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Florida Probate Blog

Category: Probate Litigation

What Constitutes a Contest In No Contest Provision?

Written by on Jun 16, 2009| Posted in: Probate Litigation

A no-contest clause, also called an in terrorem clause, is a topic I have discussed previously in my blog. Readers may remember that an in terrorem clause is a written sentence in a testamentary instrument (will or trust) that is designed to threaten someone, into refraining from action, or ceasing to act. The phrase is typically used to refer to a clause in a will or trust that threatens to disinherit a beneficiary if that beneficiary challenges the terms of the will or trust. The Uniform Probate Code, §2-517 allows for no contest clauses so long as the person challenging the will doesn’t have probable cause to do so. Some states, like Ohio, allow for “living probate” and “ante mortem” probate, which are statutory provisions which authorize testators to institute an adversary proceeding during their life to declare the validity of the will, in order to avoid later will contests. […]

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Reopening a Closed Estate

Written by on May 19, 2009| Posted in: General

Third District Says No to Serial PetitionerA recent opinion issued by our Third District Court of Appeals in Betancourt v. Estate of Victoria Misdraji, 34 Fla.L.Weekly D912a (Fla.3rd DCA May 6, 2009) reminded me of the enormous discretion vested in a probate court to reopen an estate. Typically, a probate estate is reopened following the discovery of assets that were not discovered during the original estate administration. The Uniform Probate Code provides for this very scenario: Section 3-1008. Subsequent Administration. If other property of the estate is discovered after an estate has been settled and the personal representative discharged or after one year after a closing statement has been filed, the Court upon petition of any interested person and upon notice as it directs may appoint the same or a successor personal representative to administer the subsequently discovered estate. If a new appointment is made, unless the Court orders otherwise, […]

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Standing in Probate

Written by on May 12, 2009| Posted in: Estate Litigation

Third District Applies General Agency Principals to Issue of Who is Real Party in Interest A quick glance at any court docket these days will reveal that many foreclosure actions are being prosecuted by someone other than the real party in interest. While it is generally acceptable for an authorized agent to bring a lawsuit on behalf of a principal in a civil action, how and to what extent is this rule recognized in the probate arena? Generally, in actions by or against a probate estate, the personal representative of the estate is a necessary and indispensable party. There is a lot of decisional case law in Florida holding that in cases involving claims made by or against an estate, the estate and its survivors are the real parties in interest, and the personal representative is merely a nominal party.

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Stock Splits and Changes in Securities in Probate

Written by on May 8, 2009| Posted in: General

Probate attorneys frequently face issues dealing with the change of character of an asset included in a person’s estate plan. These issue typically occur when a person dies and the specified asset has either changed in character and/or value in terms of quantity and/or quality. People often include their securities in their estate plan. Sometimes, we discover that a gift in a will of a specific number of securities (i.e., 100 shares of ABC stock) carries with it any additional securities acquired by the person after writing his will. This raise the question regarding whether the beneficiary of the specific gift is to receive only the specified number or all of the shares of that named stock. Questions also arise when a person owned securities named in a will but later sold some of those securities after the will was executed and purchased another type of security not specified in […]

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Probate Property in Foreclosure?

Written by on May 8, 2009| Posted in: General

Fourth District provides relief for loan burdened surviving spouses and relatives. The distribution of homestead property in a probate estate is governed by the Probate Code, the Constitution and Florida decisional case law. Even though there is firm statutory, constitutional and judicial precedent dealing with homestead issues, there is always yet another novel issue or unanswered question to which there appears no clear answer. The Florida Fourth District Court of Appeals issued an opinion on April 29, 2009 answering the question whether real property that is facing foreclosure during the probate administration process may be distributed to the decedent’s surviving spouse. What is Homestead Property? Homestead property was recognized by the Courts long ago as the place where the owner and his or her family reside, the place where the home or the house is, and adjoining land, where the family dwells. The Florida Probate Code defines homestead property as […]

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What Happens When Mistakes are Made in a Will?

Written by on Apr 29, 2009| Posted in: Probate Litigation

Mistakes happen all the time when people are making their estate planning documents. The law is designed to provide fair remedies and solutions for families and loved ones who are victimized by an honest mistake by the deceased relative. A uniform code for dealing with mistakes in wills is set froth in the Restatement of Property (Third)- Wills and Donative Transfers, which provides: § 12.1 Reforming Donative Documents To Correct Mistakes “A donative document, though unambiguous, may be reformed to conform the text to the donor’s intention if it is established by clear and convincing evidence (1) that a mistake of fact or law, whether in expression or inducement, affected specific terms of the document; and (2) what the donor’s intention was. In determining whether these elements have been established by clear and convincing evidence, direct evidence of intention contradicting the plain meaning of the text as well as other […]

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What Happens When a Person Dies and the Will Cannot Be Found?

Written by on Apr 24, 2009| Posted in: Probate Litigation

The Restatement (Third) Property (Wills and Donative Transfers) §4.1 provides that “if a will cannot be located after death, but the trier of fact finds that it was not revoked, the will is entitled to probate if its due execution and contents can be proved. Commonly in such cases, the will is proved by evidence from a law-office or other copy, or from the drafter’s notes and recollection. If its full contents cannot be proved, the will is entitled to probate to the extent that its contents can be proved.” Similarly, Florida has adopted its own code provisions regarding the practice and procedure for admitting lost or destroyed will to probate. See Florida Probate Rule 5.510. However, there are some jurisdictions that have not adopted a code provision regarding the procedure for use when a will cannot be located after the decedent’s death.

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How to Overcome the “Negative Will”

Written by on Apr 13, 2009| Posted in: Probate Litigation

Can disinherited heirs still take inheritance by intestacy?Sometimes a testator leaves a last will that expresses his or her intent to disinherit an heir. These wills are described under the common law, and some states’ statutes, as “negative wills.” Sometimes, the law allows a relative or heir disinherited under the negative will to nevertheless share in property that the testator failed to devised to another and as to which he or she died intestate. See In re Levy’s Estate, 196 So.2d 225 (Fla 3d DCA 1967). The Uniform Probate Code addresses the issue and provides that a decedent through a last will and testament may expressly exclude or limit the right of an individual or class to succeed to property of the decedent passing by intestate succession, and if that individual or a member of that class survives the decedent, the share of the decedent’s intestate estate to which that […]

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Latent vs. Patent Ambiguities in Last Will and Testament Construction Cases

Written by on Apr 7, 2009| Posted in: Probate Litigation

Lawyers and probate courts are frequently asked by relatives of a deceased to consider evidence well beyond the four corners of a last will in determining the “true” donative intent of the testator. However, courts, at least in Florida, are generally bound by the language of a person’s last will and testament unless there is some ambiguity warranting the court’s examination of extrinsic evidence. There are two types of ambiguities in the typical last will and testament construction cases: A last will is “patently ambiguous” if it is ambiguous on its face. Patent ambiguities usually result in the probate courts finding that there is no valid will in effect and no extrinsic evidence is permitted. Some courts have held that where there is a patent ambiguity as to the testator’s intent, the probate court may consider extrinsic evidence. Remember extrinsic is evidence that is not within the document (in this […]

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Intestacy and Same Sex Couples: Probate Needs Progressive Help from Legislatures

Written by on Mar 30, 2009| Posted in: Probate Litigation

The laws of intestacy exist in every state and take effect whenever a person dies without a Last Will and Testament or where a Last Will and Testament is judicially voided. The purpose of the intestacy laws, which distribute inherited wealth according to the table of consanguinity (closest biological heirs), is to protect the family of the deceased. The law presumes that the deceased relative intends to distribute his or her wealth to his or her loved ones. Many legal observers have criticized the probate laws of the states, including Florida, for failing to adapt to our changing society and the nuclear family. For many, the intestate system is flawed because it fails to consider the effect upon people who cannot get married: those persons in same sex partnerships.

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