Should a distant heir have inheritance rights from a relative the heir didn’t even know? In Florida, and many other states, the traditional law governing intestate succession provides an inheritance to the intestate decedent’s “next of kin” without regard to how far removed (e.g., emotionally, geographically or familiarity) the relative taking the inheritance is from the decedent. (See, Fla. Stat. § 732.103 allowing collateral inheritance either through the great-grandfather or to “next of kin.” )

This concept is nothing new, it has been with us for ages. For example, the Bible provides an intestacy schedule for the Israelites that allows for inheritance by the closest relative: (more…)

Fourth District Court of Appeals Reverses Broward County Probate Judge’s Order Requiring Trustee and Lawyer to Repay Fees to the Estate. Wintter & Associates, P.A. v. Terry Kanowsky, . 33 Fla. L. Weekly D2471a; — So.2d —-, 2008 WL 4643358 (Fla.App. 4 Dist, October 22, 2008.).

David Mercer, the executor of the Estate of Blanche Heische, and trustee of the Sixth Amended and Restated Declaration of Trust of Blanche Heische testamentary trust, submitted his final accounting to Broward County Probate Judge Mel Grossman. Because the trustee had performed what he considered “extraordinary” services in connection with work to clear title to a parcel of real property devised to him through the testator’s will, the trustee included extraordinary fees in his accounting. The residual beneficiary of the trust, Terry Kanowsky, objected to the “extraordinary” fee request in the accounting. Following an evidentiary hearing, Broward County Probate Judge Mel Grossman determined that the trustee was not entitled to extraordinary fees and costs and ordered the trustee and law firm to repay them to the probate estate. (more…)

The legal process of proving before a court of competent jurisdiction that a document offered as the last will and testament of a deceased person is genuine.  In addition to proving a will, it is the process of appointing an executor (sometimes referred to as a “personal representative”), and settling an estate, which includes marshalling the decedent’s assets and giving the decedent’s creditors an opportunity to have their valid claims resolved before the beneficiaries receive their distributions.

It wasn’t too long ago that having a child born out of wedlock was universally considered taboo, thereby placing a stigma on the child which had significant social and economic implications through no fault, choice, or conduct of the child. Today, evidence suggests that one in three children born in our great country is born out of wedlock.

Generally, a child born out of wedlock is also thrust into our world with a legal disadvantage. The child’s intestacy rights are no exception to this general rule. While the intestate succession system in Florida, and most other states, was written to provide an inheritance for a child through receiving the bulk of his or her parent’s estate, non- marital children are treated differently than marital children. Many jurisdictions require non-marital children to jump through many hoops before they can inherit from their parents. (more…)

I have written at great length of the various factors I assess when determining whether to accept a case for prosecution. I now turn my attention to the Florida decisional case law from the Florida Supreme Court in the seminal case of In re Estate of Carpenter, 253 So.2d 697 (Fla. 1971) its practical application, and the Florida legislature’s response through enactment of section 733.107 of the Florida Probate Code which today supersedes Carpenter.

When the validity of a will or trust is challenged based upon the theory of undue influence, the challenger must prove the instrument at issue (will or trust document) resulted from the exercise of undue influence on the mind of the person executing the will or trust instrument. The Carpenter decision from the Florida Supreme Court sets forth the basic principal of law that the challenger’s initial burden can be met by proof of sufficient facts to raise a presumption of undue influence. Simply stated, a presumption of undue influence arises upon a showing that a party who (1) occupied a confidential relationship with the testator, (2) was a substantial beneficiary under the will, and (3) was active in procuring the instrument. (more…)

Learn the Language: Fifth District Court of Appeals Reverses Probate Judge and Predicates Opinion On its Own Perception of Trust Language and “Settlor’s Intent”In Brown v. Miller, — So.2d —-, 2008 WL 4600940, 33 Fla.L.Weekly D2433c, Fla.App. 5 Dist., October 17, 2008 (NO. 5D07-1356, 5D07-1288) the Fifth District Court of Appeals reversed Orange County Judge Lawrence Kirkwood’s order which had invalidated a seven million dollar transfer from a testamentary trust to its lifetime beneficiary.

The Wife
Elinor Miller set up a trust naming her husband Bill as the trustee and lifetime beneficiary (the “Elinor Miller Trust”). After her death the assets remaining in the trust (after her charitable bequests and distributions to family members) were divided into three separate sub-trusts, designated as Trust A-1, Trust A-2 and Trust B with each serving a distinct purpose.

The Elinor Miller Trust provided that the Trustee should pay Bill the income from A-1 and A-2, in addition to “such amounts from the principal of Trust A-2 first and then liberally for his maintenance, health, and support in his accustomed manner of living, taking into account all of his other income and means of support known to the Trustee. The Trustee shall also pay [Bill] such additional amounts of principal from Trust A-2 as he may from time to time request.” Further, the Trust provided that upon Bill’s death, the “Trustee shall pay over and distribute the then remaining balance of Trust A-2, if any to such person or persons, and in such manner, as he shall appoint by his Last Will and Testament, which makes reference to said power of appointment, including in him the power to appoint to his estate. Any portion of Trust A-2 not effectively appointed by [Bill] shall continue to be held in trust for the lifetime of my son, [Tom].” Id. (more…)

Probate records are those documents found and filed in a probate court. A probate court is responsible for keeping the original Last Will and Testament of a person and keeping original codicils (Will updates) on file for review and inspection. Most probate courts have modernized the probate record-keeping process by automating the retention and review of pleadings, motions, and correspondence filed with the probate court. If you are curious about what documents are filed with the probate court for a deceased person, start by contacting the city/county for the state where the decedent resided (which may be different from where the decedent died) and ask how best to review the probate records. After time, probate records will be “archived” or stored which usually happens when an estate is closed for a sufficient period of time.

Probate Records Research Steps

1. Determine where the decedent was living at time of death.
2. Find out where the records for that probate court jurisdiction at that time are now housed. Save yourself steps by using the Internet and the telephone to ask for and find the archive that you want. States and counties often have Web home pages.
3. If necessary, go to the archive.
4. Look in the index for the deceased’s name. This will usually be listed alphabetically by surname (last name). Find the docket number. Usually the date of probate is also listed, and this is usually fairly close to the date of death.
5. Make a list of files you wish to see and give these to the clerk, who will retrieve the files for you. If the files are old and are in a storage facility off-site, it might take several days for the request to be filled. Anticipate being required to pay a fee to obtain copies of the records.
6. If files are missing, and they sometimes are, probate record books might give some evidence of the probate. Probate record books are not likely to contain all the information that is/was in the actual file.
7. Examine the files and make notes or request copies of it.
8. Return the original file, as you found it, to the clerk.
9. Label and file your findings, being sure to note the name of the archive, address, telephone number, Web site address, and the date you did your research there.

Documents You Might Find in Probate Files

The documents found in a probate file will vary radically. They may range from a single letter to a sheaf of court and family documents. If the file represents proceedings to settle the estate of a deceased, its contents might include…
• a will, if there was one
• codicils (amendments) to the will, if any
• a petition for an executor or administrator
• probate of the will
• a list of heirs or divisees
• an inventory of the deceased’s probate estate at time of death
• a report of the committee for partition when heirs cannot agree amongst themselves about how to divide the estate
• receipts from heirs and divisees
• a closing statement by the court

A decedent’s probate estate refers to all of the decedent’s assets that require probate, which is the court-supervised marshalling and distribution of a decedent’s sole-named assets.  As a rule of thumb, if an asset is in the decedent’s name alone and is not payable to anyone else (ex., pay on death account, life insurance), then that asset will need a court probate process to distribute to beneficiaries.  The probate estate may be only part of the decedent’s whole estate.  For example, a decedent was worth $5,000,000 at the time of death; $3,000,000 was in a living trust, $1,500,000 was jointly-owned, and a piece of real estate worth $500,000 was in his sole name.  The decedent’s “gross estate” would be $5,000,000, but his “probate estate” would only be $500,000.

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.

It is no secret that many priests, clergyman, and spiritual advisors, share a deep, committed and trusting relationship with their followers and church congregation. The degree and extent of this trust grows with time, and recent cases I have handled in Florida lead me to conclude that the elderly often share a very special relationship with their spiritual advisors and others who the elderly person views as in a position of religious authority or spiritual leadership. Because the nature of this relationship often equates with what the law defines as a confidential relationship, some legal commentators have recently suggested that the law creates a per se rule raising the presumption of undue influence when an eleventh hour will is executed and religious leaders are active in its procurement, or involved in the will’s preparation and are named as beneficiaries. As Professor Jeffrey G. Sherman recently stated:

“The best solution to this problem of clerical overreaching is to treat all relationships between a testator and her spiritual advisor as per se confidential for purposes of the law of undue influence. Not only would such a solution recognize the enormous power of religious influence and thereby prevent undue leniency in the face of undue influence by mainstream clergyman, it would also guard against the temptation to assess the reasonableness of any religious or spiritual beliefs. The contestant would need to produce evidence only as to the category into which the alleged influencer fell (together with evidence of a “suspicious circumstance”); the inquiry would then turn, with the proponent having the burden of production, to the fundamental–and purely secular–issue of whether the will represented the testator’s own wishes.” 73 BROOKLYN LAW REVIEW 579 (2008). (more…)