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Florida Probate Blog

Yearly Archives: 2010

Can Step Children Inherit Property in Florida?

Written by on Aug 10, 2010| Posted in: General

A recent case from the 5th District answers the question of when, and under what circumstances, can step children take an inheritance and disinherit lineal descendants.  See Timmons v Timmons  35 Fla.L.Weekly D1264 (Fla. 5th DCA Case No. 08-4103).  When Frank died in 1999, he was married to Myrtle and had two adopted children from a previous marriage.  Myrtle had four children, none of which was ever adopted by Frank.  Frank created two trusts, a family trust and a marital trust.   Myrtle was the sole income beneficiary of the trusts during her lifetime, and upon her death, the marital trust was to pour over into the family trust.  The marital trust provided that upon Myrtle’s death, the trust’s remaining principal would pour over into the family trust and be distributed in accordance with the terms of the family trust.  The family trust provided that upon Myrtle’s death, the trust assets were […]

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Elective Share Contribution Obstacles

Written by on Jul 29, 2010| Posted in: Probate Litigation

While election and determination of elective share may not pose a problem, enforcing contribution from beneficiaries can. Under the Florida Probate Code, when a person’s spouse dies, the surviving spouse has the right to take an elective share pursuant to Florida Statute § 732.201.  An elective share is essentially Florida’s way of insuring that some money or property is left to the surviving husband or wife. The elective share estate includes not only probate assets but many assets which are designed to pass outside the probate estate.  Pursuant to Fla. Stat. § 732.2065, the elective share is equal to 30% of the elective estate.  A significant amount of litigation occurs regarding the elective share. 

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Notice to Creditors

Written by on Jul 6, 2010| Posted in: General

DETAILS ON NOTICE TO CREDITORS IN FLORIDA PROBATE ESTATES             The Personal Representative of an Estate must promptly publish a Notice to Creditors pursuant to Florida Statute 733.2121.  The Notice should contain the following: 1)    The name of the decedent; 2)    The file number of the estate; 3)    The designation and address of the Court in which the case has been filed; 4)    The name and address of the Personal Representative of the Estate; 5)    The name and address of the Personal Representative’s attorney; and 6)    The date of the first publication. 

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Trustee Compensation

Written by on Jun 30, 2010| Posted in: Trust Litigation

COMPENSATION OF TRUSTEES WHO ARE ALSO BENEFICIARIES In a recent Florida Second DCA case, Burgess v. Prince, 25 So.3d 705 (Fla. 2nd DCA 2010), the Court determined that a Trustee of a family trust, who was also a Trust beneficiary, was entitled to compensation for her management of Trust assets, despite the fact that the trust instrument provided that a beneficiary of the Trust could not receive compensation for serving as Trustee.  The trial court removed the Trustee and ordered that she may not be compensated for managing a business, which was a trust asset, and all compensation she received would be charged against her distributive share of the Trust.  See Id.  On appeal, the Appellate Court upheld the removal without discussion but reversed a part of the final judgment which ruled the Trustee could not be compensated for managing the business which was a trust asset.  Although the trust […]

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Trust Reformation

Written by on Jun 23, 2010| Posted in: Trust Litigation

Breathing Life Into An Otherwise Unenforceable Trust Instrument The following is based on real events, only the names have been changed to protect the guilty.  Jane Settlor created her revocable trust in 2005, naming herself as the initial trustee and sole income beneficiary during her lifetime, and upon her death, the remainder of the trust estate is to be divided amongst numerous individuals (some family, some not), charities and a charitable foundation that she created.  The drafting attorney, John Lawyer, is also the nominated successor trustee and the CEO of Mrs. Smith’s charitable foundation. A couple years after executing her trust, Jane Settlor pulled out her estate planning documents to re-review her estate plan.  Upon reviewing her revocable trust, and to her surprise, she noticed that many of the residuary beneficiaries of her trust were people that she hardly knew at all, and should not have been included as beneficiaries […]

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More than a Merely Perfunctory Matter

Written by on Jun 21, 2010| Posted in: General

Fourth District Reverses $1.6M Jury Verdict Because Lawyer Failed to Substitute Decedent’s Estate as a Party Litigation presents lots of surprises and traps for the unwary.  The consequences of failing to follow a seemingly-routine procedure can sometimes lead to horrific consequences.  An example of one of the plain and simple rules of litigation is that if a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party.  The motion must be made within 90 days or the action shall be dismissed as to the deceased party. The purpose of this rule is to facilitate the rights of persons having lawful claims against estates being preserved, so that otherwise meritorious actions will not be lost When counsel files a suggestion of death, opposing […]

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Having a Missing Person Declared Dead

Written by on Jun 21, 2010| Posted in: General

Under Florida law, “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 diligent search and inquiry is presumed to be dead. The person’s death is presumed to have occurred at the end of the period unless there is evidence establishing that death occurred earlier. Evidence showing that the absent person was exposed to a specific peril of death may be a sufficient basis for the court determining at any time after such exposure that he or she died less than 5 years after the date on which his or her absence commenced. ”  F.S. 731.103 (3) Florida law does not preclude the establishment of death by direct or circumstantial evidence prior to 5-years.

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Florida Trusts and Real Property

Written by on Jun 17, 2010| Posted in: Trust Litigation

What’s a beneficiary to do? Many people utilize revocable trusts in an effort to avoid probate.  Often, the primary asset of a revocable trust is real estate.  The person who signs the trust (Settlor) customarily chooses the individual(s) to serve as a successor trustee upon the Settlor’s death or incapacity. Once the Settlor dies and a successor trustee accepts the position, a set of laws mandates the trustee’s conduct under Florida law.  These laws are found in Chapter 736 of the Florida Statutes, also known as the Florida Trust Code.  In particular, sections 736.0801 (duty to administer trust), 736.0802 (duty of loyalty) 736.0803 (impartiality), and 736.0804 (prudent administration) are triggered.  The Florida Trust Code was modified substantially in recent years and the current version took effect on July 1, 2007.    

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Florida Inheritance Law

Written by on Jun 8, 2010| Posted in: General

STEP CHILDREN AND CHILDREN BORN OUT OF WEDLOCK Florida inheritance laws do not treat your stepchildren as your legal heirs, therefore, they do not have an automatic legal right to inherit from you. If you want to ensure they will receive part of your estate, you will need a Will that specifically names them as a beneficiary. If you simply leave “20 percent to my children”, then your stepchildren may inherit nothing. It is important to name each individual child as a beneficiary instead of referring to them as “my children”, which will avoid confusion in interpretation of the Will language. If you formally adopt your stepchildren, then they will inherit from you as a beneficiary the same way as your biological children.

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Florida Wrongful Death

Written by on May 31, 2010| Posted in: General

A wrongful death lawsuit will inevitably be filed in connection with the fatal I-95 sport-utility crash that left two dead from the Hollywood Florida area.  Personal injury lawyers will hire probate lawyers to open the estates so a personal representative can be appointed to file a survival action and a wrongful death claim.  According to reports, the vehicle lost control and flipped over which might lead investigators for the wrongful death lawyers to examine whether any defect existed in the vehicle that may have caused it flip.  

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