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Florida Probate Blog

Yearly Archives: 2008

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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Florida Intestacy

Written by on Oct 31, 2008| Posted in: General

  Should a distant heir have inheritance rights from a relative the heir didn’t even know? In Florida, and many other states, the traditional law governing intestate succession provides an inheritance to the intestate decedent’s “next of kin” without regard to how far removed (e.g., emotionally, geographically or familiarity) the relative taking the inheritance is from the decedent. (See, Fla. Stat. § 732.103 allowing collateral inheritance either through the great-grandfather or to “next of kin.” ) This concept is nothing new, it has been with us for ages. For example, the Bible provides an intestacy schedule for the Israelites that allows for inheritance by the closest relative:

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Attorney’s Fees: Ask and You Shall Receive

Written by on Oct 29, 2008| Posted in: General

Fourth District Court of Appeals Reverses Broward County Probate Judge’s Order Requiring Trustee and Lawyer to Repay Fees to the Estate. Wintter & Associates, P.A. v. Terry Kanowsky, . 33 Fla. L. Weekly D2471a; — So.2d —-, 2008 WL 4643358 (Fla.App. 4 Dist, October 22, 2008.). David Mercer, the executor of the Estate of Blanche Heische, and trustee of the Sixth Amended and Restated Declaration of Trust of Blanche Heische testamentary trust, submitted his final accounting to Broward County Probate Judge Mel Grossman. Because the trustee had performed what he considered “extraordinary” services in connection with work to clear title to a parcel of real property devised to him through the testator’s will, the trustee included extraordinary fees in his accounting. The residual beneficiary of the trust, Terry Kanowsky, objected to the “extraordinary” fee request in the accounting. Following an evidentiary hearing, Broward County Probate Judge Mel Grossman determined that […]

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What is probate?

Written by on Oct 28, 2008| Posted in: General

The legal process of proving before a court of competent jurisdiction that a document offered as the last will and testament of a deceased person is genuine.  In addition to proving a will, it is the process of appointing an executor (sometimes referred to as a “personal representative”), and settling an estate, which includes marshalling the decedent’s assets and giving the decedent’s creditors an opportunity to have their valid claims resolved before the beneficiaries receive their distributions.

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Florida Intestacy and Illegitimate Children

Written by on Oct 24, 2008| Posted in: General

Morality and the Probate Code: The Law’s Treatment of Illegitimate Children and IntestacyIt wasn’t too long ago that having a child born out of wedlock was universally considered taboo, thereby placing a stigma on the child which had significant social and economic implications through no fault, choice, or conduct of the child. Today, evidence suggests that one in three children born in our great country is born out of wedlock. Generally, a child born out of wedlock is also thrust into our world with a legal disadvantage. The child’s intestacy rights are no exception to this general rule. While the intestate succession system in Florida, and most other states, was written to provide an inheritance for a child through receiving the bulk of his or her parent’s estate, non- marital children are treated differently than marital children. Many jurisdictions require non-marital children to jump through many hoops before they can […]

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Estate of Carpenter

Written by on Oct 24, 2008| Posted in: Probate Litigation

In Re:  Estate of Carpenter – the presumption of undue influence in Florida and the Florida Probate Code. I have written at great length of the various factors I assess when determining whether to accept a case for prosecution. I now turn my attention to the Florida decisional case law from the Florida Supreme Court in the seminal case of In re Estate of Carpenter, 253 So.2d 697 (Fla. 1971) its practical application, and the Florida legislature’s response through enactment of section 733.107 of the Florida Probate Code which today supersedes Carpenter. When the validity of a will or trust is challenged based upon the theory of undue influence, the challenger must prove the instrument at issue (will or trust document) resulted from the exercise of undue influence on the mind of the person executing the will or trust instrument. The Carpenter decision from the Florida Supreme Court sets forth […]

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Trust Language and Settlor’s Intent

Written by on Oct 23, 2008| Posted in: Trust Litigation

Learn the Language: Fifth District Court of Appeals Reverses Probate Judge and Predicates Opinion On its Own Perception of Trust Language and “Settlor’s Intent”In Brown v. Miller, — So.2d —-, 2008 WL 4600940, 33 Fla.L.Weekly D2433c, Fla.App. 5 Dist., October 17, 2008 (NO. 5D07-1356, 5D07-1288) the Fifth District Court of Appeals reversed Orange County Judge Lawrence Kirkwood’s order which had invalidated a seven million dollar transfer from a testamentary trust to its lifetime beneficiary. The Wife Elinor Miller set up a trust naming her husband Bill as the trustee and lifetime beneficiary (the “Elinor Miller Trust”). After her death the assets remaining in the trust (after her charitable bequests and distributions to family members) were divided into three separate sub-trusts, designated as Trust A-1, Trust A-2 and Trust B with each serving a distinct purpose. The Elinor Miller Trust provided that the Trustee should pay Bill the income from A-1 […]

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What are probate records and where are they kept?

Written by on Oct 22, 2008| Posted in: General

Probate records are those documents found and filed in a probate court. A probate court is responsible for keeping the original Last Will and Testament of a person and keeping original codicils (Will updates) on file for review and inspection. Most probate courts have modernized the probate record-keeping process by automating the retention and review of pleadings, motions, and correspondence filed with the probate court. If you are curious about what documents are filed with the probate court for a deceased person, start by contacting the city/county for the state where the decedent resided (which may be different from where the decedent died) and ask how best to review the probate records. After time, probate records will be “archived” or stored which usually happens when an estate is closed for a sufficient period of time. Probate Records Research Steps 1. Determine where the decedent was living at time of death. […]

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What is a Probate Estate?

Written by on Oct 21, 2008| Posted in: General

A decedent’s probate estate refers to all of the decedent’s assets that require probate, which is the court-supervised marshalling and distribution of a decedent’s sole-named assets.  As a rule of thumb, if an asset is in the decedent’s name alone and is not payable to anyone else (ex., pay on death account, life insurance), then that asset will need a court probate process to distribute to beneficiaries.  The probate estate may be only part of the decedent’s whole estate.  For example, a decedent was worth $5,000,000 at the time of death; $3,000,000 was in a living trust, $1,500,000 was jointly-owned, and a piece of real estate worth $500,000 was in his sole name.  The decedent’s “gross estate” would be $5,000,000, but his “probate estate” would only be $500,000.

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Undue Influence: Lawyers Who Name Themselves or Family Members as Beneficiaries of Wills

Written by on Oct 21, 2008| Posted in: Probate Litigation

All too often I am asked to investigate and ultimately prosecute will contests which involve attorneys playing an active role, not only in the procurement of the will, but in having themselves or their relatives named as beneficiaries under the will. The Florida Supreme Court has adopted a portion of the American Bar Association’s Model Rules of Professional Responsibility, and in particular, the prohibition against lawyers playing a role in the drafting and execution of a will or trust where they are named as a beneficiary. Rule 4-1.8. Conflict of Interest; Prohibited and Other Transactions (c) Gifts to Lawyer or Lawyer’s Family. A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related […]

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