Florida Probate Blog

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 […]

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 […]