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Florida Probate Blog

The Law Offices of Adrian Philip Thomas

Waiver of Elective Share

Written by on Aug 27, 2019| Posted in: Probate

Waiver of Elective Share in a prenuptial agreement is modifiable only by amending, revoking or abandoning the prenuptial agreement. According to the Fourth District Court of Appeals, waiver of elective share in a prenuptial agreement can only be invalidated by amending, revoking or abandoning the prenuptial agreement, not by executing a will or trust leaving an amount equivalent to the elective share. A husband and wife were married in 2011.  Prior to their marriage, they entered into a prenuptial agreement wherein wife waived her right to an elective share in husband’s estate.  The prenuptial agreement did allow them to make gifts to each other by will or codicil without invalidating the prenuptial agreement, to wit: Neither party intends by this Agreement to limit or restrict the right to give or receive a testamentary gift from the other.  Either of the parties may elect to make a gift to the other by […]

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Florida Probate Deadlines

Written by on Aug 23, 2019| Posted in: General

Florida Probate Deadlines The following chart provides many of the Florida probate deadlines that creditors and beneficiaries should be aware of to protect their interests in a decedent’s estate. Production of Original Will (i.e., file original will with court) custodian of will must file within 10 days after receiving information testator is dead Fla.Stat. 732.901(1) Objection to Validity of Will, Qualification of Personal Representative,  Jurisdiction or Venue if served with Formal Notice and Petition for Administration before issuance of Letters of Administration, then 20 days from date of service (read this article for more about this process Death Probate and Due Process) if served with Notice of Administration after issuance of letters of administration, then 3 months from date of service Fla.Stat. 733.212, 733.2123  Fla.Prob.R. 5.040, 5.201, 5.240 Petition for Exempt Property if no will contest, then 4 months from service of Notice of Administration if will contest, then 40 days after termination […]

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Disinherited Children Have Standing to Sue for Breach of Trust

Written by on Aug 22, 2019| Posted in: Trust Litigation

Disinherited children are “interested persons” who have standing to sue a trustee for breach of trust while their invalidation of trust action is pending. The Fifth District Court of Appeals released the Cruz v. Community Bank opinion holding that disinherited children had standing to sue a trustee for breach of trust while their trust invalidation action was pending.  Under the facts of Cruz, the decedent’s children, Tracy L. Cruz and Gregory W. Cates, brought an action seeking to invalidate their father’s 2016 trust, which essentially disinherited them in favor of charities, on the grounds that their father lacked capacity at the time he created the trust.  While the trust contest was pending, the trustee of the decedent’s trust, served an accounting on Ms. Cruz and Mr. Cates, who in turn filed a breach of trust action alleging mismanagement of the trust assets.  The trustee bank moved to dismiss the complaint […]

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Creditor Claim Deadlines in Florida Probate

Written by on Aug 18, 2019| Posted in: Probate

 What are the creditor claim deadlines in Florida probate? The creditor claim deadlines in Florida probate are: Known or reasonably ascertainable creditor – claim must be filed within 30 days after the date of service.  Unknown creditor – claim must be filed within three months after the first publication date.  When a personal representative (executor) is appointed to administer an estate, one of his or her duties is to notify creditors that the decedent died and to establish the  creditor claim deadlines for the estate.  Any claim filed outside that time period may be forever barred.  There are two types of creditors in probate: known or reasonably ascertainable creditors (for example, all those credit card and loan statements  piling up in the decedent’s mailbox) and unknown creditors.  A personal representative MUST serve a Notice to Creditors on all known or reasonably ascertainable creditors and MUST publish the same notice to creditors in […]

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Contesting a Will in Florida

Written by on Aug 7, 2019| Posted in: Probate Litigation

Contesting a will in Florida can be done in two ways and for the following reasons: Petition to Revoke Probate.  If a will has already been admitted to probate and no deadline prevents a contest, then a petition to revoke probate of the will can be filed to begin a will contest. Objection to Petition for Administration.  If a will has been offered for probate but not admitted to probate by the court, then an objection to the petition for administration can be filed contesting the will.  Undue Influence.  Undue influence is the most common grounds to contest the validity of a will in Florida.  Undue influence is a type of fraud and the general allegation is that the wrongdoer asserted so much influence over the decedent that the will is the product of the wrongdoer’s desires and does not reflect the true desires of the decedent.  For more information about […]

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Spousal Election to Take One-Half Interest in Decedent’s Homestead Property

Written by on May 24, 2019| Posted in: Probate

A spousal election to take a one-half interest in homestead property instead of a life estate must be made within 6 months of the decedent’s death. If a surviving spouse wants 50% of the homestead property, he or she needs to give notice of the election within 6 months of death – no exceptions! Homestead property in Florida is complicated business.  Article X, Section 4 of the Florida Constitution defines “homestead” property. Homestead property is protected against levy and execution by most judgment creditors (and against creditor claims post death), receives special property tax treatment and is subject to specific restrictions on its descent and devise upon the death of the owner.  This blog is about the descent and devise of homestead. Florida Statute §732.401(1) provides: If not devised as authorized by law and the constitution, the homestead shall descend in the same manner as other intestate property; but if […]

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Lawyer-Client Privilege Does Not Apply to Estate Planning Attorney’s Files in challenge to a Decedent’s Estate Planning Documents

Written by on Mar 28, 2019| Posted in: Estate Litigation

Lawyer-Client Privilege Does Not Apply to Estate Planning Attorney’s Files in challenge to a Decedent’s Estate Planning Documents In general, an attorney’s file is protected by the evidentiary lawyer-client privilege; however, in the contest of estate litigation – will contests and trust contests – an estate planning lawyer’s file is not protected by the privilege and is subject to being produced in litigation discovery. Vasallo v. Bean, 208 So.3d 188 (Fla. 3d DCA 2016) Plaintiffs in probate and trust litigation cases are frequently forced to spend considerable time and money compelling the decedent’s estate planning attorney to produce his or her file and to answer questions at depositions.  Sometimes the objections and motions for protective order come from the defendant.  This is common when the defendant, who is the alleged undue influencer, is also the decedent’s personal representative and attempts to assert the decedent’s lawyer-client privilege to conceal his or […]

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Florida Will Execution: Strict Compliance with Statute Required

Written by on Mar 26, 2019| Posted in: Estate Litigation

A Florida will execution must follow certain formalities as set forth in the Florida Probate Code.   Bitetzakis v. Bitetzakis, — So.3d —-, 2019 WL 405568, 44 Fla. L. Weekly D343. George Bitetzakis died in January 2017.  His grandson was appointed personal representative and petitioned to admit George’s September 2013 Last Will & Testament to probate.  George’s daughter, Alice, objected to the Will alleging it had not been executed in compliance with the statutory formalities set forth in Florida Statute §732.502.  Specifically, Alice alleged that George had not signed the Will within the meaning of the statute. The trial court conducted an evidentiary hearing, during which the following was established through testimony: George, his wife, his friend and his pastor met each week in George’s kitchen for breakfast.  (Sounds like the beginning of a joke, but the punchline in this case is nothing to laugh at.)  On September 26, 2013, George […]

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Death, Probate and Due Process

Written by on Feb 14, 2019| Posted in: Firm News

Do the Notice Requirements Under the Florida Probate Code and Rules Pass Constitutional Muster? Read the firm’s recent article published in Winter 2018-2019 Actionline, the Florida Bar’s Real Property, Probate & Trust Law Section publication.

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RESTRICTED DEPOSITORY: “FOR CAUSE” ONLY

Written by on Jan 29, 2019| Posted in: General

The Fourth District Court of Appeal reproves the Palm Beach probate court’s local policy presuming the need for a restricted depository in all probate cases as a matter of course. In Estate of Goodstein v. Goodstein, 44 Fla.L.Weekly D222a, on appeal was the trial court’s non-final order granting the beneficiaries’ petition to designate a trust company as a depository for the assets.  The personal representative of the estate appealed, arguing that the trial court granted the petition based upon local policy without finding “other cause” required under Fla.Stat. §69.031(1).  During the hearing, “[t]he trial court agreed that restricted depositories were a matter of course in all probate cases in its jurisdiction, pursuant to local policy.  It explained that the policy was intended to prevent assets from pouring out during probate administration  The court believed the policy also reduced expenses and increased productivity by encouraging attorneys to resolve cases more quickly.”  […]

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