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Florida Probate Blog

Posts Tagged: probate

Convicted Felons Cannot Serve as Personal Representative

Written by on May 14, 2016| Posted in: Probate Litigation

In Florida, a person is not qualified to act as personal representative of a decedent’s estate if the person has been convicted of a felony.  See, Fla.Stat. 733.303.  In a recent opinion, the Fourth District Court of Appeals recently upheld the trial court’s denial of a father’s petition for administration of his daughter’s estate. (See, In re: Estate of Sharonda Renae Butler, 41 Fla.L.Weekly D979a.) The father claimed that because he was the sole heir that his prior felony conviction, which disqualifies him under the statute, should not disqualify him in his daughter’s estate.  The trial court disagreed and the Fourth DCA sided with the trial court.   Although the father’s position is understandable from a beneficiary’s view point – that as the only beneficiary there is no one else to object to or be affected by his appointment as personal representative –  it also overlooks the other large class the Florida Probate […]

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Priority in Florida Probate Proceedings

Written by on Nov 26, 2013| Posted in: Probate Litigation

It is often the case that people pass away with real property located in various states.  What occurs when there is a bona fide dispute over where your loved-one was actually domiciled on the date of his or her death?  What if there is a question as to which state should administer the estate?  The 4th District Court of Appeals recently heard a matter where there was such a dispute.  The late mother of the appellant died in Philadelphia, Pennsylvania in 2011.  The appellant subsequently opened a probate proceeding in Philadelphia seeking to probate a 2010 Will.  When the mother’s surviving husband received notification of this proceeding, he subsequently filed a petition to open a probate administration in Palm Beach County, Florida, asserting that this 2010 Will was invalid due to undue influence and requested that the estate probate her 1991 Will instead. The appellant (son) objected to the Florida […]

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What’s the hold up?

Written by on Nov 24, 2009| Posted in: General

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 […]

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The Duties of Remaindermen

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

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 […]

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Playing by the Rules

Written by on Aug 28, 2009| Posted in: General

Questions often arise concerning whether and to what extent the Rules of Civil Procedure govern probate proceedings. Generally, the Florida Probate Rules provide that certain proceedings, such as to remove a personal representative, to determine beneficiaries, and to partition property for the purposes of distribution, constitute adversary proceedings.  In addition, the court can determine any proceeding to be adversary on its own, or by motion of a party. Once a proceeding is determined to be adversary in the probate court, the Florida Probate Rules specify that the proceedings, as nearly as practicable, are to be conducted similar to suits of a civil nature and the Florida Rules of Civil Procedure are to govern. Fla.Prob.R. 5.025(d).

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The Probate Exception to Federal Court Jurisdiction

Written by on Jun 3, 2009| Posted in: General

Sometimes it is beneficial for a party to file a lawsuit in the federal court system. This can be for many reasons: amount of damages, convenience, accelerated docket, formality, and the perception of getting fair and just treatment for out of state litigants. Generally speaking, disputes concerning probate matters involve petitions and appeals to the state court system as opposed to the federal courts. This is for a variety of reasons, however, the one most articulated by federal court judges for refusing to hear a probate dispute is something called the federal court jurisdiction probate exception.

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Reopening a Closed Estate

Written by on May 19, 2009| Posted in: General

Third District Says No to Serial PetitionerA recent opinion issued by our Third District Court of Appeals in Betancourt v. Estate of Victoria Misdraji, 34 Fla.L.Weekly D912a (Fla.3rd DCA May 6, 2009) reminded me of the enormous discretion vested in a probate court to reopen an estate. Typically, a probate estate is reopened following the discovery of assets that were not discovered during the original estate administration. The Uniform Probate Code provides for this very scenario: Section 3-1008. Subsequent Administration. If other property of the estate is discovered after an estate has been settled and the personal representative discharged or after one year after a closing statement has been filed, the Court upon petition of any interested person and upon notice as it directs may appoint the same or a successor personal representative to administer the subsequently discovered estate. If a new appointment is made, unless the Court orders otherwise, […]

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Stock Splits and Changes in Securities in Probate

Written by on May 8, 2009| Posted in: General

Probate attorneys frequently face issues dealing with the change of character of an asset included in a person’s estate plan. These issue typically occur when a person dies and the specified asset has either changed in character and/or value in terms of quantity and/or quality. People often include their securities in their estate plan. Sometimes, we discover that a gift in a will of a specific number of securities (i.e., 100 shares of ABC stock) carries with it any additional securities acquired by the person after writing his will. This raise the question regarding whether the beneficiary of the specific gift is to receive only the specified number or all of the shares of that named stock. Questions also arise when a person owned securities named in a will but later sold some of those securities after the will was executed and purchased another type of security not specified in […]

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Probate Property in Foreclosure?

Written by on May 8, 2009| Posted in: General

Fourth District provides relief for loan burdened surviving spouses and relatives. The distribution of homestead property in a probate estate is governed by the Probate Code, the Constitution and Florida decisional case law. Even though there is firm statutory, constitutional and judicial precedent dealing with homestead issues, there is always yet another novel issue or unanswered question to which there appears no clear answer. The Florida Fourth District Court of Appeals issued an opinion on April 29, 2009 answering the question whether real property that is facing foreclosure during the probate administration process may be distributed to the decedent’s surviving spouse. What is Homestead Property? Homestead property was recognized by the Courts long ago as the place where the owner and his or her family reside, the place where the home or the house is, and adjoining land, where the family dwells. The Florida Probate Code defines homestead property as […]

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I need a lawyer to help me in a probate case.

Written by on May 6, 2009| Posted in: General

A client called one day and told me he needed a lawyer to help him with his mother’s probate estate. Of course, needing help with a probate estate may involve formal probate administration, ancillary administration, summary administration, disposition of personal property without administration, probate litigation, trust litigation, will contest, lawsuit against a home-health care worker or dishonest relative, estate administration, federal estate tax return (form 706) or combinations of different related proceedings. It takes only a few minutes to identify what the client really needs when he or she asks for probate help and our law firm communicates directly and plainly on whether we can assist with the need for probate counsel.

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