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Florida Probate Blog

Author: Victor D. Orihuela

Curator vs. Personal Representative

Written by on Dec 14, 2015| Posted in: General

  There are several scenarios that we are presented with wherein the appointment of a curator (or neutral fiduciary) is warranted for the administration of an estate.  However, what happens when the alleged tortfeasor (whether a brother, sister, step-mother, etc.) has already been appointed as the personal representative of the estate, but we know that he/she should not be because of some prior bad conduct regarding the Estate’s assets.  Regardless of the bad conduct, who would administer the estate while you are trying to prove that case? Fla. Stat. §731.201 defines a “curator” as a person who is appointed by the probate court to take charge of the estate until letters of administration are issued (in other words, until a specific personal representative is appointed).  A curator is essentially someone neutral who is appointed to temporarily administer an estate.  Many probate attorneys request that a curator be appointed while there […]

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Florida Probate Creditor Claims

Written by on Nov 11, 2015| Posted in: General

We have previously written entries regarding Fla. Stat. §733.702 and the time limitation for filing a creditor claim in an estate proceeding.  This time limitation includes a claim founded upon the wrongful act of the decedent where the decedent’s estate would owe you some sort of financial award or relief.  Once expired, an extension of the time limitation may only be granted upon grounds of fraud, estoppel, or insufficient notice of the claims period. Fla. Stat. §733.2121 further discusses the procedure a personal representative must adhere to in order to commence this timeframe for creditors to file their respective claims.  Pursuant to this statute, the personal representative must publish a notice to creditors in a newspaper in the county where the estate is being administered and must make a diligent search to serve a copy of the notice to creditors on any reasonably ascertainable creditors.  The definition of a ‘reasonably […]

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Reasonably Ascertainable Creditors

Written by on Oct 5, 2015| Posted in: General

How long does a creditor have to file a claim in the probate estate? Many clients ask how long it takes for an estate to be completely administered.  The answer is: it depends. One of the several factors that will affect the timeframe is how many and what type of creditor claims are filed in the estate.  Once a creditor claim is filed, the estate (through the personal representative) must properly address the claim. Fla. Stat. §733.701 states that every personal representative must publish and serve a notice to creditors.  This notice to creditors will place any prospective creditor of an estate on notice that they have a certain time period within which to file a claim.  If the creditor does not timely file a claim, it will be forever barred and that creditor cannot recoup any funds from the estate. Therefore, the essential question that every personal representative and […]

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Can a guardian change the trustee of a ward’s trust?

Written by on Jul 27, 2015| Posted in: Guardianship Litigation

Choosing someone to act as your successor trustee upon your death or incapacity is not a decision that you should take lightly. Not only does that nominated successor trustee have a duty and obligation to carry out your wishes, but that trustee also has a fiduciary obligation to act prudently and appropriately for the benefit of the subsequent beneficiaries. However, what if that nominated successor trustee turns out to be a bad choice? What if the settlor of the trust is determined to be incapacitated and cannot alter the terms of the trust? The 5th District Court of Appeals of Florida in Rene v. Sykes-Kennedy, 156 So.3d 518 (Fla 5th DCA 2015) recently dealt with such an issue wherein a person who created a revocable trust was subsequently determined to be incapacitated. The person had nominated a granddaughter to serve as the successor trustee of the trust upon the person’s […]

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BUT YOU AGREED TO MAKE ME THE BENEFICIARY!

Written by on Apr 14, 2015| Posted in: General

Whether in the context of a divorce proceeding or when a couple is preparing their estate planning together, some people agree to a contract to subsequently make a Will or Trust that names another as the primary beneficiary.  This primarily (but not always) takes place when a married couple enters into a prenuptial or postnuptial agreement and in said agreement, they each agree that they will each sign a Will that makes the other person a beneficiary. What if in this agreement, they both agree that they will never revoke or amend such a Will regardless of divorce?  What if one of them changes the Will after the divorce?  What happens when that person dies? Florida Courts have dealt with similar situations and have held that such an irrevocable contract to make a Will can be made binding and damages may be sought against the breaching party’s estate.  In Boyle […]

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Mental Inequality and Undue Influence

Written by on Mar 10, 2015| Posted in: General

Mental Inequality as a Factor in Undue Influence Lawsuits As most probate litigators will acknowledge, one of the primary arguments for revoking a Will is that it was procured through the undue influence of another.  Florida courts have defined “undue influence” as over-persuasion, duress, or coercion by one over the settlor of a Will to such a degree that the Will reflects the wishes of the undue influencer as opposed to the settlor.  A key component in assessing and determining the merits of an undue influence claim is whether there existed a substantial and cognizable inequality between the mental sharpness between the settlor of the Will and the alleged undue influencer.  Although medical and mental health records are often reviewed and submitted for evidence in such cases, this factor of ‘mental inequality’ is different than alleging that the settlor lacked testamentary capacity to execute such a Will in the first […]

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Florida Trust Termination

Written by on Aug 12, 2014| Posted in: Trust Litigation

People create trusts for a variety of reasons.  Some create them for creditor protection.  Others create them because they are concerned about providing the beneficiaries with large sums of money all at once.  Although these reasons may be valid and appropriate at the time that the trust is created, what happens if that purpose is no longer in existence?  What if there is a substantial change of circumstances that causes the trust to be inconsistent with the settlor’s purposes (i.e. to benefit the beneficiaries)? Fla. Stat. 736.04113 states, in relevant part, as follows: Upon application of a trustee of a trust or any qualified beneficiary, a court at any time may modify the terms of a trust that is not then revocable in the manner provided in subsection (2) if: The purposes of the trust have been fulfilled or have become illegal, impossible, wasteful, or impractical to fulfill; Because of […]

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Elective Share for the Surviving Spouse

Written by on Jul 2, 2014| Posted in: Estate Litigation

Can we agree to something else? The law in Florida is clear in its intentions to protect a surviving spouse from being disinherited.  Fla. Stat. 732.201-732.2155 specifies the applicable rules for a surviving spouse to claim the elective share, which essentially provides that a spouse is entitled to receive 30% of the decedent’s assets upon his or her demise.  This law effectively prevents a spouse from being completely disinherited. Additionally, “no contest” clauses are provisions in trusts that attempt to prevent or discourage beneficiaries from filing lawsuits relating to a trust by penalizing the beneficiary (typically by causing that beneficiary’s share of the trust to be forfeit).  However, Fla. Stat. 736.1108(1) provides that “no contest” clauses in trusts are unenforceable because they may wrongfully punish a beneficiary who is attempting to remedy the bad acts of another and/or effectuate someone true testamentary intent. However, can the settlor of a trust […]

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FLORIDA PRENEED GUARDIAN

Written by on Feb 20, 2014| Posted in: General

FLORIDA PRENEED GUARDIAN AS PART OF YOUR ESTATE PLAN Everyone’s estate plan is different.  Some people are content with having only a will and trust to manage and distribute their financial assets after death.  However, others find it appropriate to name a specific person to take care of their personal and financial well-being in the event that he or she becomes incapacitated during his or her lifetime.  The Florida legislature has provided such an avenue through the enactment of Fla. Stat. 744.3045, which is the law dealing with a preneed guardian. The statute states that “[p]roduction of the declaration (of a previously-designated preneed guardian) in a proceeding for incapacity shall constitute a rebuttable presumption that the preneed guardian is entitled to serve as guardian.  The court shall not be bound to appoint the preneed guardian if the preneed guardian is found to be unqualified to serve as guardian.”  What if […]

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Priority in Florida Probate Proceedings

Written by on Nov 26, 2013| Posted in: Probate Litigation

It is often the case that people pass away with real property located in various states.  What occurs when there is a bona fide dispute over where your loved-one was actually domiciled on the date of his or her death?  What if there is a question as to which state should administer the estate?  The 4th District Court of Appeals recently heard a matter where there was such a dispute.  The late mother of the appellant died in Philadelphia, Pennsylvania in 2011.  The appellant subsequently opened a probate proceeding in Philadelphia seeking to probate a 2010 Will.  When the mother’s surviving husband received notification of this proceeding, he subsequently filed a petition to open a probate administration in Palm Beach County, Florida, asserting that this 2010 Will was invalid due to undue influence and requested that the estate probate her 1991 Will instead. The appellant (son) objected to the Florida […]

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