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. (more…)

California Court Refuses to Allow Trust No Contest Clause to Disinherit Minor Child Who Challenges Conduct of TrusteesIt is a shame when probate courts apply the law in a manner that hurts children. I applaud a recent decision from California that refused to apply a no-contest provision contained in a trust instrument that could have resulted in a minor child being disinerhited simply by virtue of the child’s guardian asking the court to examine the conduct of the trustees. The case Safai v. Safai, 164 Cal.App.4th 233, 78 Cal.Rptr.3d 759 (2008) is a great example of a court’s careful application of the law in order to protect a child from disinheritance. The facts of the case are as follows:

Mansour Safai and Susanne Gahnstedt were married for approximately eight years and had one child, Nicolai, before their marriage deteriorated into divorce. Pursuant to the marital settlement agreement regarding property and spousal support, Mansour agreed to pay child support for Nicolai.
Mansour was diagnosed with a terminal illness in 2004, and on or about January 24, 2006, executed the Trust and a Last Will and Testament. Mansour succumbed to his illness on February 9, 2006, and was survived by his brother, Max Safai; his sister, Massoumeh Safai; and his mother, Parvaneh Assefi. (more…)

Can an agent’s failure to make gifts create liability for intentional interference with an expectancy?When someone executes a Power of Attorney in favor of another person, usually a trusted relative or friend, its vests enormous power and duties on the agent. With this power and responsibility comes potential liability if the agent acts in a manner that falls short of the law’s expectations. The question of how far that liability stretches is frequently an issue that is fiercely disputed in probate court. A recent opinion from the Georgia Supreme Court explores the issue of whether an agent’s failure to make changes to a last will and testament directed by the principal can constitute the basis of an intentional interference with an expectancy claim.

Generally, the law in Florida and most other states that recognize the tort of intentional interference, hold that in order to state a cause of action for intentional interference with an expectancy of inheritance, the complaint must allege the following elements: (1) the existence of an expectancy; (2) intentional interference with the expectancy through tortious conduct; (3) causation; and (4) damages. Schilling v. Herrera, 952 So.2d 1231 (Fla. 3d DCA 2007). For example, a cause of action for the tort of interference with a testamentary expectancy is available where the defendant has maliciously destroyed a will, and the plaintiff is unable to reestablish the destroyed will in a probate proceeding. In re Estate of Hatten, 880 So.2d 1271 (Fla. 3d DCA 2004). (more…)

Fifth District Court of Appeals Shed’s Light on the meaning of the requirement that witnesses must sign in the testator’s presence.

A frequent issue in contests involving the validity of instruments, whether a last will and testament, trust or trust amendment, or even a prenuptial agreement, is whether the instrument was properly executed or signed. Section 733.502 of the Florida Probate Code provides that, among other things, it is essential to the validity of a last will for the witnesses to sign in the testator’s and each other’s presence. An improperly attested, signed or executed last will cannot be admitted to probate. (more…)

Ademption: Specific Gifts Not Owned At Time of Will Execution Do Not Adeem

Ademption is a probate concept wherein a determination is made as to the disposition of property gifted under a person’s will, but not in existence (or not in the person’s probate estate) when the person dies.
For specific property, the general rule is that the property is adeemed, and the gift fails. For example, if a person gifts a piece of jewelry to a specific person, but the jewelry was not owned by the person at the time of her death, the gift would be adeemed and the person would receive no gift at all. However, a general gift, usually cash gifts, is never adeemed. If there is not enough money in the probate estate to satisfy the gift, then other assets in the residuary estate are liquidated or sold to raise the money necessary to satisfy the gift. (more…)

Joseph and Iris Kievernagel were married for ten years and then decided to have a child using in vitro fertilization (”IVF”). After the fertility center inseminated Iris with Joseph’s sperm, it also froze a sample of his sperm as in case there was a need for it in the future. Joseph signed an agreement indicating his choice to have the frozen sperm discarded upon his death instead of authorizing its release to Iris. After Joseph was killed in a tragic helicopter accident, Iris petitioned the probate court for an order to require the fertitlity clinic to hand over Joseph’s sperm. (more…)

Third District Finds Miami Probate Court Erred in Requiring Litigants to Prove Undue Influence as Part of a Breach of Fiduciary Claim. Court Finds Lawyer Used Client’s Money as His Own “Piggy bank.”

On February 25, 2009, the Third District Court of Appeals released its much anticipated opinion regarding the Brigham Tree Farms Trust litigation. Brigham v. Brigham, –So.2d–, 2009 WL 454492; (Fla. 3rd DCA, Feb. 25. 2009), 34 Fla.L.Weekly D443b involved, in part, a dispute over the trust assets which originated as a the multimillion dollar tree farm encompassing around 800 acres of land in western North Carolina.
In order to understand the facts of the case, you will probably need to make a family tree outlining the various parties and there relevance in connection with EFP Brigham and his wife Marion, and the table consanguinity: (more…)

“Do I need an attorney to assist me with probate administration?”

This is a question I am asked often and the answer, the vast majority of times, is “yes.”  Florida Probate Rule 5.030 provides that “every guardian and every personal representative, unless the personal representative remains the SOLE interested person, shall be represented by an attorney admitted to practice in Florida.”

So very simply, anyone who needs probate or guardianship help, who is not also a licensed lawyer in the State of Florida, must contact a Florida lawyer to assist with the proper administration of the estate.

Can the estate of a missing person be probated?

Sometimes individuals disappear or have an accident and their bodies are never recovered.  In cases like these, where no death certificate has been issued by the state, there are rules in place which allow interested parties to proceed with probate administration absent a death certificate.

Florida Statute section 733.209 provides that: 

Any interested person may petition to administer the estate of a missing person; however, no personal representative shall be appointed until the court determines the missing person is dead.

So, how does a family member get the court to determine that a missing person is dead?  Florida Statute 731.103 pertains to evidence as to death or status and provides in subsection (3) that:

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.

A probate attorney should file a petition for determination of death with the probate court in the county in Florida where the decedent maintained his or her domicile.  Upon a finding of sufficient evidence of death to presume death, the court can enter an order and probate proceedings can commence.

Fifth District Court of Appeals Encourages Legislature to Clarify Statute

The decision of whether and when to petition for incapacity of an elderly relative is challenging and can rarely be accomplished without the assistance of an experienced practitioner. However, even with an experienced attorney the frustration level is high for parties involved in the guardianship process, due in part to the lack of clarity and direction contained in the relevant portions of the law.

The procedure for asking a Florida court to declare someone incapacitated is codified in Florida Statute §744.331(4) which explains the process following the petition to determine incapacity:

“Within 5 days after a petition for determination of incapacity has been filed, the court shall appoint an examining committee consisting of three members. One member must be a psychiatrist or other physician. The remaining members must be either a psychologist, gerontologist, another psychiatrist, or other physician, a registered nurse, nurse practitioner, licensed social worker, a person with an advanced degree in gerontology from an accredited institution of higher education, or other person who by knowledge, skill, experience, training, or education may, in the court’s discretion, advise the court in the form of an expert opinion[.]” (more…)