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Florida Probate Blog

Author: Adrian P. Thomas

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

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

WARNING:  If a surviving spouse wants 50% of the homestead property, he or she need to give notice of the election within 6 months of death – no exceptions! Homestead property in Florida is complicated.  What constitutes “homestead” is defined by Article X, Section 4 of the Florida Constitution. 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 the decedent is survived by a spouse and one or more descendants, the surviving spouse shall take a life estate in the homestead, […]

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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

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 her involvement with the estate planning. As often as not, however, the objections and motions come from the estate planning attorney, who is always a fact witness in litigation cases involving challenges to wills and trusts.  Sometimes the attorney simply wants a court order compelling him or her to turn over the file as a precautionary measure to avoid any possible violation of the […]

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Florida Will Execution: Strict Compliance with Statute Required

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

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 attempted to execute his Last Will & Testament, asking his friend and pastor to be witnesses.  […]

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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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WHEN IS A CHARITY A QUALIFIED BENEFICIARY UNDER THE FLORIDA TRUST CODE?

Written by on Jan 27, 2019| Posted in: Trust Litigation

The term “qualified beneficiary” has special significance under the Florida Trust Code.  Status as a “qualified beneficiary” confers rights, including the right to: a complete copy of the trust instrument, the right to an accounting, the right to relevant information about trust assets and liabilities and details about trust administration.  See, Fla.Stat. §§736.0105 (r)-(t), 736.0813.  Accordingly, whether a trust beneficiary is a “qualified beneficiary” is an important issue for both the trustee and for the beneficiary because the status imposes duties on the trustee and confers rights upon the beneficiary. The Fourth DCA recently addressed when a charitable beneficiary has the rights of a qualified beneficiary in Hadassah, The Women’s Zionist Organization of America, Inc. v. Stephen G. Melcer, Trustee, et al, 44 Fla.L.Weekly D207a. Sylvia Gelt created a trust in 1989.  The trust provided that upon her death, a portion of the trust was to be placed in a […]

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Probate:  Enforcement of Prenuptial Agreement

Written by on Dec 3, 2018| Posted in: Probate Litigation

In the recently-decided Kellar v. Estate of John W. Kellar, 257 So.3d 1044 (Fla. 4th DCA 2018), the Fourth District Court of Appeal reminded us that a prenuptial agreement is a contract and is enforced in probate like a creditor claim. In Kellar, Decedent and his wife executed a premarital agreement, in which Decedent agreed to make a will in favor of his wife; however, during Decedent’s lifetime, his son had Decedent execute a new will excluding the wife in favor of himself.  Upon Decedent’s death, wife filed a petition seeking to admit the will favoring her and Decedent’s son filed a counter-petition seeking to admit the will favoring him.  Wife challenged son’s will on the grounds of undue influence.  The lower court found “[t]he wife presented competent, substantial evidence to raise the rebuttable presumption that the son exerted undue influence over the decedent to procure the decedent’s revocation of […]

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Will Devising Property to Fiancee Survives Subsequent Marriage and Divorce

Written by on Sep 27, 2018| Posted in: Estate Litigation

Ex-wife 1 – Incapacitated Father 0: An Unreasonable Conclusion Based on Statutory Construction Gordon v. Fishman, 253 So.3d 1218 (Fla. 2d DCA 2018) In 2005, Ron Priever executed a will devising property to his then fiancée, Silvia Gordon.  Priever and Gordon married in 2007 and divorced in 2013.  Mr. Priever died in 2015, leaving no spouse and no children and never having changed his will; however, Priever was survived by his incapacitated father, Bernard, who was the ward of a guardianship.  Bernard’s guardian petitioned for administration, treating the estate as if Priever died without a will, which would leave Bernard the intestate beneficiary.  The court granted the petition and appointed the guardian as personal representative.  Thereafter, Gordon filed Priever’s original will with the court claiming that she was the beneficiary under the terms of Priever’s will executed before their marriage and divorce.  The guardian objected, claiming that once Priever and Gordon divorced […]

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Bank Accounts: ownership intent trumps legal form of ownership

Written by on Sep 4, 2018| Posted in: Probate Litigation

Lorraine Kowalski and her husband, Leon, were legally married but separated for approximately sixteen years when Leon died in 2015.  At the time of his death, Leon was living with his long-time, live-in girlfriend, to whom he devised the majority of his estate in a Last Will and Testament.  Lorraine sought an elective share of the estate.  During the probate proceedings, a special master was appointed to determine certain issues, among them Leon’s interest in a bank account in Lorraine’s sole name.  The special master found that Leon owned 50% of the account and that Leon’s share should be distributed to Leon’s estate.  The trial court confirmed the special master’s report and Lorraine appealed.  The appellate court affirmed. In 2006, Lorraine and Leon sold their business and received $3,445,066 which Lorraine held in an account in her sole name.  Over the years, Leon would ask Lorraine for money when he […]

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Florida Probate Nonclaim Statute Does Not Apply to Beneficiaries

Written by on Sep 1, 2018| Posted in: Probate Litigation

HEIRS ASSERT CLAIM TO INTESTATE SHARE OF ESTATE 45 YEARS AFTER DECEDENT’S DEATH:  FIFTH DISTRICT HOLDS THAT FLORIDA’S 2-YEAR NONCLAIM STATUTE DOES NOT APPLY TO CLAIMS ASSERTING BENEFICIAL INTEREST IN ESTATE Helen Watkins had two daughters, Bernice Wallace and Helen Mansell.  In 1971, Watkins died intestate (without a last will and testament) owning a parcel of real property in St. Augustine, Florida.  Nearly 30 years later, Wallace and Mansell filed a petition for summary administration alleging they were the sole heirs at law.  The property was conveyed to Wallace and Mansell and Mansell sold her interest to Wallace.  Another 16 years lapsed and Mansell’s three biological children, who had been legally adopted by Watkins in 1963, filed a petition to re-open summary administration to claim their intestate share of Watkins’s estate.  Wallace objected and asserted, inter alia, that Florida’s nonclaim statute, s. 733.710(1), Fla. Stat., which provides: Limitations on claims […]

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