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Florida Probate Blog

Category: Probate Litigation

Lineal Descendants?

Written by on Jan 12, 2011| Posted in: Probate Litigation

Are step-children considered “lineal descendants” of the decedent? A Florida appellate court recently held that the term “lineal descendants” does NOT include stepchildren.  Timmons v. Ingrahm, 36 So.3d 861 (Fla.Dist.Ct.App.2010). In the Timmons case, the decedent’s Will defined the term “children” to include the decedent’s adopted children and the children of his spouse, whom he had never adopted.  The Will went on to create two trusts – a marital trust and a family trust.  The surviving spouse had the right to withdraw principal from the marital trust (subject to some limitations) during her lifetime and upon her death all of the trust property was to be added to the family trust and distributed to the decedent’s children (as defined above).  Unfortunately, the decedent also gave his spouse a limited power of appointment over the family trust allowing her to appoint the trust property to the decedent’s “living lineal descendants.”  Naturally, […]

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Florida Probate Litigation

Written by on Jan 12, 2011| Posted in: Probate Litigation

What is probate litigation?  The word probate is an odd one, coming from the Latin word “probatus” which means “to prove.”  Originally, probate was the process to prove a Last Will and Testament of the decedent.  However, probate courts have expanded their jurisdiction to include guardianship and trust law, too.  So “probate litigation” encompasses guardianship, probate, and trust disputes My firm has handled hundreds of probate litigation cases over the past ten years.  With that experience, we have learned that in a probate litigation case the facts are always the same in a general sense, but have infinite variety as to the particulars. There is always an elderly person, usually alone, and a predatory relative, friend, or caretaker who takes advantage of the loneliness and dependency of old age. Probate litigation (remember that means estate, guardianship, and trust litigation) is a rapidly-developing area of the law in Florida. The large elderly population has created […]

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Florida Slayer Statute

Written by on Jan 11, 2011| Posted in: Probate Litigation

CONVICTED KILLER TO COLLECT A FORTUNE FROM HIS VICTIM An interesting case out of New York is making headlines.  It involves a young man, heroin addict who admitted to killing his mother-in-law after she caught him trying to steal jewelry from her Long Island home.  He subsequently entered a plea agreement for 25 years in jail, avoiding life in prison.  Prior to the victim’s murder, she had prepared a Will bequeathing all of her estate to her only daughter.  The daughter, married to the murderer, was never charged in the crime.  After the man was arrested for the murder in November 2009, he remained in jail during which time his wife, the victim’s daughter, died in February 2010, leaving everything in her Estate to her jailed husband.  The victim’s family is, needless to say, outraged and attempting to set aside the plea bargain made with the murderer unless he agrees to […]

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Illegitimate Child is Still a Legitimate Heir

Written by on Dec 13, 2010| Posted in: General

Q.  Does a child have a right of inheritance from a father who never knew the child existed?  The rub is the child’s mother gave the child up for adoption without the father’s knowledge.  The father’s name is not on the original birth certificate but could be easily verified.  Historically, if a child was illegitimate, most jurisdictions required only the consent of the child’s natural mother to the adoption of the child.  The right to grant or withhold such consent was not extended to the fathers of illegitimate offspring, since they were not considered to have sufficient interest in the benefits and obligations of raising a child to determine whether the child should be released for adoption. In 1979, this trend was reversed in Caban v. Mohammed, 441 U.S. 380, 99 S. Ct. 1760, 60 L. Ed. 2d 297 (1979).  The key issue was whether the consent of an unwed […]

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Battle of Wills

Written by on Dec 6, 2010| Posted in: Estate Litigation

The battle over a Will can be more like a battle of wills. “It’s the principle of the matter” We hear these words consistently from our clients over phone or in the office… “It is not the money; it is the principle of the matter.”  Litigation over an estate, Will, trust or inheritence can be emotionally traumatic for clients, especially when the dispute is between parties who are family members.  Although the majority of our clients want to resolve their issues quickly and inexpensively, many clients are willing to use the judicial process to vindicate what they believe were wrongs suffered at the hands of a family member.  This path is frequently expensive and may cost more than any eventual recovery; however, many litigants are willing to stand on principle – even when a cost-benefit analysis does not make sense financially – to achieve a measure of satisfaction and closure through the judicial process.   

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Show me the money!

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

My brother is refusing  to give an accounting of the estate assets – Why? A beneficiary of an estate has the right to an accounting of estate assets.  Once an accounting has been requested,  Florida probate law requires that it be produced within a reasonable amount of time.  In fact, the law requires a Personal Representative to file an accounting  with the court and to serve it on all affected beneficiaires (unless it has been waived) when the administration of the estate is complete.  The accounting must be signed by the person preparing it to hold that person responsible for the information contained in the accounting.  Most importantly, a beneficiary has the right to inspect the documents (for example, bank records, receipts and checks) to confirm that the accounting being produced is supported by the evidence.  A probate litigation lawyer should never accept an accounting for her client without the supporting documentation to […]

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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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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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