Florida Probate Statute 733.810: Distribution in Kind; Valuation

A decedent’s last will and testament provides instructions as to how his (or her) property is to be distributed by the personal representative. A will can be very specific as to which of the decedent’s beneficiaries is to get which part of his estate. In the absence of specific instructions the personal representative can determine whether distribution is to be made in cash or kind. To learn more about the estate administration process and the rules related to asset distribution including the requirements of Florida Statutes, section 733.810- Distribution in kind; valuation, contact a skilled Fort Lauderdale estate administration lawyer at the Law Offices of Stephen Bilkis & Associates. We will work closely with you to ensure that your interests are protected during the asset distribution process.

One of the primary duties of a personal representative and the duty that beneficiaries tend to focus on is distributing estate assets. However, asset distribution is but one of several duties of the personal representative. Before he can distribute assets, the personal representative must first inventory assets and pay debt.

The personal representative must identify the assets that are probate property—meaning the assets that are part of the decedent’s probate estate. Probate property is typically personal property, property that the decedent owns individually, and certain real estate. If the property is not probate property it will transfer to the appropriate people outside of the estate administration process. For example, the proceeds of a life insurance policy that has a beneficiary other than the decedent’s estate would automatically go to the beneficiary. Other examples of non-probate property include retirement accounts, real estate owned by the decedent as a joint tenant, and a bank account with a pay-on-death designation. If you have questions about whether or not property is probate property, contact an experienced estate administration lawyer in Fort Lauderdale.

The personal representative must secure the probate property to prevent it from being wasted, lost, or stolen. He must also determine the value of the property as of the date of the decedent’s death.

The personal representative is required pay debts of the estate before distributing assets. He must notify creditors by personal service or publication. Creditors have 30 or 90 days to file claims. The personal representative must pay valid claims that are timely filed out of estate assets. If there are insufficient funds to pay estate debts, then the personal representative must pay debts based on a statutory order of preference. For example, expenses related to estate administration are paid first, followed by the expenses related to the funeral and burial of the decedent.

After estate debt is paid the personal representative may distribute any assets that remain in the estate to the beneficiaries named in the will, or to the decedent’s statutory heirs.

As a Fort Lauderdale estate administration lawyer will explain, distribution of estate assets can be accomplished either in cash or in kind. An in kind distribution is a payment made in the form of property rather than liquidating the property and distributing cash.

Under FL. Stat, section 733.810- Distribution in kind; valuation, estate assets must be distributed in kind. There are 3 exceptions to this general rule. First, assets are not required to be distributed in kind if a general power of sale is conferred; second, if the decedent indicated a contrary intention in his will or trust; third, if a disposition is made otherwise. In addition, under Florida law, cash testamentary gift may be satisfied in kind if the beneficiary has not asked for cash, the property is distributed at fair market value, and no residuary beneficiary has request that the asset remain a part of the residuary estate. If it is not practicable to distribute undivided interests in a residuary asset, the personal representative may sell the asset.

1. Delivery of devises and distributive shares: § 733.801, Fla. Stat.
2. Distribution; right or title of distributee: § 733.811, Fla. Stat.
3. Improper distribution or payment; liability of distributee or payee: § 733.812, Fla. Stat.

1. Assets shall be distributed in kind unless:
   1. A general power of sale is conferred;
   2. A contrary intention is indicated by the will or trust; or
   3. Disposition is made otherwise under the provisions of this code.
2. Any pecuniary devise, family allowance, or other pecuniary share of the estate or trust may be satisfied in kind if:
   1. The person entitled to payment has not demanded cash;
   2. The property is distributed at fair market value as of its distribution date; and
   3. No residuary devisee has requested that the asset remain a part of the residuary estate.
3. When not practicable to distribute undivided interests in a residuary asset, the asset may be sold.
4. When the fiduciary under a will or trust is required, or has an option, to satisfy a pecuniary devise or transfer in trust, to or for the benefit of the surviving spouse, with an in-kind distribution, at values as finally determined for federal estate tax purposes, the fiduciary shall, unless the governing instrument otherwise provides, satisfy the devise or transfer in trust by distribution of assets, including cash, fairly representative of the appreciated or depreciated value of all property available for that distribution, taking into consideration any gains and losses realized from a prior sale of any property not devised specifically, generally, or demonstratively.
5. A personal representative or a trustee is authorized to distribute any distributable assets, non-pro rata among the beneficiaries subject to the fiduciary’s duty of impartiality.

One of the final steps in the estate administration process is distribution of estate assets. The Florida Probate Code has a number of rules related to asset distribution, including rules related to cash distributions versus in kind distributions. If you have concerns related to a probate proceeding, including the provisions of Florida Probate Code, section 733.810- Distribution in kind; valuation, it is important that you discuss your concerns with an experienced estate administration lawyer serving Fort Lauderdale. The attorneys at the Law Offices of Stephen Bilkis & Associates have decades of experience working closely with personal representative and other interested parties in all aspects of probate and estate administration including asset distribution. We can help. Contact us attorneys at 561-710-4000 to schedule a free, no obligation consultation regarding your case.