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Florida Probate Blog

Posts Tagged: probate

What Happens When Mistakes are Made in a Will?

Written by on Apr 29, 2009| Posted in: Probate Litigation

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 […]

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What Happens When a Person Dies and the Will Cannot Be Found?

Written by on Apr 24, 2009| Posted in: Probate Litigation

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.

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How to Overcome the “Negative Will”

Written by on Apr 13, 2009| Posted in: Probate Litigation

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 […]

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Latent vs. Patent Ambiguities in Last Will and Testament Construction Cases

Written by on Apr 7, 2009| Posted in: Probate Litigation

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 […]

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Does a co-owner of jointly-held property get the mortgage paid if the Will requires payment of debts?

Written by on Apr 2, 2009| Posted in: Estate Litigation

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.

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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.

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How Far May the Witness Wander?

Written by on Mar 12, 2009| Posted in: Probate Litigation

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.

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Hey! Where’s My Gift?

Written by on Mar 9, 2009| Posted in: Probate Litigation

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 […]

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What happens to frozen sperm after the donor’s death?

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

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.

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Presumption of Death

Written by on Mar 4, 2009| Posted in: General

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 […]

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