client portal
  • Blue Forbes logo
  • AVVO 10.0
  • Top 100 Lawyers badge
  • Daily Business Review Newspaper
  • Legal Elite 2012 Badge
  • Top Rated Lawyers
  • The American Lawyer, Adrian Philip Thomas

Florida Probate Blog

Posts Tagged: inheritance

Can a child be unintentionally excluded from a parent’s revocable trust?

Written by on Apr 16, 2009| Posted in: Trust Litigation

In Florida, and many other states, there are protections written into the probate code which purport to protect children from unintentional disinheritance by one or both of their parents. Florida’s pretermitted child statute is codified at Fla. Stat. §732.302 and is intended avoid an unintentional or inadvertent disinheritance of a child. Florida’s statute is modeled in part after the position adopted by the Restatement of Property and the Uniform Probate Code. The Restatement of Property provides: § 9.6 Protection Of Child Or Descendant Against Unintentional Disinheritance (a) A child of the testator, or under some statutes a descendant of the testator, who was not provided for in the testator’s will may be entitled to a specified share of the testator’s estate as provided by statute. Most of the statutes, including the Original and Revised Uniform Probate Code, only protect a child who was born or adopted after the will was […]

read more

Intestacy and Same Sex Couples: Probate Needs Progressive Help from Legislatures

Written by on Mar 30, 2009| Posted in: Probate Litigation

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.

read more

Survivorship Accounts

Written by on Feb 3, 2009| Posted in: Estate Litigation

Does creation of joint accounts with survivorship rights alter the dispositive provisions of a pre-existing last will and testament? The question of whether, and under what circumstances, a joint, Totten, or tentative trust in bank deposits can be revoked, either expressly or impliedly, by a written or oral declaration made by the settlor during his lifetime or by the terms of the settlor’s will is often debated among probate litigators and judges. There are few appellate opinions in Florida providing clear guidance for some scenarios. However, Florida and most other states follow the rule adopted by the Restatement of Trusts 2d §58 comment (c) that a tentative trust is revoked by the depositor’s will, if, by its terms, it indicates explicitly or implicitly that the depositor intended to effect such a revocation. Litsey v. First Federal Sav. & Loan Association 243 So.2d 239 (Fla. DCA 1971) (recognizing rule.)

read more

Paternity: Can a Decedent’s Body Be Exhumed for Genetic Testing?

Written by on Jan 8, 2009| Posted in: Estate Litigation

State’s highest court authorizes opening of decedent’s grave to resolve a claim by an individual to be the decedent’s child. The rights of relatives to the body parts of their deceased family members has been the topic of much legal debate. [See Blog Entry dated September 19, 2008 Wait, Don’t Throw That Away! Do A Decedent’s Next Of Kin Have A Protected Right In The Decedent’s Blood Samples, Tissue, Organs And Other Body Parts That Have Been Removed And Retained By A Coroner For Forensic Examination And Testing?] The extent to which a court has authority over the dead body of the decedent was examined in the recent published opinion by the Maine Supreme Court in In re Estate of Kingsbury, 946 A.2d 389 (2008). Estate of Kingsbury involved the probate of the estate of Bruce H. Kingsbury, who died in 2006, leaving a will nominating his daughter, Robin Whorff, […]

read more

Florida’s Slayer Statute

Written by on Nov 26, 2008| Posted in: Estate Litigation

Why The Slayer Rule May Prevent the Slayer’s Estate From Benefiting From the Slayer’s Act By Adrian P. Thomas Nullus Commodum capere potest de injuria sua propria (No man can take advantage of his own wrong) Some readers may be familiar with one of my cases that has been in the headlines recently.  When appropriate, the Florida Slayer Rule can be applied to prevent an injustice and to preclude a killer from benefiting from the crime. Florida, like many other states, has adopted the Uniform Probate Code’s version of the Slayer Rule. See Fla.Stat. §732.802. Unif. Probate Code 2-803 (amended 1993), 8 U.L.A. 211, 211-12. The relevant part of the statute reads:

read more

Florida Intestacy

Written by on Oct 31, 2008| Posted in: General

  Should a distant heir have inheritance rights from a relative the heir didn’t even know? In Florida, and many other states, the traditional law governing intestate succession provides an inheritance to the intestate decedent’s “next of kin” without regard to how far removed (e.g., emotionally, geographically or familiarity) the relative taking the inheritance is from the decedent. (See, Fla. Stat. § 732.103 allowing collateral inheritance either through the great-grandfather or to “next of kin.” ) This concept is nothing new, it has been with us for ages. For example, the Bible provides an intestacy schedule for the Israelites that allows for inheritance by the closest relative:

read more

Florida Intestacy and Illegitimate Children

Written by on Oct 24, 2008| Posted in: General

Morality and the Probate Code: The Law’s Treatment of Illegitimate Children and IntestacyIt wasn’t too long ago that having a child born out of wedlock was universally considered taboo, thereby placing a stigma on the child which had significant social and economic implications through no fault, choice, or conduct of the child. Today, evidence suggests that one in three children born in our great country is born out of wedlock. Generally, a child born out of wedlock is also thrust into our world with a legal disadvantage. The child’s intestacy rights are no exception to this general rule. While the intestate succession system in Florida, and most other states, was written to provide an inheritance for a child through receiving the bulk of his or her parent’s estate, non- marital children are treated differently than marital children. Many jurisdictions require non-marital children to jump through many hoops before they can […]

read more

We can make a difference.
Call now for a complimentary consultation.
Toll Free 1-800-249-8125

Phone: (954) 764-7273
Fax: (954) 764-7274

Suntrust Center
515 East Las Olas Blvd, Suite 1050
Fort Lauderdale, FL 33301