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Florida Probate Blog

Author: Raymond Paparella

Pay-on-Death Accounts can be invalidated for undue influence

Written by on Dec 15, 2015| Posted in: Estate Litigation

A POD designation can be invalidated for undue influence and recipient of the funds ordered to return the funds. Many Estate plans involve what are commonly referred to as “pay-on-death” or “POD” accounts.  These accounts are commonly created as a will substitute to allow the distribution of assets directly to the beneficiary after the death of the decedent in order to avoid probate.  As is the case with a Will or a Trust, POD accounts are subject to invalidation based on undue influence.  Florida courts have also recently held that the individuals in receipt of the POD funds can be ordered to return those funds in the event the POD designation is found to be invalid.  Pennie L. Keul v Hodges Blvd. Presbyterian Church, 40 Fla. L. Weekly D2619c (Fla. 1st DCA November 24, 2015). A POD designation is a will “substitute” that does not transfer ownership of funds until […]

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Probate Creditor Claims in Florida

Written by on Apr 6, 2015| Posted in: General

ADDRESSING THE ISSUE OF CREDITOR CLAIMS FROM THE VIEWPOINT OF THE PERSONAL REPRESENTATIVE One of the significant issues a Personal Representative of an Estate needs to address is that of the claims against the Estate by creditors. To administer an estate in an orderly manner, the Personal Representative must ascertain what debts and claims are to be paid by the estate, because no assets should be distributed until the Personal Representative is certain that these debts and claims can be paid. Florida Statute 733.212 states that “the Personal Representative shall promptly make a diligent search to determine the names and addresses of creditors of the decedent who are reasonably ascertainable, even if the claims are unmatured, contingent or unliquidated.”  A diligent search must be undertaken, and such a  search depends on the familiarity of the Personal Representative with the decedent’s affairs. It should include a careful review of the defendant’s […]

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Proving Testator’s Mental Capacity

Written by on Jun 25, 2014| Posted in: Estate Litigation

Florida Statute 732.501 requires, amongst other things, that the testator be “of sound mind” when executing the Will. Testamentary capacity means the ability to understand generally the nature and extent of one’s property, the relationship of those who would be the natural objects of the testator’s bounty and the practical effect of a will. In re Wilmott’s Estate, 66 So. 2d 465 (Fla. 1953), 40 A.L.R. 2d 1399. However, competency is generally presumed, and the burden of proving incompetency is on the contestant F.S. 733.107 (10; In Re Estate of Weihe, 268 So. 2d 446 (Fla. 4th DCA 1972) This is a heavy burden to overcome based on the presumption of competency. It has been stated that “even a lunatic may make a will….in a lucid interval.” Murrey v. Barnett National Bank of Jacksonville, 74 So. 2d 647, 649 (Fla. 1954) Even the showing of incapacity on other days does […]

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Removal of Personal Representative

Written by on Oct 2, 2013| Posted in: General

What are the Grounds for the Removal of a Personal Representative? Florida Statute 733. 504 lists the causes for which a personal representative may be removed. Those are: 1)      Adjudication of incompetency or, even without adjudication, physical or mental incapacity rendering the P.R. incapable of discharging his or her duties; 2)      Failure to comply with an Order of the probate court unless the order is superseded on appeal; 3)      Failure to Account for the sale of property or to produce for inspection the estate assets; 4)      Wasting or other maladministration of the estate; 5)      Failure to give bond or security; 6)      Conviction of a felony by an individual personal representative or insolvency of a corporate personal representative; 7)      Revocation of probate of a will that names the personal representative; 8)      Conflicting or adverse interests against the estate; 9)      Removal of domicile from Florida if domicile was a requirement of initial appointment; […]

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Can trust assets be frozen during litigation?

Written by on Aug 28, 2013| Posted in: Trust Litigation

Frequently when individuals attempt to file a claim attacking the validity of a Trust or Amendment to Trust, they do not have the proper amount of information to determine the Trust value and, more importantly, whether the assets are being depleted. This is obviously a major concern as, regardless of the outcome of the action, should the Trust assets be depleted, the remedy available to the Plaintiff is obviously significantly limited. Therefore, in order to prevent further depletion of the assets, particularly until the facts regarding the assets of the Trust are obtained, an attempt to freeze the assets within the Trust is generally an option to be considered immediately after filing the action. The question arises, under what circumstances will the Court freeze the assets within a Trust pursuant to a movant’s request to do so? A request for the Court to freeze trust assets is a request for […]

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Grounds for Florida Will Contest

Written by on Jul 11, 2013| Posted in: Estate Litigation

Many families, upon the death of a loved one, along with dealing with the obvious associated pain, also unfortunately are presented with the situation where they believe that there may have been questionable circumstances involved in the process of the preparation and drafting of the Will. The question arises, are there actually grounds to contest the Will? The first consideration in making this determination is whether the Will was properly executed. IN RE Estate of Blakenship 122 So. 2d 466 (Fla. 1960) declared that the requirements for execution and qualification are governed by statute and F.S. 732.502 sets for the requirements for proper execution. A general roadmap requires scrutiny of, at the very least, some of the following issues: F.S. 732.501 indicates that the testator must be of sound mind and at least 18 years of age or an emancipated minor. The Will must be in writing, signed at the […]

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