Florida Probate Blog

Can we agree to something else? The law in Florida is clear in its intentions to protect a surviving spouse from being disinherited.  Fla. Stat. 732.201-732.2155 specifies the applicable rules for a surviving spouse to claim the elective share, which essentially provides that a spouse is entitled to receive 30% of the decedent’s assets upon his or her demise.  This law effectively prevents a spouse from being completely disinherited. Additionally, “no contest” clauses are provisions in trusts that attempt to prevent or discourage beneficiaries from filing lawsuits relating to a trust by penalizing the beneficiary (typically by causing that beneficiary’s share of the trust to be forfeit).  However, Fla. Stat. 736.1108(1) provides that “no contest” clauses in trusts are unenforceable because they may wrongfully punish a beneficiary who is attempting to remedy the bad acts of another and/or effectuate someone true testamentary intent. However, can the settlor of a trust […]

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, […]

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 […]

Florida Statute 732.501 requires, amongst other things, that the testator be “of sound mind” when executing the Will. Testamentary capacity means the ability to understand generally the nature and extent of one’s property, the relationship of those who would be the natural objects of the testator’s bounty and the practical effect of a will. In re Wilmott’s Estate, 66 So. 2d 465 (Fla. 1953), 40 A.L.R. 2d 1399. However, competency is generally presumed, and the burden of proving incompetency is on the contestant F.S. 733.107 (10; In Re Estate of Weihe, 268 So. 2d 446 (Fla. 4th DCA 1972) This is a heavy burden to overcome based on the presumption of competency. It has been stated that “even a lunatic may make a will….in a lucid interval.” Murrey v. Barnett National Bank of Jacksonville, 74 So. 2d 647, 649 (Fla. 1954) Even the showing of incapacity on other days does […]

FLORIDA APPELLATE COURT RULES SUCCESSOR PERSONAL REPRESENTATIVE IS ALLOWED TO SUE A FORMER PERSONAL REPRESENTATIVE’S ATTORNEY FOR MALPRACTICE Bookman v. Davidson, — So.3d —-, 2014 WL 1772707 (Fla. 1st DCA May 05, 2014) A lawsuit was filed in Florida alleging the initial personal representative, with her lawyer’s guidance, improperly disclaimed or transferred out of the estate certain assets belonging to the estate that could have been used to pay its creditors.  A trial court ruled that a successor personal representative does not have standing to bring a legal malpractice action against the Florida attorney who was hired by the initial personal representative to aid her in the administration of the estate. The appellate court reversed and stated that the powers, duties, and obligations of the personal representative apply not only to the estate, but also to other individuals related to the estate’s administration, including its beneficiaries, creditors, contractors, accountants, and […]

ORAL AGREEMENTS SUFFICIENT UNDER FLORIDA LAW TO DIVIDE INHERITANCE FROM PARENTS Can siblings verbally agree to divide an inheritance prior to their parent’s or grandparent’s death?  The answer in Florida is Yes. In is widely accepted that in order for an agreement between parties to be legally binding and enforceable by a court or judge, at least four elements must be present:  (1) offer; (2) acceptance; (3) specific terms; and (4) consideration.  What is consideration? Consideration is simply a bargained for change in legal position between the parties.    One way to describe how the element of consideration is usually viewed by courts is to look at whether or not the parties making the promises to each other are either doing something that they are not under a legal obligation to do;  or refraining from doing something that they have a legal right to do (i.e., surrender or forebear from asserting […]

The Florida legislature enacted a statute to protect the inheritance rights of children born after a decedent executed his or her Last Will & Testament.  The statute, known as a “Pretermitted Children” and found at Fla. Stat. §732.302, provides that “when a testator omits to provide by will for any of his or her children born or adopted after making the will and the child has not received a part of the testator’s property equivalent to a child’s part by way of advancement, the child shall receive a share of the estate equal in value to that which the child would have received it the testator had died intestate.”  The statute is predicated on the notion that parents intend for their children to inherit from them and that if a child was born after a parent executes a Will that it was probably an oversight not to execute a new […]

What impact does a prenuptial agreement have upon title to the assets of a trust and the rights of trust beneficiaries? The importance of that question was highlighted by a recent Second District Court of Appeals case, Shakespeare v. Prince, 129 So.3d 412 (Fla. 2d DCA 2013). In Shakespeare, Mr. and Mrs. Shakespeare entered into a prenuptial agreement to maintain their assets separately. Mrs. Shakespeare, who had inherited a substantial fortune from her prior marriage, bought a home for the couple in Collier County. She subsequently created a trust and, waiving her homestead rights, transferred title of the home to the trust, making the home a trust asset. Mrs. Shakespeare’s trust provided that, upon her death, Mr. Shakespeare would receive only a life estate in the home; upon Mr. Shakespeare’s death, title to the home would pass to Mrs. Shakespeare’s son from her first marriage. This relatively straight-forward estate plan […]

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 […]

Typically, a trustee serves its accounting on beneficiaries which discloses all matters involving the trusts.  Under normal circumstances, a beneficiary then has four years from receipt of the accounting to bring an action for breach of fiduciary duty.  If an accounting is not provided to the beneficiaries, or when the accounting falls short of properly informing a beneficiary of what is happening with the trust assets, then the Statute of Limitations never begins to run.  If a beneficiary has actual knowledge of the matter not adequately disclosed in the accounting, and it can be proven by clear and convincing evidence that the beneficiary had actual knowledge, or if there has been a repudiation of the Trust by the Trustee and the beneficiary has actual or constructive knowledge of the repudiation, then the four-year statute of limitations will bar that claim, Fla. Stat. §736.1008(3)(a).  The fact that a Trustee has not […]