Last Will and Testament

 Hypothetical #1:               When Aunt Minerva died, she had no husband or children, but did have a valid Will, which was probated.  Her living descendants were her niece, Angela, her nephews, Barry and Charles.  They were over the age of 18 years old at the time of Aunt Minerva’s death.  When Aunt Minerva died, Angela had two children, Donald and Evelyn.  If Aunt Minerva’s Will stated that all of her estate was to be distributed to her then living descendants, per stirpes, then her niece, Angela, and her nephews, Barry and Charles each would receive a 1/3 share of her estate.  Angela’s children, Donald and Evelyn, would not receive anything from the estate.  Pursuant to Florida Statute 731.201(9), a lineal descendant or descendants mean “a person in any generational level down the applicable individual’s descending line.”  Adopted children come within the definition of lineal descendants.  The term “descendant” is synonymous with the terms “lineal descendant” and “issue”, but excludes collateral heirs.  Florida Statute 731.201. (more…)

A LESSON IN TRUST…

We often come across cases in which a Will or a Trust leaves assets equally to all of the Decedent’s children. However, at the time of death, most of the Decedent’s assets are held in joint accounts with only one of the children named as a joint owner, thereby entitling only one child to the entire account as the remaining joint owner and avoiding the equal distribution that the parent planned through his or her Will and/or Trust.

Unfortunately, the account title tends to control, despite the understanding that the child receiving the account as joint owner had been placed on the account for convenience purposes only to help mom or dad pay bills, as needed; not to receive all of the assets upon their death. Parents believe their children would never cut out their siblings but this is sadly not always the case. (more…)

A recent case from the 5^th District answers the question of when, and under what circumstances, can step children take an inheritance and disinherit lineal descendants.  See Timmons v Timmons  35 Fla.L.Weekly D1264 (Fla. 5^th DCA Case No. 08-4103). 

When Frank died in 1999, he was married to Myrtle and had two adopted children from a previous marriage.  Myrtle had four children, none of which was ever adopted by Frank.  Frank created two trusts, a family trust and a marital trust.   Myrtle was the sole income beneficiary of the trusts during her lifetime, and upon her death, the marital trust was to pour over into the family trust.  The marital trust provided that upon Myrtle’s death, the trust’s remaining principal would pour over into the family trust and be distributed in accordance with the terms of the family trust.  The family trust provided that upon Myrtle’s death, the trust assets were to be divided “into as many equal shares as there are children of mine then living and deceased children of mine leaving issue then surviving.”  (more…)

DETAILS ON NOTICE TO CREDITORS IN FLORIDA PROBATE ESTATES

            The Personal Representative of an Estate must promptly publish a Notice to Creditors pursuant to Florida Statute 733.2121.  The Notice should contain the following:

1)    The name of the decedent;

2)    The file number of the estate;

3)    The designation and address of the Court in which the case has been filed;

4)    The name and address of the Personal Representative of the Estate;

5)    The name and address of the Personal Representative’s attorney; and

6)    The date of the first publication.  (more…)

Fourth District Reverses $1.6M Jury Verdict Because Lawyer Failed to Substitute Decedent’s Estate as a Party

Litigation presents lots of surprises and traps for the unwary.  The consequences of failing to follow a seemingly-routine procedure can sometimes lead to horrific consequences. 

An example of one of the plain and simple rules of litigation is that if a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party.  The motion must be made within 90 days or the action shall be dismissed as to the deceased party. The purpose of this rule is to facilitate the rights of persons having lawful claims against estates being preserved, so that otherwise meritorious actions will not be lost

When counsel files a suggestion of death, opposing counsel should (a) contact opposing counsel for information regarding the date and place of death, and such information as opposing counsel may have regarding whether an estate has been opened, or (b) propound discovery directed at obtaining the same information, or (c) both.  Generally, if the decedent’s estate has been opened, then the personal representative should be substituted in place of the decedent; however, if no estate has been opened, then another appropriate representative, such as a guardian ad litem, will need to be substituted.  Failure to substitute the proper representative or guardian nullifies subsequent proceedings. (more…)

Under Florida law, “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. “  F.S. 731.103 (3)

Florida law does not preclude the establishment of death by direct or circumstantial evidence prior to 5-years.

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STEP CHILDREN AND CHILDREN BORN OUT OF WEDLOCK

Florida inheritance laws do not treat your stepchildren as your legal heirs, therefore, they do not have an automatic legal right to inherit from you. If you want to ensure they will receive part of your estate, you will need a Will that specifically names them as a beneficiary. If you simply leave “20 percent to my children”, then your stepchildren may inherit nothing. It is important to name each individual child as a beneficiary instead of referring to them as “my children”, which will avoid confusion in interpretation of the Will language. If you formally adopt your stepchildren, then they will inherit from you as a beneficiary the same way as your biological children. (more…)

A wrongful death lawsuit will inevitably be filed in connection with the fatal I-95 sport-utility crash that left two dead from the Hollywood Florida area.  Personal injury lawyers will hire probate lawyers to open the estates so a personal representative can be appointed to file a survival action and a wrongful death claim.  According to reports, the vehicle lost control and flipped over which might lead investigators for the wrongful death lawyers to examine whether any defect existed in the vehicle that may have caused it flip.   (more…)

Who Decides?

In the past, Florida Statutes and case law were lacking any real direction as far as who “owns” a deceased person’s body and ultimately who decides how to dispose of the deceased person’s body. Unfortunately, many people do not plan ahead for such an important decision and when one fails to make these arrangements in advance of death, families are left to decide which really means estate litigation lawyers have yet another fight on their hands. The failure to make burial arrangements often creates dissension among loved ones who may never have discussed what a deceased person’s wishes were as far as the disposition of their remains after death. Cremation or burial, where to be buried, whether to donate the body for science, or even what kind of funeral service are just some of the disputes that arise among loved ones. The Anna Nicole Smith and Schiavo cases were a couple of the more publicized disputes that with the help of elder law layers, the media and judges got turned into a three-ringed circus. (more…)

How Much Power Does a Power of Attorney Really Give?

As probate and trust litigation attorneys, day in and day out, we deal with claims for undue influence, lack of testamentary capacity, and improper execution of testamentary documents.  However, one issue that comes up periodically but often overlooked, is the breach of fiduciary duty by an attorney-in-fact by improperly using a power of attorney.  Often, a power of attorney is used to the detriment of the principal, and by extension the principal’s heirs.  It is standard practice for estate planning lawyers to recommend and prepare a durable power of attorney as part of a client’s estate planning package, as it is important for a mechanism to be in place so the principal’s family can manage his/her financial affairs in the event the principal becomes incapacitated. (more…)