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Florida Probate Blog

Author: Daniel L. McDermott

Qualified Renunciation

Written by on Aug 19, 2015| Posted in: General

Part II As we’ve previously written about on this blog, while one of the pleading requirements for a Will Contest or Trust Contest in Florida is a general allegation in the complaint that the contestant renounces any benefit he or she receives under the challenged document, “qualified renunciation of benefits” is a technical pleading requirement, and equity does not require actual return of benefits received in every situation. See, Qualified Renunciation) Last July we blogged about Fintak v. Fintak, 120 So.3d 177 (Fla. 2d DCA 2013), a case in which the court refused to apply the renunciation rule to allow for the dismissal of a claim made by a beneficiary who had received benefits that he would have received regardless of the instruments he was attacking. The rationale behind the Fintak decision was that the contestant did not receive under the challenged document “a benefit to which he would not be entitled […]

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Change in Statutory Duty of Un-Qualified Personal Representatives

Written by on Aug 18, 2015| Posted in: General

When a person dies, with or without a last will and testament, there is a high probability that the person who died (the “Decedent”) will have left behind obligations that must be fulfilled and other matters that must be addressed before their property can be distributed. The property that a Decedent leaves behind when he or she dies and which is the subject of administration in probate court makes up what is called the “estate.” §731.201(14), Fla. Stat. (2015). Just like a business needs a manager to run its day-to-day operations, an estate needs a manager to finish handling the Decedent’s affairs so that the estate may be distributed, either according to the terms of the Decedent’s last will and testament or under the laws of intestacy. In Florida, the person who is charged with managing, or “administering,” the Decedent’s estate is called the “Personal Representative.” §731.201(28), Fla. Stat. (2015). […]

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Can a contract defeat testamentary intent?

Written by on May 26, 2015| Posted in: Estate Litigation

In a word, yes. In a blow to the unwed in the State of Florida, the Fourth District Court of Appeal recently held that an operating agreement entered into by a deceased business owner (the “Decedent”) trumped his stated testamentary intent to provide his longtime girlfriend with a lifetime payment of $5,000.00 per month, which was to be paid out of distributions from the company the Decedent formed with his sister.  Blechman v. Estate of Blechman, 160 So.3d 152 (Fla. 4th DCA 2015).  Despite the fact that the Decedent in Blechman had amended his trust to “to provide a ‘specific gift’ of his residence and ‘one half of the distributions from [his company], to’ a trustee for the benefit of  the Decedent’s girlfriend,” the Court refused to uphold the trial court’s order, which would have ensured the Decedent’s girlfriend received the $5,000.00 per month gift the Decedent’s estate plan provided. […]

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