An ordinary or standard power of attorney document provides the authority for another person (the agent or attorney-in-fact) to make decisions and take actions on the principal’s behalf when the principal is unable to do so for himself or herself.  In the event the principal becomes physically incapacitated, and for example, they break a hip and need extensive rehabilitation, then the principal will not be able to attend to their normal monthly payment of bills or banking transactions.  Also, the principal may plan to take an extended trip or vacation, and may need to have documents executed while they are away.  The ordinary or standard power of attorney document would authorize the principal’s chosen agent or attorney-in-fact to sign documents, receive and pay bills and make banking transactions on the principal’s behalf.  An ordinary or standard power of attorney would become invalid if the principal became mentally incapacitated.

A durable power of attorney is a document that would authorize the principal’s chosen agent or attorney-in-fact to execute documents, receive and pay bills and make banking transactions on the principal’s behalf (as well as many other actions), but would remain effective even if the principal became mentally incapacitated.  It is possible to have the power of attorney document drafted to be broad in scope, giving the agent or attorney-in-fact the authority to make any and all property, financial, and personal decisions for the principal; or the power of attorney document could be drafted to authorize the agent or attorney-in-fact to perform very limited, specific duties for the principal.

Florida Statute 709.08 outlines the formalities involved with the creation of a durable power of attorney, who may serve as the agent or attorney-in-fact, and provides information as to the durability of the power of attorney in Florida Statute 709.08(3)(b), which states:  “The attorney in fact may exercise the authority granted under a durable power of attorney until the principal dies, revokes the power, or is adjudicated totally or partially incapacitated by a court of competent jurisdiction, unless the court determines that certain authority granted by the durable power of attorney is to remain exercisable by the attorney in fact.”

What happens to either of the powers of attorneys mentioned above when a person is incapacitated and someone petitions to have him or her declared a Ward of the State of Florida?  Florida Statute 744.462 provides a guideline for the Court to consider when a person already has a valid Durable Power of Attorney executed.  The law provides that if the Durable Power of Attorney is the least restrictive means that can be used to meet all the needs of the principal (the Ward), then a guardianship would not be necessary.  Florida Statute 744.462 states as follows:  “Any judicial determination concerning the validity of the ward’s durable power of attorney, trust or trust amendment shall be promptly reported in the guardianship proceeding by the guardian of the property.  If the instrument has been judicially determined to be valid or if, after the appointment of a guardian, a petition is filed alleging that there is an alternative to guardianship which will sufficiently address the problems of the ward, the court shall review the continued need for a guardian and the extend of the need for delegation of the ward’s rights.”

If the Ward has a Durable Power of Attorney that the Court determines to be valid, depending on the scope of the language included in the Durable Power of Attorney, the Court may determine that a Guardian is not needed, and that the person appointed as the agent or attorney-in-fact for the Ward can act for the Ward in making decisions without the need for Court intervention and the appointment of a permanent Guardian.

A guardianship is a legally binding relationship where a Probate Court authorizes a Court appointed Guardian to make all personal and/or financial decisions for the incapacitated person as determined by the Court.  The Court could determine that the Ward only requires a Guardian to make decisions regarding the Ward’s finances and property, or health and medical decisions, or both.  The Probate Court determines the extent of the Ward’s incapacity at a hearing held to determine what rights the Ward should retain, if any, and what needs the Ward is unable to meet for his or her health, safety and well being.  If the Probate Court determines that there are essential health, safety, medical, financial or legal needs that are not being met by the Ward due to the Ward’s incapacity, the Court will appoint a Guardian to make those decisions for the Ward. (See Florida Statute 744.3215 regarding Rights of Persons Determined Incapacitated.)  After the Probate Court appoints a Guardian, that Guardian is required by law to report to the Court on an annual basis.  Annual filing fees will be required to accompany any and all reports filed by the Guardian to meet the Court’s reporting requirements.  In the event the Guardian fails to report to the Court on an annual basis, the Court has the power to discharge that Guardian and appoint another person as Guardian who will comply with the annual reporting requirements.

When comparing the Durable Power of Attorney and the Guardianship, the Durable Power of Attorney can be a relatively low cost and private way to determine who will be granted the authority to legally act for the principal in the event the principal can no longer act or speak for themselves.  If there is no Durable Power of Attorney in place, then Court intervention may be necessary if the person is deemed incapacitated, and Court proceedings can become costly.  Also, the principal (Ward) may not be able to chose who they wish to be appointed as their Guardian, as that decision is ultimately made by the Probate Court.

Guardianship litigation and probate litigation usually follow each other although with any amount of luck, a skilled estate and guardianship litigator might structure a global resolution that reaches beyond the Ward’s death to the satisfaction of the fighting relatives.

When trying to decide between which cause of action to file against a person who has committed financial exploitation against or theft from a vulnerable or disabled adult, one must first establish who has been damaged, the vulnerable or disabled adult themselves, or an individual with an expectancy in inheritance or other interest expected from the vulnerable or disabled adult, and whose expectancy or interest was lost or diminished as a result of the exploitation or theft against the vulnerable adult.

Pursuant to Fla. Stat. §415.1111, “A vulnerable adult who has been abused, neglected, or exploited . . . has a cause of action against any perpetrator and may recover actual and punitive damages for such abuse, neglect, or exploitation.” [reproduced below] The action may only be brought by the vulnerable adult, or that person’s guardian, by a person or organization acting on behalf of the vulnerable adult with the consent of that person or that person’s guardian, or by the personal representative of the estate of a deceased victim without regard to whether the cause of death resulted from the abuse, neglect, or exploitation. This cause of action allows for punitive damages.

F.S. §415.1111  Civil actions.–A vulnerable adult who has been abused, neglected, or exploited as specified in this chapter has a cause of action against any perpetrator and may recover actual and punitive damages for such abuse, neglect, or exploitation. The action may be brought by the vulnerable adult, or that person’s guardian, by a person or organization acting on behalf of the vulnerable adult with the consent of that person or that person’s guardian, or by the personal representative of the estate of a deceased victim without regard to whether the cause of death resulted from the abuse, neglect, or exploitation. The action may be brought in any court of competent jurisdiction to enforce such action and to recover actual and punitive damages for any deprivation of or infringement on the rights of a vulnerable adult. A party who prevails in any such action may be entitled to recover reasonable attorney’s fees, costs of the action, and damages. The remedies provided in this section are in addition to and cumulative with other legal and administrative remedies available to a vulnerable adult. Notwithstanding the foregoing, any civil action for damages against any licensee or entity who establishes, controls, conducts, manages, or operates a facility licensed under part II of chapter 400 relating to its operation of the licensed facility shall be brought pursuant to s. 400.023, or against any licensee or entity who establishes, controls, conducts, manages, or operates a facility licensed under part I of chapter 429 relating to its operation of the licensed facility shall be brought pursuant to s. 429.29. Such licensee or entity shall not be vicariously liable for the acts or omissions of its employees or agents or any other third party in an action brought under this section.

Another cause of action which would involve damages resulting from the financial exploitation of a vulnerable adult is found under Fla. Stat. §772.11 [reproduced below], otherwise known as the Civil Theft Statute. This cause of action may be brought by any party who was damaged as a result of the exploitation, and further allows for “treble damages” upon proof of proper written demand at least 30 days in advance of filing the claim.  This particular cause of action, allows for threefold, the amount of actual damages, and is not limited to just those parties with the authority to act on behalf of the vulnerable adult, or the vulnerable adult’s estate, but includes any person who has been damaged by the theft from, or financial exploitation of the disabled or vulnerable person.

772.11  Civil remedy for theft or exploitation.–

(1)  Any person who proves by clear and convincing evidence that he or she has been injured in any fashion by reason of any violation of ss. 812.012-812.037 or s. 825.103(1) has a cause of action for threefold the actual damages sustained and, in any such action, is entitled to minimum damages in the amount of $200, and reasonable attorney’s fees and court costs in the trial and appellate courts. Before filing an action for damages under this section, the person claiming injury must make a written demand for $200 or the treble damage amount of the person liable for damages under this section. If the person to whom a written demand is made complies with such demand within 30 days after receipt of the demand, that person shall be given a written release from further civil liability for the specific act of theft or exploitation by the person making the written demand. Any person who has a cause of action under this section may recover the damages allowed under this section from the parents or legal guardian of any unemancipated minor who lives with his or her parents or legal guardian and who is liable for damages under this section. Punitive damages may not be awarded under this section. The defendant is entitled to recover reasonable attorney’s fees and court costs in the trial and appellate courts upon a finding that the claimant raised a claim that was without substantial fact or legal support. In awarding attorney’s fees and costs under this section, the court may not consider the ability of the opposing party to pay such fees and costs. This section does not limit any right to recover attorney’s fees or costs provided under any other law.

(2)  For purposes of a cause of action arising under this section, the term “property” does not include the rights of a patient or a resident or a claim for a violation of such rights.

(3)  This section does not impose civil liability regarding the provision of health care, residential care, long-term care, or custodial care at a licensed facility or care provided by appropriately licensed personnel in any setting in which such personnel are authorized to practice.

(4)  The death of an elderly or disabled person does not cause the court to lose jurisdiction of any claim for relief for theft or exploitation when the victim of the theft or exploitation is an elderly or disabled person.

(5)  In a civil action under this section in which an elderly or disabled person is a party, the elderly or disabled person may move the court to advance the trial on the docket. The presiding judge, after consideration of the age and health of the party, may advance the trial on the docket. The motion may be filed and served with the civil complaint or at any time thereafter.

These distinctions become tricky when an Estate or Trust has been damaged by theft or exploitation and the person appointed as the fiduciary or representative has also been damaged individually.  In this case, you must be certain that the allegations and causes of action clearly distinguish the damages sought under Fla. Stat. §415.1111 and are sought by the Plaintiff ONLY in their capacity as fiduciary, trustee or personal representative, versus a claim under Fla. Stat. §772.11, which can be brought by the Plaintiff in both their fiduciary and individual capacities. But be careful, as you must also make sure, when issuing the initial written demand required thirty days in advance of seeking treble damages under Fla. Stat. § 772.11, that your written demand is clear as to which damages are sought in which capacity.  You MUST distinguish in your 30-day written notice required under Fla. Stat. § 772.11 which damages apply to the fiduciary and which apply to the individual, or a claim for treble damages will fail due to insufficient notice. An easy way to avoid confusion in your written demands and pleadings is to simply submit two separate written demands and allege separate causes of action, one count brought by the Plaintiff as fiduciary, and the second separate count, as an individual, so there is no confusion regarding which damages apply to whom, thereby avoiding dismissal of your action for failure to properly state a cause of action under Fla. Stat.  §772.11.

One of the hotly-contested issues among Florida probate lawyers in the context of inheritance lawsuits involving beneficiaries of wills and trusts is whether and to what extent appellate courts have jurisdiction over orders entered in Florida lawsuits involving last wills and testaments and lawsuits involving Florida trusts, trustees and beneficiaries. 

Generally, Florida Rule of Appellate Procedure 9.110, which governs “Appeal Proceedings to Review Final Orders of Lower Tribunals and Orders Granting New Trial in Jury and Non-Jury Cases,” applies to proceedings that seek review of orders in probate and guardianship matters that finally determine a right or obligation of an interested person as defined in the Florida Probate Code.”   The dissenting opinion in one recent case in the First District Court of Appeals in Florida dealt with the issue of whether the  a court’s determination of whether notice of was properly served on a creditor constitutes an appealable order.  Grainger v. Wald 35 Fla.L.Weekly D381b (Fla. 1^st DCA February 12, 2010). 

In this case, Wald was involved in a car accident and sued Samuel Gus Felos.  After Mr. Felos died, his estate was substituted as a party defendant in Mr. Wald’s personal injury case.  The personal injury case resulted in an adverse judgment for more than one million dollars.  Although Wald won the lawsuit, judgment wasn’t recorded until after Felos died.  The Personal Representative of Felos’ estate served notice on Wald’s attorney triggering the thirty day time requirement.  When the claim was filed sometime after the thirty days, the Personal Representative argued it was untimely and forever barred.  The dispute in probate court centered on whether the Personal Representative’s notice to the personal injury attorney constituted notice (Wald contended that service should have been on his “probate lawyer” not his personal injury attorney).   When the probate court denied the Personal Representative’s motion to strike the claim as untimely, the Personal Representative appealed and the ruling was reversed.

The dissenting opinion authored by Judge Robert T. Benton makes a good point that the appellate courts only have jurisdiction to review orders denying petitions to strike claims only where they finally determine a right or obligation of an interested person.  In this case, the judgment entered against the estate after Mr. Felos died might not be deemed a claim or demand against the decedent’s estate that arose before the death of the decedent.  To hold otherwise would be to allow the Personal Representative to unfairly insulate the estate from a judgment against it by deeming untimely underlying claims after they had merged into the judgment.  As Judge Benton points out, however, in this case the judgment was entered posthumously against the estate.  Since upon his death, Mr. Felos’s estate had been substituted as a party in the personal injury case, Mr. Wald was a judgment creditor of the estate, not of the decedent.

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.

When a Florida appellate court decides an issue from an inheritance or will contest lawsuit, the court will often review the issue without giving deference to the probate court trial judge.  De novo review simply means the appellate court is free to decide the question of law, without deference to the trial judge, as if the appellate court had been deciding the question in the first instance. This de novo standard of review allows the appellate court to view the case with a fresh set of eyes so to speak.

This standard of review was employed by the Second District recently in a trust case Burgess v. Prince, 35 Fla.L. Weekly D222a (Fla. 2d DCA January 22, 2010).   The Burgess trial judge ruled that Ms. Burgess, who was the trustee (and beneficiary) of the Prince Family Trust, should be removed as trustee since, in the trial judge’s view, she had been receiving compensation for managing a trust asset.  The trial judge also ruled that all of the compensation she had received from the trust was to be charged against her distributive share of the Trust. 

The Court of Appeals, applying the de novo review standard, looked to the plain language of the trust document which did provide that a beneficiary could not receive compensation for serving as a trustee. However, the appellate court reviewed the record and found that Ms. Burgess did not receive compensation as a trustee, but rather from operating an ongoing business for the trust.  The language of this trust did allow the trustee to pay for persons who perform services to the trust and to pay reasonable compensation for their services.  Further, the court noted that a trustee was specifically mentioned as one of the persons who could perform those services on behalf of the trust and receive compensation.   Finally, the court noted that the trust instrument allowed the trustee to compensate a beneficiary for business management duties.  Taking all of these provisions and reading them with a fresh set of eyes, and viewing the plain language of the instruments at issue through the de novo standard, the appellate court reversed the trial judge and sent the case back for proceedings consistent with its opinion.

This was an easy case for the Second District Court of Appeals.  Most issues raised on appeal do not present the Court with language as plain as that which appeared in the trust instruments in the Burgess case.  In some cases, courts will construe trust language based on the rules of contract construction, but in all cases involving trust interpretation and issues of law, the appellate court will review using the de novo standard.

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.

One court has stated that the purpose of the pretermitted child statute is to avoid an unintentional or inadvertent disinheritance of a child; accordingly, only children physically born or adopted after the execution of a Will are to be considered pretermitted children under the statute.  See  J.E.W. v. Estate of Doe, 443 So.2d 249 (Fla. 1^st DCA 1983). 

 Can Adopted Children Be Pretermitted Heirs?

Many states, including Florida, have enacted probate codes that provide that when a testator omits to provide by Will for any of his or her children adopted 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 the estate to the other parent of the pretermitted child and that other parent survived the testator and is entitled to take under the Will.

An Interesting Case from Oklahoma

I recently read a very interesting appellate opinion out of Oklahoma where the court held that the express exclusion of one child does not prevent unmentioned children from taking as pretermitted children.  In re Estate of Livsey, 183 P.3d 1038 (Okla.Civ.App.2008) presents a good example of the analysis involved in cases dealing with the issue of pretermitted children in the probate context.  In this probate case, Billie Sue Coody, Carolyn Livsey, and Beatrice Livsey, the natural children of Louis T. Livsey, deceased (Decedent), filed a lawsuit in the probate court after their father’s death.

At issue was Article II of Decedent’s Last Will and Testament:

I hereby declare that I am divorced and have not remarried. I have one and only one child, a son named Larry Wayne Livsey. I have four living brothers and one living sister, namely Carl Livsey, Robert Livsey, Roy Livsey, Clarence Livsey and Estell Grecian.

Article IV of the Will stated as follows: 

 I specifically state that it is my intention to exclude my son, namely Larry Wayne Livsey, from taking anything under this my Last Will and Testament. Nor do I desire that any of my brothers or sisters take anything under this my Last Will and Testament.

Under Article III of the Will, Decedent bequeathed and devised his entire estate to his long-time friends, Daniel R. Wood, Special Administrator, and Daniel’s wife, Charlotte A. Wood.

The Administrator filed a petition for administration in the probate court setting forth that Decedent has six children.  The children objected to the proposed distribution of the entire estate to Daniel Wood and his wife. The children argued that Decedent’s Will did not contain language evidencing his intent to exclude his five other unnamed children from inheriting; therefore, contestants were entitled to an intestate share of their father’s estate pursuant to Oklahoma’s probate code (similar to Florida’s probate code).  The probate court disagreed with the children’s claim and ordered that the entire estate be distributed to Daniel Wood and his wife. The children appealed and the case worked its way through the state appellate court system.

The Oklahoma appeals court noted that it was undisputed that Decedent misrepresented the number of his children in his Will. It was likewise uncontroverted that Larry and Decedent’s siblings were specifically mentioned and excluded from inheriting, but nowhere in the Will were the five other children mentioned by class or individually. Contestants claim Decedent clearly knew how to disinherit some of his heirs, but chose not to utilize this same method to exclude his five other children from their inheritance rights; therefore, the Court found that Decedent’s omission of his five other children was obviously unintentional.

Daniel Wood and his wife argued that  Decedent was quite estranged from his entire family and intended that no sibling or child inherit from his estate.  Mr. and Mrs. Wood further argued  that by stating “I have one and only one child” in his Will – even though this statement was incorrect  - Decedent clearly and affirmatively stated his intent to exclude all his children, individually and as a class, from inheriting. Appellee further argues Decedent’s complete disposition of his estate to Appellee and Appellee’s wife, as provided in Article III, further evidenced Decedent’s intent to fully disinherit all of his children.

The Court then noted that the purpose of the pretermitted child statute in the state probate code is to protect an issue’s right to take unless the Will itself gives a clear expression of an intentional omission. The court then looked to state court precedent which had consistently held the determination as to whether the testator’s omission to provide for his child was intentional must be made from the four corners of the Will and such intent to disinherit must appear in strong and convincing language. To effectively exclude an heir, that heir must be mentioned in the Will either by name or class. Simply leaving the entire estate to others is not alone sufficient to show intent to omit a child.

After reviewing the record, the court held that Decedent’s Will did not contain the requisite strong and convincing language to evidence Decedent’s intent to exclude his other five children from inheriting. Decedent’s exclusive listing of only one of his six children without mentioning the other children by name or by class simply did not evince, in strong and convincing language, Decedent’s intent to disinherit his five other children.  Therefore, the court held that because the children’s omission from Decedent’s will appeared to be unintentional, they were entitled to share in Decedent’s estate as if Decedent died intestate.

I have found in my practice that courts are reluctant to apply and interpret the law in a manner that results in an unnatural disposition of probate assets.  This Oklahoma case is no exception.

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.

In the past, the term “incompetent” was used to describe persons with diminished mental abilities. The term is rarely used by professionals any more because it is stigmatizing and implies a global deficit that has little practical meaning or application. As more is learned about mental function and greater attention is paid to preserving individuals’ rights, greater emphasis is placed on identifying, in functional terms, specific mental tasks and skills people retain and lose. Describing a person’s ability or “capacity” to perform particular tasks, such as remembering to pay one’s bills or calculating how much change one is owed, is a more useful and meaningful way of looking at mental disability. It enables professionals to assess vulnerability more effectively and develop effective service plans. Understanding a client’s mental capacity can help workers meet the vulnerable person’s needs while avoiding unnecessary, restrictive, or intrusive interventions.

What is Mental Capacity?

Mental capacity is the term used to describe the cluster of mental skills that people use in their everyday lives. It includes memory, logic, the ability to calculate, and the “flexibility” to turn one’s attention from one task to another. Mental status assessment is a complex process involving a variety of measurements carried out by trained professionals. Simple tests, such as the mini mental status exam, are commonly used in a variety of settings to provide workers with a general impression of the scope and extent of a person’s deficits.

Mental capacity is affected by many factors. As people age, they may experience some natural decline in certain mental functions, particularly memory. Pronounced decline, however, signals illness or disease. A variety of factors, some of which are treatable, may contribute to mental decline. These include poor nutrition, depression, and interactions between medications. Time of day may also be a factor as some people are more alert at certain times of day than at others.

What is consent?

Consent is when someone accepts or agrees to something that somebody else proposes. For consent to be legal and proper, the person consenting needs to have sufficient mental capacity to understand the implications and ramifications of his or her actions.

What is undue influence?

In recent years, the subject of undue influence has received increasing attention in the field of elder abuse prevention. Simply stated, undue influence is when an individual who is stronger or more powerful gets a weaker individual to do something that the weaker person would not have done otherwise. The stronger person uses various techniques or manipulations over time to gain power and compliance. They may isolate the weaker person, promote dependency, or induce fear and distrust of others. Because undue influence, like mental capacity, raises the question of whether an individual is acting freely, the two concepts are often confused. Although diminished mental capacity may contribute to a person’s vulnerability to undue influence, the two are distinct and cognitive assessments cannot identify the presence of undue influence. It is typically courts that make determinations of whether or not undue influence has been exercised. In doing so, they consider a variety of factors, including whether the transaction took place at an appropriate time and in an appropriate setting and whether the older person was pressured into acting quickly or discouraged from seeking advice from others. Courts also consider the relationship between the parties, and the “fairness” of the transaction.

Hornswoggled? An interview with Margaret Singer on undue influence. Nexus, A Publication for NCPEA Affiliates, March 1996.

“[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.”

Therefore, there can often be multiple appeals involving multiple orders in the probate context.   A great discussion of what orders are “final” for purposes of appeals in probate is found in In re Estate of Bierman, 587 So.2d 1163 (Fla. 4^th DCA 1991). 

My practice frequently deals with issues regarding the payment of client’s attorneys fees from the probate estate or from another beneficiary’s inheritance and these decisions are often appealed.  Here is a list of a few orders found by Florida courts to constitute final or appealable orders and other non-final non appealable orders in the context of attorney fee awards in probate:

• An order awarding fees is a final appealable order as to the amount and apportionment thereof;
• An order granting attorney’s fees against a claimant in favor of the decedent’s estate, but reserving jurisdiction to determine the amount of the fees at a later date, is not a final order;
• An order which only determines entitlement to fees does not finally determine a right or obligation of an interested person, when the fee is to be specified in a later evidentiary hearing;
• There is no final order, although the probate court sets the amount of fees and costs to be awarded, when the court’s order refers to a future date for the determination as to who should pay the award; and
• A final order dismissing with prejudice, as a discovery sanction, a claim for loan reimbursement against a decedent’s estate is appealable.

It is important to note that whether an order is “final” must be viewed from the perspective of the appellant who is challenging the order; an issue might be final to one interested person or beneficiary, and not be final to another.  Therefore, it may not be evident, even after careful consideration by an experience probate litigation attorney, as to whether and to what extent decisions rendered in the probate are ripe for reconsideration by an appellate court.

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. 

 The Personal Representative appealed the probate court ruling to the Fourth District Court of Appeal.  The Fourth District first reflected on the shifting meanings of the term “limitations” in light of the United States Supreme Court’s opinion in Tulsa Professional Collection Services Inc v. Pope, 485 S.Ct. 1340 (1988).  The Pope court drew a distinction for due process purposes between statutes of limitations that are “self-executing,” like statutes of repose which are effective by their very terms; and statutes of limitations where “private parties make use of state procedures with the overt, significant assistance of state officials.” Pope, 108 S.Ct. at 1345. The self-executing statutes do not implicate any due process problem,  but those that involve significant state participation in their assertion and vindication implicate the protections of the due process clause.  Pope, 108 S.Ct. at 1346.  The Fourth District then looked to section 733.710 and found that it was a statute of repose, not merely a statute of limitation, and could not be extended for any reason beyond the absolute deadline of two years:

“Knowing the effect of the Pope decision, it seems inescapable that the legislative intent for section 733.701 was to create a self-executing period of repose-without significant action by the state itself, it must be noted-for all claims after the lapse of the 2-year period. In its own terms, it takes precedence over all other provisions in the probate code. At the same time, the text is formulated to extinguish any liability that the estate, the beneficiaries or the PR might have had for any claim or cause of action against the decedent. Hence, rather than merely fixing a period of time in which to file claims, as section 733.702 does, in reality it creates an immunity from liability arising from the lapse of the period stated.”

The Fourth District then read 733.710 together with the statute of limitations contained in 733.702 and merged the two into a statute of repose:

“Clearly, section 733.710 creates a self-executing, absolute immunity to claims filed for the first time, as here, more than 2 years after the death of the person whose estate is undergoing probate. It does not depend on the PR timely objecting to a late claim, and the claimant cannot avoid it by showing, as he could for the nonclaim period under section 733.702, fraud or estoppel or insufficiency of notice. The absence of a provision authorizing enlargements of the repose period, together with the provision in section 733.702(5) negating any use of the enlargement provision to extend the repose period, make it clear to us that the lapse of the 2-year period erects an absolute jurisdictional bar to late-filed claims that the probate judge lacks the power to ignore. It obviously represents a decision by the legislature that 2 years from the date of death is the outside time limit to which a decedent’s estate in Florida should be exposed by claims on the decedent’s assets.”

The Florida Supreme Court accepted the rationale of Comerica in May v. Illinois Nat.Ins.Co., 771 So.2d 1143 (Fla. 2000) and held that Fla.Stat. §733.710 is a jurisdictional statute of nonclaim that is not subject to waiver or extension in the probate proceedings.  Thus, section 733.710, by its own terms, takes precedence over all other provisions in the probate code.  Therefore, after the Florida Supreme Court’s holding in May, one would assume that there is no longer any question about whether a claim can be filed more than two years after the death of a decedent.

However, my practice and others have witnessed new theories asserted by tardy claimants who seek money from an estate.  One of these new theories was examined recently by the Florida 1^st District when a claimant asserted that their claim was timely filed when measured from the date of publication of a second notice to creditors of the estate.  In Mack v. Mack, –So.3d–, 2009 WL 4912602, 34 Fla.L.Weekly D2619a (Fla.1^st DCA, December 22, 2009) the first notice to creditors was published on May 14 and the claim against the estate on October 15, 2009.  Although the claimants acknowledged that their claim was filed beyond the three months, they asked to court to allow their case to proceed against the estate because it was filed within three months from a second notice to creditors that was issued by the estate.  The 1^st District, applying the rationale of May v. Illinois National held that the second notice was “unnecessary surplusage” which has no affect on the validity or effectiveness of the first notice published.

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? 

The answer lies within the remedies written into law for the family and friends of a deceased loved one.  The first question to be answered is:  are you an “interested person” in the estate to whom the Florida Probate Code grants certain rights?  An “interested person” is defined by the Code as “any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved.”  Further, “the meaning, as it relates to particular persons, may vary from time to time and must be determined according to the particular purpose of, and matter involved in, any proceedings.”  Generally, when it comes to asking a court or estate fiduciary to produce information relating to the assets and information regarding an estate, blood relatives and persons who were named in prior last will and testaments are treated as “interested persons” and are entitled to ask questions about the estate and the missing assets.

How do you ask questions about the estate assets and who receives the inheritance under the will admitted to probate?  For way is to issue discovery.  Interrogatories, demand for document production, request for admissions, are examples of discovery tools that are available to interested persons under Florida Probate Rule 5.080.  Florida courts are not inclined to grant this access to estate information to creditors, but will allow interested persons in the estate to learn such things as:  (1) what happened to a prior will in which the person was named as a beneficiary (2) what are the assets of the estate (3) where are the distributions going (4) who was nominated or appointed as personal representative (5) what does the will say and (6) what happened to the prior will(s).

The rules regarding discovery in probate to determine exactly who had the gold and how much is available for distribution have been expanded to include both adversary and nonadversary proceedings.

Several years ago, the Florida Legislature enacted HB 301 effective October 1, 1999, for decedents dying on or after October 1, 2001 (known as the elective share statute). This law changed a long-standing rule that spouses could be disinherited. Florida courts now repeatedly interpret and apply the new elective share statute in a manner consistent with the recognized strong public policy favoring protection of the surviving spouse against being disinherited.

The question often arises as to whether assets placed by a decedent into an irrevocable trust are subject to a claim by the surviving spouse under the new elective share statute. The answer depends on the specific facts of each case and on a court’s understanding of what assets constitute the decedent’s “probate estate.” First, one must analyze the definitions written into law by our elected officials in Tallahassee and Washington.

In Florida, the elective estate includes the value of the Decedent’s “probate estate.” The term “probate estate” is defined as “[a]ll property wherever located that is subject to estate administration in the District of Columbia or in any state of the United States.” The framers of the Florida elective share statute had the decedent’s “gross estate” for purposes of federal estate tax, in mind when they drafted the definition of “probate estate.” “Gross estate” was defined by Congress to include property disposed of by a decedent, during his lifetime but where the decedent retains “possession or enjoyment” of until death. Similarly, the Florida statute includes property in the elective estate if at the time of death the decedent retained “the right to, or in fact enjoyed the possession or use of, the income or principal of the property.” Most of the Florida probate cases litigated under the elective share statute involve factual disputes in connection with whether or not the decedent retained possession of or enjoyment of the assets in the irrevocable trust at the time of death.

In other words, simply because the decedent may have called the assets irrevocable during his life does not necessarily mean that they will not be counted or included in the elective share calculation if he in fact enjoyed those assets during his lifetime. For example, if a spouse transferred assets into an irrevocable trust, and then continued to make withdrawals or had access to those funds, then an argument could be made that those assets should be included in the calculation of the elective share after the spouse’s death. A similar argument could be made for real estate or personal property transferred into an irrevocable trust but still used or accessed or controlled, directly or indirectly by the spouse during their lifetime. Sometimes, a disgruntled spouse will attempt to disinherit his spouse by transferring real estate and personal property into an irrevocable trust.

While the legislature’s current version of the elective share statute is less than perfect, a round of applause to the Florida legislature is in order for its enactment of Fla. Stat. § 732.2025(7) which extends Florida’s elective share to real estate that is subject to administration in other states. The purpose of this extension was to “prevent avoidance of the elective share through investments in out-of-state real property and is consistent with the Uniform Probate Code and other modern elective share provisions.”