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Florida Probate Blog

Yearly Archives: 2009

Intestacy and Same Sex Couples: Probate Needs Progressive Help from Legislatures

Written by on Mar 30, 2009| Posted in: Probate Litigation

The laws of intestacy exist in every state and take effect whenever a person dies without a Last Will and Testament or where a Last Will and Testament is judicially voided. The purpose of the intestacy laws, which distribute inherited wealth according to the table of consanguinity (closest biological heirs), is to protect the family of the deceased. The law presumes that the deceased relative intends to distribute his or her wealth to his or her loved ones. Many legal observers have criticized the probate laws of the states, including Florida, for failing to adapt to our changing society and the nuclear family. For many, the intestate system is flawed because it fails to consider the effect upon people who cannot get married: those persons in same sex partnerships.

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Power of Attorney – What happens when the holder says no?

Written by on Mar 16, 2009| Posted in: Probate Litigation

Can an agent’s failure to make gifts create liability for intentional interference with an expectancy?When someone executes a Power of Attorney in favor of another person, usually a trusted relative or friend, its vests enormous power and duties on the agent. With this power and responsibility comes potential liability if the agent acts in a manner that falls short of the law’s expectations. The question of how far that liability stretches is frequently an issue that is fiercely disputed in probate court. A recent opinion from the Georgia Supreme Court explores the issue of whether an agent’s failure to make changes to a last will and testament directed by the principal can constitute the basis of an intentional interference with an expectancy claim. Generally, the law in Florida and most other states that recognize the tort of intentional interference, hold that in order to state a cause of action for […]

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How Far May the Witness Wander?

Written by on Mar 12, 2009| Posted in: Probate Litigation

Fifth District Court of Appeals Shed’s Light on the meaning of the requirement that witnesses must sign in the testator’s presence. A frequent issue in contests involving the validity of instruments, whether a last will and testament, trust or trust amendment, or even a prenuptial agreement, is whether the instrument was properly executed or signed. Section 733.502 of the Florida Probate Code provides that, among other things, it is essential to the validity of a last will for the witnesses to sign in the testator’s and each other’s presence. An improperly attested, signed or executed last will cannot be admitted to probate.

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Hey! Where’s My Gift?

Written by on Mar 9, 2009| Posted in: Probate Litigation

Ademption: Specific Gifts Not Owned At Time of Will Execution Do Not Adeem Ademption is a probate concept wherein a determination is made as to the disposition of property gifted under a person’s will, but not in existence (or not in the person’s probate estate) when the person dies. For specific property, the general rule is that the property is adeemed, and the gift fails. For example, if a person gifts a piece of jewelry to a specific person, but the jewelry was not owned by the person at the time of her death, the gift would be adeemed and the person would receive no gift at all. However, a general gift, usually cash gifts, is never adeemed. If there is not enough money in the probate estate to satisfy the gift, then other assets in the residuary estate are liquidated or sold to raise the money necessary to satisfy […]

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What happens to frozen sperm after the donor’s death?

Written by on Mar 6, 2009| Posted in: General

Joseph and Iris Kievernagel were married for ten years and then decided to have a child using in vitro fertilization (“IVF”). After the fertility center inseminated Iris with Joseph’s sperm, it also froze a sample of his sperm as in case there was a need for it in the future. Joseph signed an agreement indicating his choice to have the frozen sperm discarded upon his death instead of authorizing its release to Iris. After Joseph was killed in a tragic helicopter accident, Iris petitioned the probate court for an order to require the fertitlity clinic to hand over Joseph’s sperm.

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Breach of Trust

Written by on Mar 6, 2009| Posted in: Trust Litigation

Third District Finds Miami Probate Court Erred in Requiring Litigants to Prove Undue Influence as Part of a Breach of Fiduciary Claim. Court Finds Lawyer Used Client’s Money as His Own “Piggy bank.” On February 25, 2009, the Third District Court of Appeals released its much anticipated opinion regarding the Brigham Tree Farms Trust litigation. Brigham v. Brigham, –So.2d–, 2009 WL 454492; (Fla. 3rd DCA, Feb. 25. 2009), 34 Fla.L.Weekly D443b involved, in part, a dispute over the trust assets which originated as a the multimillion dollar tree farm encompassing around 800 acres of land in western North Carolina. In order to understand the facts of the case, you will probably need to make a family tree outlining the various parties and there relevance in connection with EFP Brigham and his wife Marion, and the table consanguinity:

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Will and Probate Help

Written by on Mar 4, 2009| Posted in: General

“Do I need an attorney to assist me with probate administration?” This is a question I am asked often and the answer, the vast majority of times, is “yes.”  Florida Probate Rule 5.030 provides that “every guardian and every personal representative, unless the personal representative remains the SOLE interested person, shall be represented by an attorney admitted to practice in Florida.” So very simply, anyone who needs probate or guardianship help, who is not also a licensed lawyer in the State of Florida, must contact a Florida lawyer to assist with the proper administration of the estate.

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Presumption of Death

Written by on Mar 4, 2009| Posted in: General

Can the estate of a missing person be probated? Sometimes individuals disappear or have an accident and their bodies are never recovered.  In cases like these, where no death certificate has been issued by the state, there are rules in place which allow interested parties to proceed with probate administration absent a death certificate. Florida Statute section 733.209 provides that:  Any interested person may petition to administer the estate of a missing person; however, no personal representative shall be appointed until the court determines the missing person is dead. So, how does a family member get the court to determine that a missing person is dead?  Florida Statute 731.103 pertains to evidence as to death or status and provides in subsection (3) that: A person who is absent from the place of his or her last known domicile for a continuous period of 5 years and whose absence is not satisfactorily explained after […]

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Incapacity and Guardianship Loopholes

Written by on Mar 2, 2009| Posted in: Guardianship Litigation

Fifth District Court of Appeals Encourages Legislature to Clarify Statute The decision of whether and when to petition for incapacity of an elderly relative is challenging and can rarely be accomplished without the assistance of an experienced practitioner. However, even with an experienced attorney the frustration level is high for parties involved in the guardianship process, due in part to the lack of clarity and direction contained in the relevant portions of the law. The procedure for asking a Florida court to declare someone incapacitated is codified in Florida Statute §744.331(4) which explains the process following the petition to determine incapacity: “Within 5 days after a petition for determination of incapacity has been filed, the court shall appoint an examining committee consisting of three members. One member must be a psychiatrist or other physician. The remaining members must be either a psychologist, gerontologist, another psychiatrist, or other physician, a registered […]

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Trust Revocation

Written by on Feb 20, 2009| Posted in: Trust Litigation

Can a joint and contractual trust be revoked by sole surviving settlor? Florida law recognizes that parties may execute joint and mutual testamentary instruments. One Florida court held that a joint and mutual will may be the product of a contract providing that it cannot be revoked except by the mutual consent of the parties and providing that it be binding on the survivor, and where the terms of the will clearly disclose that it is the product of such a contract, the will itself is sufficient evidence to establish the contract. See, In re Estate of Rowland, 504 So.2d 543 (Fla. 4th DCA 1987).

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