his own hand and not witnessed.
Holographic wills have no effect in Florida.
Homestead The dwelling house and adjoining land of the head of a family which is protected from the
reach of most creditors and is limited in how it may be transferred. In Florida, the homestead consists of
160 acres of contiguous land and improvements (1/2 acre and only improvements to the dwelling within
a municipality).
Interested person One who may reasonably expect to be affected by the outcome of the administration
proceeding.
Intestate Estate The estate of a person who has died without leaving a will.
Joint property Property held with an interest shared with another. A tenancy-in-common is ownership
of real estate whereby each owner's share will pass to his descendants at his death. In joint tenancy with
a right of survivorship, a decedent's interest passes to the surviving joint owners upon his death. A tenan-
cy by the entirety is a joint tenancy with a right of survivorship between husband and wife. These joint
tenancies in real property can be applied to personal property.
Lapse The expiration of a devise caused by the death of the devisee. A lapsed devise goes into the residue
_,f the estate. Lapse of certain devises is saved by an anti-lapse statute. A devise to one's grandparent or
cal descendant of one's grandparent will not lapse, but will be passed on to the lineal descendants of
'viwsee. The same holds for the devisee of a class gift.
Slk disposition of personal property by will.


9









Legatee The recipient of a legacy.
Letters or letters of administration Authority granted by the court to the personal representative to act
on behalf of the estate of a decedent. Refers to letters testamentary.
Lineal descendant A person in the direct line of descent, for example, child, grandchild, great grandchild,
etc., as opposed to collateral descendant, such as a niece.
Mortmain statute Statute which restricts transfers of property to charities just before the death of the
donor. In Florida the spouse or lineal descendant of a decedent may completely avoid any devise to a
benevolent, charitable, educational, literary, scientific, religious, or missionary institution, corporation,
association, or purpose, or to any country, state, county, city or town. A spouse or lineal descendant can
accomplish this avoidance by written notice to the court within four months of issuance of letters of ad-
ministration, but only if the devise was made in a will executed less than six months before the death of
the testator and that spouse or lineal descendant would receive the interest if avoided. If substantially
the same devise had been made in a will prior to the six months, the devise will be saved.
Nuncupative will An oral declaration which is uttered during one's last sickness and purports to dispose
of personal property.
Personal property Anything subject to ownership which is not real property. Personal property generally
refers to property of a movable nature, but also refers to things such as rights to stocks, patents, and
copyrights.
Personal representative Fiduciary appointed by the court to administer the estate. Refers to administrator
(-trix), executor (-trix), and ancillary administrator.
Petition A written request to the court for an order.
Pretermitted heir A child or other descendant who has been omitted by a testator. When a testator remar-
ries after executing a will and does not amend his will to provide for this new spouse, she is entitled to
the intestate share unless the will, or a prenuptial or post-nuptial agreement, discloses an intention not
to provide for the spouse or provides for her. Likewise children born or adopted after the execution of
a will are entitled to their intestate share.
Real Property Land and whatever is erected or growing upon or affixed to land.
Residue That part of the testate estate which is not specifically referred to in the will. Often expressed
as "All the rest, residue, and remainder to my wife."
Testate Estate The estate of a person who died leaving a will.
Testator One who executes a will.
Unified Credit The tax credit which is applied to all estates regardless of their size. A tax credit is an amount
which is subtracted from a tax bill after the tax has been computed.
Will An instrument, including all codicils, executed by a person to dispose of his property after his death.
In Florida, any person at least 18 years of age who is of sound mind may execute a will. To be of sound
mind one must be able to understand the extent of the property to be disposed of, the relationship to those
who would naturally claim a substantial benefit from a will, and the practical effect of a will. In order
for the will to be valid, the testator must sign at the end in the presence of at least two attesting witnesses
who must sign in each other's and the testator's presence. A codicil must be executed with the same for-
malities. A will, other than a holographic or noncupative will, which was executed by a nonresident in
another state, is valid in Florida if it was valid in the state where and when it was executed.
A will shall be automatically admitted to probate, that is, without the oath of authentication from at-
testing witness, if the signatures of the testator and witnesses were witnessed by a notary public. This makes
the will "self-proving."
A will or codicil can be revoked by a subsequent, inconsistent will, even though the intent of revocation
is not expressed. The revocation will extend only so far as the inconsistency exists. A subsequent written
will, codicil, or other writing which declares the revocation may also revoke a will, as long as the testamen-
tary formalities (writing, signed at the end, and witnessed) are observed. A third method to revoke a will
is by physical act. The burning, tearing, cancelling, defacing, obliterating, or destroying of a will with the
intent and purpose of revocation shall revoke a will. A partial revocation may only occur by writing which
is signed at the end and witnessed by at least two persons; partial revocation by physical defacing is not valid.
The revocation of a will that revokes a former shall not revive the former will. Revocation of a codicil
will reinstate the old provision; the will that it amends or changes is not revoked at the same time.




10







































































This publication was promulgated at a cost of $1559.83, or 31 cents per copy, to provide women with infor-
mation about Florida law as it applies when they inherit farms or other property from their husbands.
11-5M-84.

COOPERATIVE EXTENSION SERVICE, UNIVERSITY OF FLORIDA, INSTITUTE OF FOOD AND AGRICULTURAL
SCIENCES, K. R. Tefertlller, director, In cooperation with the United States Department of Agriculture, publishes this Infor-
mation to further the purpose of the May 8 and June 30, 1914 Acts of Congress; and Is authorized to provide research, educa-
tional Information and other services only to individuals and institutions that function without regard to race, color, sex or
national origin. Single copies of Extension publications (excluding 4-H and Youth publications) are available free to Florida
residents from County Extension Offices. Information on bulk rates or copies for out-of-state purchasers Is available from M
C. M. Hinton, Publications Distribution Center, IFAS Building 664, University of Florida, Gainesville, Florida 32611. Before publicizing thli
publication, editors should contact this address to determine availability.




University of Florida Home Page
© 2004 - 2010 University of Florida George A. Smathers Libraries.
All rights reserved.

Acceptable Use, Copyright, and Disclaimer Statement
Last updated October 10, 2010 - - mvs