• TABLE OF CONTENTS
HIDE
 Copyright
 Front Cover
 Table of Contents
 I: Introduction
 II: Advantages of a will
 III: Property that cannot...
 IV: Estate distribution without...
 V: Making a will
 VI: Administration of an estat...
 VII: Estate taxes
 VIII: Summary
 Citations
 Back Cover






Group Title: Florida Cooperative Extension Service circular 496
Title: Wills and probate in Florida for agricultural and other estates
CITATION PAGE IMAGE ZOOMABLE PAGE TEXT
Full Citation
STANDARD VIEW MARC VIEW
Permanent Link: http://ufdc.ufl.edu/UF00049245/00001
 Material Information
Title: Wills and probate in Florida for agricultural and other estates
Series Title: Circular Florida Cooperative Extension Service
Physical Description: 20 p. : ; 23 cm.
Language: English
Creator: Wershow, James S
Covey, Charles D ( Charles Dean ), 1922-
Greenman, John Roosevelt
Publisher: Florida Cooperative Extension Service, Institute of Food and Agricultural Sciences, University of Florida
Place of Publication: Gainesville Fla
Publication Date: 1982
 Subjects
Subject: Wills -- Florida   ( lcsh )
Probate law and practice -- Florida   ( lcsh )
Genre: government publication (state, provincial, terriorial, dependent)   ( marcgt )
non-fiction   ( marcgt )
 Notes
Statement of Responsibility: James S. Wershow, C.D. Covey and J.R. Greenman.
General Note: Cover title.
Funding: Florida Historical Agriculture and Rural Life
 Record Information
Bibliographic ID: UF00049245
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, Board of Trustees of the University of Florida
Resource Identifier: oclc - 10759081

Table of Contents
    Copyright
        Copyright
    Front Cover
        Page i
    Table of Contents
        Page ii
    I: Introduction
        Page 1
    II: Advantages of a will
        Page 1
        Page 2
        Page 3
        Page 4
    III: Property that cannot be willed
        Page 5
        Page 6
        Page 7
        Page 8
    IV: Estate distribution without a will
        Page 9
    V: Making a will
        Page 10
        Page 11
    VI: Administration of an estate
        Page 12
        Page 13
    VII: Estate taxes
        Page 14
        Page 15
    VIII: Summary
        Page 16
        Page 17
    Citations
        Page 18
        Page 19
        Page 20
    Back Cover
        Page 21
Full Text





HISTORIC NOTE


The publications in this collection do
not reflect current scientific knowledge
or recommendations. These texts
represent the historic publishing
record of the Institute for Food and
Agricultural Sciences and should be
used only to trace the historic work of
the Institute and its staff. Current IFAS
research may be found on the
Electronic Data Information Source
(EDIS)

site maintained by the Florida
Cooperative Extension Service.






Copyright 2005, Board of Trustees, University
of Florida





July 1982


Wills an7Probate in Florida
for Agricultural and te
L LIBRARY
James S. Wershow, C.D. Covey a d J.R. Greenman
SEP 1 982
Florida Cooperative Extensi b Service
Institute of Food and Agricult dal .cPn s .I In -
University of Florida, Ga 4vi un 1-O F orida
John T. Woeste, Dean for Extension










Contents

Page
I. Introduction ............ .............. 1

II. Advantages of a Will ............................... 1

III. Property That Cannot be Willed ...................... 5

IV. Estate Distribution Without a Will ................... 9
V. Making aWill ....................... ........... 10
Equitable Treatment of Heirs ......................10
The Elective Share ............................. .10
Qualifications for Person Making a Will and
Kinds of Wills .................................. 10
Formalities of Executing Written Will ............... .11
Information Needs From Estate Owner to Help in
Preparing Will ...............................11
Changing a W ill .............................. 12
Breaking aWill ..............................12
VI. Administration of an Estate ........................ .12
Regular Administration Proceedings ............... 12
Small Estates and Summary Administration ......... 13

VII. Estate Taxes .................................. 14
Tax Definitions ................... ............14
Tax Exempt Estates ........................... 15
Valuation of Inherited Property .................... 15
VIII. Summary .................. ..................17








WILLS AND PROBATE IN FLORIDA
FOR AGRICULTURAL AND OTHER ESTATES
James S. Wershow, C. D. Covey and J. R. Greenman*

I. Introduction
When estates are small or owned jointly by husband and wife, the
need for preparing a will is frequently questioned. Even under these
circumstances it is usually found desirable to prepare a will. When
an estate is large or owned in the name of either the husband or wife,
the need for preparing a will usually is obvious.
In this bulletin an attempt is made to outline some of the reasons
for making a will, show the consequences of not doing so, and in-
dicate other considerations connected with the disposition of an
estate. It is hoped that the information provided will be helpful to
the reader in deciding whether or not to make a will and in working
with an attorney in the preparation of the will.
In providing for the disposition of an estate there is no substitute
for a qualified attorney. This bulletin attempts only to outline
general principles of law applicable to the kind of estate owned by
an average person. Many situations are not covered. Even with a
simple will, and certainly with a complicated will and involved
estate, the guidance of an attorney is needed.
II. Advantage of a Will
Usually one or more of the advantages associated with a will ap-
ply in connection with the disposition of an estate. Whether such ad-
vantages are important enough to justify taking the trouble to
make a will must, of course, be decided by the estate owner. Some of
the advantages are as follows:
1. Disposition of an estate in accordance with desires of the
ownership not in accordance with the laws of Intestate succes-
sion.-In the absence of a will, an estate will pass in accordance
with the laws of intestate succession. It may be that the estate
owner feels that his wife is entitled to or needs more of his estate
than she would be allowed under the laws of intestate succession.
Or, he may feel that one or more of his children should received more
of his estate than they would if he died intestate, that is, without
making a will. Through a will he can give what he considers to be
"fair" treatment to each of his heirs. A detailed explanation of the
way an estate devolves under the laws of intestate succession when

*Respectively, Visiting Professor of Agricultural Law and Member of Florida
Bar, Professor of Food and Resource Economics, and Emeritus Professor of Food
and Resource Economics and Member of Florida Bar.








WILLS AND PROBATE IN FLORIDA
FOR AGRICULTURAL AND OTHER ESTATES
James S. Wershow, C. D. Covey and J. R. Greenman*

I. Introduction
When estates are small or owned jointly by husband and wife, the
need for preparing a will is frequently questioned. Even under these
circumstances it is usually found desirable to prepare a will. When
an estate is large or owned in the name of either the husband or wife,
the need for preparing a will usually is obvious.
In this bulletin an attempt is made to outline some of the reasons
for making a will, show the consequences of not doing so, and in-
dicate other considerations connected with the disposition of an
estate. It is hoped that the information provided will be helpful to
the reader in deciding whether or not to make a will and in working
with an attorney in the preparation of the will.
In providing for the disposition of an estate there is no substitute
for a qualified attorney. This bulletin attempts only to outline
general principles of law applicable to the kind of estate owned by
an average person. Many situations are not covered. Even with a
simple will, and certainly with a complicated will and involved
estate, the guidance of an attorney is needed.
II. Advantage of a Will
Usually one or more of the advantages associated with a will ap-
ply in connection with the disposition of an estate. Whether such ad-
vantages are important enough to justify taking the trouble to
make a will must, of course, be decided by the estate owner. Some of
the advantages are as follows:
1. Disposition of an estate in accordance with desires of the
ownership not in accordance with the laws of Intestate succes-
sion.-In the absence of a will, an estate will pass in accordance
with the laws of intestate succession. It may be that the estate
owner feels that his wife is entitled to or needs more of his estate
than she would be allowed under the laws of intestate succession.
Or, he may feel that one or more of his children should received more
of his estate than they would if he died intestate, that is, without
making a will. Through a will he can give what he considers to be
"fair" treatment to each of his heirs. A detailed explanation of the
way an estate devolves under the laws of intestate succession when

*Respectively, Visiting Professor of Agricultural Law and Member of Florida
Bar, Professor of Food and Resource Economics, and Emeritus Professor of Food
and Resource Economics and Member of Florida Bar.







a person dies without making a will is given below in the section en-
titled "Estate Distribution Without Will."
2. Better administration by personal representative1
designated by estate owner.- In the absence of a will designating
who is to be the executor of an estate the circuit court judge deter-
mines who is to be in charge of the estate until it is finally
distributed. For this purpose the law sets forth priorities to guide
the judge in making his selection (1).2 Thus, preference is given first
to the surviving spouse, then to the person selected by the heirs who
are to receive a majority of the estate or to the heir nearest in
degree.3 It may be that the estate owner has complete confidence in
the business ability and integrity of his wife or other person likely to
be designated by the judge in accordance with the preference order
set forth in the law. However, if such is not the case, he will want to
prepare a will in which he designates the executor-and perhaps an
alternate executor. Sometimes, bad administration and mismanage-
ment have led to excessive costs and the dissipation of estates (2).
3. Estate tax savings. -Along with other steps that can be taken
as part of an overall estate plan, a will can include provisions that
will result in substantial estate tax savings-particularly for an
estate that is relatively large. For example, savings can be realized
by making provisions for the maximum marital deduction under the
federal estate tax laws. Even greater savings can be realized
through certain types of trusts provided for in the will and through
gifts made by the estate owner during his lifetime. Tax savings that
can be realized through the making of inter vivos gifts (gifts during
the lifetime of the giver) and testamentary trusts are discussed in
the section entitled "Estate Taxes." Whether or not it will be
desirable to take advantage of a particular tax saving device will de-
pend upon the circumstances connected with each particular estate.
In making such decisions the estate owner should consult with an
attorney.
4. Proper disposition of estate where one spouse dies a short
time before the other.-Estate owners frequently are surprised to
learn that their entire estate may go to their spouse's relatives with

'The personal representative who is in charge of an estate until it is distributed is
known as an executor if designated in a will and as an administrator if appointed by
the circuit court judge. Of course, even an executor must be approved by the judge
before he can take charge of an estate.
2Numbers in parentheses in connection with statements in the text of the bulletin
refer to citations in a table near the end. These citations set forth the law on which
the statements are based.
3The distance which a relative is removed from the testator, e.g. a brother is twice
removed.








nothing to their own, even enough they may pre-decease their
spouse by only a short time-such as a minute or an hour. This can
occur where there is no will and where there are no children or other
lineal descendents such as grandchildren (3). For example, suppose
that a young couple without children and without wills died one
hour apart as the result of an automobile accident. If the husband
died first, his wife would be entitled to his estate for one hour; and,
then, at her death it would go to her relatives. This would be the
result regardless of whether the husband owned his estate in his
own name or jointly with his wife. A similar result would occur with
everything going to the husband's relatives if the wife dies first.
Usually, couples without children or other lineal descendants want
their estates to be shared by the relatives of both the husband and
wife. Only by making wills that so provide can they be assured that
this will happen.
5. Avoiding the breaking up of efficient agricultural
businesses into uneconomic units.-Up to a point, increasing size
is associated with increasing efficiency and lower costs in the pro-
duction of agricultural commodities. The minimum size needed for
reasonable efficiency varies with the managerial capability of the
operator and the kind of agricultural production in which he is
engaged. For example, there are five acre nurseries which provide an
adequate income for the owner-operator. On the other hand, several
thousand acres may be necessary to provide an adequate family in-
come from a cow-calf operation on unimproved Florida pastures.
The advantage of using a will to avoid breaking up an efficient
business unit is the same for the five acre nursery as it is for a cattle
operation of several thousand acres.
Unless it was necessary to do so in order to provide equitable
treatment to his heirs, the owner of an agricultural production unit
would not want it subdivided into inefficient units at his death.
Even a production unit that is larger than the minimum size re-
quired for reasonable efficiency may not lend itself to subdivision
without great loss of efficiency. For example, a poultry or dairy
unit, where all of the buildings and processing equipment are con-
centrated in one location, could not readily be divided without great
loss of efficiency. In many cases the uneconomical fragmentation of
a producing unit upon the death of its owner can be avoided by
careful planning and a will. The use of the corporate form of
business organization, trust arrangements, agreements between
heirs, and other devices accompanied by a well-prepared will can
provide equitable treatment for heirs without uneconomical
fragmentation of a sound production unit. An estate owner who is
faced with this problem should seek the counsel of an attorney who
is experienced in such matters.








6. Provision for guardianship of minor children.-The parents
of a minor child are the child's "natural" guardians. If one of them
were to die, the other would continue as the child's natural guardian
(4). As the natural guardian, the surviving parent could, without for-
mal appointment or bond, receive and manage real and personal
property inherited or accruing to the minor child up to $5000 in
value (5). However, if the real or personal property involved is
valued at more than $5000, a guardian would be appointed by the
circuit court judge to manage the property (6). Usually, the surviv-
ing spouse would continue to serve as guardian of the person of the
child, and he or she would be given preference by the circuit court
judge in designating the guardian of the child's property. If an
estate owner wanted someone in addition to his spouse to be con-
sidered by the circuit court judge in appointing a guardian of the
child's property,he could accomplish this by an appropriate provi-
sion in a will (7).
If both parents of a minor child were to die, a guardian for the per-
son and property of the child would be appointed by the circuit
court judge. In the absence of a will naming a guardian, preference
would be given to one of the next of kin of the child. If the parents
wanted someone in addition to the next of kin considered for the
guardianship, they could name a guardian in their respective wills.
The person named as guardian in the will of the parent who died last
would then be considered by the circuit court judge along with the
next of kin in designating a guardian (8). In actual practice the per-
son so named in the will probably would be designated as guardian
by the circuit court judge.
7. Protecting estate share left to heir lacking business judge-
ment.-An estate owner may feel that one of his heirs4 lacks
business judgement and is likely to use his inheritance unwisely.
Such an heir can be protected by a provision in a will leaving his
share in trust. The trustee designated can be a person or institution
that the estate owner believes will take proper care of the in-
heritance. Any number of arrangements can be provided for the
distribution of the trust income and property. For example, the
terms of the trust can provide that the income from the trust prop-
erty can be distributed to the heir together with as much of the trust
property as the trustee deems necessary or desirable for the heir's
proper maintenance; and upon the death of the heir, the remainder

'Technically, the term "heirs" refers to those entitled to share in the estate of
one who dies without a will. The term "legatees" and deviseess" refer to those
who are entitled to receive personal property and real property, respectively,
under a will. In this bulletin the term "heirs" is used in an all-inclusive sense to
refer to those entitled to share in an estate regardless of whether its distribution
is controlled by a will.








of the trust property can go to whomever the estate owner desires.
Or, the trustee can manage the trust property for the heir's benefit
until the heir reaches a certain age, or gets married, or some other
event happens, at which time all of the trust estate remaining can be
turned over to the heir. The trust arrangement selected will, of
course, depend upon the circumstances and the wishes of the estate
owner.
Another device used to protect an improvident heir is the life
estate in nonconsumable, income-producing property such as a farm
or urban rental property. An estate owner may want to provide an
income for an heir during the heir's lifetime and at the same time
keep intact the property that provides such income. He can do this
by willing nonconsumable income producing property to the heir for
life. After the heir's death the property will go to whomever the
estate owner designates in his will.

III. Property That Cannot Be Willed5

It is not uncommon for an estate owner to assume that he can will
any of his assets. Actually, different kinds of assets that constitute
a substantial part of many estates cannot be willed. In deciding
whether and how to make a will, the estate owner needs to know the
nature and extent of such assets included in his estate. If his estate
consists entirely of such assets, the preparation of a will may be
useless. Or, in preparing a will for the disposition of the rest of his
estate, he may want to adjust the benefits to his heirs6 to allow for
the fact that some will receive assets not controlled by the will. The
major kinds of assets that cannot be willed are as follows:
1. Life Insurance proceeds payable to a named beneficiary.-
Upon the death of an insured person, the insurance company is
bound by the insurance contract to pay the proceeds to the
beneficiary named in the policy. Usually, the beneficiary named is
someone other than the insured or the estate of the insured. If the
beneficiary named is someone other than the insured or the estate of
the insured, any attempt by the insured to control the distribution
of the proceeds in his will would be ineffective.
Only if the insured or the estate of the insured is named as
beneficiary can the insured control the distribution of such insurance

'The reader may notice the omission from Section III of other kinds of property
that cannot be willed. For example, property in which a person owns a life estate
(the right to use during his lifetime) cannot be willed and does not become part of
a probate estate. Property of this kind was omitted because It is not usually found
in an estate and It was felt that the reader would not be likely to mistake its legal
nature in planning for the disposition of his estate.
6See footnote 4.








proceeds in his will (9). If an estate owner wishes to control the
distribution of such insurance proceeds in his will, he should be sure
that his will specifically refers to such insurance and states the disposi-
tion that he desires to have made of it (10).
In many cases, an estate owner will prefer to control the distribution
of the proceeds of insurance on his life by naming the ultimate
beneficiary in the insurance policy. If an estate owner wants someone
other than the beneficiary presently named in a policy to receive the
proceeds, he can arrange with his insurance company to change
beneficiaries.
2. Property owned jointly by two or more persons.-Jointly
owned7 property goes to the last surviving joint owner (11). One of the
joint owners of a property cannot will his interest away from the other
joint owners. For example. suppose that A and B are the joint owners
of a property and that A dies first, leaving a will which provides that
his interest in the property shall go to C. In this situation, B, the sur-
viving joint owner, will get full ownership of the property and C will
get nothing despite A's attempt to will his interest to him. If A had
died without a will, his interest would not go to his heirs under the laws
of intestate succession; but instead, B would get full ownership as the
surviving joint owner.
A common form of joint ownership in Florida is that which exists
when property is owned in the names of husband and wife. This kind of
joint ownership has the legal name of tenancy-by-the-entirety (12). The
family home, car, and other real estate frequently are owned under a
tenancy-by-the-entirety form of ownership; and sometimes all of the
property belonging to a married couple is so held. In considering
whether or how to make a will, both the husband and wife should
realize that jointly owned property will go to the one who survives the
other. With a substantial part of all of their property owned under a
tenancy-by-the-entirety, a husband or wife may not feel that it is
necessary to prepare a will since that property will go automatically po
the surviving spouse. However, although the will of the spouse who
dies first will have no effect on the devotion of jointly owned property,
the will of the surviving spouse will be effective in determining who in-

'Joint ownership in the sense used here should not be confused with another
form of co-ownership known as tenancy-in-common. Other than co-ownership be-
tween husband and wife which is almost always joint ownership, tenancy-in-
common is the prevailing kind of co-ownership. Owners of property as tenants-in-
common are in a sense like partners in owning the property; and upon the death of
one such co-owner, his share of the co-owned property will belong to his heirs-it
will not go to the surviving co-owner. Except in the case of husband and wife, in
order to result In co-ownership, the legal instrument creating a co-ownership
must specify that there shall be the right of the last surviving owner to have full
ownership of the property.







herits it at'the survivor's death. If both husband and wife agree that
jointly held property should go to the same person, they can so provide
in their respective will; and upon the death of both spouses it will go to
such person.
3. United States Savings Bonds registered in the names of two
individuals as co-owners, or in one name payable on death to one
other designated Individual. -When a bond is registered as "James
E. Smith or Dorothy Smith," the two parties are co-owners. During
their lives either one may cash the bond, but neither can effectively
will it away from the other. Upon the death of one, the bond
becomes the absolute property of the other. The survivor's will can
then determine who will receive the bond or its proceeds at his
death.
If a bond is registered as "Samuel Smith, payable on death to
Gladys Smith," it belongs to Samuel Smith during his lifetime. Dur-
ing his lifetime, he can cash the bond, but he cannot will it away
from Gladys Smith. Upon his death, the bond becomes the property
of Gladys Smith (13). She can cash the bond, or her will can deter-
mine who will receive the bond or its proceeds at her death.
United States Government Bonds can also be registered in the
name of one individual. Such bonds, of course, belong absolutely to
the individual; and his will can determine who will receive the bond
at his death.
4. Homestead for inheritance purposes(14).-If the sole owner
of a homestead for inheritance purposes is survived by a spouse and
a minor child, the homestead may not be willed (15). At the owner's
death, the spouse, if alive, will acquire a life estate in the homestead
(the right to use the homestead during her lifetime) and at his/her
death it will go to his/her lineal descendents in being at the time of
his death (16). In the usual situation the homestead owner's spouse
would have the use of the homestead during her lifetime and at her
death the homestead or proceeds from its sale would be divided
among his children. If there is no spouse at the time of the
homestead owner's death, the homestead will go to his children or
their descendents like other intestate property. On the other hand, if
there is a widow but no children or other lineal descendents, full
ownership will go to the widow (17).
The owner of a homestead may insure that full title passes to
his/her spouse at the time of the owner's death by: (18)
a. Transfering title to the homestead by deed into an estate
by the entirety with the spouse,
b. If there is no minor child, devising the homestead to the
spouse.







The critical question for an estate owner deciding what provisions
to make in his will for the disposition of his residence is to determine
whether it qualifies as a homestead for inheritance purposes.Tax-
payers who report their residence as a homestead to their tax
assessor annually in order to qualify for the $25,000 exemption from
taxation provided by law (19) are familiar with the concept of a
homestead for tax purposes.8 This concept and the concept of a
homestead for inheritance purposes are similar in some respects and
different in others. A homestead for tax purposes may or may not
qualify as a homestead for inheritance purposes.
In general an estate owner's residence will qualify as a homestead
for inheritance purposes if it has the following characteristics:

1. The estate owner owns an interest in the property.
2. It is his permanent residence.
3. He is the head of a family.
4. Its area can be up to 160 acres outside a municipality or
V2 acre within a municipality.

These may be used as a general guide by an estate owner in ten-
tatively deciding whether his residence is a homestead for in-
heritance purposes. Because of the complex nature of the concept,
however, final determination that a residence is a homestead for in-
heritance purposes should be made only after consulting an
attorney.
5. Exempt property.- In addition to homestead property and to
any benefit or share passing to the spouse or minor children as pro-
vided by will or the laws of intestacy, Florida law provides for up to
$11,000 of exempt property plus personal automobiles held in dece-
dent's name (20). The surviving spouse is entitled to household fur-
niture, furnishings and appliances up to a net value of $10,000, plus
personal automobiles, and in addition personal effects, unless willed
away, up to a net value of $1,000.
6. Trust property.-Property placed in trust for the benefit of
another by the deceased during his lifetime is no longer the property
of the deceased, and, within certain exceptions, may not be willed.
The most common form of trust is the bank account trust. Any
bank account, including a certificate of deposit, in the names of two
or more persons, will, upon the death of one of them, be the sole
property of the survivor (21). Bank accounts held in trust, in the

sIn 1980 the Florida Constitution was amended to Increase the homestead ex-
emption on school levies to $25,000. In the case of other levies, the Florida Con-
stitution now provides a $15,000 homestead exemption in 1980, $20,000 In 1981
and $25,000 in 1982 and subsequent years.







common form "John Jones in trust for Mary Smith," on the death of
Jones become the property of Smith (22). During Jones' life, Smith
has no right to make any deposits or withdrawals from the account,
and it is not Smith's property to do with as he/she likes. If Jones
dies without a will, the entire amount in the trust account at his
death goes to Smith. If Jones leaves a will, the account goes to
Smith unless the remaining estate is insufficient to meet certain
types of bequests (23).

IV. Estate Distribution Without Will
The different kinds of property described in Section III are
distributed in the manner indicated regardless of whether or not
there is a will. In general, the rest of the property owned by a person
at the time of his death would constitute his "probate estate." The
probate estate may be willed; but if there is no will, its distribution
is controlled by the laws of intestacy (24).
Under the laws of intestacy, the estate is distributed in accord-
ance with a plan imposed by the legislature. The surviving spouse,
the widow, or widower, receives the entire estate if there is no will
and no children or other lineal descendents (i.e., grandchildren, great
grandchildren, and so on). If there are children or lineal descendents,
all of whom are also children or lineal descendants of the surviving
spouse, the spouse receives the first $20,000 of the estate plus one-
half of the balance. If there are children or lineal descendents who
are not descendants of the surviving spouse, such as children from a
prior marriage, the spouse receives a flat one-half of the estate (25).
The surviving spouse may always choose to take an elective
share, whether the deceased spouse died with or without a will, if
dissatisfied with the portion of the estate he/she is to receive (26).
The elective share is 30 percent of all property owned by the de-
ceased, except property that cannot be willed and real estate located
outside of Florida, less all debts of the estate (27). It is received in
lieu of all other distribution except property that cannot be willed.
If the deceased died without a will, the spouse will receive at least
one-half of the probate estate under the intestacy laws, and
therefore will most likely not want to take an elective share. If the
deceased has a will, the decision on elective share by the surviving
spouse would be based on whether the will gives him/her less than
the amount of the elective share. In addition, the surviving spouse
and heirs whom the deceased was obligated to support may always
request and with the approval of the circuit court judge receive a
family allowance of up to $6000 for their maintenance during the ad-
ministration of the estate (28).
The remainder of the estate which does not go to the surviving







spouse, or the entire estate if there is no spouse, goes to the children
in equal shares, or to the descendents of the children. If the estate
owner dies without a spouse, children, or other lineal descendents,
the estate goes in equal shares to his father or mother or to the sur-
vivor of them. If his father or mother were not alive, his estate
would go to his/her brothers or sisters and the children of deceased
brothers and sisters. If there were no brothers or sisters or their
descendents, the estate would go to more remote relatives as pro-
vided by law (29).

V. Making a Will

Equitable Treatment of Heirs
The provisions of a will can take care of many of the problems
associated with the distribution of an estate for inheritance pur-
poses. Some of these problems are suggested in Section II. Of par-
ticular importance is the need for treating the heirs fairly. It is not
uncommon for the widow's part to be inadequate. In this case, a will
might provide her with a large enough share of the estate to care for
her needs. Another inequitable situation occurs when an estate
owner dies without a will leaving two or more children-one of
whom has remained at home and helped build up the estate without
adequate compensation for his efforts. Upon the estate owner's
death without a will, the child who remained at home will get only
an equal share in the estate with the other children. With a will such
a child could be given a larger share of the estate to reward him for
his efforts and devotion to the estate owner. Similarly, when one or
more heirs are to receive property of the kind described in Section
III, the estate owner may want to provide in his will that they
receive less of his probate estate.
The Elective Share
The spouse of an estate owner may take an elective share if she is
not satisfied with the share of the probate estate that she would
receive under the will (30). It is not likely, of course, that she would
if the value of her share under the will is greater than the value of
the elective share. A widow/widower must take either what is given
to her/him under a will or an elective share-she/he cannot have
both (31). In addition to the exempt property to which entitled, the
surviving spouse can also ask for, and, with the approval of the cir-
cuit court judge, receive the family allowance described in Section
IV (32).
Qualifications for Person Making Will and Kinds of Wills
Anyone who is at least 18 years old and of sound mind may make
a will (33). A written will is valid for the disposition of both property
and real estate.







Formalities of Executing Written Will
The formalities of executing a written will are not complicated.
They involve the following (34):
1. The will must be in writing (35).
2. The testator (maker) must sign his will at the end thereof, or
some other person in his presence and at his direction must
sign the testator's name (36).
3. Two witnesses must be present at the signing of the will, or
the testator must acknowledge to them his signature on the
will; and they in the presence of each other and in the presence
of the testator must sign as attesting witnesses (37).
4. The witnesses do not need to know what is in a will; they sim-
ply need to know that it is the testator's will (38).
5. No particular form of words is necessary to the validity of a
will if it is executed in accordance with the foregoing for-
malities.
Information Attorney Needs From Estate Owner to Help in
Preparing Will
Although they must be followed carefully, the formalities of ex-
ecution are a minor part of the job of making a will. The real job is to
think through the objectives the owner desires to accomplish in
distributing his estate and decide upon the provisions to be included
in the will that will achieve these objectives. Some of the possible
objectives are listed in Section II. For example, the estate owner
may want to provide equitable treatment -which is not necessarily
equal treatment-for his heirs; he may want to minimize estate
taxes; designate his executor; prevent the uneconomic fragmenta-
tion of a business; and so on. An attorney's services are needed to
suggest objectives that may be overlooked by the estate owner and
to draft the will so that it will accomplish the objectives. The at-
torney can be more efficient in doing his job and time can be saved if
in the first meeting with his attorney the estate owner has:
1. A tentative list of what he considers to be his objectives.
2. A tentative list of names and addresses of those who are to
receive under the will together with the specific property or
part of the estate to go to each.
3. The name and address of the person he desires to serve as ex-
ecutor of his will. It is not a bad idea also to include the name
of an alternate executor to act in place of the first named ex-
ecutor if he is unable to serve. In general, a person is qualified
for appointment as executor or administrator if he or she is 18
years of age, of sound mind, and a resident of Florida (39). A
non-resident of Florida can qualify if he or she is a parent,
brother, sister, son, daughter, uncle, aunt, nephew or niece of







the deceased or is otherwise related as provided in the Florida
Statutes (40). A resident personal representative who becomes
a non-resident while serving as administrator or executor may
continue to serve by following certain requirements set forth in
the law (41). A person is not qualified to serve who has been
convicted of a felony or whom from sickness is incompetent to
discharge the duties of a personal representative.
4. If there are minor children, the name and address of a
guardian. It might also be desirable to have the name of an
alternate guardian.
5. An itemized list of the assets and liabilities of the estate
owner.
Estate owners may be reluctant to provide their attorney with item
5 information. A will can be prepared without such information. In
general, however, if an attorney is to be most effective in preparing
a will to meet the estate owner's objectives, he should have a detail-
ed list of the assets and liabilities.

Changing a Will
A will may be changed by preparing a new will or by adding what
is known as a codicil (an amendment) to an old will. In executing a
new will or a codicil the same formalities should be followed as were
described above for the execution of the original will. The new will
or codicil should state that it revokes or alters the old will (42).

Breaking a Will
A will that has been properly drawn and executed is difficult to
break since there is a strong inclination on the part of the courts to
sustain a will if at all possible. The usual basis for will contests are:
(a) the testator was subject to undue influence, (b) the testator was
of unsound mind, (c) the will is a forgery, or (d) the proper for-
malities were not followed in making the will.

VI. Administration of an Estate
Regular Administration Proceedings
Every probate estate goes through a regular administration pro-
ceeding, unless it comes under the exceptions provided for small
estates and summary proceedings. This is true regardless of
whether or not there is a will. Some of the major steps included in a
regular proceeding are as follows (43):
1. Production and proof of will if there is one.
2. Designation of personal representative (executor or
administrator).
3. Posting of bond by personal representative. This requirement







may be waived in a will and thereby save probate costs.
4. Taking possession of estate by personal representative.
5. Publication of notice to creditors.
6. Filing of estate inventory by personal representative.
7. Appraisal of value of property in estate by appraisers
appointed by circuit judge.
8. Assignment of elective share and family allowance.
9. Payment of expenses of administration and claims
against estate.
10. Distribution of balance of estate to heirs.
11. Annual and final reports of personal representative.
Because of the number of steps and the need for giving due notice
to interested parties in connection with many of the steps, a con-
siderable amount of time is required for a regular probate pro-
ceeding. In an ordinary, uncomplicated estate, administration may
require about a year. On the other hand, if the estate settlement is
complicated and especially if conflicts and lawsuits arise between
interested parties, several years may pass before administration is
completed, If an extended period of time is likely to be required, an
estate owner, through insurance or otherwise, may want to see to it
that his wife and other dependents are provided with adequate
funds to support them until administration is complete.
Small Estates and Summary Administration (44)
Property of the kind described in Section III does not go through
administration. As previously stated, it does not become a part of a
probate estate and its devolution is not controlled by laws that
govern the distribution of property in such an estate. The rest of the
estate owner's property constitutes his probate estate.
Many probate estates may be excepted from part or all of the
steps in a regular administration, summary administration, and
disposition without administration. The exceptions apply to small
estates and to estates where the owner has been dead for at least
three years. They also apply to an estate regardless of whether it is
willed or not.
Under the family administration exception, if the requirements
are met, a petition is filed with the court listing the assets and debts
of the estate and who is to receive a share in the estate. If accepted
by the court, an order is granted immediately distributing the
estate in accordance with either the will or the laws of intestacy. To
qualify for family administration, the estate must be received by the
spouse and lineal descendents (children, grandchildren and so on) or
ascendents (parents, grandparents and so on) and must consist sole-
ly of personal property or real estate on which all debts are settled
or barred. The entire gross estate for federal estate tax purposes








must be less than $60,000. If non-family members are to receive a
share under a will, it must be limited to a token or minor part of the
estate (45). It should be noted that the gross estate for federal estate
tax purposes may be larger than the probate estate (see Section
VII).
Under the summary administration exception, any steps in a
regular administration may be dispensed with if the court finds that
such steps are unnecessary to protect the rights of heirs and
creditors. The exception can be applied (46):
1. When the value of the probate estate, less exempt property,
does not exceed $10,000, or,
2. Where the estate owner has been dead for more than
three years.
Disposition without administration may be had where the estate
owner leaves only exempt property. Since the estate cannot be
reached by creditors, there is no need for formal proceedings (47).
Additionally, income tax refunds to the deceased of up to $500,
received after the death, are given directly to the spouse (48).

VII. Estate Taxes

Tax Definitions
An estate for tax purposes is considerably different from the
probate estate. In general the gross estate for tax purposes includes
both probate property and property of the type described in Sec-
tion 119 (49). A brief description of other estate tax terminology
one must know to understand the effects of estate taxes is as fol-
lows:
Adjusted gross estate: The gross estate less adjustments allow-
ed for expenses, indebtedness, taxes and losses (53).
Taxable estate: The adjusted gross estate less charitable trans-
fers and the marital deduction (54).


9There are a number of exceptions to this general rule that have been omitted
from the discussion for simplicity of presentation. For example, the full value of jointly
owned property, other than property owned jointly by the decedent and his surviving
spouse, must be included in the decedent's estate. The property's value is not included
to the extent the surviving joint tenant can prove he contributed to the property's
acquisition out of his independent funds never received from the decedent (50). Addi-
tionally, life insurance proceeds will be excluded from the decedent's estate if, at his
death he possessed no incidents of ownership in the policy (51). On the other hand,
several estate tax provisions require the decedent's estate to include the value of property
transferred by the decedent for a less than full and adequate consideration (52). The
reader who believes his estate might include property of this kind should consult his attor-
ney to determine the best method of disposition to minimize the estate tax consequences.








Tax Exempt Estates
Every estate of a decedent dying after 1986 is allowed a credit
of $192,800 applicable against the estate taxi o (55). This credit
allows estates valued below $600,000 to escape estate tax liability
(56). The estate's value may exceed the value exempted by the
credit and still remain "tax free" if there are allowable marital and
charitable deductions (57). The Economic Recovery Tax Act
(E.R.T.A.) of 1981 changes prior law limiting the amount of mari-
tal deduction allowed an estate (58). As a result of E.R.T.A. an
estate is permitted a deduction for the entire value of property
passing from the decedent to his surviving spouse (59). Addition-
ally, in the case of a qualified terminable interest, E.R.T.A. has
altered the provision denying an estate any marital deduction for
the value of an interest passing from the decedent to the surviving
spouse which will terminate upon the occurence of a contingency
or the passage of time. The estate is now permitted a deduction
for the value of qualified terminable interest property, which is
property in which the surviving spouse has an unqualified right to
income for life (60). This new provision is a useful planning tool
permitting a decedent to provide for his surviving spouse for life
and still leave property for future generations. The code provides
other deductions and provisions too complicated to discuss in
this text. In addition, because the complicated federal estate tax
provisions are intertwined with the federal gift tax provisions it
would be unwise for a person with a substantial estate to engage in
estate tax planning without consulting his attorney.

Valuation of Inherited Property
The value of property included in a decedent's gross estate
is usually determined by the property's fair market value on his
date of death (61). This valuation method could lead to harsh re-
sults in the case of a farmer whose single major asset is the land
used in his farming operation. Determining the land's value accord-
ing to the best and highest use might force the decedent's family
to sell the property to pay the estate tax. The Tax Reform Act of
1976 amended prior law so that now, the value of the farm for
estate tax purposes is determined according to its agricultural use
value (62). There are three methods whereby the agricultural use


101n 1982 the tax credit is only $62,800 which exempts estates valued up to
$225,000. This credit, which increases each year to the 1987 amount, is allowed in the
following amounts; in 1983 a credit of $79,300 will exempt estates valued up to
$275,000; in 1984 a credit of $96,300 will exempt estates valued up to $325,000; in
1985 a credit of $121,800 will exempt estates valued up to $400,000; in 1986 a credit
of $155,800 will exempt estates valued up to $500,000.








value of the land may be determined. First, the estate may value
the land by examining relevant facts such as the comparable sale
of nearby agricultural land and capitalization of expected income
yield or rental value. Alternatively, the land may be valued salary
by capitalizing gross cash rent less property taxes on comparable
farmland. In addition, E.R.T.A. of 1981 provides for a use valua-
tion based upon the "average" net share rental of comparable land.
The agricultural use valuation may be used only if several pre-
requisites are met. To take advantage of the farm-use valuation
provision the estate must consist of at least 50% of qualified pro-
perty. At least 25% of the estate must consist of qualified land.
The property's ownership is limited to the decedent or members
of his family and must have been used for five of the last eight
years preceding the decedent's death in his farming operation. In
addition, for that period the farm must have been operated by
the decedent or a member of his family. For older and/or disabled
citizens E.R.T.A. of 1981 provides the use period shall be measured
in the period preceding the time when the decedent was last able
to actively participate in the farming operation.
For the ensuing ten years after the decedent's death there are
requirements placed upon the persons who took the property. If
they cease to use or do not materially participate or sell the quali-
fied use property outside the family there follows redetermination
of the federal estate tax and a recapture of the original tax benefits.
A person acquiring property from a decedent received a
"stepped-up" basis in that property (63). In essence, the "stepped-
up" basis in property is the fair market value of the property at
the date of the decedent's death or at the alternative valuation
date.
Careful estate planning can result in significant savings in es-
tate taxes. For example, certain U.S. Treasury Bonds called "Flower
Bonds" which cost the decedent less than their face value may be
applied at face value towards the payment of the estate tax.
A final word of caution should be issued at this point. The
federal estate and gift tax provisions are complicated. To minimize
his "tax bite" one should consult an attorney to aid in the formula-
tion of his will.
VIII. Summary

Some of the advantages of making a will and the consequences of
not doing so are outlined in this publication. Generally, the advan-
tages will outweigh the trouble and expense involved in preparing a
will.
Frequently, much more than the preparation of a will is involved
in arranging for the proper handling and distribution of an estate.








Moreover, this bulletin attempts only to give some of the highlights
connected with the preparation of a will. In arranging for the
disposition of his estate, therefore, a person would be wise to
employ the services of an attorney who is competent in the field.
A will should be reviewed and revised periodically as a person's
financial and family situation changes. It should be accompanied by
a complete and up-to-date list of a person's assets and liabilities.
Such a list will be of great value to the executor in assembling
assets and in taking care of debts during the period of administra-
tion. In order to be of most value to the executor the list should give
enough detailed information to enable the executor to identify and
locate both assets and liabilities of the estate. It would be desirable
also for the estate owner to include in the list any suggestions he
might have for the executor concerning the manner in which the
assets and liabilities should be handled during the period of ad-
ministration. Although such suggestions would not be binding on
the executor unless set forth as instructions in the will or unless re-
quired by Florida law, they should enable the executor to do his job
better.








Citations

FLA. STAT. 733.301 (1979).
Black, Lifetime and Testamentary Estate Planning,
(pt. 1), 4 U. FLA. L. REV. 6 (1951).
FLA. STAT. 732.103 (1979).
FLA. STAT. 744.301 (1) (1979).
FLA. STAT. 744.301 (2) (1979).
ID.
FLA. STAT. 744.312 (2) (1979).
FLA. STAT. 744.312 (2) (b).
FLA. STAT. 222.13 (1979), Sloan v. Sloan, 73 Fla. 345
74 So. 407 (1917).
FLA. STAT. 222.13 (1979).
Andrews v. Andrews, 155 Fla. 654, 21 So. 2d 205 (1945).
Colclazier v. Colclazier, 89 So. 2d 261 (Fla. 1956);
O'Connell v. O'Connell, 45 So. 2d 882 (Fla. 1950)
Knapp v. Frederickson, 148 Fla. 311, 4 So. 2d 251 (1941).
In re Briley's Estate, 155 Fla. 798, 21 So. 2d 595 (1945).
For a comprehensive treatment of the law relating to a
homestead for inheritance purposes see Crosby and Miller,
Our Legal Chameleon is a Sacred Cow: Alienation of
Homestead Under the 1968 Constitution, 24 U. FLA. L. REV.
701 (1972.)
FLA. STAT. 732.4015 (1979).
FLA. STAT. 732.401 (1979).
Jetter v. Haley, 143 Fla. 231, 196 So. 421 (1940).
FLA. CONST. Art. X, Sec. 4 (c), FLA STAT. 732.4015 (1979).
FLA. CONST. Art. 7, 6.
FLA. STAT. 732.402 (1981).
FLA. STAT. 659.291 (1981).
FLA. STAT. 659.30 (1979).
FLA. STAT. 733.805 (1979).
FLA. STAT. 732.101 (1979).
FLA. STAT. 732.102 (1979).
FLA. STAT. 732.201 (1979).
FLA. STAT. 732.207 (1979).
FLA. STAT. 732.403 (1979).
FLA. STAT. 732.103 (1979).
FLA. STAT. 732.201 (1979);Barkley v. Barkley, 314 F. 2d 188
(5th Cir. 1963); in re Malone's Estate, 54 So. 2d 248
(Fla. 1951); Murphy v. Murphy, 125 Fla. 855, 170 So. 856
(1937); Catlett v. Chestnut, 100 Fla. 1146, 131 So. 120 (1931);
Milam v. Davis, 87 Fla. 916, 123 So. 668 (1929); Herzog
v. Trust Co. of Easton, 67 Fla. 54, 64 So. 426 (1914).







31. FLA. STAT. 732.211 (1979).
32. FLA. STAT. 732.403 (1979).
33. FLA. STAT. 732.501 (1979); Marston v. Churchill, 137 Fla. 154,
187 So. 762 (1939); Tonnelier v. Tonnelier, 132 Fla. 192, 181
So. 150 (1938); Gardiner v. Goertner, 110 Fla. 377, 149 So. 186
(1932); Mulford v. Central Farmer's Trust Co., 99 Fla 600,
126 So. 762 (1930); Hamilton v. Morgan, 93 Fla. 311,
112 So. 80 (1927); Newman v. Smith, 77 Fla. 633, 667, 688,
82 So. 236 (1919).
34. FLA. STAT. 732.502 (1979).
35. FLA. STAT. 732.502; McLead v. Dell, 9 Fla. 451 (1861).
36. FLA. STAT. 732.502 (1) (a); in re Lomineck's Estate, 155 So. 2d
561 (Fla. 3rd D.C.A. 1963); in re McNeil's Estate, 39 So. 2d
801 (Fla. 1949); Watts v. Newport, 149 Fla. 181, 6 So. 2d 829
(1942); Ziegler v. Brown, 112 Fla. 421, 150 So. 608 (1933).
37. FLA. STAT. 732.502 (1) (b) (c); in re Watkin's Estate, 75 So. 2d
194 Fla. 1954); Trotter v. Van Pelt, 144 Fla. 517, 198 So. 215
(1940).
38. In re Lomineck's Estate, 155 So. 2d 561 (Fla. 3rd D.C.A. 1963);
Mulford v. Central Farmer's Trust Co., 99 Fla. 600,
126 So. 762 (1930).
39. FLA. STAT. 733.302 (1979).
40. FLA. STAT. 733.304 (1979).
41. FLA. STAT. 733.302 (1979.)
42. FLA. STAT. 732.505 (1979).
43. FLA. STAT. ch. 733 (1979).
44. FLA. STAT. ch. 735 (1979).
45. FLA. STAT. 735.101-.107 (1979).
46. FLA. STAT. 735.201 (1979).
47. FLA. STAT. 735.301 (1979).
48. FLA. STAT. 735.302 (1979.)
49. INTERNAL REVENUE CODE secs. 2031-2044 (1981)
50. I.R.C. 2040
51. I.R.C. 2042
52. I.R.C. 2035-2044
53. I.R.C. 2053, 2054
54. I.R.C. 2055-2056
55. I.R.C. 2010
56. I.R.C. 6018
57. I.R.C. 2055-2056
58. I.R.C. 2056(a)
59. I.R.C. 2056 (a)
60. I.R.C. 2056(b) (7)
61. I.R.C. 2031
62. I.R.C. 2032 A
63. I.R.C. 1014



















































20



























































This public document was promulgated at a cost of $1087.00, or 27.1
cents per copy, to aid Floridians in Will Development. 7-4M-82.



COOPERATIVE EXTENSION SERVICE, UNIVERSITY OF FLOR-
IDA, INSTITUTE OF FOOD AND AGRICULTURAL SCIENCES,
K. R. Tefertlller, director, in cooperation with the United States IFABI
Department of Agriculture, publishes this information to further the
purpose of the May 8 and June 30, 1914 Acts of Congress; and is
authorized to provide research, educational 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 C. M.
Hinton, Publications Distribution Center, IFAS Building 664, University of Florida,
Galnesville, Florida 32611. Before publicizing this publication, editors should contact
this address to determine availability.




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