The appellate process is often a confusing landmine of rules, procedures and traps for the unwary.  One of the essential elements for an inheritance lawyer in understanding the appellate review process is the applicable standard of review for particular issues addressed in the court of appeals. 

In Florida, in the context of inheritance law court decisions, the different district courts of appeal are not required to defer to lower tribunals on issues of law.  Stated another way, appellate review of a decision that is based on a legal conclusion involves no more than a determination whether the applicable issue of law was correctly decided in the lower tribunal. This concept is commonly referred to as the de novo review doctrine. (more…)

What is a Pretermitted Child?

A pretermitted heir describes a person who would likely stand to inherit under a Last Will and Testament, except that the person who wrote the Will did not know or did not know of the child at the time the Will was written.  Many jurisdictions have enacted statutes that allow a pretermitted child to demand an inheritance under the Will 

Florida’s probate code provides when a testator omits to provide by Will for any of his or her children born after making the Will and the child has not received a part of the testator’s property equivalent to a child’s part by way of advancement, the child shall receive a share of the estate equal in value to that which the child would have received if the testator had died intestate, unless it appears from the Will that the omission was intentional, or the testator had one or more children when the Will was executed and devised substantially all of his or her estate to the other parent of the pretermitted child and that other parent survived the testator and is entitled to take under the Will.  Fla.Stat. §732.302. (more…)

The following article is published on the National Committee for the Prevention of Elder Abuse website, which can be accessed by clicking this link.

Mental Capacity, Consent, and Undue Influence

What do these concepts have to do with preventing elder abuse and neglect?

Evaluating alleged elder abuse often involves determining what an older person understands or understood in the past. Inducing someone to sign a legal document or give a gift, for example, may constitute abuse if the person does not fully understand the transaction, appreciate the value of what they are giving away, or comprehend the implications of what they are doing. One of the first questions often raised in abuse investigations is “did this person understand what he or she was doing when he gave a gift or transferred property. Was coercion, trickery, or undue influence employed?”

All Americans have a Constitutional right to exercise choice about how to live their lives. That extends to refusing help that is offered. If however, the person lacks sufficient mental capacity to make decisions, society may, under certain circumstances, intervene on their behalf without their consent. Consequently, another fundamental questions workers must consider when they offer help is “does this person have sufficient mental capacity to accept or refuse my help?” The appropriate level and type of help that is needed will also be dictated by the person’s mental capacity. (more…)

The issue of what probate rulings are appealable in the context of will contests and probate litigation is complicated, confusing, and subject to debate among jurists and attorneys in Florida.  Generally, the issue is governed by appellate rules, which authorize appeals of “orders entered in probate and guardianship matters that finally determine a right or obligation of an interested person[.]”  Due to the ambiguity of the language of the rule, the Florida Supreme Court has offered guidance in the form of comments to an amendment to one of the rules:

“[I]n probate and guardianship proceedings it is not unusual to have several final orders entered during the course of the proceeding that address many different persons.  An order of the circuit court that determines a right, an obligation or the standing of an interested person as defined by the Florida Probate Code may be appealed before the administration of the probate or guardianship is complete and the fiduciary is discharged.” (more…)

District Courts Uphold Probate Court Dismissals of Untimely Filed Claims.

Creditors of estates typically must file a claim against a probate estate within three months of receiving notice that the decedent had died and a probate estate has been opened.  Otherwise, the creditor (or anyone else seeking a claim against an estate) is generally limited to two years following the decedent’s date of death to seek recovery of money from a probate estate.  These principals have been codified by the Florida legislature in the Probate Code.

The two leading cases interpreting these sections of the Probate Code are Comerica Bank & Trust, FSB v. SDI Operating Partners, LP, 673 So.2d 163 (Fla.4^th DCA 1996) and  May v. Illinois Nat. Ins. Co. 771 So.2d 1143 (Fla. 1999).  Comerica involved an action arising from alleged environmental pollution of land once owned by the Decedent.  The current owner of the polluted land filed an action in a Michigan court against the Decedent more than a year after the decedent’s death (the date of death was June 20, 1992) seeking money damages and other relief.  Id. at 164.  Later, the land owner assigned to SDI all of its causes of action against the other defendants, including the lawsuit against Decedent.  Id.   

On September 27, 1994 more than two years after the Decedent’s death, SDI filed a petition to enlarge the time for filing a claim in the Decedent’s probate estate, which the probate court granted over the Personal Representative’s objection that section 733.710 of the Florida Probate Code unavoidably barred the claim as untimely.  (more…)

How do I find out what assets are in a probate estate?

With increasing frequency in Florida, friend and relatives of a loved one are left wondering what happened to the estate that they knew existed prior to death but apparently disappeared after the probate estate is opened and the last will and testament is admitted to probate.   Often, the source of the confusion is communication between the family members and the decedent prior to death concerning an understanding of the content and value of the estate.

But what can you do when the loved one dies, a will is admitted to probate, and the friends and relatives who thought they were beneficiaries never hear a word or receive any notice or information regarding the assets of the estate and the particulars from the attorney administering the estate?  (more…)

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.

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…)

State v. Marshall ends after six month trial.

“Money is like manure; it’s not worth a thing unless it’s spread around.”—Brooke Astor

I have previously written about Meryl Gordon’s recent book Mrs. Astor Regrets: The Hidden Betrayals of a Family Beyond Reproach as an outline of what can happen when wealth meets the dysfunctional family. As readers may know, the late philanthropist Brooke Astor’s probate estate was the subject of litigation and criminal charges in New York.

Brook Astor inherited over $60 million when her husband died in 1953. Amazingly, between then and 2003, she changed her last will and testament no less than 38 times. Evidently, Ms. Astor detested her son, Anthony Marshall’s third wife, Charlene, and began making changes to her will at the end of her life to insure that Charlene did not inherit any of the family fortune.

Prosecutors charged in an eighteen count indictment that Anthony and his lawyer, Francis Morrisey, conspired to make changes to Ms. Astor’s last will and testament long after she had the mental capacity to understand what was happening. Mrs. Astor, who had Alzheimer’s disease, was 105 when she died in August 2007. There has also been evidence introduced in the trial suggesting that Marshall and his lawyer forged Ms. Astor’s name on the last will and testament so as to shift almost $200 million to Marshall and Charlene. (more…)

Comity Act

Part I

Nebraksa and Florida probate courts involved in a jurisdictional showdown.

Comity, or legal reciprocity, refers to the legal presumption that different jurisdictions recognize the validity and effect of their respective judicial acts.

Last week the Second District issued an opinion highlighting some strain on the courtesies generally connected with comity, and clarifying some jurisdictional boundaries in Kountze v. Kountze, –So.3d–, 2009 WL 3320200, 34 Fla.L.Weekly D2142a (Fla.2^nd DCA, October 16, 2009).  Kountze involved a complicated factual and procedural backdrop, even for a probate litigation dispute.  Basically, the dispute involved an inter vivos heirloom trust as part of a marital settlement agreement between the decedent and his former spouse.  The parties to the lawsuit were the remainder beneficiaries of the Trust.  

In 2005, Edward Kountze, (“Edward”) as personal representative of the estate, deposited the decedent’s last will and testament in Collier County, Florida, where the decedent lived at the time of his death.  The heirloom trust, however, had Nebraska as its principal place of administration.  Thus, in 2006, Charles Kountze (“Charles”) filed a petition for trust administration in Nebraska. (more…)