HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 923 Wills and Estates
SPONSOR(S): Civil Justice Subcommittee, Fabricio
TIED BILLS: IDEN./SIM. BILLS: SB 1064
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Civil Justice Subcommittee 18 Y, 0 N, As CS Mawn Jones
2) Judiciary Committee 18 Y, 0 N Mawn Kramer
SUMMARY ANALYSIS
Probate is a court-supervised process for identifying and gathering the assets of a deceased person
(“decedent”), paying the decedent’s debts in an orderly fashion, and distributing the decedent’s assets
(“probate estate”) to his or her beneficiaries, whether such beneficiaries are determined according to a will
(“testate succession”) or are heirs at law determined by default rules of succession where the decedent did not
leave a will (“intestate succession”). Probate proceedings are governed by The Florida Probate Code, codified
in chs. 731 – 735, F.S., and the Florida Probate Rules of Court.
Section 28.223, F.S., requires the clerk of the circuit court to record all wills admitted to probate, orders
revoking the probate of any wills, letters of administration, orders affecting or describing real property, final
orders, orders of final discharge, and orders of guardianship filed in the clerk’s office. This section also
prohibits the clerks from recording any other probate documents except upon the court’s written direction.
Each state establishes rules for the disposition of marital property upon the death of one spouse where the
spouses were domiciled in that state. There are currently two marital property disposition systems utilized in
the United States: the “community property” system and the “common law property” system. Nine states are
“community property” states, in which each spouse is entitled to a one-half share of most property acquired
during the marriage; in such states, a decedent’s probate estate consists of only his or her one-half share of
the community property. In contrast, 41 states, including Florida, are “common law property” states, which
system looks to how an asset is titled to determine whether the property is marital property or separate
property; in such states, a decedent’s separate property may generally be disposed of however he or she
wishes upon his or her death.
Though Florida is a common law property state, Florida courts have long recognized that married couples
relocating to Florida from community property jurisdictions maintain their community property rights in property
that was community property before their relocation. In 1992, Florida adopted the Florida Uniform Disposition
of Community Property Rights at Death Act (“Act”), codified in ss. 732.216-732.228, F.S., to provide guidance
for preserving the rights of a surviving spouse in any such community property upon a spouse’s death where
probate is opened in Florida. Nothing in the Act requires a surviving spouse to make a probate creditor claim to
preserve his or her community property rights. However, in 2018, the Fourth District Court of Appeal held that
probate creditor claim procedures apply to title disputes arising under the Act, including the statute of
limitations period and the two-year statute of repose applicable to such claims.
CS/HB 923:
 Amends s. 28.223, F.S., to expand the types of probate records which the clerk must file.
 Exempts title disputes under the Act from the definition of creditor claims, provides a new dis pute
resolution mechanism and two-year statute of repose for such disputes, and makes certain revisions to
the Act to improve clarity and reduce the risk of unintended forfeitures of community property rights.
The bill may have an indeterminate fiscal impact on local government but does not appear to have a fiscal
impact on state government. The bill provides an effective date of upon becoming a law.
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
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 FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Florida Probate Code
Probate is a court-supervised process for identifying and gathering the assets of a deceased person
(“decedent”), paying the decedent’s debts in an orderly fashion, and distributing the decedent’s assets
(“probate estate”) to his or her beneficiaries, whether such beneficiaries are determined according to a
will (“testate succession”) or are heirs at law determined by default rules of succession where the
decedent did not leave a will (“intestate succession”).1 Probate proceedings are governed by The
Florida Probate Code, codified in chs. 731 – 735, F.S., and the Florida Probate Rules of Court.2
Venue
Under the Probate Code, venue for the probate of wills and granting of letters is proper:
 In the county in Florida where the decedent was domiciled.
 If the decedent had no domicile in Florida, in any county where the decedent’s property lies.
 If the decedent had no domicile and possessed no property in Florida, then in the county where
any of the decedent’s debtors reside.3
Effect of Probate
Until admitted to probate in Florida or in the state where the decedent was domiciled, a will is
ineffective to prove title to, or the right to possession of, the testator’s property. 4 The probate of a will in
Florida is conclusive of the will’s due execution; that it was executed by a competent testator, free of
fraud, duress, mistake, and undue influence; and that the will was unrevoked on the testator’s death. 5
However, any property not effectively disposed of by will passes to the decedent’s heirs as specified in
Chapter 732, F.S., pertaining to the disposition of intestate estates. 6 In such situations, it is the
decedent’s death that vests the heirs’ right to the decedent’s intestate property. 7
Determination of Beneficiaries
When property passes by intestate succession or the will is unclear and there is doubt about either who
is entitled to receive any part of the property, or the shares and amounts that any person is entitled to,
any interested person8 may petition the court to determine beneficiaries or their shares.9 Any personal
representative who makes distribution or takes any other action pursuant to an order determining
beneficiaries is fully protected, and a separate civil action to determine beneficiaries may be brought
when an estate has not been administered.10
1 The Florida Bar, Consumer Pamphlet: Prob ate in Florida, https://www.floridabar.org/public/consumer/pamphlet026/ (last visited Jan.
25, 2024); s. 731.201(2) and (20), F.S.
2 The Florida Probate Rules of Court are available at https://www-media.floridabar.org/uploads/2020/01/Probate-Rules-01-01-20.pdf
(last visited Jan. 25, 2024). S. 731.005, F.S.
3 S. 733.101, F.S.
4 S. 733.103(1), F.S.
5 S. 733.103(2), F.S.
6 S. 732.101, F.S.
7 Id.
8 An “interested person” is any person who may reasonably be expected to be affected by the outcome of the particular proceedin g
involved. S. 731.201(23), F.S.
9 S. 733.105, F.S.
10 Id.
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 Personal Representatives
Generally, any person who has full legal capacity to act on his or her own behalf and is a Florida
resident at the time of the death of the person whose estate is to be administered may act as the
estate’s personal representative.11 However, a person may not serve in such capacity if the person:
 Has been convicted of a felony;
 Is mentally or physically unable to perform the duties; or
 Is a minor.12
Furthermore, a person who is not a Florida resident may serve in such capacity if the person is:
 The legally adopted child or adoptive parent of the decedent;
 Related to the decedent by lineal consanguinity;
 A spouse or a brother, sister, uncle, aunt, nephew, or niece of the decedent, or someone
related by lineal consanguinity to any such person; or
 The spouse of a person otherwise so qualified.13
Regardless of who is filling the role, a personal representative’s duties and powers begin upon
appointment.14 Generally, a personal representative is a fiduciary15 who:
 Must observe the standards of care applicable to trustees;
 Has a duty to settle and distribute the estate in accordance with the terms of the decedent’s will
and the Probate Code in an expeditious and efficient manner; and
 Must use the authority conferred by the Probate Code, under the will, and by court order for the
best interests of interested persons, including creditors. 16
Recording of Probate Records
Section 28.223, F.S., requires the clerk of the circuit court to record all wills and codicils admitted to
probate, orders revoking the probate of any wills and codicils, letters of administration, orders affecting
or describing real property, final orders, orders of final discharge, and orders of guardianship filed in the
clerk’s office. This section also prohibits the clerks from recording any other petitions, pleadings,
papers, or other orders relating to probate matters except upon written direction by the court, which
direction may be by incorporation using the words “to be recorded,” or words with similar effect.
Sometimes, a need arises to determine the true beneficiaries of an estate after probate closes. In such
instances, it could be helpful to refer to the official records of the county in which probate was opened;
however, many of the probate documents which Florida law requires the clerk to record do not list heirs
in an estate.17 In the case of an intestate estate, there is no will to record and, thus, there is often no
indication in the public records of the identities of the decedent’s beneficiaries.18 Even where a will is
recorded, the beneficiaries named in the will may differ from the beneficiaries listed in the probate
petition.19 In such instances, the only way to determine an estate’s beneficiaries may be to physically
appear at the clerk’s office and inspect the court docket, where such a docket has not already been
destroyed by the clerks due to the passage of time.20
11
Florida law also authorizes certain entities to serve as a personal representative. Ss. 733.302 and 733.305(1), F.S.
12 S. 733.303(1), F.S.
13 S. 733.304, F.S.
14 S. 733.601, F.S.
15 “Fiduciary” means a person having duty, created by his or her undertaking, to act primarily for another’s benefit in matters connected
with such undertaking. The duties of a fiduciary involve good faith, trust, special confidence, and candor. Black’s Law Dictionary 431
(6th ed. 1991).
16 S. 733.602, F.S.
17 Real Property, Probate, and Trust Law Section of the Florida Bar (“RPPTLS”), White Paper: Proposal to Amend §28.223, Fla. Stat.
(Prob ate Records; recordation).
18 Id.
19
Examples include a beneficiary’s death, an invalid exercise of homestead property, disclaimers, or a non -existent beneficiary (such
as an incorrectly-named charity). Id.
20 Id.
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 Probate Creditor Claims
Florida law authorizes any person to file a claim against a decedent’s probate estate if the decedent
owed such person money at the time of his or her death (“probate creditor claim”). Generally, the
personal representative must promptly publish a notice to creditors, which notice must contain the
name of the decedent; the file number of the estate; the designation and address of the court in which
the proceedings are pending; the name and address of the personal representative; the name and
address of the personal representative’s attorney; and the date of first publication.21 Publication must
be once a week for 2 consecutive weeks, in a newspaper published in the county where the estate is
administered or, if there is no newspaper published in the county, in a newspaper of general circulation
in that county.22 The personal representative must also promptly make a diligent search to determine
the names and addresses of the decedent’s creditors who are reasonably ascertainable, and promptly
serve a copy of the notice on those creditors; however, service is not required on any creditor who has
filed a claim as provided in this part, whose claim has been paid in full, or whose claim is listed in a
personal representative’s timely filed proof of claim.23
Florida law establishes a statute of limitations for bringing a probate creditor claim, which is triggered by
the publication or service of the notice to creditors. Specifically, s. 733.702(1), F.S., provides that no
claim or demand against the decedent’s estate that arose before the decedent’s death is binding on the
estate, on the personal representative, or on any beneficiary unless filed in the probate proceeding on
or before the later of the date that is three months after the time of the first publication of the notice to
creditors or, as to any creditor required to be served with a copy of the notice to creditors, 30 days after
the date of service on the creditor, even though the personal representative has recognized the claim
or demand by paying a part of it or interest on it or otherwise. Further, s. 733.710(1), F.S., provides a
two-year statute of repose applicable to such claims, running from the date of the decedent’s death.
Creditor claims not filed within these time periods are forever barred. 24
Disposition of Marital Property Upon Spouse’s Death
Each state establishes rules for the disposition of marital property upon the death of one spouse where
the spouses were domiciled in that state. There are currently two marital property disposition systems
utilized in the United States: the “community property” system and the “common law property” sys tem.
Community Property States
Nine states are “community property” states.25 The federal Fifth Circuit Court of Appeals summarized
the origins and attributes of this system, which gives each spouse to a marriage an equal one-half
share of all property acquired during the marriage (with the exception of gifts, inheritances, and certain
damages awards),26 as follows:
The community property system comes from the custom of the women of the
Visigoths and other Germanic tribes sharing the fighting and the spoils of war
with their men; it owes its strength to the civilized view that marriage is a full
partnership. Husband and wife are equal partners. Each has a present, vested
half interest in all community property. All property accumulated during marriage
is community property, unless it is received by gift, devise, or inheritance…Thus,
on death…the community [property] is divided equally. Neither spouse has
testamentary disposition over the other’s half of the community [property]. 27
21 S. 733.2121, F.S.
22 Id.
23 Id.
24 Id.
25 These states are Arizona, California, Idaho, Louisiana, New Mexico, Nevada, Texas, Washington, and Wisconsin. Guam and Puerto
Rico also utilize the community property system. RPPTLS, supra note 17.
26
Property acquired before the marriage, along with gifts, inheritances, and certain damages awards, is considered separate property,
which may be owned solely by one spouse.
27 Commissioner v. Chase Manhattan Bank , 259 F. 2d 231 239 (5th Cir. 1958).
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 In other words, one spouse in a community property state can dispose of his or her one-half share of
the community property in any manner he or she chooses upon his or her death; however, a spouse is
unable to dispose of his or her surviving spouse’s one-half share. Thus, the probate estate of a
deceased spouse in a community property state would consist only of his or her one-half share.
Common Law Property States
Forty-one states, including Florida, are “common law property” states. 28 Generally speaking, this
system looks to how an asset is titled to determine whether the property is marital property or separate
property.29 Where an asset is titled in the name of only one spouse, such asset is presumed to be
separate property; thus, the spouse in whose name it is titled may generally dispose of the asset in any
manner he or she chooses upon his or her death. 30 However, where an asset is held jointly, a decedent
spouse is limited to disposing of only that property interest which he or she owns. In Florida, property
may be held jointly as tenants in common,31 as joint tenants with right of survivorship,32 or as tenants by
the entirety,33 and a spouse may have a life estate in the property without an ownership interest. 34
Florida Uniform Disposition of Community Property Rights at Death Act
Though Florida is a common law property state, Florida courts have long recognized that married
couples relocating to Florida from community