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. (more…)

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. (more…)

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. (more…)

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. (more…)

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.” (more…)

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. (more…)

Can disinherited heirs still take inheritance by intestacy?Sometimes a testator leaves a last will that expresses his or her intent to disinherit an heir. These wills are described under the common law, and some states’ statutes, as “negative wills.” Sometimes, the law allows a relative or heir disinherited under the negative will to nevertheless share in property that the testator failed to devised to another and as to which he or she died intestate. See In re Levy’s Estate, 196 So.2d 225 (Fla 3d DCA 1967).

The Uniform Probate Code addresses the issue and provides that a decedent through a last will and testament may expressly exclude or limit the right of an individual or class to succeed to property of the decedent passing by intestate succession, and if that individual or a member of that class survives the decedent, the share of the decedent’s intestate estate to which that individual or class would have succeeded passes as if that individual or each member of that class had disclaimed his or her intestate share. Uniform Probate Code §2-101(b). Stated more plainly, if you really want to exclude a person and every descendent, relative and heir of that excluded person, you need to make it crystal clear in the last will and testament. (more…)

Lawyers and probate courts are frequently asked by relatives of a deceased to consider evidence well beyond the four corners of a last will in determining the “true” donative intent of the testator. However, courts, at least in Florida, are generally bound by the language of a person’s last will and testament unless there is some ambiguity warranting the court’s examination of extrinsic evidence.

There are two types of ambiguities in the typical last will and testament construction cases:

A last will is “patently ambiguous” if it is ambiguous on its face. Patent ambiguities usually result in the probate courts finding that there is no valid will in effect and no extrinsic evidence is permitted. Some courts have held that where there is a patent ambiguity as to the testator’s intent, the probate court may consider extrinsic evidence. Remember extrinsic is evidence that is not within the document (in this case the Last Will) but instead comes from outside or external sources.

A “latent ambiguity” arises when it is not clear how to apply certain words of a last will to a specific gift. One court has described a latent ambiguity as arising when the words of the will are applied to the subject of devise or bequest, and those words apply to and fit without ambiguity indifferently to each of several things or persons. Kernkamp v. Bolthouse, 714 So.2d 655 (Fla. 5th DCA 1998). (more…)

Court rules that a Will’s direction for payment of “all just debts” did not require exoneration of jointly held property.

Under the common law doctrine of exoneration, an heir or devisee is generally entitled to have encumbrances upon real estate paid by the estate unless the will directs otherwise.

The Florida Probate Code abrogates this common law doctrine and directs that the specific devisee of any encumbered property is entitled to have the encumbrance paid at the expense of the residue of the estate only when the will shows that intent. Fla. Stat. §733.803. (more…)