The New Model Florida Probate
As many of you avid legal readers may already know, probate in Florida is governed by the Florida Probate Code, found under Title XLII, Chapters 731-735 of the Florida Statutes.http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Index&Title_Request=XLII#TitleXLII.
As I’ve previously discussed, there are different types of probate proceedings in Florida. The two (2) most common forms are a formal administration, which is in effect a “real” probate, generally having a duration of five (5) months to a year or longer, and a summary administration, which is typically an “in and out” proceeding, generating just a court order known as an Order of Summary Administration, in lieu of the formal probate proceeding.
One of the problems we run into in a formal probate, or even in a summary administration if a personal representative (i.e., executor, and hereafter, “PR”) is appointed by the court under special circumstances, is whether the client’s choice as designated PR will qualify. Consider Florida Statutes ss. 733.302, 733.303 and 733.304. Section 733.302 identifies a person who may be appointed PR as one who is sui juris and is a resident of the Florida at the time of the death of the decedent is qualified to act as PR in Florida. http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0733/Sections/0733.302.html.
On the other hand, Section 733.303 directs that a person is not qualified to act as PR in Florida if the person has a felony conviction, is mentally or physically unable to serve, or is a minor.http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0733/Sections/0733.303.html. What about nonresidents, you ask? Well, Section 733.304 goes further to explain that in certain limited instances, a nonresident may also qualify (generally must be a specified relative or spouse of a relative of the decedent).http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0733/Sections/0733.304.html.
So here’s the rub: your client only wants to designate a convicted felon Son as PR, or a nonrelative nonresident as PR! Now what do you do? That is the challenge of designing a will. Should you talk the client into designating someone else who should qualify under the then current facts, or disclose the issue and name the persons who wouldn’t currently qualify as PR.
Let’s look at some examples:
Example 1. Son is sole beneficiary and convicted felon. Mom insists on designating him in the will as PR. With the appropriate disclosure to the client, you name him as PR. Mom dies. Son is still not qualified (i.e., he did not receive a post-conviction pardon), what do you do now? First, is a “real” probate necessary, or will just a summary administration proceeding, or even an abbreviated disposition without administration (verified statement) sufficient? That answer depends on the nature and extent of the assets we are dealing with. The point is that if we are essentially only obtaining a court order on which third parties will rely without a true formal administration, then no PR appointment is necessary anyway. However, assume the worst case scenario that a formal administration is required, and Son is still not qualified. Florida Statutes s. 733.301(2) would say that the son, as the majority in interest of the persons entitled to the estate, would still be able to direct the PR selection with the probate court, even though he himself is not qualified to serve personally as PR.http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0733/Sections/0733.301.html.
Example 2. Son and Daughter are named by Mom as PR together. Both are residents of Florida when the will is made, and neither has a felony conviction or other disabling condition to so serving at that time. Son takes a withhold of adjudication on a felony case a year prior to Mom’s death, and Daughter moves out of state prior to Mom’s death. Neither disqualifies either child from PR service. A withhold of adjudication, without more, is not the same as a felony conviction. That does not disqualify the Son from service. Daughter is related by lineal consanguinity to Mom under s. 733.304(2), and as such is still qualified to act as a nonresident PR.
Example 3. Mom names resident Stepson to serve as PR. Stepson moves out of state prior to Mom’s death. Stepson is still related by lineal consanguinity to Mom’s spouse regardless of his residency, and thus qualifies under s. 733.304(3).
Example 4. Mom names a nonresident friend to serve as PR “if then qualified to so serve in the State of Florida.” Friend moves to Florida and establishes residency prior to Mom’s death. Friend is now a resident and would qualify, absent other facts, under s. 733.302. If Friend had not moved to Florida, then friend would be able to serve as a petitioner in a summary administration case, but not as a PR in a “real” formal probate in Florida.
The title of this blog is “New Model Florida Probate.” Whenever you see that label from me, consider it your invitation to bypass the Florida Probate Code and instead plan under the Florida Trust Code, which is found under Chapter 736, Florida Statutes. http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0736/0736ContentsIndex.html&StatuteYear=2012&Title=-%3E2012-%3EChapter%20736. Part VII of that chapter has no comparable statutory criteria for a valid, duly qualified trustee of a Florida trust. http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0736/0736PARTVIIContentsIndex.html. Hence, a simple trust covering Mom’s assets which would otherwise be subject to a probate proceeding, arguably should be the post-mortem administration vehicle of choice for Mom, so that she can name her reformed convicted felon Son, or her long lost nonresident childhood friend as trustee, without having to worry about the vagaries of their qualifying under ss. 733.301-733.304! There’s more than one way to skin a cat. Think outside of the box to accomplish your client’s goals and desires.
Don’t be a victim of one size fits all planning. Know your legal rights on estate planning and act accordingly!