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. Read the rest of this entry

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). Read the rest of this entry

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. Read the rest of this entry

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 the rest of this entry

Fifth District Court of Appeals Shed’s Light on the meaning of the requirement that witnesses must sign in the testator’s presence.

A frequent issue in contests involving the validity of instruments, whether a last will and testament, trust or trust amendment, or even a prenuptial agreement, is whether the instrument was properly executed or signed. Section 733.502 of the Florida Probate Code provides that, among other things, it is essential to the validity of a last will for the witnesses to sign in the testator’s and each other’s presence. An improperly attested, signed or executed last will cannot be admitted to probate. Read the rest of this entry

Ademption: Specific Gifts Not Owned At Time of Will Execution Do Not Adeem

Ademption is a probate concept wherein a determination is made as to the disposition of property gifted under a person’s will, but not in existence (or not in the person’s probate estate) when the person dies. For specific property, the general rule is that the property is adeemed, and the gift fails. For example, if a person gifts a piece of jewelry to a specific person, but the jewelry was not owned by the person at the time of her death, the gift would be adeemed and the person would receive no gift at all. However, a general gift, usually cash gifts, is never adeemed. If there is not enough money in the probate estate to satisfy the gift, then other assets in the residuary estate are liquidated or sold to raise the money necessary to satisfy the gift. Read the rest of this entry

Joseph and Iris Kievernagel were married for ten years and then decided to have a child using in vitro fertilization (“IVF”). After the fertility center inseminated Iris with Joseph’s sperm, it also froze a sample of his sperm as in case there was a need for it in the future. Joseph signed an agreement indicating his choice to have the frozen sperm discarded upon his death instead of authorizing its release to Iris. After Joseph was killed in a tragic helicopter accident, Iris petitioned the probate court for an order to require the fertitlity clinic to hand over Joseph’s sperm. Read the rest of this entry

Can the estate of a missing person be probated?

Sometimes individuals disappear or have an accident and their bodies are never recovered.  In cases like these, where no death certificate has been issued by the state, there are rules in place which allow interested parties to proceed with probate administration absent a death certificate.

Florida Statute section 733.209 provides that: 

Any interested person may petition to administer the estate of a missing person; however, no personal representative shall be appointed until the court determines the missing person is dead.

So, how does a family member get the court to determine that a missing person is dead?  Florida Statute 731.103 pertains to evidence as to death or status and provides in subsection (3) that:

A person who is absent from the place of his or her last known domicile for a continuous period of 5 years and whose absence is not satisfactorily explained after diligent search and inquiry is presumed to be dead.  The person’s death is presumed to have occurred at the end of the period unless there is evidence establishing that death occurred earlier.  Evidence showing that the absent person was exposed to a specific peril of death may be a sufficient basis for the court determining at any time after such exposure that he or she died less than 5 years after the date on which his or her absence commenced.

A probate attorney should file a petition for determination of death with the probate court in the county in Florida where the decedent maintained his or her domicile.  Upon a finding of sufficient evidence of death to presume death, the court can enter an order and probate proceedings can commence.

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 the rest of this entry

First District Upholds Integrity of Contracts in Recent OpinionA prenuptial agreement is a contract entered between partners before marriage, or civil unions in those jurisdictions recognizing those. The contract’s contents typically include provisions for the division of marital assets and spouse support in the event the relationship terminates.

Prenuptial agreements usually arise in two very different legal contexts: (1) divorce and (2) probate. In Florida, the rules applying to these two vastly-different courtrooms are exclusive of one another. My experience has been dealing with prenuptial agreements in the probate arena, where the marital relationship has been severed not by divorce, but by the death of one of the spouses. Read the rest of this entry