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Florida Probate Blog

Monthly Archives: November 2008

Florida’s Slayer Statute

Written by on Nov 26, 2008| Posted in: Estate Litigation

Why The Slayer Rule May Prevent the Slayer’s Estate From Benefiting From the Slayer’s Act By Adrian P. Thomas Nullus Commodum capere potest de injuria sua propria (No man can take advantage of his own wrong) Some readers may be familiar with one of my cases that has been in the headlines recently.  When appropriate, the Florida Slayer Rule can be applied to prevent an injustice and to preclude a killer from benefiting from the crime. Florida, like many other states, has adopted the Uniform Probate Code’s version of the Slayer Rule. See Fla.Stat. §732.802. Unif. Probate Code 2-803 (amended 1993), 8 U.L.A. 211, 211-12. The relevant part of the statute reads:

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Prenuptial Agreements and Probate

Written by on Nov 19, 2008| Posted in: Estate Litigation

Fifth District Rules Plain Language Govern Interpretation of Ante-Nuptial Agreement What is a Prenuptial Agreement? A Premarital or prenuptial or antenuptial agreement means an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage. The agreement typically speaks to issues relating to property and can involve virtually any interest or rights in any present or future real or personal property rights. Prenuptial agreements can also allocate rights and risks to the parties’ income and earnings, both active and passive.

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Exempt Property & The Pretermitted Spouse

Written by on Nov 14, 2008| Posted in: General

Fourth District Court of Appeals provides guidance on determination of exempt property.In Florida, the law provides that the surviving spouse of a decedent (or the decedent’s children if no surviving spouse) has a right to a share of the decedent’s “exempt property.” Exempt property Exempt property is defined in the Florida Probate Code as including: (1) household furniture, furnishings, and appliances in the decedent’s usual place of abode, up to a net value of $10,000 as of the date of death;(2) all automobiles held in the decedent’s name and regularly used by the decedent or members of the decedent’s immediate family as their personal automobiles;(3) Florida prepaid college program contracts purchased and Florida college savings agreements established under statutes;(4) all benefits paid pursuant to the statute which provides for death benefits for certain teachers and school administrators. See Fla.Stat. § 732.402(2).

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Testamentary Capacity: Do We Need Legal Reform?

Written by on Nov 11, 2008| Posted in: Estate Litigation

Previous blog posts have discussed the fundamentals of will contests in Florida. These actions occur when a will is offered for probate (See Post dated October 28, 2008 What is the Definition of Probate) which is always after the testator has died. One of the most common grounds for a person seeking to invalidate a will offered for probate is that the will was executed at a time when the testator (the person signing the will) lacked testamentary capacity. The legal standard for testamentary capacity is that the testator knew the nature and extent of his or her property, the natural objects of his or her bounty (property) and the contents of his or her estate plan. See, In re Estate of Tolin, 622 So.2d 988, 990 (Fla. 1993). Since the person signing the will isn’t alive to testify or be examined in order to determine testamentary capacity, the court […]

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What is a Resulting Trust?

Written by on Nov 10, 2008| Posted in: Trust Litigation

Resulting trusts are a fiction of the law that arises where property is transferred or acquired by one under facts and circumstances which indicate that the beneficial interest is not intended to be enjoyed by the holder of legal title. A case some readers may have read about in recent newspaper headlines involved a legal theory based on a resulting trust remedy. In City of Boston v. Roxbury Action Program, Inc., 68 Mass. 1101, 865 N.E2d 1140 (2007) the city of Boston became aware that a landowner, which was obligated to convey land to the city due to an inability to obtain a government commitment for housing development on property. The City went to Court claiming that the landowner was holding the property for the City under a resulting trust, since it wasn’t, in the city’s view, the parties’ intention for the landowner to hold the beneficial interest in the […]

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Settlement Agreements and Mediation in Probate

Written by on Nov 5, 2008| Posted in: Probate Litigation

Third District Court of Appeals Upholds Terms of Settlement Agreement Between BeneficiariesThe sanctity of the signed settlement agreement was confirmed on October 29, 2008 when the Third District issued its opinion in Charles Brindle v. Richard W. Brindle, –So.2d–, 2008 WL 4722746; 33 Fla.L.Weekly D2528a (Fla.4th DCA October 29, 2008). Brindle originated in the form of two competing orders from the civil and probate benches in Monroe County. The first order adopted and approved a written settlement agreement by which the sons of the decedent, Dorothy Brindle, resolved a will contest among themselves and agreed to a global reallocation and distribution of all of their inheritance given to them under Dorothy’s will. Fast forward two years, when the Personal Representative of Dorothy’s estate (who also signed the settlement agreement) discovered during the course of asset distribution that there were insufficient assets in the estate to pay the expenses. Monroe County […]

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