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Florida Probate Blog

Category: General

Illegitimate Child is Still a Legitimate Heir

Written by on Dec 13, 2010| Posted in: General

Q.  Does a child have a right of inheritance from a father who never knew the child existed?  The rub is the child’s mother gave the child up for adoption without the father’s knowledge.  The father’s name is not on the original birth certificate but could be easily verified.  Historically, if a child was illegitimate, most jurisdictions required only the consent of the child’s natural mother to the adoption of the child.  The right to grant or withhold such consent was not extended to the fathers of illegitimate offspring, since they were not considered to have sufficient interest in the benefits and obligations of raising a child to determine whether the child should be released for adoption. In 1979, this trend was reversed in Caban v. Mohammed, 441 U.S. 380, 99 S. Ct. 1760, 60 L. Ed. 2d 297 (1979).  The key issue was whether the consent of an unwed […]

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What are probate assets?

Written by on Dec 13, 2010| Posted in: General

Generally, probate assets are those assets in the decedent’s sole name at death or otherwise owned solely by the decedent and which contain no provision for automatic succession of ownership at death. For example: a bank account in the sole name of a decedent is a probate asset, but a bank account held in-trust-for (ITF) another, or held jointly with rights of survivorship (JTWROS) with another, is not a probate asset; a life insurance policy, annuity or individual retirement account that is payable to a specific beneficiary is not a probate asset, but a policy payable to the decedent’s estate is a probate asset; real estate titled in the sole name of the decedent is a probate asset (unless it is homestead), but real estate held as joint tenants with rights of survivorship or as tenants by the entirety is not a probate asset; property owned by husband and wife […]

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Is probate necessary?

Written by on Dec 10, 2010| Posted in: General

Probate is necessary to wind up the affairs the decedent leaves behind. Probate also serves to transfer assets from the decedent’s individual name to the proper beneficiary. Florida has had probate laws in force since becoming a state in 1845. Florida law provides for all aspects of the probate process, but allows the decedent to make certain decisions by leaving a valid will.  Whether or not probate is necessary depends on a number of factors.

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How much does it cost for probate?

Written by on Dec 9, 2010| Posted in: General

The personal representative, the attorney and other professionals whose services may be required in administering a probate estate (such as appraisers and accountants) are entitled by law to reasonable compensation. The fee for the personal representative of a probate estate is usually determined in one of five ways: as set forth in the will; set forth in a contract between the personal representative and the decedent; as agreed among the personal representative and the persons who bear the impact of the fee; as the amount presumed to be reasonable as calculated under Florida law if the amount is without objection; or as determined by the judge, applying Florida law.

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Probate Attorney

Written by on Dec 8, 2010| Posted in: General

Adrian Thomas is the CEO/Shareholder of a boutique, seven-attorney and 8 paralegal law firm located in Fort Lauderdale, Florida .  The firm concentrates its practice to probate, guardianship, estate and trust litigation. Adrian Thomas has resided in Florida for the past thirty years and has practiced law in Broward County for the past 18 years. Mr. Thomas is “AV” rated by Martindale Hubbell and has been selected as one of Florida’s Legal Elite by Florida Trend Magazine in 2008, 2009 and 2010. Mr. Thomas concentrates his personal practice in estate litigation, both prosecuting and defending, which includes matters involving estates, trusts, probate, and guardianship. He represents clients with disputes throughout the State of Florida.

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Battle of Wills

Written by on Dec 6, 2010| Posted in: Estate Litigation

The battle over a Will can be more like a battle of wills. “It’s the principle of the matter” We hear these words consistently from our clients over phone or in the office… “It is not the money; it is the principle of the matter.”  Litigation over an estate, Will, trust or inheritence can be emotionally traumatic for clients, especially when the dispute is between parties who are family members.  Although the majority of our clients want to resolve their issues quickly and inexpensively, many clients are willing to use the judicial process to vindicate what they believe were wrongs suffered at the hands of a family member.  This path is frequently expensive and may cost more than any eventual recovery; however, many litigants are willing to stand on principle – even when a cost-benefit analysis does not make sense financially – to achieve a measure of satisfaction and closure through the judicial process.   

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Show me the money!

Written by on Nov 30, 2010| Posted in: General

My brother is refusing  to give an accounting of the estate assets – Why? A beneficiary of an estate has the right to an accounting of estate assets.  Once an accounting has been requested,  Florida probate law requires that it be produced within a reasonable amount of time.  In fact, the law requires a Personal Representative to file an accounting  with the court and to serve it on all affected beneficiaires (unless it has been waived) when the administration of the estate is complete.  The accounting must be signed by the person preparing it to hold that person responsible for the information contained in the accounting.  Most importantly, a beneficiary has the right to inspect the documents (for example, bank records, receipts and checks) to confirm that the accounting being produced is supported by the evidence.  A probate litigation lawyer should never accept an accounting for her client without the supporting documentation to […]

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Florida Elective Estate

Written by on Nov 15, 2010| Posted in: Estate Litigation

In Florida the surviving spouse has certain basic rights regardless of whether the deceased spouse has executed a valid Will or whether the surviving spouse was excluded from the Last Will and Testament.  Something called an elective share may be taken when surviving spouses are dissatisfied with the share of the estate they are to receive under testate and intestate succession.  Under the elective share concept, the surviving spouse is entitled to take 30% of what constitutes the decedent’s “augmented estate,” with probate and certain non-probate transfers being included.  The elective share is considered to be a substitute for dower and curtesy which was the historic basic rights given to a spouse after death of a husband or wife.  Think of the elective share as the surviving spouse’s right to a forced share in the decedent’s entire estate.  It prevents the decedent from entirely disinheriting the other spouse.  The elective […]

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Doctrine of Dependent Relative Revocation

Written by on Sep 30, 2010| Posted in: General

When a person (testator) makes a last will and testament, it is customary that the will contain language that the new will revokes any and all prior wills signed by the testator.   The Uniform Probate Code holds that a new will can revoke prior wills even though it contains no other provisions stating that prior wills have been revoked.  If a person signs a new last will which revoked all prior wills, and destroyed all prior wills by burning, cancelling, tearing or obliterating them, then all prior wills would be deemed revoked.  Should a person die and the newly signed will was missing with no copies to be found, then the testator would be deemed to die intestate, or without a will. On the other hand, if a person dies, and the most recently signed last will and testament is found to be invalid for any reason, such as undue […]

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PER STIRPES vs. PER CAPITA

Written by on Aug 31, 2010| Posted in: General

Last Will and Testament Hypothetical #1: When Aunt Minerva died, she had no husband or children, but did have a valid Will, which was probated.  Her living descendants were her niece, Angela, her nephews, Barry and Charles.  They were over the age of 18 years old at the time of Aunt Minerva’s death.  When Aunt Minerva died, Angela had two children, Donald and Evelyn.  If Aunt Minerva’s Will stated that all of her estate was to be distributed to her then living descendants, per stirpes, then her niece, Angela, and her nephews, Barry and Charles each would receive a 1/3 share of her estate.  Angela’s children, Donald and Evelyn, would not receive anything from the estate.  Pursuant to Florida Statute 731.201(9), a lineal descendant or descendants mean “a person in any generational level down the applicable individual’s descending line.”  Adopted children come within the definition of lineal descendants.  The term […]

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