CopyCited 12 times | Published | Florida 3rd District Court of Appeal
...to pay debts, expenses, fees, estate and inheritance taxes, and other costs of administration. If it constituted a specific bequest, although in trust, it would become the last portion of the residuary estate to bear the impact of the foregoing. See § 733.805, Fla....
...As in all cases construing wills, it is a question of intent to be determined by an overall reading of the last will and testament; in this case, the language employed in Articles NINTH and TENTH of the testator's will. Consequently, we hold that, pursuant to Section
733.805(1), Florida Statutes (1977), the bank shares are not part of the residuary estate from which all estate and inheritance taxes, charges, fees, and commissions chargeable to the estate are to be paid as directed in Article FIRST. It is only where the residuary estate would be insufficient that Section
733.805(1)(d), Florida statutes (1977) will authorize the co-personal representatives to utilize the bank stock to pay the foregoing. Section
733.817, Florida Statutes (1977) was not activated because apportionment was not necessary since it was not a specific bequest under Section
733.805(1)(c), supra....
CopyCited 7 times | Published | Florida 4th District Court of Appeal | 10 Fla. L. Weekly 1382, 1985 Fla. App. LEXIS 14338
...al legacies are insufficient to meet these requirements, then specific and demonstrative legacies abate in the manner set forth in section 12.07. *960 See also 80 Am.Jur.2d Wills § 1736 (1975). The above exposition is supported by the provisions of section 733.805, Florida Statutes (1983): (1) If a testator makes provision by his will, or designates the funds or property to be used, for the payment of debts, estate and inheritance taxes, family allowance, exempt property, elective share charges...
CopyCited 6 times | Published | Florida 1st District Court of Appeal | 12 Fla. L. Weekly 1668
...Citizens & Southern National Bank of Atlanta, Ga.,
103 So.2d 689 (Fla. 3rd DCA 1958). Also, contrary to appellant's assertions, a will may have more than one residuary clause. See Sternberg v. Florida National Bank of Jacksonville,
114 Fla. 580,
154 So. 844 (1934). III. Finally, the provisions of Sections
733.805 and
733.817, Florida Statutes (1981), relating to apportionment of taxes, are inapplicable to the instant case. Section
733.805(1) provides that if the testator makes provision by his will or designates the funds or property to be used for debts, estate taxes and expenses of administration, they shall be paid out of the funds or property as provided by the will....
CopyCited 6 times | Published | Supreme Court of Florida | 2005 WL 2155180
...g question to be of great public importance: WHERE A DECEDENT IS NOT SURVIVED BY A SPOUSE OR ANY MINOR CHILDREN, DOES DECEDENT'S HOMESTEAD PROPERTY, WHEN NOT SPECIFICALLY DEVISED, PASS TO GENERAL DEVISEES BEFORE RESIDUARY DEVISEES IN ACCORDANCE WITH SECTION 733.805, FLORIDA STATUTES? Warburton v....
...tor's claims. The Fourth District agreed with Warburton and considered the proceeds from the sale of the protected homestead as part of the general assets of the estate and available to satisfy specific and general devises under the will. Relying on section 733.805, Florida Statutes (2004), [4] the Fourth District concluded that residuary gifts abate or fail before general or specific devises. It then applied the estate assets, including the $141,000, in accordance with section 733.805 and found that the residuary gift abated or failed....
...asonable period of time. See Orange Brevard Plumbing & Heating Co. v. La Croix,
137 So.2d 201 (Fla.1962). The proceeds can be used to pay off an existing mortgage. See Suntrust Bank/Miami, N.A., v. Papadopolous,
740 So.2d 594 (Fla. 3d DCA 1999). [4] Section
733.805(1), Florida Statutes (2004), provides that funds of the estate shall be used to pay debts, charges, expenses, and devises, and that if the property is insufficient to cover all of those, gifts under the will shall lapse in the followi...
CopyCited 5 times | Published | Florida 3rd District Court of Appeal | 2008 WL 4057751
...rs, a residuary clause that split any residuary between these same two heirs, [6] and an administrative will provision seeking, ineffectually, at least as to the devise to Cynthia, to alter the general provisions of Florida's abatement *349 statute, section 733.805, Florida Statutes (2003), a provision that applies only to probate assets and only during the administration of estatesEdith's true desire was to do all she could to get her residence and the vacant lot into the hands of her daughter and son respectively....
CopyCited 4 times | Published | Florida 5th District Court of Appeal
...postnuptial agreement; (2) The spouse is provided for in the will; or (3) The will discloses an intention not to make provision for the spouse. The share of the estate that is assigned to the pretermitted spouse shall be obtained in accordance with § 733.805....
CopyCited 4 times | Published | Florida 4th District Court of Appeal
...[1] The 1978 Will provided that the taxes such as here involved shall be paid out of the residuary estate without reimbursement or contribution from any person and that debts and administrative expenses be paid in the due course of the administration of the estate. [2] *634 The statute, Section 733.805(1), Florida Statutes (1981), [3] provided that such expenses shall be paid out of the fund provided by the will (here the residuary estate) and if the fund so designated is insufficient, the estate property will be used to supply the insufficiency delineating an order of priority as concerns the source....
...We would note that some payment of estate, inheritance or death taxes from the trust corpus may be necessitated if the residuary estate is depleted with taxes still owing, and if so, it is fully authorized under Section
733.817, read in conjunction with Section
733.805....
...uary estate proved insufficient. Why else would she specifically provide in the trust for the possibility that the residuary estate might be insufficient to cover the taxes, etc.? I cannot agree that the provisions of a Florida Statute, specifically section 733.805, entitled "Order in which assets are appropriated," require us to ignore Ms. Brown's intent as expressed in her will and trust. Section 733.805, as the title suggests, provides a list of the testator's assets that are to be utilized for the payment of taxes, etc., in the event that the testator makes either no provision or inadequate provision for the payment of such taxes by his will or does *636 not otherwise designate the funds or property to be used to pay such taxes. Since Ms. Brown has, by her will and the trust provision set out above, adequately provided for the payment of such taxes, section 733.805 simply does not apply....
...s which assets she wants used to pay these obligations? I fail to see any conflict between the provisions of the will and the trust mandating invocation of the rule that the will provisions, and, hence, the statutory provisions, control. In my view, section 733.805(1) merely creates a convenient device to substitute for a testator's intent as to how estate expenses should be paid when the testator himself has either failed to make any provision or his provisions have proven inadequate....
...estate under the provisions of any tax law, whether or not passing under this Will or any Codicil that I may hereafter execute, shall be paid out of my residuary estate without reimbursement or contribution from any person. [Emphasis supplied.] [3] 733.805 Order in which assets are appropriated....
CopyCited 3 times | Published | Florida 3rd District Court of Appeal | 1991 WL 181445
...tator had one or more children when the will was executed and devised substantially all his estate to the other parent of the pretermitted child. The share of the estate that is assigned to the pretermitted child shall be obtained in accordance with §
733.805." Section
732.302, Florida Statutes (1985) (emphasis added)....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2004 WL 1257519
...ied and all charges, debts and costs have been paid." Id. In this case, the devise of "all the rest, residue, and remainder" of the decedent's property to the Appellees was a residual bequest. General bequests are satisfied before residual bequests. § 733.805, Fla....
...Accordingly, we certify to the Florida Supreme Court the following question as one of great public importance: WHERE A DECEDENT IS NOT SURVIVED BY A SPOUSE OR ANY MINOR CHILDREN, DOES DECEDENT'S HOMESTEAD PROPERTY, WHEN NOT SPECIFICALLY DEVISED, PASS TO GENERAL DEVISEES BEFORE RESIDUARY DEVISEES IN ACCORDANCE WITH SECTION 733.805, FLORIDA STATUTES? REVERSED and REMANDED....
CopyCited 3 times | Published | Supreme Court of Florida | 2006 WL 129320
...2005), and certified the following question, which was also certified in Warburton, as one of great public importance: WHERE A DECEDENT IS NOT SURVIVED BY A SPOUSE OR ANY MINOR CHILD, DOES DECEDENT'S HOMESTEAD PROPERTY, WHEN NOT SPECIFICALLY DEVISED, PASS TO GENERAL DEVISEES BEFORE RESIDUARY DEVISEES IN ACCORDANCE WITH SECTION 733.805, FLORIDA STATUTES? We have jurisdiction....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal
...ny property required to be included in the gross estate." [footnotes omitted]); Fenn and Koren, The 1974 Probate Code A Marriage of Convenience, 27 U.Fla.L.Rev. 1, n. 264 (1974). The appellee's several contentions on this point are without merit. Section 733.805(1) [2] specifically excepts from its operation estate taxes "as otherwise provided in s....
...[1] There is no doubt that the value of interest in the jointly held property was included in the gross estate for federal estate tax purposes, and that, accordingly, the estate did in fact pay $13,931.27 (of the total tax of $86,068.73) in respect to that interest. [2] § 733.805(1) (1) If a testator makes provision by his will, or designates the funds or property to be used, for the payment of debts, estate and inheritance taxes, family allowance, exempt property, elective share charges, expenses of administration...
CopyPublished | Florida 2nd District Court of Appeal | 1982 Fla. App. LEXIS 19507
spouse shall be obtained in accordance with section
733.805. Because the decedent in the instant case died
CopyPublished | Florida 2nd District Court of Appeal | 2013 WL 6246204, 2013 Fla. App. LEXIS 19298
...ral expenses be paid from a specific account. In light of the *868 extensive litigation that has undoubtedly created a larger than expected quantity of class 1 expenses, 1 the probate court will need to consider the order in which assets abate under section
733.805, Florida Statutes (2007), as well as the order of the payment of expenses and obligations under section
733.707, Florida Statutes (2007), when determining the payment of claims and approving any distributions....
...From the discussion at oral argument, we know that the claim has not yet been paid. In light of the limited size of the estate and the uncertainty of class 1 claims, we reverse this specific instruction in the order. On remand, the probate court will need to comply with the order in which assets abate under section
733.805 as well as the order of the payment of expenses and obligations under section
733.707 when ordering the payment of claims prior to the distribution of estate property....
CopyPublished | District Court of Appeal of Florida | 10 Fla. L. Weekly 2749, 1985 Fla. App. LEXIS 17258
...TT, Acting Chief Judge. Appellant, a surviving spouse, appeals an order of the trial court which denied her objections to the personal representative’s petition for discharge, final accounting, and plan of distribution. Her basis for objection was section 733.805(2), Florida Statutes (1983), which provides for preferential treatment to a surviving spouse when applying the rules of abatement....
...Hayes, 5/18 (27.77%) 1,112.45 James E. Hayes, 2/18 (11.12%) 445.00 TOTAL PRORATED BEQUEST: $ 4,004.90 Appellant filed an objection to the personal representative’s petition for discharge, final accounting, and plan of distribution. She claimed that under section 733.805(2), she was entitled to the entire remaining distributable estate. The trial court denied appellant’s motion on her objections and this timely appeal followed. Section 733.805(2) grants preferential treatment to a surviving spouse when applying rules of abatement where the available distributable assets are insufficient to satisfy all the bequests to members of a class of specific devisees....
...udiate the terms of the prenuptial agreement, we hold that appellant’s devise was not given “in satisfaction of, or instead of,” her statutory rights in her deceased husband’s estate; therefore, her devise does not come within the purview of section 733.805(2), but instead abates ratably along with the other specific devises....
CopyPublished | Florida 4th District Court of Appeal | 1990 Fla. App. LEXIS 2806, 1990 WL 49858
...In the present case there are no allegations or findings attributing bad faith or other inequitable conduct to appellants which would support the assessment of fees against their individual bequests under the will. Therefore the assessment against appellants is unwarranted under section
733.106(4). Rather, section
733.805, Florida Statutes (1987), provides the guide for appropriation of estate proceeds to pay such expenses....
...onal representative were entitled to move for attorneys’ fees before the trial court. The appellants were awarded $8,000 in fees and we affirm that award and direct that it should be assessed against the residuary portion of the estate pursuant to section 733.805(1), Florida Statutes (1987)....
...7,000. This is incorrect and we remand for correction of this figure to $768,000. The $760,000 award to the personal representative is affirmed. The $8,000 award to appellants is affirmed. On remand, both awards should be assessed in accordance with section 733.805, Florida Statutes (1987)....
CopyPublished | Florida 5th District Court of Appeal | 2011 Fla. App. LEXIS 4666, 2011 WL 1195873
...Several sections of the probate code support the conclusion that a devise cannot be elevated over administrative expenses and the rights of creditors. Section
731.201(10), Florida Statutes (2007), provides that "[a] devise is subject to charges for debts, expenses, and taxes[.]" Section
733.805(1) provides that "[f]unds or property designated by the will shall be used to pay debts, family allowance, exempt property, elective share charges, expenses of administration, and devises to the extent the funds or property is sufficient." If no provision is made or the designated fund or property is insufficient, the statute sets forth a priority scheme on how devises abate. §
733.805, Fla....
