Probate Section Report
by
Larry E. Ciesla

Judge Monaco attended the October meeting of the probate section for the purpose of introducing an alternative to the system currently being utilized in his division for holding probate case management conferences. We are all undoubtedly familiar with the present procedure whereby case management conferences are scheduled in all probate files commencing eight months from the date of issuance of letters of administration, continuing thereafter on a periodic basis until the file is closed. Perhaps the biggest problem with the current system is the amount of time and energy which must be expended by the probate staff attorney in fielding and sorting the various responses received from attorneys wishing to avoid appearing at the scheduled hearing (which, pursuant to an informal survey taken at the meeting, is fairly close to 100% of those who have received a notice of a CMC). Randy Childs, the staff attorney for Alachua County probates, indicated he will typically have one hundred or so files set for hearing each CMC day, and that he is usually tied up for five days prior to the CMC day in dealing with the various attorneys’ responses, status reports and requests for continuances. When you take into consideration the fact that Randy is responsible for two probate divisions in Alachua County, it is apparent that he ends up devoting a large percentage of his time solely in dealing with CMCs.

Judge Monaco is proposing to institute a new procedure whereby in lieu of issuing an order scheduling a case management conference, he would issue an order requiring a status report, to be filed within fifteen days, failing which, sanctions would be considered. The status report would address those items listed in local Administrative Order Number 6.69(B)(2), which are likewise set forth in the standard form for order scheduling case management conference. Judge Monaco indicated that the goal would be to set for case management only those cases which truly require court involvement. Drafts of forms for the order requiring status report and status report were circulated at the meeting and are available from my office. Judge Monaco is asking for feedback from the probate bar, both as to the general framework and as to the specifics of the forms. Input can be emailed to Judge Monaco at tsm@circuit8.org. If the process proves successful, it is hoped that Judge Roundtree would come on board and adopt the same procedures for probate CMC.

The meeting next proceeding with a short discussion regarding the recent change in the law regarding the filing of the old Department of Revenue Form DR-301, known as the Preliminary Notice and Report, used of non-taxable estates of decedents who died prior to January 1, 2000. Under the new law, the Florida Department of Revenue will no longer be issuing Non- Taxable Certificates for persons dying prior to January 1, 2000. Instead, a Department of Revenue Form DR-312, known as the Affidavit of No Florida Estate Tax Due, should be recorded in the public records. A copy should not be sent to the Department of Revenue. Further information may be obtained from the Department’s web site, www.myflorida.com/dor.

In September, the Supreme Court of Florida issued its opinion in the case of McKean vs. Warburton, 30 Fla.L.Weekly S613 (Fla. September 9, 2005), dealing with distribution of proceeds from the voluntary sale of a homestead in a testate estate where the will was silent as to disposition of the homestead. McKean’s will provided two specific pecuniary bequests, with the residue going to his half-brothers. There were insufficient funds in the estate to satisfy the specific pecuniary bequests. The homestead was voluntarily sold, by agreement, and the proceeds escrowed pending a determination by the court as to whether the proceeds would first be used to satisfy the specific pecuniary bequests, with the balance going to the residuary beneficiaries, or whether the proceeds would pass solely to the residual heirs. The supreme court first determined that the proceeds were from the sale of a “protected homestead”, as the half-brothers are within the class of protected heirs, as stated in Sections 732.103 and 732.105, Florida Statutes. The supreme court then reversed the holding of the Fourth DCA, which awarded the proceeds to the beneficiaries of the two specific bequests. Pursuant to the authority of Estate of Murphy, 340, 340 So.2d 107 (Fla. 1976), a general residuary clause is sufficient to pass title to a decedent’s homestead.

Therefore, in this case, title to McKean’s home passed to his half-brothers, free and clear of the claims of all persons, whether creditors or other estate heirs. For further support, the court cited Snyder vs. Davis, 699 So.2d 999 (Fla. 1997), wherein the court held that the foregoing result is not changed by the fact that the heir selected by the decedent to receive his or her homestead is not the decedent’s closest heir, who would receive the home in a case of intestacy. The court also re-emphasized the rule contained in Section 733.607, Florida Statutes, that a protected homestead is not considered an asset in the hands of the personal representative, rather, it passes outside of the probate estate. The only exception is where the will contains an express direction that the homestead be sold by the personal representative with the proceeds to be distributed to the beneficiaries of the estate. Such a provision in a will acts to strip the homestead of its protected status, as held in the case of Knadle vs. Estate of Knadle, 686 So.2d 631 (Fla. 1st DCA 1996).

The probate section continues to meet on the second Wednesday of each month at 4:30 p.m. in the former grand jury room on the fourth floor of the civil courthouse. All interested practitioners are invited to attend. If you wish to be added to the list of section members receiving email notification two days before each meeting, you may send your email address to me at Lciesla@aol.com.

 
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