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? Read the rest of this entry

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). Read the rest of this entry

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. Read the rest of this entry

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, the provisions of this Code apply as appropriate; but no claim previously barred may be asserted in the subsequent administration. Read the rest of this entry

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 the will, but acquired as a result of the sale of the securities specified in the will. Read the rest of this entry

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 the property described in such constitutional provision on which at the death of the owner the exemption inures to the owner’s surviving spouse or heirs under the constitution. This refers to Article X section 4 of the Florida Constitution. Read the rest of this entry

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.

Mistakes happen all the time when people are making their estate planning documents. The law is designed to provide fair remedies and solutions for families and loved ones who are victimized by an honest mistake by the deceased relative.

A uniform code for dealing with mistakes in wills is set froth in the Restatement of Property (Third)- Wills and Donative Transfers, which provides:

§ 12.1 Reforming Donative Documents To Correct Mistakes

“A donative document, though unambiguous, may be reformed to conform the text to the donor’s intention if it is established by clear and convincing evidence (1) that a mistake of fact or law, whether in expression or inducement, affected specific terms of the document; and (2) what the donor’s intention was. In determining whether these elements have been established by clear and convincing evidence, direct evidence of intention contradicting the plain meaning of the text as well as other evidence of intention may be considered.” Read the rest of this entry

The Restatement (Third) Property (Wills and Donative Transfers) §4.1 provides that “if a will cannot be located after death, but the trier of fact finds that it was not revoked, the will is entitled to probate if its due execution and contents can be proved. Commonly in such cases, the will is proved by evidence from a law-office or other copy, or from the drafter’s notes and recollection. If its full contents cannot be proved, the will is entitled to probate to the extent that its contents can be proved.”

Similarly, Florida has adopted its own code provisions regarding the practice and procedure for admitting lost or destroyed will to probate. See Florida Probate Rule 5.510. However, there are some jurisdictions that have not adopted a code provision regarding the procedure for use when a will cannot be located after the decedent’s death. Read the rest of this entry