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Florida Probate Blog

Category: Estate Litigation

Florida Elective Estate

Written by on Nov 15, 2010| Posted in: Estate Litigation

In Florida the surviving spouse has certain basic rights regardless of whether the deceased spouse has executed a valid Will or whether the surviving spouse was excluded from the Last Will and Testament.  Something called an elective share may be taken when surviving spouses are dissatisfied with the share of the estate they are to receive under testate and intestate succession.  Under the elective share concept, the surviving spouse is entitled to take 30% of what constitutes the decedent’s “augmented estate,” with probate and certain non-probate transfers being included.  The elective share is considered to be a substitute for dower and curtesy which was the historic basic rights given to a spouse after death of a husband or wife.  Think of the elective share as the surviving spouse’s right to a forced share in the decedent’s entire estate.  It prevents the decedent from entirely disinheriting the other spouse.  The elective […]

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Florida Inheritance Law

Written by on Mar 26, 2010| Posted in: Estate Litigation

Questions regarding Florida Inheritance Law and Florida Inheritance Lawsuits. When Olga Kuhnreich died, she was unmarried and had no children.  She was survived by her niece, Conchita, and Sister Gladys.  Olga’s will named Conchita as the Personal Representative.  Conchita read the last will and testament after Olga’s death and was confused as to who was to inherit Olga’s home.  The confusion was Article Three of the Will, titled “Specific Bequests of Real and/or Personal Property,” concerned two parcels of real estate. First, a West Palm Beach condominium unit was gifted outright to two named beneficiaries. Second, “[f]rom the sale of: 202 N.W. 18 Street[,] Delray Beach, Florida 33444,” the will gifted specific dollar amounts to five persons: Robert Kuhnreich, $5,000; “Lane Abbot, AKA Orlando Abad,” $10,000; “David Mears, AKA David Abad,” $10,000; “Connie Abad, AKA Conchita Abad,” $30,000; and Maria De Cuena, $5,000.  Article Three ended with this sentence: “In […]

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Estate of Carpenter: Undue Influence

Written by on Mar 24, 2010| Posted in: Estate Litigation

Friends, Romans, countrymen, lend me your ears…. How much ear bending is influence verses undue influence? As a law firm that focuses on probate, estate and trust litigation, we encounter all sorts of factual scenarios. In one case where our client was the longtime caregiver/friend of the decedent, a will contest was against the estate planning documents which left the estate substantially to the friend to the exclusion of a son and grandchild. The cause of action contesting the will sounds in undue influence and intentional interference with an expectancy. Throughout the course of the discovery, opposing counsel maintained that the care-giving services provided by our client amounted to overreaching and undue influence. However, as per the Second District Court of Appeal in Florida, the conduct of a person charged with: Undue influence, as it is required for invalidation of a will, must amount to over-persuasion, duress, force, coercion, or […]

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ELDERLY EXPLOITATION vs CIVIL THEFT

Written by on Mar 1, 2010| Posted in: Estate Litigation

DISTINGUISHING DAMAGES SOUGHT BY FIDUCIARIES AND INDIVIDUALS UNDER FLORIDA STATUTES §415.1111 and §772.11 When trying to decide between which cause of action to file against a person who has committed financial exploitation against or theft from a vulnerable or disabled adult, one must first establish who has been damaged, the vulnerable or disabled adult themselves, or an individual with an expectancy in inheritance or other interest expected from the vulnerable or disabled adult, and whose expectancy or interest was lost or diminished as a result of the exploitation or theft against the vulnerable adult. Pursuant to Fla. Stat. §415.1111, “A vulnerable adult who has been abused, neglected, or exploited . . . has a cause of action against any perpetrator and may recover actual and punitive damages for such abuse, neglect, or exploitation.” [reproduced below] The action may only be brought by the vulnerable adult, or that person’s guardian, by […]

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Substituted Parties

Written by on Feb 24, 2010| Posted in: Estate Litigation

What Happens When a Party Dies During a Lawsuit? One of the hotly-contested issues among Florida probate lawyers in the context of inheritance lawsuits involving beneficiaries of wills and trusts is whether and to what extent appellate courts have jurisdiction over orders entered in Florida lawsuits involving last wills and testaments and lawsuits involving Florida trusts, trustees and beneficiaries.  Generally, Florida Rule of Appellate Procedure 9.110, which governs “Appeal Proceedings to Review Final Orders of Lower Tribunals and Orders Granting New Trial in Jury and Non-Jury Cases,” applies to proceedings that seek review of orders in probate and guardianship matters that finally determine a right or obligation of an interested person as defined in the Florida Probate Code.”   The dissenting opinion in one recent case in the First District Court of Appeals in Florida dealt with the issue of whether the  a court’s determination of whether notice of was properly served […]

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Probate Appeals

Written by on Jan 5, 2010| Posted in: Estate Litigation

The issue of what probate rulings are appealable in the context of will contests and probate litigation is complicated, confusing, and subject to debate among jurists and attorneys in Florida.  Generally, the issue is governed by appellate rules, which authorize appeals of “orders entered in probate and guardianship matters that finally determine a right or obligation of an interested person[.]”  Due to the ambiguity of the language of the rule, the Florida Supreme Court has offered guidance in the form of comments to an amendment to one of the rules: “[I]n probate and guardianship proceedings it is not unusual to have several final orders entered during the course of the proceeding that address many different persons.  An order of the circuit court that determines a right, an obligation or the standing of an interested person as defined by the Florida Probate Code may be appealed before the administration of the […]

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‘Til Death Do Us Part

Written by on Dec 11, 2009| Posted in: Estate Litigation

In Florida, can a spouse be disinherited? Several years ago, the Florida Legislature enacted HB 301 effective October 1, 1999, for decedents dying on or after October 1, 2001 (known as the elective share statute). This law changed a long-standing rule that spouses could be disinherited. Florida courts now repeatedly interpret and apply the new elective share statute in a manner consistent with the recognized strong public policy favoring protection of the surviving spouse against being disinherited. The question often arises as to whether assets placed by a decedent into an irrevocable trust are subject to a claim by the surviving spouse under the new elective share statute. The answer depends on the specific facts of each case and on a court’s understanding of what assets constitute the decedent’s “probate estate.” First, one must analyze the definitions written into law by our elected officials in Tallahassee and Washington.

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Appealing Probate Court Orders

Written by on Dec 1, 2009| Posted in: Estate Litigation

Client:   What happened at court? Lawyer:   Justice Prevailed. Client:   Appeal Immediately! Appealing a probate ruling is no easy undertaking and requires special care, attention, and a firm command of the governing rules and decisional case law. One of the first things examined by an appellate attorney is whether the order from which an appeal is sought is a final order. The question is uniquely challenging when a probate lawyer is confronted with an order arising from an adversarial proceeding in a Florida probate court.  Initially, the trust and estate lawyer will examine the probate order in the context of Rule of Appellate Procedure 9.110(a) (2), which provides that the review of an order by the appellate court is authorized when there is an order entered in probate “that finally determines a right or obligation of an interested person as defined in the Florida Probate Code.” This rule operates to broaden […]

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Probate Litigation

Written by on Nov 16, 2009| Posted in: Estate Litigation

Fourth DCA overturns Broward Probate Court’s eviction of son from his deceased mother’s apartment. My blog has previously discussed the Fourth District’s view, articulated in Herrilka v. Yates, 13 So.3d 122 (Fla. 4th DCA 2009) on the limitations on an estate fiduciary in taking or encumbering homestead property.  Herrilka involved a dispute between two women who both claimed to be married to the decedent; consequently, a curator-Christine Yates-was appointed to marshal the estate assets.  One of the women, Mrs. Herrilka, occupied the real property that was, without dispute, the decedent’s homestead.

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