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Florida Probate Blog

Category: General

Change in Statutory Duty of Un-Qualified Personal Representatives

Written by on Aug 18, 2015| Posted in: General

When a person dies, with or without a last will and testament, there is a high probability that the person who died (the “Decedent”) will have left behind obligations that must be fulfilled and other matters that must be addressed before their property can be distributed. The property that a Decedent leaves behind when he or she dies and which is the subject of administration in probate court makes up what is called the “estate.” §731.201(14), Fla. Stat. (2015). Just like a business needs a manager to run its day-to-day operations, an estate needs a manager to finish handling the Decedent’s affairs so that the estate may be distributed, either according to the terms of the Decedent’s last will and testament or under the laws of intestacy. In Florida, the person who is charged with managing, or “administering,” the Decedent’s estate is called the “Personal Representative.” §731.201(28), Fla. Stat. (2015). […]

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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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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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Exploitation of the Elderly

Written by on Mar 18, 2015| Posted in: General

Fla. Stat. § 732.518 provides that “[a]n action to contest the validity of all or part of a will or the revocation of all or part of a will may not be commenced before the death of the testator.”  Essentially this means that interested persons cannot contest a will until after the death of the person who made the will.  But what if you know that your elderly family member or loved one has been taken advantage of by a caregiver and you want to protect him or her now? Fortunately, the Florida Legislature has provided a means of not only protecting vulnerable, elderly adults, but also punishing those who exploit them for personal gain.  Fla. Stat. § 415.1111 provides a civil cause of action against a caregiver or person who stands in a position of trust and abuses that trust through neglect, deception, or intimidation in order to defraud […]

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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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Spousal Inheritance after Divorce

Written by on Jul 2, 2014| Posted in: General

What rights does a divorced spouse have to inherit from a former spouse’s estate? Fla. Stat. § 732.703 became effective in 2012 and concerns beneficiary designations on life insurance policies, annuities, IRAs, 401ks and other employee benefit plans.  The statute is perceived as a legislative reaction to some decisional case law and also to the problem that surfaced when divorced clients never returned to their estate planning attorneys to revise their estate planning documents and beneficiary designations. The statute provides: § 732.703. Effect of divorce, dissolution, or invalidity of marriage on disposition of certain assets at death. (1)  As used in this section, unless the context requires otherwise, the term: (a)  “Asset,” when not modified by other words or phrases, means an asset described in subsection (3), except as provided in paragraph (4)(j). (b)  “Beneficiary” means any person designated in a governing instrument to receive an interest in an asset upon the death of […]

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Qualified Renunciation

Written by on Jul 1, 2014| Posted in: General

In Florida, one of the pleading requirements for a Will Contest or Trust Contest is a general allegation in the complaint that the contestant renounces any benefit he or she receives under the challenged document. The “renunciation rule” is an equitable doctrine in Florida.  Fintak v. Fintak, 120 So.3d 177 (Fla. 2d DCA 2013).  It was originally established by the English ecclesiastical courts but has been interpreted by American courts to require that one who receives and retains a gift under a will is estopped to contest the validity.  Id.  In Barnett Nat’l Bank of Jacksonville v. Murrey, 49 So.2d 535 (Fla. 1950), the Florida Supreme Court articulated three reasons for the renunciation rule: (1) to protect a fiduciary in the event the contested document is held invalid; (2) to demonstrate sincerity of the contestant; and (3) to have the property available for disposition at the conclusion of the contest. Interestingly, […]

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Florida No Contest Clause

Written by on Jun 30, 2014| Posted in: General

A No Contest Clause is a provision in a will or trust that penalizes an interested person who seeks to contest or challenge the validity of the will or trust instrument.  These clauses are sometimes referred to as in terrorem clauses.  Generally, a no contest clause penalizes a person contesting the will or trust by providing that the person loses all rights to receive any gift or devise under the will or trust if he or she contests its validity or challenges the terms of the instrument. Florida law invalidates no contest clauses in both wills and trusts.  Florida Statute section 732.517 provides that “[a] provision in a will purporting to penalize any interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable.”  Similarly, Florida Statute section 736.1108 (1) provides that “[a] provision in a trust instrument purporting to penalize any interested person for contesting the trust instrument or […]

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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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Disposition of Property by Handwritten Will

Written by on Oct 26, 2013| Posted in: General

SECOND DISTRICT COURT OF APPEALS CERTIFIES QUESTION OF GREAT PUBLIC IMPORTANCE TO THE FLORIDA SUPREME COURT REGARDING FUNDAMENTAL CONSTITUTIONAL RIGHT FOR A PERSON TO DISPOSE OF PROPERTY BY WILL              Florida will lawyers and trust lawyers frequently assert the rights of a deceased person to dispose of their property by a will.  The United States Constitution grants no right to dispose of property by a will; however, since 1968, Florida has recognized this fundamental constitutional right under the State Constitution.              Recently, the Second District Court of Appeals was confronted directly with how far the constitutional right applies in the context of legislation requiring certain technical formalities with regards to Wills.  In Lee v. Payne, 38 Fla.L.W. D1969, (Fla. 2nd DCA Sept. 18, 2013), the Decedent’s fiancé sought to admit to probate Mr. Payne’s Colorado holographic will.  A holographic will is a will in testament that has been entirely handwritten […]

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