When a Last Will and Testament devises a person’s assets in a certain way, can the Personal Representative and beneficiaries follow a different distribution plan? In simple terms, the Personal Representative must distribute the estate assets as provided in the Will or according to intestacy law, whichever is applicable. However, Florida law provides one notable exception. If all interested persons (such as all beneficiaries) agree in writing, then a distribution plan as agreed in that writing can control.
For the purposes of such a private agreement, “interested persons” is defined as persons whose interest would be affected by a settlement agreement. Beneficiaries certainly fall within that scope.
The foregoing concept of a private agreement is set forth in Section 733.815, Fla. Stat. This statutory section, titled as “Private contracts among interested persons,” provides as follows:
Subject to the rights of creditors and taxing authorities, interested persons may agree among themselves to alter the interests, shares, or amounts to which they are entitled in a written contract executed by them. The personal representative shall abide by the terms of the contract, subject to the personal representative’s obligation to administer the estate for the benefit of interested persons who are not parties to the contract, and to pay costs of administration. Trustees of a testamentary trust are interested persons for the purposes of this section. Nothing in this section relieves trustees of any duties owed to beneficiaries of trusts.
Section 733.815, Fla. Stat.
An example can demonstrate how this works. Let’s say that Robert Brown dies having left a Last Will and Testament which devised his estate as follows:
Thomas Brown (my son) 40%
Susan Brown (my daughter) 40%
Robert Brown Jr. (my son) 20%
However, Thomas and Susan do not feel it is fair for Robert Jr. to receive only 20%. As a result, they have an attorney prepare a “Private Beneficiary Agreement” in which they all agree that they will each receive an equal share. So long as they all agree, this agreement is binding and must be followed by the Personal Representative.