Florida Probate Blog

Tittle v. Dahm, October 14, 2020 — So.3d —, 2020 WL 6053264 (Undue Influence Factors) It was refreshing to read the brief and concise Tittle v Dahm opinion recently issued by the Third District Court of Appeals concluding “the factors delineated in In Re Estate of Carpenter, 253 So.2d 697, 702 (Fla. 1971), are not exhaustive, but merely illustrative, designed to “aid trial judges in looking for those warning signals pointing to active procurement of a will by a beneficiary.”  Too often, attorneys and courts conflate the Carpenter factors with the elements of the cause of action for undue influence.   Undue influence must amount to overpersuasion, duress, force, coercion, or artful or fraudulent contrivances to such a degree that there is destruction of free agency and willpower.  Jordan v Noll, 423 So.2d 368 (Fla. 1st DCA 1982).  The Carpenter factors create a presumption of undue influence shifting the burden of […]

Who is the Best Florida Probate Lawyer? A friend recently asked, “who is the best Florida probate lawyer?”  The concept of “best” is subjective.  The better question is “which probate lawyer best meets my needs?”  When interviewing a lawyer, the best factors to determine whether you are hiring the best probate lawyer are:  level of education length of time as a lawyer area of legal concentration The last is perhaps the most important factor of all when deciding which probate lawyer is best for you.  For example, not long ago a lawyer on the other side of a case was representing his client in a Will contest and my firm was defending.  The lawyer on the other side was struggling with basic procedural issues.  When I looked him up on the Florida Bar website, I found that he “concentrated” in: custody, support, divorce, commercial, real estate, business, bankruptcy, litigation, personal injury, […]

COVID-19 LEGAL RESOURCES PAGE The following information is provided to assist members of the Florida legal community and others by providing links to various federal and state websites providing emergency updates, judicial guidelines, economic and technology resources and general information about COVID-19. Official Federal and State Government COVID-19 Information Federal Government Response to Coronavirus, COVID-19.  Links to official information about Government Response to Coronavirus, COVID-19. Florida Executive Orders.  All Executive Orders can be viewed by clicking this link to Florida Executive Orders, which will be updated as additional Orders are issued. Florida Governor’s Office.  The Office of Florida Governor Ron DeSantis has issued a Frequently Asked Questions (FAQ) document to help clarify Executive Order 20-91. Florida Department of Health.  Provides information about on what you need to know now about COVID-19 in Florida. Local and State Government.  Local and state governments have issued “stay-at-home” orders throughout the state urging residents […]

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 […]

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 […]

 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 […]

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 […]

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 […]

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.”  […]

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 […]