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Florida Probate Blog

Category: General

Exploitation of the Elderly

Written by on Mar 18, 2015| Posted in: General

Fla. Stat. § 732.518 provides that “[a]n action to contest the validity of all or part of a will or the revocation of all or part of a will may not be commenced before the death of the testator.”  Essentially this means that interested persons cannot contest a will until after the death of the person who made the will.  But what if you know that your elderly family member or loved one has been taken advantage of by a caregiver and you want to protect him or her now? Fortunately, the Florida Legislature has provided a means of not only protecting vulnerable, elderly adults, but also punishing those who exploit them for personal gain.  Fla. Stat. § 415.1111 provides a civil cause of action against a caregiver or person who stands in a position of trust and abuses that trust through neglect, deception, or intimidation in order to defraud […]

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Mental Inequality and Undue Influence

Written by on Mar 10, 2015| Posted in: General

Mental Inequality as a Factor in Undue Influence Lawsuits As most probate litigators will acknowledge, one of the primary arguments for revoking a Will is that it was procured through the undue influence of another.  Florida courts have defined “undue influence” as over-persuasion, duress, or coercion by one over the settlor of a Will to such a degree that the Will reflects the wishes of the undue influencer as opposed to the settlor.  A key component in assessing and determining the merits of an undue influence claim is whether there existed a substantial and cognizable inequality between the mental sharpness between the settlor of the Will and the alleged undue influencer.  Although medical and mental health records are often reviewed and submitted for evidence in such cases, this factor of ‘mental inequality’ is different than alleging that the settlor lacked testamentary capacity to execute such a Will in the first […]

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Spousal Inheritance after Divorce

Written by on Jul 2, 2014| Posted in: General

What rights does a divorced spouse have to inherit from a former spouse’s estate? Fla. Stat. § 732.703 became effective in 2012 and concerns beneficiary designations on life insurance policies, annuities, IRAs, 401ks and other employee benefit plans.  The statute is perceived as a legislative reaction to some decisional case law and also to the problem that surfaced when divorced clients never returned to their estate planning attorneys to revise their estate planning documents and beneficiary designations. The statute provides: § 732.703. Effect of divorce, dissolution, or invalidity of marriage on disposition of certain assets at death. (1)  As used in this section, unless the context requires otherwise, the term: (a)  “Asset,” when not modified by other words or phrases, means an asset described in subsection (3), except as provided in paragraph (4)(j). (b)  “Beneficiary” means any person designated in a governing instrument to receive an interest in an asset upon the death of […]

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Qualified Renunciation

Written by on Jul 1, 2014| Posted in: General

In Florida, one of the pleading requirements for a Will Contest or Trust Contest is a general allegation in the complaint that the contestant renounces any benefit he or she receives under the challenged document. The “renunciation rule” is an equitable doctrine in Florida.  Fintak v. Fintak, 120 So.3d 177 (Fla. 2d DCA 2013).  It was originally established by the English ecclesiastical courts but has been interpreted by American courts to require that one who receives and retains a gift under a will is estopped to contest the validity.  Id.  In Barnett Nat’l Bank of Jacksonville v. Murrey, 49 So.2d 535 (Fla. 1950), the Florida Supreme Court articulated three reasons for the renunciation rule: (1) to protect a fiduciary in the event the contested document is held invalid; (2) to demonstrate sincerity of the contestant; and (3) to have the property available for disposition at the conclusion of the contest. Interestingly, […]

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Florida No Contest Clause

Written by on Jun 30, 2014| Posted in: General

A No Contest Clause is a provision in a will or trust that penalizes an interested person who seeks to contest or challenge the validity of the will or trust instrument.  These clauses are sometimes referred to as in terrorem clauses.  Generally, a no contest clause penalizes a person contesting the will or trust by providing that the person loses all rights to receive any gift or devise under the will or trust if he or she contests its validity or challenges the terms of the instrument. Florida law invalidates no contest clauses in both wills and trusts.  Florida Statute section 732.517 provides that “[a] provision in a will purporting to penalize any interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable.”  Similarly, Florida Statute section 736.1108 (1) provides that “[a] provision in a trust instrument purporting to penalize any interested person for contesting the trust instrument or […]

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FLORIDA PRENEED GUARDIAN

Written by on Feb 20, 2014| Posted in: General

FLORIDA PRENEED GUARDIAN AS PART OF YOUR ESTATE PLAN Everyone’s estate plan is different.  Some people are content with having only a will and trust to manage and distribute their financial assets after death.  However, others find it appropriate to name a specific person to take care of their personal and financial well-being in the event that he or she becomes incapacitated during his or her lifetime.  The Florida legislature has provided such an avenue through the enactment of Fla. Stat. 744.3045, which is the law dealing with a preneed guardian. The statute states that “[p]roduction of the declaration (of a previously-designated preneed guardian) in a proceeding for incapacity shall constitute a rebuttable presumption that the preneed guardian is entitled to serve as guardian.  The court shall not be bound to appoint the preneed guardian if the preneed guardian is found to be unqualified to serve as guardian.”  What if […]

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Disposition of Property by Handwritten Will

Written by on Oct 26, 2013| Posted in: General

SECOND DISTRICT COURT OF APPEALS CERTIFIES QUESTION OF GREAT PUBLIC IMPORTANCE TO THE FLORIDA SUPREME COURT REGARDING FUNDAMENTAL CONSTITUTIONAL RIGHT FOR A PERSON TO DISPOSE OF PROPERTY BY WILL              Florida will lawyers and trust lawyers frequently assert the rights of a deceased person to dispose of their property by a will.  The United States Constitution grants no right to dispose of property by a will; however, since 1968, Florida has recognized this fundamental constitutional right under the State Constitution.              Recently, the Second District Court of Appeals was confronted directly with how far the constitutional right applies in the context of legislation requiring certain technical formalities with regards to Wills.  In Lee v. Payne, 38 Fla.L.W. D1969, (Fla. 2nd DCA Sept. 18, 2013), the Decedent’s fiancé sought to admit to probate Mr. Payne’s Colorado holographic will.  A holographic will is a will in testament that has been entirely handwritten […]

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Removal of Personal Representative

Written by on Oct 2, 2013| Posted in: General

What are the Grounds for the Removal of a Personal Representative? Florida Statute 733. 504 lists the causes for which a personal representative may be removed. Those are: 1)      Adjudication of incompetency or, even without adjudication, physical or mental incapacity rendering the P.R. incapable of discharging his or her duties; 2)      Failure to comply with an Order of the probate court unless the order is superseded on appeal; 3)      Failure to Account for the sale of property or to produce for inspection the estate assets; 4)      Wasting or other maladministration of the estate; 5)      Failure to give bond or security; 6)      Conviction of a felony by an individual personal representative or insolvency of a corporate personal representative; 7)      Revocation of probate of a will that names the personal representative; 8)      Conflicting or adverse interests against the estate; 9)      Removal of domicile from Florida if domicile was a requirement of initial appointment; […]

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Termination or Suspension of Durable Powers of Attorney

Written by on Sep 19, 2013| Posted in: General

Often times we are contacted by clients that inquire as to whether or not a Power of Attorney can be terminated and/or suspended for their elderly loved one who becomes incapacitated.  Typically this issue presents itself when an elderly loved one is requested or coerced to execute a Power of Attorney in favor of another family member during a period of time when their capacity may be compromised.  In some circumstances, the Power of Attorney may validly executed and later abused after elderly loved one’s capacity comes into question.  A valid Power of Attorney is a very valuable tool when properly utilized and likewise can be disastrous if abused.  It is not uncommon for us to receive inquiries from clients who discover that their elderly loved one is being financially exploited by someone abusing a Power of Attorney.  A Power of Attorney is a writing that grants authority to an […]

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Judicial Modification of Trusts

Written by on Jun 4, 2013| Posted in: General

Trusts are created for a variety of reasons.  Whether it is for tax and creditor protection or because the beneficiary is still a minor, there may be myriad reasons for their preparation.  Nevertheless, the initial purpose behind the execution of a trust may get lost or become impractical as time passes or the circumstances that were present at the time of its execution are no longer present or have changed making judicial modification of trusts necessary. In contemplation of such changing of circumstances, the Florida legislature enacted Fla. Stat. §736.04113 which allows a trustee or a qualified beneficiary to petition the court for an order to modify or terminate a trust in the event that settlor’s purpose behind executing the trust is no longer being satisfied.    The statute states, in relevant part, as follows: (1)    Upon application of a trustee of the trust or any qualified beneficiary, a court at any time may modify the […]

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