My sister is not giving me my share of my mother’s estate – what do I do?

It depends why you’re not getting your share.  Is it too early? Florida law provides the duties and powers of a personal representative commence upon appointment.  The personal representative is under a duty to marshall, settle and distribute the assets of the decedent in accordance with the terms of the decedent’s Last Will and Testament and Florida law as expeditiously and efficiently as is consistent with the best interests of the estate.   

 What does that mean?  Well it’s a case-by-case basis because no two estates are alike; however, the law requires certain action by the executor, designed to keep all beneficiaries informed and the process honest.  For example, within 60 days of being appointed executor, the law requires that an inventory of the probate assets be filed with the court and served on all interested persons.  The inventory is supposed to include reasonable detail and estimated fair market value at the date of the decedent’s death.  Be careful not to confuse “probate estate” with “gross estate.”  The probate estate means the property of a decedent that is subject to administration by the courts.  For example, mother dies with $10 million dollars – $1 million in an account in her individual name and $9 million in a joint account.  The “gross” estate is $10 million dollars, but the “probate” estate is only $1 million dollars.

So it may be that you’re not getting your share of your mother’s estate because administration takes time, because of the way the assets were owned at the time your mother died, or because your sister may be characterizing estate assets in a manner favorable to her and not to you.   That is why beneficiaries sometimes hire lawyers to monitor the court proceedings and to make sure an executor is doing his or her job competently and honestly.

Fourth DCA overturns Broward Probate Court’s eviction of son from his deceased mother’s apartment.

My blog has previously discussed the Fourth District’s view, articulated in Herrilka v. Yates, 13 So.3d 122 (Fla. 4^th DCA 2009) on the limitations on an estate fiduciary in taking or encumbering homestead property.  Herrilka involved a dispute between two women who both claimed to be married to the decedent; consequently, a curator-Christine Yates-was appointed to marshal the estate assets.  One of the women, Mrs. Herrilka, occupied the real property that was, without dispute, the decedent’s homestead. (more…)

Elders and Vulnerable Adults Frequently Get Taken For a Ride

According to some recent statistical surveys, there will be 71.5 million people living in the United States who are over 65 years of age by the year 2030.  With the increase in the number of elderly persons moving to Florida, there will of course be a proportional number of those living here who have cognitive disabilities.  These seniors are frequently vulnerable targets of exploitation.

Florida has taken steps to increase the protections of our vulnerable adults through enacting the abuse of the elderly statute.  The Florida Exploitation of Elderly Statute, codified at Fla.Stat. §415.1111 et seq. imposes civil penalties on persons who exploit a vulnerable adult in Florida.  These civil actions against exploiters have teeth—as the statute allows actual and punitive damages by a victim and the prevailing party can also recover attorney fees and costs.  Also, the statute is non-exclusive and allows cumulative remedies against perpetrators.  Finally, actions under Chapter 772 (Civil Penalties for Criminal Practices) allow for civil remedies for theft or exploitation of the elderly and can include treble (triple) damages, attorneys’ fees and court costs. (more…)

Court Allows Claim for Establishment and Foreclosure of Equitable Lien

My practice is frequently faced with inquiries regarding the rights of remaindermen.  A remainderman is the person who inherits or is entitled under the law to inherit property upon the termination of the estate of the former owner. Usually this occurs due to the death or termination of the former owner’s life estate, but this can also occur due to a specific notation in a trust passing ownership from one person to another.

For example, if the owner of property makes a grant of that property “to John for life, and then to Jane,” Jane is entitled to a future interest, called a remainder, and is termed a remainderman.

As is often the case, the remaindermen and the life estate owner don’t always get along.  Sometimes, the friction is caused by what the remaindermen perceive as the life estate owner’s waste of the property.

What are the duties of the life tenant? (more…)