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Florida Probate Blog

Category: Probate Litigation

Will Contests: When, Where and How?

Written by on Jul 27, 2009| Posted in: Probate Litigation

Court Refuses to Throw Out Case Based on Technical Deficiency Contesting a Last Will and Testament in Probate Court requires the skill and expertise of a lawyer who is familiar with both the substantive law governing probate litigation and also the procedural rules contained in the Florida Probate Rules and Rules of Civil Procedure. One of the areas about which a probate litigator must have knowledge is whether to and when it is necessary to serve papers by what is known as “formal notice.” The failure to accomplish this type of service can have significant implications on the substantive legal rights of litigants in probate court.

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Probate Litigation

Written by on Jul 17, 2009| Posted in: Probate Litigation

Appellate Procedure: Is the Case Ready for Appeal? Appealing a probate ruling is no easy undertaking and requires special care, attention, and a firm command of the governing rules and decisional case law. One of the first things examined by an appellate attorney is whether the order from which an appeal is sought is a final order.

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Inequitable Conduct Doctrine

Written by on Jul 1, 2009| Posted in: General

Will Contest Lawyers Awarded Fees From Proponent of Forged Last Will and Testament Generally, each party who brings or defends a lawsuit is each responsible for their own attorneys fees, regardless of who wins or loses, unless there is a governing statute or contract that specifies from whom or where the fees should be paid.  This is generally true in the probate arena as well, that persons who hire lawyers to bring a contest or lawsuit against a last will and testament are responsible for their own fees, even if they win, unless certain special circumstances are shown.  One of these is the idea that the services rendered by the lawyer brought about a “benefit” to the estate.  I have previously written about this concept in my blog. 

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What Constitutes a Contest In No Contest Provision?

Written by on Jun 16, 2009| Posted in: Probate Litigation

A no-contest clause, also called an in terrorem clause, is a topic I have discussed previously in my blog. Readers may remember that an in terrorem clause is a written sentence in a testamentary instrument (will or trust) that is designed to threaten someone, into refraining from action, or ceasing to act. The phrase is typically used to refer to a clause in a will or trust that threatens to disinherit a beneficiary if that beneficiary challenges the terms of the will or trust. The Uniform Probate Code, §2-517 allows for no contest clauses so long as the person challenging the will doesn’t have probable cause to do so. Some states, like Ohio, allow for “living probate” and “ante mortem” probate, which are statutory provisions which authorize testators to institute an adversary proceeding during their life to declare the validity of the will, in order to avoid later will contests. […]

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Reopening a Closed Estate

Written by on May 19, 2009| Posted in: General

Third District Says No to Serial PetitionerA recent opinion issued by our Third District Court of Appeals in Betancourt v. Estate of Victoria Misdraji, 34 Fla.L.Weekly D912a (Fla.3rd DCA May 6, 2009) reminded me of the enormous discretion vested in a probate court to reopen an estate. Typically, a probate estate is reopened following the discovery of assets that were not discovered during the original estate administration. The Uniform Probate Code provides for this very scenario: Section 3-1008. Subsequent Administration. If other property of the estate is discovered after an estate has been settled and the personal representative discharged or after one year after a closing statement has been filed, the Court upon petition of any interested person and upon notice as it directs may appoint the same or a successor personal representative to administer the subsequently discovered estate. If a new appointment is made, unless the Court orders otherwise, […]

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Standing in Probate

Written by on May 12, 2009| Posted in: Estate Litigation

Third District Applies General Agency Principals to Issue of Who is Real Party in Interest A quick glance at any court docket these days will reveal that many foreclosure actions are being prosecuted by someone other than the real party in interest. While it is generally acceptable for an authorized agent to bring a lawsuit on behalf of a principal in a civil action, how and to what extent is this rule recognized in the probate arena? Generally, in actions by or against a probate estate, the personal representative of the estate is a necessary and indispensable party. There is a lot of decisional case law in Florida holding that in cases involving claims made by or against an estate, the estate and its survivors are the real parties in interest, and the personal representative is merely a nominal party.

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Stock Splits and Changes in Securities in Probate

Written by on May 8, 2009| Posted in: General

Probate attorneys frequently face issues dealing with the change of character of an asset included in a person’s estate plan. These issue typically occur when a person dies and the specified asset has either changed in character and/or value in terms of quantity and/or quality. People often include their securities in their estate plan. Sometimes, we discover that a gift in a will of a specific number of securities (i.e., 100 shares of ABC stock) carries with it any additional securities acquired by the person after writing his will. This raise the question regarding whether the beneficiary of the specific gift is to receive only the specified number or all of the shares of that named stock. Questions also arise when a person owned securities named in a will but later sold some of those securities after the will was executed and purchased another type of security not specified in […]

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Probate Property in Foreclosure?

Written by on May 8, 2009| Posted in: General

Fourth District provides relief for loan burdened surviving spouses and relatives. The distribution of homestead property in a probate estate is governed by the Probate Code, the Constitution and Florida decisional case law. Even though there is firm statutory, constitutional and judicial precedent dealing with homestead issues, there is always yet another novel issue or unanswered question to which there appears no clear answer. The Florida Fourth District Court of Appeals issued an opinion on April 29, 2009 answering the question whether real property that is facing foreclosure during the probate administration process may be distributed to the decedent’s surviving spouse. What is Homestead Property? Homestead property was recognized by the Courts long ago as the place where the owner and his or her family reside, the place where the home or the house is, and adjoining land, where the family dwells. The Florida Probate Code defines homestead property as […]

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What Happens When Mistakes are Made in a Will?

Written by on Apr 29, 2009| Posted in: Probate Litigation

Mistakes happen all the time when people are making their estate planning documents. The law is designed to provide fair remedies and solutions for families and loved ones who are victimized by an honest mistake by the deceased relative. A uniform code for dealing with mistakes in wills is set froth in the Restatement of Property (Third)- Wills and Donative Transfers, which provides: § 12.1 Reforming Donative Documents To Correct Mistakes “A donative document, though unambiguous, may be reformed to conform the text to the donor’s intention if it is established by clear and convincing evidence (1) that a mistake of fact or law, whether in expression or inducement, affected specific terms of the document; and (2) what the donor’s intention was. In determining whether these elements have been established by clear and convincing evidence, direct evidence of intention contradicting the plain meaning of the text as well as other […]

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What Happens When a Person Dies and the Will Cannot Be Found?

Written by on Apr 24, 2009| Posted in: Probate Litigation

The Restatement (Third) Property (Wills and Donative Transfers) §4.1 provides that “if a will cannot be located after death, but the trier of fact finds that it was not revoked, the will is entitled to probate if its due execution and contents can be proved. Commonly in such cases, the will is proved by evidence from a law-office or other copy, or from the drafter’s notes and recollection. If its full contents cannot be proved, the will is entitled to probate to the extent that its contents can be proved.” Similarly, Florida has adopted its own code provisions regarding the practice and procedure for admitting lost or destroyed will to probate. See Florida Probate Rule 5.510. However, there are some jurisdictions that have not adopted a code provision regarding the procedure for use when a will cannot be located after the decedent’s death.

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