Fiduciary Administration
Tritt Spring 15
I. Where to Begin: Pre-probate and Preliminary Stages of Estate Administration.
A. Initial Interview.
1. Meet with Family.
2. Sign Retainer?
3. Assemble Contact Information.
B. Pre-probate.
1. When Do Fiduciary Duties and Powers Commence (relation back)?
a. Unif.Probate Code § 3-701, F.S. § 733.601
2. Death of Client/Proof of Death.
a. Unif.Probate Code § 1-107, F.S. § 731.103
3. Locating Funeral Arrangement Instructions and Original Will.
a. Contact decedent’s t&e lawyer, surviving spouse, next-of-kin, caregivers, etc. Review Will for any information about funeral arrangements.
b. Safety Deposit Box – without Court Order. F.S. §§ 655.935, 655.936, 655.937
c. Safety Deposit Box – by Court Order. If court order is required, file: “Petition to Open Safe Deposit Box” and “Order to Open Safe Deposit Box.”
4. Disposition of the body.
a. Determine whether the decedent made pre-need funeral arrangements (contracts).
b. The NOMINATED personal representative in the Will may carry out written instructions of the decedent relating to his body and funeral arrangements.
i. F.S. § 732.804.
c. Under, FL law, if no written instructions in his will, then surviving spouse or next-of-ken may dispose of the body.
d. Kirksey v. Jernigan, 45 So. 2d. 188 (FL 1950).
e. Cohen v. Guardianship of Cohen, 896 So.2d 950 (FL 2005)
f. Milstein v. Stern, 949 So.2d 1163, 2007 WL 602630 (Fla.App. 4 Dist.)
g. Do NOT PERSONALLY GUARANTEE the payment of funeral expenses—estate may become insolvent.
i. F.S. § 733.707(1)(b)
5. Anatomical Gifts – Its important to determine as soon as possible whether the decedent or an authorized person made or desires to make a gift of body organs under F.S. § 765.512.
a. MAKE SURE INSTRUMENT WAS NOT AMENDED OR REVOKED.
6. Notify Financial Institutions, Insurance Providers and Death Benefits Providers.
a. Notify banks. Instruct not to honor a power of attorney.
b. Notify life insurance companies of death. Notify other insurance providers and request personal representative be added to each policy as an additional insured and obtain copies of endorsements. Make sure home, car and other estate valuables adequately insured.
c. Consider changing locks on the decedent’s residence.
d. Verify decedents monthly payments (mortgage, electricity, etc.) and make sure either paid or terminated. Notify magazines, etc. and get refund.
e. Secure any risk of liability items—cars, boats, etc.
III. Opening of an Estate Administration
A. Division of estate administration into three categories:
1. Opening/Preliminary Stages of an Estate.
2. Mid-Administration of an Estate.
3. Closing an Estate.
B. Why do we administer an estate?
1. F.S. § 731.201(14)
C. Reasons for estate administration:
1. Serves to establish title of decedent’s property and provides orderly distribution of Decedent’s Property to Successors.
a. Effect of Probate.
b. F.S. § 733.103.
2. Commences Statute of Limitations on Decedent’s debts.
a. F.S. § 733.702(1) and F.S. § 733.710.
3. Facilitates collection of debts and assets.
4. Provides method of determining and paying taxes.
D. Where do we administer an estate? (Goal: Understand the basics of domicile, jurisdiction, venue and ancillary administration.)
1. Choice of law issues.
a. Validity of Instrument vs. Construction of Instrument.
b. (However, the decedent or settlor may be able to designate a state in which the principal place of administration is deemed to take place and that designation will be respected if possible.)
c. Unif. Prob. Code § 2-703, Unif. Trust Code § 108 and F.S. § 732.6005.
2. Domicile.
a. Why do we care about domicile other than probate?
b. Conflicts. Riley v. New York Trust Co., 315 U.S. 343 (1942).
c. See, however, Unif.Probate Code § 3-202.
d. F.S. § 731.201(13) and (33), F.S. § 22
d Person
B. Summary Administration
C. Disposition of Personal Property without Administration
D. Probate
E. Proving a Will
F Probate in Common Form
G. Probate in Solemn Form
I. Administration/Probate. READ: the General Comment for Article 3 of the Unif.Probate Code. (Overall, Article 3 is premised on the notion that the court’s role is passive until some interested party invokes its power, and that government should refrain from intruding into family affairs.)
II. Opening Administration.
A. File Death Certificate. Fla.Prob.R. 5.205.
B. Determine what type of Administration is appropriate.
1. Formal. Chapter 733
2. Summary Administration. F.S. § 735.201
3. Disposition of Personal Property Without Administration. F.S. § 735.301
C. Deposit Original Will. F.S. § 732.901 and F.S. § 731.201(39).
a. 3rd Degree Felony for stealing, destroying or CONCEALING any Will. F.S. § 812.014
D. Probate the Decedent’s Will, if any.
1. The term “probate” for purposes of this portion of class discussion will be used in its restrictive sense to mean the judicial proof of the Will. Note important distinction between probate and construction proceedings.
2. Effect of Probate. F.S. § 733.103
3. In a testate estate, probate of the Will is generally a prelude to administration of an estate. But, Fla.Prob.R. 5.210
a. Must a Will be probated? Suppose the beneficiaries do not wish to probate the Will–must they? F.S. § 733.815, In Re Estate of Litras, 608 So.2d 847 (1992)
b. In Re Will of Pendergrass, 251 N.C. 737 (1960).
