Citation
For Florida women: what you should know about Florida law when your husband dies

Material Information

Title:
For Florida women: what you should know about Florida law when your husband dies
Series Title:
Circular - Florida Cooperative Extension Service - 614
Creator:
Stern, Paul Elihu
Gladwin, Christina H.
Affiliation:
University of Florida -- Florida Cooperative Extension Service -- Institute of Food and Agricultural Sciences
Place of Publication:
Gainesville, Fla.
Publisher:
Florida Cooperative Extension Service, Institute of Food and Agricultural Sciences, University of Florida
Publication Date:
Language:
English
Physical Description:
10 p. : ill. ; 28 cm.

Subjects

Subjects / Keywords:
Agriculture ( LCSH )
Farm life ( LCSH )
Farming ( LCSH )
University of Florida ( LCSH )
University of Florida. ( LCSH )
Agriculture -- Florida ( LCSH )
Agriculture -- Florida ( LCSH )
Spatial Coverage:
North America -- United States of America -- Florida

Notes

General Note:
Revised in 1987
Funding:
Florida Historical Agriculture and Rural Life

Record Information

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:
14990009 ( OCLC )
AEJ1607 ( NOTIS )
027801744 ( ALEPH )

Full Text



A' I ----~----


Revised 1987


Circular 614


For Florida" Central Science
For Florida Womeierary

What You Sho md23198a

About Florida Law

When Your Husband Dies





Paul Elihu Stern
Christina Gladwin










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


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

by
Paul Elihu Stern
Christina Gladwin*


Introduction
How many times have you heard, "If ever a man
died at the wrong time, he did"? Or, "I wish I knew
before his death what I know now about estate mat-
ters." This paper is intended to inform you about
Florida law regarding estate administration. It should
not be misconstrued as a comprehensive treatment
with specific information applicable to each in-
dividual case. Rather, it is only intended to be an
overview of the process that you, as a surviving
spouse, might go through. In no way can it serve as
a substitute for a skilled lawyer who can point out
intricacies and exceptions to the law. Although the
specific steps you will follow as a surviving spouse
will depend on your individual situation, the general
procedure that you can expect to follow is outlined
below.
An estate is the collection of property which is own-
ed by anyone, real estate as well as personal proper-
ty. The estate of a decedent is disposed of by a pro-
cedure called an administration. Administration
consists of the collection of the decedent's assets, the
payment of debts and claims against the estate, pay-
ment of estate taxes, and distribution of assets to
those who are entitled. State courts oversee the ad-
ministration of estates in a procedure called probate.

Procedure
After your husband dies, you should contact your
lawyer who will assist you in the administration pro-
cedure. The role of the lawyer is important. He or
she will make sure time limits are adhered to, pro-
per notice is filed, and technical legal requirements
are followed. The first step of administration is to
locate the will of the decedent. After the will is
located, it should be taken to the circuit court in the
county in which the decedent lived. If the will was
not notarized during execution, one of the witnesses
must attest to its validity. If the person died in-
testate, that is, without a will, probate is initiated
by filing evidence of the death in the circuit court.
The judge of the court will then appoint a personal


representative, who will manage the estate proper-
ty during the administration process.
Usually the personal representative is named in the
will, and that person will be appointed by the court
as long as she is 18 years of age or older, physically
and mentally competent, and not a convicted felon.
(A non-resident of Florida may serve only if she was
the decedent's child, parent, or other close relative.)
In the event there is no will or the named personal
representative cannot serve, the personal represen-
tative will be appointed by the court from a statutory
preference list, as follows:
1) where there is a will, the personal represen-
tative will preferably be selected by a majori-
ty of those entitled to share in the estate or
simply by one of them; and
2) where there is no will, the surviving spouse
is preferred as personal representative,
followed by someone selected by those en-
titled to share in the estate, or the one en-
titled to share in the estate who is most close-
ly related to the decedent.

Once the personal representative is chosen, the
judge will determine whether a bond is necessary
and its amount; he will then issue letters of ad-
ministration. Letters of administration constitute
the authority to act on behalf of the decedent's
estate. If you are the personal representative, and
there are no complications, this procedure should not
require more than several days.
The personal representative, often called an ad-
ministratrix (or administrator) or executrix (or ex-
ecutor), is a fiduciary, which is any person or entity
that stands in a position of trust. The charge of the
personal representative is to gather the assets of the
decedent, direct the payment of just claims, debts,
and taxes, and distribute the assets to those entitl-
ed, who are called beneficiaries. As a fiduciary, the

personal representative must act as a careful, pru-
dent trustee would in the management of the funds
of another. In a testate-estate, that is, when there is
a will, the will provides the ultimate authority. In


*Paul Elihu Stern, of the Institute of Food and Agricultural Sciences of the University of Florida, is a member of the Florida, District
of Columbia, and New York Bars. Christina Gladwin is an Associate Professor in the Food and Resource Economics Department.
Both authors are grateful for the careful review and assistance of the late James S. Wershow, Professor of Agricultural Law, in
the first edition of this circular.










an intestate estate, or when there is no direction from
a will, the judge of the circuit court acts as the
ultimate authority. When there is no guidance from
the will or the court, and an interested party ques-
tions any actions of the personal representative, she
will be judged according to the standards of a pru-
dent trustee.
The personal representative must gather all the
decedent's property and take the necessary steps to
maintain and protect the property. She should inven-
tory all items and publish notice in the newspaper
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
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
the estate. If there is real property of the decedent
that is located outside of Florida, the personal
representative should institute an out-of-state pro-
ceeding, called ancillary administration. After
carefully and thoroughly searching the records of the
decedent and taking possession of all the decedent's
assets, the personal representative must determine
which assets will be subject to the administration of
the estate.

Property Which Passes Outside the Estate
Many assets in which the decedent had an owner-
ship interest will not be subject to the administra-
tion of his estate. These assets might include contents
of a safe deposit box, money in joint bank accounts,
life insurance proceeds, property held under joint ti-
tle, homestead property, and property which is ex-
empt by reason of statutory exemption.
Upon proof of death, a parent, spouse, adult child,
or one named as personal representative in a pur-
ported will of a decedent may open and examine the
contents of a safe deposit box with an officer of the
bank. The court may also authorize a person to
receive from a bank officer any writings which repre-


sent a decedent's will, burial instructions, or life in-
surance policy which are held for safekeeping in a
safe deposit box. A person examining the contents
of a safe deposit box should make an inventory of
the contents with the assistance of the bank official
and file it in the court. If a safe deposit box is jointly
owned, any joint tenant may enter the box and
remove its contents before or after the death of the
decedent. Provision for joint tenants will be contain-
ed in the specific lease with the bank. Furthermore,
a personal representative may remove any or all the
contents of a safe deposit box of a decedent upon
presentation of a certified copy of her letters of
administration.
Whether a surviving spouse can write checks on
a joint bank account depends upon the terms of the
account agreement with the bank. An account which
contains a right of survivorship agreement would
pass directly to the survivor without being ad-
ministered in the estate of the decedent. Right of sur-
vivorship is presumed, given no contrary evidence.
Another form of bank account which would pass out-
side of administration proceedings is one which is
held in trust for another. If an account bears the
words "held in trust for" it will be passed directly
to the person the decedent designated.
Life insurance which is payable to a named
beneficiary will pass outside of administration of the
decedent's estate, unless the insurance policy
declares otherwise. If the policy is payable to the
decedent's estate, it will be disposed of like any other
asset of the estate. Other benefits such as social
security or other death benefits, will also pass out-
side the estate.
Real estate which is held in the names of both hus-
band and wife is presumed in Florida to be held by
tenancy by the entirety. In a tenancy by the entire-
ty, after either the husband or wife dies, the survivor
will be the sole owner of the property subject to no
claims of the decedent. Persons other than husband
and wife may also hold title to property with a right
of survivorship, but that right must be specifically
stated. Similarly, that property will not be subject
to administration in the decedent's estate. A dece-
dent's share in other jointly held property, that is,
property with no right of survivorship, will be ad-
ministered with the other assets of the estate.
The decedent's homestead is also transferred out-
side the administrative proceedings of the estate.
Homestead consists of 160 acres of contiguous pro-
perty (1/2 acre within a municipality), and im-
provements thereon (only improvements to the
residence within a municipality), which is owned by
the head of a household. The homestead carries with
it certain restrictions which are mandated by the









Constitution of the State of Florida and the Florida
Statutes. When a person dies, his homestead will pass
directly to his spouse, and to their children when she
dies. If he is not survived by his spouse, the
homestead will pass directly to his children. Other
than the mortgagee, creditors cannot reach the
homestead property for payment of debts.
For a residence to constitute homestead property,
the head of the household must have been living
there along with at least one family member whom
it was his legal duty to support. In this situation the
legal protections will be enforced.
Florida law also provides for certain other proper-
ty that will pass outside of the probate estate. The
surviving spouse (or minor children if there is no sur-
viving spouse) is entitled to household furniture, fur-
nishings, and appliances up to a value of $10,000 plus
all personal automobiles. This property is exempt
from most claims against the estate.
Along with the homestead and exempt property,
the surviving spouse and children of the decedent
are entitled to a reasonable allowance of up to $6,000
from the estate for their maintenance during the ad-
ministration period. This is called the family
allowance. Any property that the decedent may have
left in trust during his lifetime, either for the
maintenance of his family or for other purposes, will
likewise pass directly to those who are designated
in the trust instruments.
The personal representative must examine any
partnership or business interests the decedent may
have had. Partnership agreements usually contain
provisions which govern what will happen to the
partnership after a partner dies. It may be necessary
to continue the business of a decedent or if it is not
profitable, to sell the business.


Inventory
After all assets have been gathered and the initial
steps have been made to protect them, the personal
representative should file an inventory in court. This
should be carried out within 60 days of the issuance
of the letters of administration. The estate assets will
then be used to pay claims and expenses of ad-
ministration. These include costs and expenses of ac-
tually carrying out administration, compensation of
the personal representative and attorney's fees,
reasonable funeral, interment, and grave marker ex-
penses (not to exceed $1,500), debts and taxes, and
family allowance.
To emphasize, the general duties of the personal
representative include the payment of all creditors
of the estate and the distribution of the rest of the


estate to the beneficiaries. The personal represen-
tative must keep estate funds separately from her
personal funds; she should keep accurate records and
establish adequate bookkeeping methods; she is
obliged to file tax returns and notices for the estate;
she must maintain estate assets to the extent
necessary to prevent deterioration, loss, or damage;
and she must act as a trustee for all who are in-
terested in the estate. In performing these duties, the
personal representative has the power to hire
secretaries, accountants, tax specialists, attorneys,
and other experts who will then be entitled to
reasonable compensation out of the estate.


Distribution of Assets After Expenses
and Debts Have Been Paid

If there is no will, the Florida Statutes have
prescribed the disposition of estate assets through
the laws of intestate succession. If the decedent has
no lineal descendants (children, grandchildren, great
grandchildren, etc.), the entire estate is given to the
surviving spouse. For example, suppose John and
Mary, husband and wife, have no children. When
John suddenly dies without leaving a will, the total
estate is valued at $150,000. Mary, therefore,
receives the entire estate ($150,000).
If, however, there are surviving lineal descendants
of both the decedent and the surviving spouse, the
first $20,000 of the estate plus half of the remaining
assets of the estate are distributed to the surviving
spouse, the remaining half to the lineal descendants.
Now assume that John and Mary have a son Mark
and a daughter Alice when John dies, leaving no will
and an estate valued at $150,000. Mary now receives
the first $20,000 of the estate. The remaining
$130,000 is then split equally between Mary, on one
hand, and Alice and Mark, on the other. This means
that Mary receives $65,000 in addition to the first
$20,000; and Alice and Mark each receive $32,500.
Assets are distributed differently, however, in the
event the surviving children are not descendants of
the surviving spouse. In this case the surviving
spouse will receive half the estate, the lineal descen-
dants the other half. Using the example of John and
Mary again, we now assume that John has a son Mark
and a daughter Alice by a previous marriage. John
dies, leaving an estate valued at $150,000. Mary now
receives half the estate or $75,000, and Alice and
Mark each receive $37,500.
When there is no surviving spouse, the entire
estate is distributed to the lineal descendants. In our
example, Mary now dies before John, who then dies
leaving an estate valued at $150,000. When John









Constitution of the State of Florida and the Florida
Statutes. When a person dies, his homestead will pass
directly to his spouse, and to their children when she
dies. If he is not survived by his spouse, the
homestead will pass directly to his children. Other
than the mortgagee, creditors cannot reach the
homestead property for payment of debts.
For a residence to constitute homestead property,
the head of the household must have been living
there along with at least one family member whom
it was his legal duty to support. In this situation the
legal protections will be enforced.
Florida law also provides for certain other proper-
ty that will pass outside of the probate estate. The
surviving spouse (or minor children if there is no sur-
viving spouse) is entitled to household furniture, fur-
nishings, and appliances up to a value of $10,000 plus
all personal automobiles. This property is exempt
from most claims against the estate.
Along with the homestead and exempt property,
the surviving spouse and children of the decedent
are entitled to a reasonable allowance of up to $6,000
from the estate for their maintenance during the ad-
ministration period. This is called the family
allowance. Any property that the decedent may have
left in trust during his lifetime, either for the
maintenance of his family or for other purposes, will
likewise pass directly to those who are designated
in the trust instruments.
The personal representative must examine any
partnership or business interests the decedent may
have had. Partnership agreements usually contain
provisions which govern what will happen to the
partnership after a partner dies. It may be necessary
to continue the business of a decedent or if it is not
profitable, to sell the business.


Inventory
After all assets have been gathered and the initial
steps have been made to protect them, the personal
representative should file an inventory in court. This
should be carried out within 60 days of the issuance
of the letters of administration. The estate assets will
then be used to pay claims and expenses of ad-
ministration. These include costs and expenses of ac-
tually carrying out administration, compensation of
the personal representative and attorney's fees,
reasonable funeral, interment, and grave marker ex-
penses (not to exceed $1,500), debts and taxes, and
family allowance.
To emphasize, the general duties of the personal
representative include the payment of all creditors
of the estate and the distribution of the rest of the


estate to the beneficiaries. The personal represen-
tative must keep estate funds separately from her
personal funds; she should keep accurate records and
establish adequate bookkeeping methods; she is
obliged to file tax returns and notices for the estate;
she must maintain estate assets to the extent
necessary to prevent deterioration, loss, or damage;
and she must act as a trustee for all who are in-
terested in the estate. In performing these duties, the
personal representative has the power to hire
secretaries, accountants, tax specialists, attorneys,
and other experts who will then be entitled to
reasonable compensation out of the estate.


Distribution of Assets After Expenses
and Debts Have Been Paid

If there is no will, the Florida Statutes have
prescribed the disposition of estate assets through
the laws of intestate succession. If the decedent has
no lineal descendants (children, grandchildren, great
grandchildren, etc.), the entire estate is given to the
surviving spouse. For example, suppose John and
Mary, husband and wife, have no children. When
John suddenly dies without leaving a will, the total
estate is valued at $150,000. Mary, therefore,
receives the entire estate ($150,000).
If, however, there are surviving lineal descendants
of both the decedent and the surviving spouse, the
first $20,000 of the estate plus half of the remaining
assets of the estate are distributed to the surviving
spouse, the remaining half to the lineal descendants.
Now assume that John and Mary have a son Mark
and a daughter Alice when John dies, leaving no will
and an estate valued at $150,000. Mary now receives
the first $20,000 of the estate. The remaining
$130,000 is then split equally between Mary, on one
hand, and Alice and Mark, on the other. This means
that Mary receives $65,000 in addition to the first
$20,000; and Alice and Mark each receive $32,500.
Assets are distributed differently, however, in the
event the surviving children are not descendants of
the surviving spouse. In this case the surviving
spouse will receive half the estate, the lineal descen-
dants the other half. Using the example of John and
Mary again, we now assume that John has a son Mark
and a daughter Alice by a previous marriage. John
dies, leaving an estate valued at $150,000. Mary now
receives half the estate or $75,000, and Alice and
Mark each receive $37,500.
When there is no surviving spouse, the entire
estate is distributed to the lineal descendants. In our
example, Mary now dies before John, who then dies
leaving an estate valued at $150,000. When John









dies, the entire estate is split between son Mark and
daughter Alice, who each receive $75,000.
If the estate owner dies without a spouse or lineal
descendants, the estate goes in equal shares to his
father and mother or to the survivor of them.
If both father and mother are deceased, the estate
will descend to the decedent's brothers and sisters
and their descendants. If there are no brothers and
sisters or their descendants, the estate will go to
more remote relatives as provided by law.
It is important to note that the share of the estate
the descendants will receive is based on their place
in the family tree; the estate is not simply divided
evenly among the individual beneficiaries. This
means that when a decedent is survived by a son as
well as the children of a deceased daughter, the son
will receive one-half of the estate, and the grand-
children will receive the other half.
Now our example gets a bit complicated. Again,
John and Mary have two children, Mark and Alice.
Let's now assume that Mary and Alice die before
John, who then dies leaving an estate valued at
$150,000. Meanwhile, Alice has left two children,
Roy and Debra. Mark, the surviving son, now
receives one-half of the estate, or $75,000, and the
other half is split between Roy and Debra.
Let's examine another situation to further drive
home this point. Assume the survivors are one child
of a deceased daughter and two children of a de-
ceased son. The child of the daughter will receive
one-half of the estate, and the two children of the
son will receive one-half of the estate, or one fourth
each. For example, suppose that Mary, Mark, and
Alice all die before John, who then dies leaving an
estate valued at $150,000. Mark has left one child,
Will, and Alice has left Roy and Debra. When John
dies, the estate is split so that Will receives $75,000,
and Roy and Debra each receive $37,500.
If there is a will, however, the personal represen-
tative shall distribute the assets as instructed by the
decedent. In the event there are insufficient assets
to satisfy all gifts (sometimes called devises) in the
will, property will be disposed of according to
statutory preference. Specific gifts to individuals will
be distributed first, and any remaining assets will be
distributed among those who are entitled to lump
sums of money and the remainder.
A surviving spouse may elect to receive a share of
the estate other than that prescribed in the statute
of intestate succession or that devised to her in a will.
This is called elective share and consists of 30% of
the fair market value of all assets subject to ad-
ministration minus all valid claims against the estate.
The election must be made within four months of the
first notice of administration. The decision to take


the elective share rather than either the testate or
intestate share does not affect the surviving spouse's
right to exempt property or family allowance,
although it can be barred by prior written agreement.
After all distributions have been made, the per-
sonal representative should review the court file for
completeness. Receipts for all payments and distribu-
tions should be secured to assure the court that
creditors or beneficiaries are entitled to receive their
money or property. All federal estate taxes should
be paid and a final accounting filed in court. A final
accounting and petition for discharge shall be filed
and served on all interested parties within 12 months
of the issuance of letters of administration, unless
an extension of time has been granted by the court.
The judge will then execute an order of distribution
and final discharge. In an ordinary, uncomplicated
estate, administration might require about a year.


Small Estates
Certain small estates are entitled to abbreviated
forms of administration which result in almost im-
mediate distribution of assets from the estate to the
beneficiaries without the appointment of a personal
representative or the filing of notice. In some cases
a hearing in court will be necessary.
When the only beneficiaries are the surviving
spouse and lineal descendants or ascendants (and
others whose devise constitutes only a minor part),
the estate may not require formal administration. If
the value of the gross estate for federal estate tax
purposes (see below) does not exceed $60,000, the
estate consists solely of personal property, and the
estate is not indebted, the estate may be disposed
of in family administration. The will, if there is one,
must be proved in a procedure similar to that of a
formal administration, which means a witness of the
will must attest to its validity if it had not been
notarized. All beneficiaries must sign the petition to
the court for family administration. Distributees
under family administration shall be responsible for
claims of creditors up to the value of their gift for
a period of three years. Additionally, any
beneficiaries who were excluded from administra-
tion may enforce their rights at any time against
those who participated in the distribution.
Florida law provides summary administration for
estates whose assets subject to administration are
less than $25,000 in value. To qualify, the debts of
the estate must all be provided for or satisfied. The
petition for summary administration must be signed
by all beneficiaries. The responsibility of the
beneficiaries to creditors and excluded beneficiaries
is the same as the family administration.









Some estates will be entitled to disposition without
administration. To qualify, an estate must consist en-
tirely of exempt personal property plus non-exempt
personal property which is worth less than the sum
of funeral expenses and reasonable and necessary
medical expenses of the last 60 days of the dece-
dent's last illness. All that is necessary for this
disposition is a letter to the court stating the re-
quirements. The court will then authorize payment,
transfer, and disposition of property.
Unless an estate qualifies for the exceptions pro-
vided for small estates, it will go through a regular
administration proceeding. To summarize, the ma-
jor steps in a regular proceeding are the following:
1. Producing and proving the will if there is one.
2. Designating the personal representative (ex-
ecutor or administrator).
3. Posting a 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. Publishing notice to creditors.
6. Filing estate inventory by personal repre-
sentative.
7. Appraising property in estate by appraisers
appointed by circuit judge.
8. Assigning elective share and family allowance.
9. Paying expenses of administration and claims
against estate.
10. Distributing balance of estate to heirs.
11. Filing annual and final reports by 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
a considerable degree from the estate for administra-
tion purposes. In general, the property of the dece-
dent which is not subject to administration is also in-
cluded in the so-called "gross estate" for tax pur-
poses. The estate of every decedent is allowed a
credit, called the unified credit. (A tax credit is simp-
ly an amount which is subtracted from a tax bill after
the amount of tax has been determined.) This credit
allows estates which are below $600,000 in value to
escape estate tax liability. This credit has been
gradually increased each year, from $79,300 in 1983
to $192,000 for 1987 and after. The maximum rate


of tax is 55 percent. There is also an add-on tax of
5% for extremely large estates. For lesser estates the
tax rate is graduated, with the lowest being 18 per-
cent for estates valued at $10,000 or less.
Various deductions are allowed by the Internal
Revenue Code. (A deduction is an amount subtracted
from the estate prior to determining the amount of
tax.) The provisions of the Internal Revenue Code
and their legal interpretations determine the
qualifications for the various deductions. These pro-
visions and their interpretations are too many and
too complicated to discuss fully here.
The one important deduction is called the marital
deduction. This deduction permits all amounts which
are transferred from one spouse to another to escape
tax liability. For example, when John gives his en-
tire $1 million estate to Mary in his will, no tax will
be paid because the entire amount is subject to the
marital deduction. However, when Mary dies and
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
gross estate is determined by the fair market value
at the time of the decedent's death. Because this
valuation could lead to harsh results when one's
estate consists largely of land used in a farming
operation, the tax law provides that the value of a
farm for estate tax purposes will be determined ac-
cording to its agricultural use, not according to the
highest price which might be obtained on the open
market. There are several prerequisites to receiving
the agricultural use valuation. To qualify, the estate
must consist of at least 50 percent of property, both
real and personal, devoted to use as a farm or for
farming purposes. At least 25 percent of the estate
must consist of farmland. The ownership of the pro-
perty is limited to the decedent or members of his
family. Additionally, the decedent or members of his
family must have "materially participated" in the
operation of the farm business for at least a total of
five years during the eight year period immediately
preceding the decedent's death, his retirement, or
his becoming disabled. The definition of family
member is limited to children, parents, spouse, and
parents of the spouse. The amount by which the
estate is reduced due to agricultural use valuation
cannot exceed $750,000. For 10 years after the dece-
dent's death, family members who receive the prop-
erty must continue to use or "materially participate"
in the farming operation, or the federal estate tax
will be redetermined to exclude the benefits deriv-
ed from the agricultural use valuation.
Significant savings in estate taxes can be exacted
through proper use of the unified credit and the
marital deduction. Careful planning can mean the









preservation of a family farm operation. The ap-
plicable provisions of the Internal Revenue Code are
complicated, and each individual has different assets
and distinct goals. A qualified attorney should be
consulted in the formulation of your will and in the
planning of your estate.



Summmary
After a person dies, his or her estate is passed down
to the surviving generation through a process called
administration which is supervised by the court in
a procedure called probate. The personal represen-
tative of the decedent is responsible for: (1) collec-
ting and managing the estate property while it is in
administration, (2) paying debts of the decedent out
of estate assets, (3) paying estate taxes out of estate
assets, and (4) distributing the remaining assets of


the estate to the proper beneficiaries. The personal
representative maintains a position of trust, and
should manage the estate in a prudent manner. Many
assets of an estate are not distributed through ad-
ministration. These assets include life insurance pro-
ceeds, social security benefits, and property held by
joint ownership. The assets of the estate will be
distributed to the beneficiaries either as the will in-
structs or, when there is no will, by virtue of the laws
of intestate succession. Federal estate taxes general-
ly are imposed upon all assets of the estate, including
those assets which pass outside administration.
Every estate is entitled to a unified credit, and all
gifts to one's spouse are deducted from the estate
for tax purposes. After all debts and taxes of the
estate are paid, and the assets are distributed to the
beneficiaries, the personal representative files a final
accounting with the court, and administration of the
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 all gifts of an estate, those gifts will abate. Abatement
is the diminution in the value of the estate.
Ademption The extinction or withdrawal of assets in an estate which were subject to a gift in a will. Ademp-
tion can occur either through extinction, that is, the asset simply does not exist at the time of decedent's
death, or by satisfaction, which occurs when a gift is made to the intended beneficiary during the lifetime
of the testator.
Administration The supervision and management of an estate by a personal representative. Administra-
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.
Beneficiary One who will be entitled to the enjoyment of property after another's death. The term in-
cludes 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.
Bequeath To give personal property by will to another.
Bequest A gift of personal property by will to another; a legacy.
Claims Liabilities of the decedent, whether out of contract, tort, or otherwise. The term includes funeral
expenses, but not expenses of administration of the estate, inheritance, succession, or other taxes.
Class gift A gift 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 gift.
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.









preservation of a family farm operation. The ap-
plicable provisions of the Internal Revenue Code are
complicated, and each individual has different assets
and distinct goals. A qualified attorney should be
consulted in the formulation of your will and in the
planning of your estate.



Summmary
After a person dies, his or her estate is passed down
to the surviving generation through a process called
administration which is supervised by the court in
a procedure called probate. The personal represen-
tative of the decedent is responsible for: (1) collec-
ting and managing the estate property while it is in
administration, (2) paying debts of the decedent out
of estate assets, (3) paying estate taxes out of estate
assets, and (4) distributing the remaining assets of


the estate to the proper beneficiaries. The personal
representative maintains a position of trust, and
should manage the estate in a prudent manner. Many
assets of an estate are not distributed through ad-
ministration. These assets include life insurance pro-
ceeds, social security benefits, and property held by
joint ownership. The assets of the estate will be
distributed to the beneficiaries either as the will in-
structs or, when there is no will, by virtue of the laws
of intestate succession. Federal estate taxes general-
ly are imposed upon all assets of the estate, including
those assets which pass outside administration.
Every estate is entitled to a unified credit, and all
gifts to one's spouse are deducted from the estate
for tax purposes. After all debts and taxes of the
estate are paid, and the assets are distributed to the
beneficiaries, the personal representative files a final
accounting with the court, and administration of the
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 all gifts of an estate, those gifts will abate. Abatement
is the diminution in the value of the estate.
Ademption The extinction or withdrawal of assets in an estate which were subject to a gift in a will. Ademp-
tion can occur either through extinction, that is, the asset simply does not exist at the time of decedent's
death, or by satisfaction, which occurs when a gift is made to the intended beneficiary during the lifetime
of the testator.
Administration The supervision and management of an estate by a personal representative. Administra-
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.
Beneficiary One who will be entitled to the enjoyment of property after another's death. The term in-
cludes 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.
Bequeath To give personal property by will to another.
Bequest A gift of personal property by will to another; a legacy.
Claims Liabilities of the decedent, whether out of contract, tort, or otherwise. The term includes funeral
expenses, but not expenses of administration of the estate, inheritance, succession, or other taxes.
Class gift A gift 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 gift.
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 consists 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 important 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 furniture, furnishings, and ap-
pliances up to a value of $10,000 and all personal automobiles.
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 property 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.
Lapse The expiration of a gift caused by the death of the beneficiary. A lapsed gift goes into the residue
of the estate. Lapse of certain gifts is saved by an anti-lapse statute. A gift to one's grandparent or lineal
descendant of one's grandparent will not lapse, but will be passed on to the lineal descendants of the deceased
beneficiary. The same holds for the beneficiary of a class gift.
Legacy A disposition of personal property by will.
Legatee The recipient of a legacy.
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 invalidate any gift 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 of lineal descendant would receive the interest if avoided. If substantially
the same gift had been made in a will prior to the six months, the gift will be saved.
Nuncupative will An oral declaration which is uttered during one's last sickness and purports to dispose
of personal property. These are not recognized in Florida.
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 administratrix
(-tor), executrix (-tor), and ancillary administrator.
Petition A written request to the court for an order.
Pretermitted heir or spouse A descendant or spouse who has been omitted by a testator. When a testator
remarries 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, it must be in writing. The testator must sign at the end, or the testator's name
must be subscribed at the end by another at the testator's direction and in his presence. At least two per-
sons must witness the testator's signing or acknowledge that he had previously signed or that another had
subscribed the testator's name to it. Witnesses must sign in each other's presence, as well. A codicil must
be executed with the same formalities. 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 an
attesting 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 will does 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.














































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This publication was produced at a cost of $1316.30, or 26.3 cents per copy, to provide women with information
about Florida law as it applies when they inherit farms or other property from their husbands. 4-5M-88


COOPERATIVE EXTENSION SERVICE, UNIVERSITY OF FLORIDA, INSTITUTE OF FOOD AND AGRICULTURAL SCIENCES, K.R. Tefertiller,
director, In cooperation with the United States 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 institu-
tions that function without regard to race, color, sex, age, handicap 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, Gainesville, Florida 32611. Before publicizing
this publication, editors should contact this address to determine availability.