Florida Probate Blog

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, […]

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 […]

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 […]

“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 […]