Florida Probate Litigation

Florida Probate Litigation law suits in Florida are ones involving estates, trusts, guardianships and probate.  They may involve documents including: Last Will & Testament, Living Trust, Durable Power of Attorney, etc.  These cases are filed on a daily basis throughout the State of Florida.  Many of these lawsuits include counts for undue influence, lack of capacity, and tortious interference but regardless on the title of the lawsuit they all involve some level of exploitation of the elderly.  Exploitation can occur when a person who stands in a position of trust and confidence with a vulnerable adult knowingly, by deception or intimidation, obtains or uses a vulnerable adult’s funds, assets, or property with the intent to temporarily or permanently deprive a vulnerable adult of the use, benefit, or possession of the funds, assets, or property for the benefit of someone other than the vulnerable adult.  Ignoring this sophisticated definition, what we are really speaking of is some form of stealing.

If you need to speak with an attorney about a Florida Probate Litigation matter, please contact the attorneys at Adrian Philip Thomas, P.A. for a free consultation.

CREDITOR CLAIMS IN THE FLORIDA PROBATE PROCESS

            As is often the case, people pass away with a debt owed to another person or entity.  When this occurs, the proper manner for a creditor to collect on such a debt is to file a Statement of Claim in the decedent’s estate pursuant to Fla. Stat. §733.703.  The primary time limitation that creditors must be wary of stems from Fla. Stat. §733.702, which states that the claim must be filed within three (3) months after the time of the first publication of the notice to creditors (which is published by the personal representative near the commencement of the estate administration) or, if the creditor is a known and/or reasonably ascertainable creditor, thirty (30) days after being served with the notice to creditors.  Typically, the proper person to file an objection to any such claim is the personal representative.  However, under the Florida Probate Code, any interested person in the estate, whether a beneficiary or another creditor, may also file an objection to a filed claim.

            Fla. Stat. §733.705 describes the procedure of paying and objecting to claims that are filed in an estate.  In regards to objections, the statute states as follows:

(2)   On or before the expiration of 4 months from the first publication of notice to creditors or within 30 days from the timely filing or amendment of a claim, whichever occurs later, a personal representative or other interested person may file an objection to a claim. 

 An “interested person” under the Florida Probate Code is one who may be reasonably expected to be affected by the outcome of a particular proceeding involved.  Of course, a beneficiary or a creditor of an estate would come under this definition and have the authority to file an objection to a filed claim.  This often occurs when a beneficiary or creditor does not believe that the personal representative has been performing his or her duties diligently and in the best interest of the estate and/or if there is a suspicion of a conflict of interest.  Although such impropriety is not required for an interested person to file an objection to a claim, this is the typical scenario where one would see a non-personal representative filing an objection to a creditor claim.

Once the objection is filed, however, the claimant has their own time limitation to consider.  Pursuant to Fla. Stat. §733.705(5), a claimant is limited to thirty (30) days from the date of service of this objection to bring an independent action upon the claim filed.  In other words, the creditor has to file a separate lawsuit against the estate in order to collect on his, her or its claim.  Moreover, Florida case law is clear that this lawsuit must be an “independent” lawsuit, meaning that it cannot be filed in the probate estate.  Williams v. Estate of Williams, 493 So.2d 44 (Fla. 5^th DCA 1986); In re Estate of Fornash, 372 So.2d 128 (Fla. 2d DCA 1979). 

If you are involved in an estate administration that requires some attention to the collecting or defending of a creditor claim, it is in your best interest to consult with an attorney experienced in the Florida probate process in order to ensure that the proper steps are being taken to prosecute or defend such a claim.

A Will Contest can often be a lengthy process involving extensive motion practice, discovery, and various other pre-trial matters that can arise during the litigation. A Will Contest can begin both before and after the appointment of a personal representative.  Whether a dispute arises before or after the appointment of the personal representative, the concern becomes how one can protect and preserve the estate’s assets for the ultimate beneficiaries, pending a final determination by the court.

The circuit court, sitting in its probate capacity, has inherent jurisdiction to monitor the administration of an estate and to take such appropriate action as it may deem necessary to preserve the assets of the estate for the benefit of the ultimate beneficiaries.  See Estate of Conger, 414 So.2d 230 (Fla. 3^rd DCA 1982).  Furthermore, a probate court has the authority to issue temporary injunctions freezing assets claimed to belong to a decedent’s estate, even though ultimate ownership of those assets may be in dispute.  See Patrone v. Cypen (In Re: Estate of Barsonte), 773 So.2d 1206 (Fla. 3^rd DCA 2000).  If a Will dispute arises after a personal representative is appointed, through the filing of a Petition for Revocation, the personal representative also has a clear legal right under Fla.Stat. §733.607(1) to take all steps reasonably necessary for the management, protection and preservation of the estate until distribution. Any interested person who’s interests would be affected by the result of a Will contest could invoke the probate court’s jurisdiction to take such appropriate action as necessary to preserve the assets of the estate.

Whether sought by the personal representative or an interested party, a temporary injunction freezing assets claimed to belong to a decedent’s estate is often a necessary action through which the court can monitor and preserve assets prior to determining the ultimate ownership and/or beneficiaries of those assets.

A temporary injunction is properly granted where: 1)Immediate and irreparable harm will otherwise result, 2) the moving party has a  clear legal right thereto, 3) the movant has no adequate remedy at law, and 4) the public interest will not be disserved. Failure to seek a temporary injunction freezing assets of an estate during a Will Contest or any adversarial proceeding involving a determination of a beneficiary’s rights could result in immediate and irreparable harm to the estate due to dissipation of the assets during the litigation.  The function of the temporary injunction in a Will Contest is not to determine the ownership of the subject assets but merely to preserve the assets pending the outcome of the Will Contest or other adversarial proceeding.

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.”

Jury Trials in Probate

 Our firm regularly demands jury trials in probate matters.  There are a variety of reasons for doing so, including the simple fact that it is a constitutional right of all citizens to preserve and guarantee a trial by jury in all proceedings.  Also important is the fact that jury trials are vital to maintaining the public’s confidence and trust in our judicial system.  The value of jury trials in probate has become even more critical with the dramatic decline in the number of jury trials in recent years.

One of the evolving and developing areas of the law that assists probate litigators in providing access to jury trials is the theory of liability founded in what is referred to as “tortious interference with an inheritance” or “intentional interference with an expectancy.”   Our firm regularly handles these cases on behalf of relatives who have been victimized by some unscrupulous person who has interfered with an elderly loved one’s traditional testamentary wishes.  The unscrupulous conduct takes many forms, but typically involves the changing of the title and ownership of assets using a power of attorney, assisting an elderly person with the preparation of a new will, or the changing of bank accounts so that the elderly person’s assets do not pass to the family upon death. 

These actions are for money damages and persons who make these claims are guaranteed a right to a jury trial under the state constitution.

Notice of Administration in Florida Probate

The Notice of Administration is a formal document that notifies all interested parties of the death of the decedent, the filing of the last will and testament for probate, and that an objection to the validly of the will and the probate proceedings must be filed within a certain period of time or be forever barred.

The recipient of a Notice of Administration may have a variety of legal bases (e.g., Lack of Mental Capacity, Undue Influence, Duress, Intentional Interference with an Expectancy, and/or Improper Signing of the Will) to try to stop the administration of the estate or the challenge the validity of the Will.  If you receive a Notice of Administration informing you that you have a limited time-frame, the Notice provisions will override any deals, promises or assurances that if you don’t contest the will you will get your fair share.  So be wary of any promises made that things will be “evened out” in the estate or someone will “take care of it” – those verbal agreements are unenforceable.  In other words, once you are served with a Notice of Administration and the time period (usually 20 days) passes, any promises, representations or guarantees to settle any estate dispute or disagreement are worthless and unenforceable.

Often with estates, a conflict develops between beneficiaries and the Personal Representative that leads to litigation.  This litigation can be the result of a delay in administration of the estate, distribution of assets, or differences in personality.  Recently a client hired our law firm to seek to remove a Personal Representative who had incurred very substantial fees for travelling around the country to repeatedly check on the decedent’s assets, which was an expense the client felt was unjustified.

Florida Statutes list causes for which a Personal Representative may be removed.  One of these causes include “holding or acquiring conflicting or adverse interest against the estate that will or may interfere with the administration of the estate as a whole.”  However, a dispute between the beneficiaries of an estate by itself in insufficient grounds to refuse to appoint a personal representative if otherwise qualified.  That holding, however, came in a case where two sisters filed competing petitions for administration of their mother’s estate.  One of the sisters had been appointed Personal Representative by will; the two sisters had a very adversarial relationship.  The Appellate Court reversed the trial court’s appointment of a neutral third party, preferring to give the testator’s selection deference in the absence of exceptional circumstances.     

While the Court in most circumstances will appoint the Personal Representative selected in the last will and testament, the court does not make the protesting beneficiary wait until a detriment is suffered if he can make his showing prior to the appointment.  Ironically, my client did not object to the appointment of the Personal Representative, however he did not anticipate the Personal Representative being so wasteful of the estate assets.

If you are the beneficiary of an estate and object to the appointment of the named Personal Representative, or to the conduct of the Personal Representative after appointment, it is imperative to consult a Florida probate litigation attorney to ensure your interests are not potentially diminished or squandered.

Quite frequently, as an inheritance lawyer who handles lawsuits with last will and testaments and codicils, I am asked questions regarding Florida inheritance disputes and the procedures for proving a lost or destroyed will.

To establish and probate a lost or destroyed will, the specific content of the will must be proved by the testimony of two disinterested witnesses or, if a correct copy is provided, it must be proved by one disinterested witness.  In one court case involving a Florida inheritance fight, a lawyer provided a copy of the missing will to the court and presented a disinterested witness who testified that it was a correct copy.  Even though there was conflicting testimony by the other witness (who stood to gain if the will was rejected) that the will was later revoked by the decedent, the Court still found the lost or destroyed will could be admitted to probate.

These types of cases involve a lawyer’s command over the substantive provisions of the Florida Probate Code and an understanding of the rules regarding will and trust contests in Florida.

My probate practice regularly performs cleaning services for the messes caused by maladministration of estates by fiduciaries.  Unfortunately, with increasing frequency, estates and their beneficiaries are victimized not only by negligent fiduciaries, but by attorneys who steal from the estates.

For example, one attorney was recently charged with stealing more than $300,000 in guns, jewelry and art from a friend who died of cancer.   A beneficiary named in the will contacted police after receiving nothing from the estate.    Evidently, the lawyer was unsuccessful in attempting to be appointed personal representative of the estate.  Further, the lawyer was charged with forgery for allegedly signing the decedent’s name on a check two days after the man passed away.  Finally, the lawyer was charged with perjury for allegedly claiming to be executor of the estate when he re-registered several guns in his name.

Misconduct by Florida attorneys involved in handling wills and trusts is not uncommon.  All too often I am asked to investigate and ultimately prosecute will contests which involve attorneys playing an active role, not only in the procurement of the will, but in having themselves or their relatives named as beneficiaries under the will. The Florida Supreme Court has adopted a portion of the American Bar Association’s Model Rules of Professional Responsibility, and in particular, the prohibition against lawyers playing a role in the drafting and execution of a will or trust where they are named as a beneficiary.

Rule 4-1.8. Conflict of Interest; Prohibited and Other Transactions

(c) Gifts to Lawyer or Lawyer’s Family. A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client. For purposes of this subdivision, related persons include a spouse, child, grandchild, parent, grandparent, or other relative with whom the lawyer or the client maintains a close, familial relationship.

This code provision was relied on in disciplinary proceedings against a lawyer in The Florida Bar vs. Anderson, 638 So.2d 29 (Fla. 1994). In October 1988, Anderson, a probate lawyer, undertook the representation of Mary Sisler. Between that time and Sisler’s death two years later, he prepared nine testamentary instruments, six of which named him or his wife as beneficiaries of Sisler’s estate. The Court found his conduct to be unprofessional even though Anderson did not intend that either he or his wife benefit from the bequests and even though he received no real benefit from any instrument he drafted for Sisler. The Court found, however, that Anderson was attempting, inartfully, to effectuate Sisler’s intent to shield the bequests from the creditors of the Palm Beach Festival, her intended beneficiary.

The Anderson decision and the Rule of Professional Responsibility upon which it is predicated, underscores the deep-rooted policy in Florida that a lawyer who drafts a will in which the attorney or a member of his family is a beneficiary raises the issue of undue influence that taints the entire will and may destroy the validity of other bequests as well. Florida law will not tolerate this conduct as it frustrates the intentions of a client who has entrusted the attorney with the responsibility of seeing that the estate is distributed according to the client’s wishes. Further, in the cases I have handled, I invariably find that the attorney’s credibility as a witness on testamentary capacity is impaired by the attorney’s personal interest in the outcome.

While most probate litigation involves challenging and defending wills and trusts, a recent case I handled dealt with the absence of an original will.  Florida probate law provides that when an original will that is known to have existed  cannot be located after the death of the testator there is a presumption that the testator destroyed the will with the intent to revoke it.  In other words, the law is presuming that a last will and testament is important enough to be kept in a safe place so it can be discovered after death.  However, in our firm’s case, the decedent was believed to have kept the original in his safe deposit box yet shortly after his death many potential intestate heirs had access to the safe.  An intestate heir is an heir who exists only when there is no last will and testament.  In our case, the decedent’s children from his first wife were seeking to inherit even though in the copy of his Last Will and Testament his estate was left entirely to his minor child. 

Although a presumption exists that the will was destroyed with the intent to revoke when the original last will cannot be located, a Florida probate lawyer can assist in trying to overcome that presumption.  To do so, the person who wants the copy of the will or the “lost” will to be honored and admitted into probate has the burden of introducing evidence to honor the copy as the original.  Evidence which is relevant includes a copy of the lost or destroyed will and testimony of the witnesses to the signing of the will.  Florida Statute 733.207 provides that:  Any interested person may establish the full and precise terms of a lost or destroyed will and offer the will for probate. The specific content of the will must be proved by the testimony of two disinterested witnesses, or, if a correct copy is provided, it shall be proved by one disinterested witness.

Certainly my client, as a named beneficiary in the copy of the will, was an interested person.  Additionally, the children from the first wife who were the intestate heirs of the Decent were also interested persons.  Fortunately, through investigation and discovery, we were able to determine the name of the attorney who created the last will and testament, and at his deposition he produced a copy of the decedent’s will in addition to some notes he took regarding the decedent’s intent.  As his contact with the decedent was limited to drafting a will many years prior, he was able to act as the sole disinterested witness in rebutting the presumption that the decedent intended to revoke his Last Will and Testament just because the original was not located.

The probate court was most interested in the testimony of the drafting attorney as a disinterested person.  This attorney was being called to testify as to the terms of the decedent’s “lost” will.  The lawyer’s testimony had nothing to do with the typical challenge to the decedent’s will for issues of lack of testamentary capacity or fraud.  When the lawyer testified, there was no issue of bias or credibility about what the decedent wanted and that the copy of the will expressed the desires of the decedent.  On the other hand, the Decedent’s children who had access to his safe right after death stood to gain financially if the Court found the Decedent intended to revoke his will because the original could not be found.  Fortunately the evidence we were able to obtain was sufficient to overcome the statutory presumption that the decedent revoked his will because the original was not located.