Florida Probate Blog

In re: Estate of Lillian L. Unanue (43 Fla.L.Weekly D70a) – On November 17, 2016, the co-personal representatives of the Estate of Lillian Unanue (“Estate”) filed a final accounting and petition for discharge.  The documents were served on the beneficiaries, including Robert and George Unanue.  The probate court entered an order of discharge on December 5, 2016, just 18 days after the petition was filed.  Subsequently, on December 16, 2016, Robert and George filed timely objections to the final accounting and petition for discharge, but the estate was already closed.  In the appeal, Robert and George sought reversal of the order of discharge because it was entered prematurely and curtailed their right to object to the accounting.  The Second District Court of Appeal agreed, citing Florida Probate Rule 5.400(b)(6), which states, in pertinent part, that “any objections to the accounting, the compensation paid or proposed to be paid, or the […]

Who owns the contents of a safe-deposit box when two people are on the box and one dies? The answer may depend on what is specifically provided in the lease or rental agreement with the bank.  In other words, does the bank have a written policy regarding who owns and/or who can enter the box in the event of death of one of the co-owners?  If the bank does not have specific rules, the Florida law provides that if a safe-deposit box is rented or leased in the names of two or more lessees, access to the safe-deposit box will be granted to either of them, regardless of whether or not the other lessee is living or competent.  But is access to the box the same as ownership of the content of the box?  First, there is no parallel statute that determines the ownership of the contents of safe deposit […]

I have written extensively about the application of the due process requirements under both the Florida and United States Constitutions in previous blogs and cannot resist touching upon a recent opinion in a state court case applying federal due process law:  Kimberly Rice Kaesterner 1992 Family Trust v. North Carolina Dep’t of Revenue 789 S.E.2d 645 (N.C.Ct. App. 2016). New York probate and Florida probate lawyers understand that it has long been the law of the land that the fact that beneficiaries of a trust are not residents does not deprive property subject to the trust a situs in the state where the trustee is domiciled.   Typically, the trust property is taxed to the holder of the legal title—the trustee—or where the property is located.  The tax is not imposed on the trust beneficiary. In fact, Chief Justice Oliver Wendell Holmes and the United States Supreme Court has ruled that […]

DEATH, PROBATE AND DUE PROCESS:  Do the Notice Requirements Under the Florida Probate Code and Rules Pass Constitutional Muster? by Adrian P. Thomas, Michele M. Thomas and Daniel A. McGowan Property rights are among the basic substantive rights expressly protected by the Due Process Clause of the United States Constitution and the Florida Constitution.[i]  Probate proceedings are in rem proceedings directed against property and against anyone claiming an interest in the property.[ii]  A proceeding to admit a will to probate affects the property rights of an interested person and that person is entitled to due process of law before those rights are extinguished, diminished or otherwise affected.   Due Process             The United States Supreme Court has held that “[a]n elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonable calculated, under all the circumstances, to apprise interested parties of the pendency […]

“But Mom only added my brother so he could pay estate expenses and then the money was supposed to be divided equally amongst all of the children like the Last Will & Testament says!” Almost every day, a prospective client calls to say that a sibling was added to Mom’s bank account, either as a joint tenant or as the pay-on-death beneficiary, solely for “convenience” purposes so he or she could pay estate expenses and that it was Mom’s intention that the remaining funds be distributed equally to all of her children.  Naturally, the sibling who was added to the account does not share this view (which is the reason for the phone call).  Invariably, the sibling who was added is the one who lives closest to Mom so it is simple for him to rationalize and justify keeping all of the money – even when that is not what Mom wanted –  because “I was the one helping out.”  In this way, […]

Typically, when the Supreme Court of the United States announces a new Rule of Federal Constitutional Law dealing with due process, the new Rules are applied retroactively. However, Florida probate courts are left with the power and discretion to carve out exceptions to the general rule in their own probate, will, trust and adoption jurisprudence.

  There are several scenarios that we are presented with wherein the appointment of a curator (or neutral fiduciary) is warranted for the administration of an estate.  However, what happens when the alleged tortfeasor (whether a brother, sister, step-mother, etc.) has already been appointed as the personal representative of the estate, but we know that he/she should not be because of some prior bad conduct regarding the Estate’s assets.  Regardless of the bad conduct, who would administer the estate while you are trying to prove that case? Fla. Stat. §731.201 defines a “curator” as a person who is appointed by the probate court to take charge of the estate until letters of administration are issued (in other words, until a specific personal representative is appointed).  A curator is essentially someone neutral who is appointed to temporarily administer an estate.  Many probate attorneys request that a curator be appointed while there […]

We have previously written entries regarding Fla. Stat. §733.702 and the time limitation for filing a creditor claim in an estate proceeding.  This time limitation includes a claim founded upon the wrongful act of the decedent where the decedent’s estate would owe you some sort of financial award or relief.  Once expired, an extension of the time limitation may only be granted upon grounds of fraud, estoppel, or insufficient notice of the claims period. Fla. Stat. §733.2121 further discusses the procedure a personal representative must adhere to in order to commence this timeframe for creditors to file their respective claims.  Pursuant to this statute, the personal representative must publish a notice to creditors in a newspaper in the county where the estate is being administered and must make a diligent search to serve a copy of the notice to creditors on any reasonably ascertainable creditors.  The definition of a ‘reasonably […]

Misrepresentations by Tortfeasor During Mediation: Fool Me Once… So you’ve sued someone for undue influence, tortious interference with expectancy of inheritance or a similar tort grounded upon fraud. It is well-settled in Florida that such causes of action are based upon fraud and must be pled with specificity. Although the Florida Supreme Court did acknowledge in In re Carpenter’s Estate, 253 So.2d 697 (Fla. 1971) that undue influence by its very nature is committed in secret and thus is not susceptible to direct proof, plaintiffs are faced with another dilemma when trying to settle undue influence cases at mediation: “What else did the defendant do that we don’t know about?” Deciding whether and upon what terms to settle a case is often difficult enough, so the unknown only makes it even more difficult when contemplating whether to give the defendant a full general release. While Florida law does provide a […]

How long does a creditor have to file a claim in the probate estate? Many clients ask how long it takes for an estate to be completely administered.  The answer is: it depends. One of the several factors that will affect the timeframe is how many and what type of creditor claims are filed in the estate.  Once a creditor claim is filed, the estate (through the personal representative) must properly address the claim. Fla. Stat. §733.701 states that every personal representative must publish and serve a notice to creditors.  This notice to creditors will place any prospective creditor of an estate on notice that they have a certain time period within which to file a claim.  If the creditor does not timely file a claim, it will be forever barred and that creditor cannot recoup any funds from the estate. Therefore, the essential question that every personal representative and […]