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Florida Probate Blog

Author: Victor D. Orihuela

Virtual Adoption and Probate

Written by on Mar 27, 2012| Posted in: General

Virtual Adoption and its Effects on Estates and the Probate Process Roger dies without a will.  He is survived by his son, Junior, and his purported daughter, Mary.  During a previous marriage, Roger and his first wife had attempted to adopt Mary, who was a young child at the time.  They file the necessary paperwork with the family court, along with the signed consent of the natural mother.  Mary lives with Roger for some time, with Roger treating her and introducing her to other as his daughter.  Unfortunately, before the adoption is finalized, Roger and his first wife divorce, and the adoption is never finalized.  By the time the divorce is final, Mary is no longer a minor and has moved out of Roger’s home to live with her boyfriend.  Fast-forward to the present, Roger’s estate is opened and Junior is appointed as the personal representative.  He now attempts to […]

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Florida Homestead Law

Written by on Oct 18, 2011| Posted in: Estate Litigation

Marriage and Homestead in the Florida Probate Process What if my deceased spouse and I were not living together at the time he or she passed away?  Do I still have Florida homestead protection from creditors? I recently had a case where this issue arose.  Although these questions may appear to be ripe for further problems and complex factual disputes regarding the quality and status of the marriage, Florida statutes and courts have made this issue fairly clear.  If you are married at the time of your spouse’s death, you may invoke your surviving spousal rights for homestead protection on your deceased spouse’s home.  Florida does not recognize separations or any other problems that may have existed during the marriage in making a determination of homestead status.  In Florida, you are either married, or you are not.  As they say, “you cannot be a little bit pregnant.” A surviving spouse’s […]

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Florida Guardianship, Part 3

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

There are certain procedures that need to be followed in seeking the determination of incapacity and the appointment of a guardain.  Needless to say, they are quite stringent.  Florida courts understand the gravity of implementing a guardianship and do not take such a course of action lightly.  The relevant statutes in determining incapacity are found in Chapter 744, Florida Statutes, along with the Guardianship Rules within the Florida Probate Rules. The first step in the process is having your attorney file a petition to determine incapacity.  This petition must be filed in the county where the alleged incapacitated person resides or is found.  In addition, it must be signed by the party seeking such a determination under penalties of perjury (also known as a “verified petition”).  Pursuant to Fla. Stat., 744.3201(3), a petition for appointment of a guardian must be filed simultaneously with the petition to determine incapacity.  If the […]

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CREDITORS AND SOLVENCY IN THE PROBATE PROCESS

Written by on Jul 7, 2011| Posted in: General

Let’s say your father passed away with $200,000 in his estate and you are the only heir.  If your father had owed money on the date of his death, the estate would be obligated to satisfy that creditor prior to you obtaining your inheritance.  Florida law provides that a devise (distribution) owed to a beneficiary is subject to charges for debts, expenses, and taxes.  In our example, if the creditor claim was for $100,000, it would be paid first, and you would then inherit the $100,000 remaining in the estate.  However, what if your father only had $90,000 on the date of his death, yet still had the $100,000 creditor?  Unfortunately, your father’s estate would be insolvent and your inheritance may be completely wiped out.  Now suppose that the person who owes the estate is a child who convinced his father to make a quick change to his last will […]

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Florida Wrongful Death and Probate

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

Wrongful Death Suits during the Florida Probate Process In many probate cases that come to our office, we discover that the decedent died under somewhat unusual circumstances (medical malpractice, automobile accident, etc.) that may give rise to a wrongful death law suit.  Sometimes the filing of a wrongful death suit may be warranted during the pendency of the Florida probate process.  For example, we recently had been representing a client for relatively standard estate administration.  During this administration, a hospital filed a claim against the estate for an exorbitant fee for the one day of medical services they provided to the decedent who died while at this hospital.  After requesting and reviewing the itemized medical bill and records, we uncovered that the decedent died during a routine medical procedure, possibly due to the negligent act of the medical provider.  In order to bring a wrongful death suit, you must show […]

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Understanding the New Estate Tax Laws and Its Effects

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

One of the first things that people should know regarding the federal estate tax is that this is a tax for “wealthy” people.  The majority of people, people who do not have millions of dollars in their bank account, should not fear that the federal estate tax will substantially deplete their loved-ones’ inheritance.  Additionally, Florida is one of the few states that does not have its own state estate tax, providing further incentive to reside here.   However, substantial changes occurred at the end of 2010 regarding the federal estate tax.  The government recently enacted new legislation known as the Tax Relief, Unemployment Insurance Reauthorization and Job Creation Act of 2010, which provides for these key changes in the estate tax:  The current law applies only to decedents dying on or after January 1, 2010.  Estates which have less than $5 million ($10 million for married couples) are exempt from paying […]

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