Florida Will Reformation

Can a Will be changed after death?

While Florida law provides for challenges to the probate of Wills under theories such as duress, improper execution, undue influence, and incompetency, beneficiaries and other interested persons of a Last Will and Testament now have a new way to change a Will after death.  Effective July 1, 2011, Florida Statute 732.615 (“Reformation to correct mistakes”), allows for modification of a Last Will and Testament where a mistake of fact or law needs to be corrected in the written Will.  This Florida law can be used by beneficiaries of a Will in instances where a specific gift in the Last Will and Testament is a mistake; such a situation may arise with regards to the amount of a specific bequest.  Perhaps the decedent’s intention was to provide $50,000 to a grandchild but the Last Will and Testament offered for probate instead lists $500.  In such a scenario, a probate law attorney could use the discovery rules to seek out evidence that both the testator’s intent and the terms of the Will were affected by a mistake of law or fact.  This may be done through written discovery, deposition, or issuance of subpoenas.

If you have a Florida Will Reformation question, please contact the Florida Probate Attorneys at Adrian Philip Thomas, P.A. for a free consultation.  Call toll free at (800) 249-8125.

How do I contest a Will in Florida?

Our office receives communications nearly every day from people asking “how do I contest a Will in Florida?”

As with most questions in the law, the answer is “it depends” and it largely depends on the basis for contesting the Will.  Is it because you know the decedent executed a more-recent Will?  Is it because the Will filed was executed improperly?  Is it because the decedent who made the Will lacked capacity at the time it was made?  Is it because the decedent who made the Will was being unduly influenced by someone when it was made?  Sometimes it is appropriate and sufficient to file an Objection to the Petition for Administration or to the Petition to Admit Will but sometimes a law suit (Complaint) challenging the Will is necessary.

The best answer to the question “how do I contest a Will in Florida?” is that you should consult with a Florida lawyer who handles probate litigation, which includes Will contests, who can ask you the right questions to determine whether you have a valid basis for contesting a Will.

For more information about how to contest a Will in Florida, please see our Will Contest FAQs or schedule a no-obligation consultation with an attorney at Adrian Philip Thomas, P.A.

Is a decedent permitted to forgive debt owed to him when his estate is insolvent to pay the debts and costs of administration? 

According to Florida’s Fifth District Court of Appeals, the answer is “no.”

In Lauritsen v. Wallace, 67 So.3d 285 (Fla. 5th DCA 2011), the decedent father had included a provision in his Last Will & Testament forgiving his son’s debt to the father, which was secured by a promissory note.  The decedent’s estate was insolvent so the Personal Representative asked that the note be included as an estate asset.  The trial court held that the debt was forgiven at the instant the decedent died so it could not be considered an asset.  The appellate court disagreed.

This was a case of first impression in Florida.  The Court noted that “there are no Florida cases that address the question of whether the release and forgiveness of an obligation in a will operates to defeat the payment of obligations and expenses of a decedent’s estate.  However, other jurisdictions have considered the question, and have uniformly concluded that forgiveness of a debt in a will occurs only after creditors and expenses are paid.”

Further, the Court found that “several sections of the probate code support the conclusion that a devise cannot be elevated over administrative expenses and the rights of creditors” and cites Fla.Stat. 731.201(10), Fla.Stat. 733.805(1), and Fla. Stat. 733.707(1).

Ultimately, the Fifth District Court of Appeals held that “a decedent can release a debt owed to the decedent through a testamentary devise only to the extent that the decedent’s estate is solvent to pay all debts and administrative costs of the estate.”

Adrian Thomas Attorney

Attorney Adrian Thomas is a shareholder and senior partner of a boutique, nine-attorney law firm located in Fort Lauderdale, Florida. He has resided in Florida for the past thirty years and has practiced law in Broward County for the past 18 years. Adrian Thomas is “AV” rated by Martindale Hubbell and has been selected as one of Florida’s Legal Elite by Florida Trend Magazine in 2008, 2009, 2010 and 2011.  Attorney Adrian Thomas concentrates his practice in estate litigation, both prosecuting and defending, which includes matters involving estates, trusts, probate, and guardianship. He represents clients with disputes throughout the State of Florida.

Attorney Adrian Philip Thomas is a shareholder and founding partner of the Law Offices of Adrian Philip Thomas, P.A., a boutique, nine-attorney law firm located in Fort Lauderdale, Florida. He has resided in Florida for the past thirty years and has practiced law in Broward County for the past 18 years. Mr. Thomas is “AV” rated by Martindale-Hubbell and has been selected as one of Florida’s Legal Elite by Florida Trend Magazine in 2008, 2009, 2010 and 2011. Mr. Thomas concentrates his practice in estate litigation, both prosecuting and defending, which includes matters involving estates, trusts, probate, and guardianship. He represents clients with disputes throughout the State of Florida.

Attorney Adrian Philip Thomas has a Masters in Law from the University of Miami, a Juris Doctor from Nova Southeastern University, and a Bachelor of Science from the University of Florida.

Attorney Adrian Philip Thomas has lectured at continuing legal education seminars on various probate topics.  To read Attorney Thomas’s materials, visit the seminars page of his website.

LAWYER RATINGS

Adrian Thomas has achieved the highest lawyer rating in Martindale-Hubbel.

• AV® Peer Review Rating — An AV® certification mark is a significant rating accomplishment – a testament to the fact that a lawyer’s peers rank him or her at the highest level of professional excellence. A lawyer must be admitted to the bar for 10 years or more to receive an AV® rating.

Adrian Thomas has achieved the highest lawyer rating on Avvo. 

Adrian Thomas has been selected Florida Trend Legal Elite  for four consecutive years, 2008-2011.

See comments from Adrian Thomas’s clients.

Florida Guardianship Lawyers who focus on elder law topics can prepare wills and trusts, provide Medicaid plans or assist with guardianship for people who are mentally incapacitated.  Being mentally incapacitated is not the same as being mentally incompetent but the conclusion can sometimes be the same – someone cannot take care of himself or herself and needs a guardian to be appointed by the Court. 

The Law Offices of Adrian Philip Thomas, P.A. has Florida guardianship lawyers practicing with the firm, including Robert M. Trinkler, who has previously served as counsel of record in more than 2,000 guardianship and incapacity proceedings throughout the State of Florida and who has successfully handled hundreds of adversarial guardianship and incapacity matters. 

The lawyers at Law Offices of Adrian Philip Thomas, P.A. have extensive experience in all aspects of Florida guardianship proceedings.

Could Whitney Houston’s Tragic Death Been Avoided?

With the recent death of Whitney Houston, there has been a heightened awareness of substance abuse and more importantly how pervasive this problem is in all walks of society.  Addiction knows no barriers, whether they are social, racial or economic.  Today addiction is so common that few among us can say that they have not been personally affected by knowing someone who is or was addicted to drugs or alcohol.  The hope is that we may somehow intervene in the affairs of an addict before tragedy wreaks havoc upon them and those that they love.

Fortunately for those who are suffering from alcohol and substance abuse addiction problems in the State of Florida, the Florida Marchman Act was first passed into law in 1993 providing for both involuntary assessment and involuntary treatment upon the filing of a Petition for either or both relief.  This progressive legislation was initially introduced by Florida State Senator Hal S. Marchman and accordingly is now known as the “Hal S. Marchman  Alcohol and Other Drugs Services Act.”  An individual can voluntarily submit to such treatment, however, in many situations this is not likely and/or practical when the abuser is in denial of the abuse and more commonly the underlying problem, which often times is of a psychiatric nature.  The Florida Marchman Act provides for a thorough evaluation, which could include both a complete substance abuse and mental health assessment, that often times leads to the discovery of a “dual diagnosis”.

The Florida Marchman Act process typically commences upon the filing of a Petition for Involuntary Assessment when there is a good faith reason to believe that an individual is substance abuse impaired and because of the impairment, the individual has lost the power of self-control with respect to alcohol or substance use.  Such a Petition may be filed by the individual’s spouse, guardian, any relative, private practitioner, a service provider director or any three adults having personal knowledge of the person’s condition.   In the case of a minor, only the parent, guardian or service provider is authorized to file such a petition.

The Petition is filed with the clerk of court in the county in which the impaired person resides or is found and the court must set the petition for hearing within 10 days.  At the hearing, the court may enter an Order for Involuntary Assessment at a public facility unless prior arrangements for a private facility have been made.  The facility will assess and stabilize the patient for a period not to exceed 5 days.  Thereafter, a written assessment is sent the court which may then proceed with a Petition for Involuntary Treatment.

Generally, a second hearing is conducted upon the Petition for Involuntary Treatment upon the court’s receipt of the written report from the assessment facility recommending the need for involuntary treatment.  The court may order the involuntary treatment for a period not to exceed 60 days and may have the Sheriff take the patient into custody for delivery to a licensed treatment facility.

Any individual who is the subject of a Florida Marchman Act has the right to counsel at every stage of a petition for involuntary assessment or treatment.  The court will appoint counsel if requested or if needed and the person cannot afford to pay.  An unrepresented minor must have a court-appointed guardian ad litem.  All filings and proceedings held pursuant to the Florida Marchman Act are held strictly confidential.  Pursuant to Section 397.501 Florida Statutes:  “The records of service providers which pertain to the identity, diagnosis, and prognosis of and service provision to any individual are confidential in accordance with this chapter and with applicable federal confidentiality regulations and are exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. Such records may not be disclosed without the written consent of the individual to whom they pertain…”

The confidentiality provision is a great public policy to prevent a chilling effect upon individuals who may otherwise avoid filing a Marchman Act petition for fear of the negative effect and stigma that may be associated with the filing and the ultimate treatment of a substance abuse impaired individual.

In conclusion, the Florida Marchman Act, is a very valuable part of Florida law which can literally save someone’s life if it is both properly and timely invoked.  One may wonder if the tragic outcome of the life of Whitney Houston may have been different if she was a resident of the State of Florida and had been the subject of a Marchman Act proceeding.

THE TRUSTEE’S DUTY OF IMPARTIALITY WITH BENEFICIARIES OF A TRUST.

Impartial – unable to perceive any promise of personal advantage from espousing either side of a controversy.  Ambrose Bierce

Recently, the problem of a trustee financially favoring one beneficiary over another presented itself.  In this case, the trustee was making distributions to one beneficiary without question, while denying the other beneficiary of similar distributions.  When this occurs, it is imperative that a competent attorney review the trust document and any amendments to the trust to determine if there exists any specific language allowing for the inequity in distribution.  If no such language exists, then the trustee has breached their fiduciary duty of impartiality to the beneficiaries of the trust.

Florida Statute 736.0803 states that “[i]f a trust has two or more beneficiaries, the trustee shall act impartially in administering the trust property, giving due regard to the beneficiaries’ respective interests.”   The trustee cannot favor one beneficiary over the other, unless there is language in the trust document that allows the trustee to do so.

Also, the Uniform Trust Code Section 803 states that the duty of a trustee to act impartially does not mean that the trustee is required to treat the various beneficiaries equally.  Rather, the trustee must treat the beneficiaries equally in light of the purposes and terms of the trust.  The Restatement (Third) of Trusts, Section 79(2) states that the trustee has a duty of loyalty which is the specific duty to treat all trust beneficiaries impartially, that is, not favor one beneficiary over another unless authorized to do so by the governing instrument. 

Even when so authorized, the trustee’s discretionary acts favoring one beneficiary over another must be in furtherance of the intentions of the settlor/grantor and not in furtherance of the trustee’s own personal biases and preferences.  The trustee must be impartial when dealing with conflicting equitable interests of beneficiaries.  Therefore, a trustee must deal impartially with the trust beneficiaries, treat them even-handedly, and act in the best interest of the trust as a whole.  Friedman v. Friedman, 844 So.2d 789 (Fla. 4^th DCA 2003); Morse v. Stanley, 732 F.2d 1139, 1145 (2d Cir. 1984). 

If you believe a trustee is breaching their fiduciary duty to act impartially, it is imperative that you have a competent attorney review the trust documents to determine the specific intentions of the settlor/grantor.  If you find that the trustee did, in fact, breach their fiduciary duty to act impartially, and the trustee has favored one beneficiary over another, then it may be necessary to commence litigation in order to remove the trustee, have a successor trustee appointed, and have the trust disbursements equalized between the beneficiaries.

Florida Trust Termination

It is not uncommon for people to place real estate in a trust as part of their estate plan. What happens when the person dies and the real estate is unproductive or the value gets reduced?  Recently a client had a one-half interest in a trust that was to last for several years, the primary asset of which was a house.  The owner of the house wanted it to be available for his sibling to use after his death.  Unfortunately, the house had fallen behind in monthly dues with the homeowner’s association and was not used or lived in after the death of the owner.  Of course, expenses (such as property taxes and homeowner’s dues) needed to be paid and the homeowner’s association sued for past due bills.

Fortunately, Florida law permits the Court to modify an irrevocable trust if not inconsistent with the settlor’s (the creator of the trust) purpose and the purposes of the trust have been fulfilled or have become illegal, impossible, wasteful or impractical to fulfill.  The law allows for modification of the trust for other reasons as well.  The law even allows termination of the trust, in whole or in part!

The client feared that the expenses on the real estate would greatly diminish his interest in trust when it ended after the set term of years.  Fortunately, through application of Florida Statute 736.04113, we were able to request the trust be terminated and the real estate sold, with the proceeds distributed in accordance with the terms of the trust.  This use of the probate law in Florida worked to our client’s advantage and allowed the settlor’s intent to be followed.  This is a great example of how circumstances can change after signing estate planning documents, but with the help of an experienced probate attorney everyone was pleased with the outcome.