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Florida Probate Blog

Author: Michele M. Thomas

Gold Diggers Beware!

Written by on Mar 1, 2011| Posted in: Estate Litigation

Florida enacts legislation allowing challenges to “deathbed marriages.”  It used to be that you could marry someone only moments before death and be vested with all the same rights and benefits as a spouse of 50 years.  Florida wised up to this type of predatory behavior and enacted Florida Statute §732.805, which became effective on October 1, 2010.  The statute allows an interested party to challenge a surviving spouse’s rights by alleging that the marriage was procured by fraud, duress or undue influence.  The burden is on the challenger to establish, by a preponderance of the evidence, that the marriage was procured by fraud, duress, or undue influence.  The cause of action cannot be brought until the death of the person believed to have been coerced into marriage and is only available for four (4) years from date of death.  It will be interesting to revisit this blog after causes of action […]

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Florida Estate Tax

Written by on Feb 17, 2011| Posted in: General

Florida Estate Tax (Florida Death Tax) Prior to January 1, 2005, Florida’s estate tax system was commonly referred to as a “pick up” tax. This was because Florida picked up all, or a portion of, the credit for state death taxes allowed on the federal estate tax return (federal Form 706 or 706NA). Under this system, when the estate’s gross value was below the minimum federal estate tax filing threshold, estate tax was not due to Florida. Federal changes eliminated Florida’s estate tax after December 31, 2004. This happened because the federal credit for state death taxes on the federal estate tax return became a deduction for state estate taxes. Since Florida estate tax was based solely on the federal credit, after December 31, 2004 estate tax was no longer due. However, the personal representative of an estate may still need to complete certain forms to remove the automatic Florida estate tax lien.  Estates Required to […]

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Florida Medicaid 2011

Written by on Feb 5, 2011| Posted in: General

The asset and income numbers for 2011 are out: Gross Monthly Income for Medicaid applicants:  $2,022 Monthly Personal Allowance:  $35 Asset Limit (individual):  $2,000 Asset Limit (couple):  $3,000 Community Spouse Resource Allowance:  $109,560 Maximum Monthly Maintenance Income Allowance:  $1,822 Maximum Monthly Maintenance Needs Allowance:  $2,739

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Am I a beneficiary?

Written by on Feb 3, 2011| Posted in: General

HOW WILL I KNOW IF I AM A BENEFICIARY OF A DECEDENT? Pursuant to Florida Statutes, if you were named as a beneficiary of a decedent, the personal representative of the estate would notify you by serving you with a copy of the Notice of Administration of the estate of the decedent.  Pursuant to Florida Statue 733.212, the personal representative shall promptly serve a copy of the notice of administration on the following persons who are known to the personal representative, such as the decedent’s surviving spouse, beneficiaries, the trustee of any trust and each qualified beneficiary of the trust, persons who may be entitled to exempt property, and interested persons.  Florida Statute 731.201(23) defines an interested person as “any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved.  Under Florida Statute 731.201(2), a beneficiary means an heir at law in an […]

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End of Life Directives and Preneed Guardians in Florida

Written by on Jan 19, 2011| Posted in: General

Recently, it was reported that the percentage of people filling out living wills and healthcare surrogate forms has increased little since Congress enacted the Patient Self Determination Act ordering healthcare facilities to provide information to patients about advance directives. What are advance directives? With about 80 percent of deaths occurring in hospitals or nursing homes, you can use advance directives, in the form of a living will, to let their doctors and family know what kind of treatment you do not want in case you are incapable of making the decision.  A living will does not mean you want to forego life-saving treatment; it simply sets forth how you want, or don’t want, aggressive high technology treatment, feeding tubes, respirators, and other life support measures. Although the original health care bill provided that Medicaid could pay for consultations about end of life issues, this provision was unfortunately dropped as part […]

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Lineal Descendants?

Written by on Jan 12, 2011| Posted in: Probate Litigation

Are step-children considered “lineal descendants” of the decedent? A Florida appellate court recently held that the term “lineal descendants” does NOT include stepchildren.  Timmons v. Ingrahm, 36 So.3d 861 (Fla.Dist.Ct.App.2010). In the Timmons case, the decedent’s Will defined the term “children” to include the decedent’s adopted children and the children of his spouse, whom he had never adopted.  The Will went on to create two trusts – a marital trust and a family trust.  The surviving spouse had the right to withdraw principal from the marital trust (subject to some limitations) during her lifetime and upon her death all of the trust property was to be added to the family trust and distributed to the decedent’s children (as defined above).  Unfortunately, the decedent also gave his spouse a limited power of appointment over the family trust allowing her to appoint the trust property to the decedent’s “living lineal descendants.”  Naturally, […]

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Florida Probate Litigation

Written by on Jan 12, 2011| Posted in: Probate Litigation

What is probate litigation?  The word probate is an odd one, coming from the Latin word “probatus” which means “to prove.”  Originally, probate was the process to prove a Last Will and Testament of the decedent.  However, probate courts have expanded their jurisdiction to include guardianship and trust law, too.  So “probate litigation” encompasses guardianship, probate, and trust disputes My firm has handled hundreds of probate litigation cases over the past ten years.  With that experience, we have learned that in a probate litigation case the facts are always the same in a general sense, but have infinite variety as to the particulars. There is always an elderly person, usually alone, and a predatory relative, friend, or caretaker who takes advantage of the loneliness and dependency of old age. Probate litigation (remember that means estate, guardianship, and trust litigation) is a rapidly-developing area of the law in Florida. The large elderly population has created […]

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Partition Actions in Florida

Written by on Jan 4, 2011| Posted in: General

When joint owners of real estate in Florida disagree as to how their property should be handled, one owner may wish to sell it while the other owner does not.  Florida law provides for a specific mechanism to force the sale of the property – the partition action.  In a partition action, the Court will either force the property to be divided into pieces, awarding each piece to one of the owners, or it will require that the property be sold at auction, dividing up the proceeds among the owners.

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What is probate?

Written by on Dec 14, 2010| Posted in: General

Probate in Florida Probate is a court-supervised process for identifying and gathering the decedent’s assets; paying taxes, claims and expenses; and distributing assets to beneficiaries. The Florida Probate Code is found in Chapters 731 through 735 of the Florida Statutes. Florida law also establishes a non-administration proceeding called “Disposition of Personal Property Without Administration.”

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Illegitimate Child is Still a Legitimate Heir

Written by on Dec 13, 2010| Posted in: General

Q.  Does a child have a right of inheritance from a father who never knew the child existed?  The rub is the child’s mother gave the child up for adoption without the father’s knowledge.  The father’s name is not on the original birth certificate but could be easily verified.  Historically, if a child was illegitimate, most jurisdictions required only the consent of the child’s natural mother to the adoption of the child.  The right to grant or withhold such consent was not extended to the fathers of illegitimate offspring, since they were not considered to have sufficient interest in the benefits and obligations of raising a child to determine whether the child should be released for adoption. In 1979, this trend was reversed in Caban v. Mohammed, 441 U.S. 380, 99 S. Ct. 1760, 60 L. Ed. 2d 297 (1979).  The key issue was whether the consent of an unwed […]

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