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Florida Probate Blog

Category: General

Florida Elective Estate

Written by on Nov 15, 2010| Posted in: Estate Litigation

In Florida the surviving spouse has certain basic rights regardless of whether the deceased spouse has executed a valid Will or whether the surviving spouse was excluded from the Last Will and Testament.  Something called an elective share may be taken when surviving spouses are dissatisfied with the share of the estate they are to receive under testate and intestate succession.  Under the elective share concept, the surviving spouse is entitled to take 30% of what constitutes the decedent’s “augmented estate,” with probate and certain non-probate transfers being included.  The elective share is considered to be a substitute for dower and curtesy which was the historic basic rights given to a spouse after death of a husband or wife.  Think of the elective share as the surviving spouse’s right to a forced share in the decedent’s entire estate.  It prevents the decedent from entirely disinheriting the other spouse.  The elective […]

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Doctrine of Dependent Relative Revocation

Written by on Sep 30, 2010| Posted in: General

When a person (testator) makes a last will and testament, it is customary that the will contain language that the new will revokes any and all prior wills signed by the testator.   The Uniform Probate Code holds that a new will can revoke prior wills even though it contains no other provisions stating that prior wills have been revoked.  If a person signs a new last will which revoked all prior wills, and destroyed all prior wills by burning, cancelling, tearing or obliterating them, then all prior wills would be deemed revoked.  Should a person die and the newly signed will was missing with no copies to be found, then the testator would be deemed to die intestate, or without a will. On the other hand, if a person dies, and the most recently signed last will and testament is found to be invalid for any reason, such as undue […]

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PER STIRPES vs. PER CAPITA

Written by on Aug 31, 2010| Posted in: General

Last Will and Testament Hypothetical #1: When Aunt Minerva died, she had no husband or children, but did have a valid Will, which was probated.  Her living descendants were her niece, Angela, her nephews, Barry and Charles.  They were over the age of 18 years old at the time of Aunt Minerva’s death.  When Aunt Minerva died, Angela had two children, Donald and Evelyn.  If Aunt Minerva’s Will stated that all of her estate was to be distributed to her then living descendants, per stirpes, then her niece, Angela, and her nephews, Barry and Charles each would receive a 1/3 share of her estate.  Angela’s children, Donald and Evelyn, would not receive anything from the estate.  Pursuant to Florida Statute 731.201(9), a lineal descendant or descendants mean “a person in any generational level down the applicable individual’s descending line.”  Adopted children come within the definition of lineal descendants.  The term […]

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Convenience Account or Inter Vivos Gift?

Written by on Aug 15, 2010| Posted in: General

A LESSON IN TRUST… We often come across cases in which a Will or a Trust leaves assets equally to all of the Decedent’s children. However, at the time of death, most of the Decedent’s assets are held in joint accounts with only one of the children named as a joint owner, thereby entitling only one child to the entire account as the remaining joint owner and avoiding the equal distribution that the parent planned through his or her Will and/or Trust. Unfortunately, the account title tends to control, despite the understanding that the child receiving the account as joint owner had been placed on the account for convenience purposes only to help mom or dad pay bills, as needed; not to receive all of the assets upon their death. Parents believe their children would never cut out their siblings but this is sadly not always the case.

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Can Step Children Inherit Property in Florida?

Written by on Aug 10, 2010| Posted in: General

A recent case from the 5th District answers the question of when, and under what circumstances, can step children take an inheritance and disinherit lineal descendants.  See Timmons v Timmons  35 Fla.L.Weekly D1264 (Fla. 5th DCA Case No. 08-4103).  When Frank died in 1999, he was married to Myrtle and had two adopted children from a previous marriage.  Myrtle had four children, none of which was ever adopted by Frank.  Frank created two trusts, a family trust and a marital trust.   Myrtle was the sole income beneficiary of the trusts during her lifetime, and upon her death, the marital trust was to pour over into the family trust.  The marital trust provided that upon Myrtle’s death, the trust’s remaining principal would pour over into the family trust and be distributed in accordance with the terms of the family trust.  The family trust provided that upon Myrtle’s death, the trust assets were […]

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Notice to Creditors

Written by on Jul 6, 2010| Posted in: General

DETAILS ON NOTICE TO CREDITORS IN FLORIDA PROBATE ESTATES             The Personal Representative of an Estate must promptly publish a Notice to Creditors pursuant to Florida Statute 733.2121.  The Notice should contain the following: 1)    The name of the decedent; 2)    The file number of the estate; 3)    The designation and address of the Court in which the case has been filed; 4)    The name and address of the Personal Representative of the Estate; 5)    The name and address of the Personal Representative’s attorney; and 6)    The date of the first publication. 

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More than a Merely Perfunctory Matter

Written by on Jun 21, 2010| Posted in: General

Fourth District Reverses $1.6M Jury Verdict Because Lawyer Failed to Substitute Decedent’s Estate as a Party Litigation presents lots of surprises and traps for the unwary.  The consequences of failing to follow a seemingly-routine procedure can sometimes lead to horrific consequences.  An example of one of the plain and simple rules of litigation is that if a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party.  The motion must be made within 90 days or the action shall be dismissed as to the deceased party. The purpose of this rule is to facilitate the rights of persons having lawful claims against estates being preserved, so that otherwise meritorious actions will not be lost When counsel files a suggestion of death, opposing […]

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Having a Missing Person Declared Dead

Written by on Jun 21, 2010| Posted in: General

Under Florida law, “a person who is absent from the place of his or her last known domicile for a continuous period of 5 years and whose absence is not satisfactorily explained after diligent search and inquiry is presumed to be dead. The person’s death is presumed to have occurred at the end of the period unless there is evidence establishing that death occurred earlier. Evidence showing that the absent person was exposed to a specific peril of death may be a sufficient basis for the court determining at any time after such exposure that he or she died less than 5 years after the date on which his or her absence commenced. ”  F.S. 731.103 (3) Florida law does not preclude the establishment of death by direct or circumstantial evidence prior to 5-years.

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Florida Inheritance Law

Written by on Jun 8, 2010| Posted in: General

STEP CHILDREN AND CHILDREN BORN OUT OF WEDLOCK Florida inheritance laws do not treat your stepchildren as your legal heirs, therefore, they do not have an automatic legal right to inherit from you. If you want to ensure they will receive part of your estate, you will need a Will that specifically names them as a beneficiary. If you simply leave “20 percent to my children”, then your stepchildren may inherit nothing. It is important to name each individual child as a beneficiary instead of referring to them as “my children”, which will avoid confusion in interpretation of the Will language. If you formally adopt your stepchildren, then they will inherit from you as a beneficiary the same way as your biological children.

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Florida Wrongful Death

Written by on May 31, 2010| Posted in: General

A wrongful death lawsuit will inevitably be filed in connection with the fatal I-95 sport-utility crash that left two dead from the Hollywood Florida area.  Personal injury lawyers will hire probate lawyers to open the estates so a personal representative can be appointed to file a survival action and a wrongful death claim.  According to reports, the vehicle lost control and flipped over which might lead investigators for the wrongful death lawyers to examine whether any defect existed in the vehicle that may have caused it flip.  

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