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Florida Probate Blog

Posts Tagged: probate

Florida Probate Deadlines

Written by on Aug 23, 2019| Posted in: General

Florida Probate Deadlines The following chart provides many of the Florida probate deadlines that creditors and beneficiaries should be aware of to protect their interests in a decedent’s estate. Production of Original Will (i.e., file original will with court) custodian of will must file within 10 days after receiving information testator is dead Fla.Stat. 732.901(1) Objection to Validity of Will, Qualification of Personal Representative,  Jurisdiction or Venue if served with Formal Notice and Petition for Administration before issuance of Letters of Administration, then 20 days from date of service (read this article for more about this process Death Probate and Due Process) if served with Notice of Administration after issuance of letters of administration, then 3 months from date of service Fla.Stat. 733.212, 733.2123  Fla.Prob.R. 5.040, 5.201, 5.240 Petition for Exempt Property if no will contest, then 4 months from service of Notice of Administration if will contest, then 40 days after termination […]

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Spousal Election to Take One-Half Interest in Decedent’s Homestead Property

Written by on May 24, 2019| Posted in: Probate

A spousal election to take a one-half interest in homestead property instead of a life estate must be made within 6 months of the decedent’s death. If a surviving spouse wants 50% of the homestead property, he or she needs to give notice of the election within 6 months of death – no exceptions! Homestead property in Florida is complicated business.  Article X, Section 4 of the Florida Constitution defines “homestead” property. 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 […]

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RESTRICTED DEPOSITORY: “FOR CAUSE” ONLY

Written by on Jan 29, 2019| Posted in: General

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.”  […]

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Probate:  Enforcement of Prenuptial Agreement

Written by on Dec 3, 2018| Posted in: Probate Litigation

In the recently-decided Kellar v. Estate of John W. Kellar, 257 So.3d 1044 (Fla. 4th DCA 2018), the Fourth District Court of Appeal reminded us that a prenuptial agreement is a contract and is enforced in probate like a creditor claim. In Kellar, Decedent and his wife executed a premarital agreement, in which Decedent agreed to make a will in favor of his wife; however, during Decedent’s lifetime, his son had Decedent execute a new will excluding the wife in favor of himself.  Upon Decedent’s death, wife filed a petition seeking to admit the will favoring her and Decedent’s son filed a counter-petition seeking to admit the will favoring him.  Wife challenged son’s will on the grounds of undue influence.  The lower court found “[t]he wife presented competent, substantial evidence to raise the rebuttable presumption that the son exerted undue influence over the decedent to procure the decedent’s revocation of […]

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Will Devising Property to Fiancee Survives Subsequent Marriage and Divorce

Written by on Sep 27, 2018| Posted in: Estate Litigation

Ex-wife 1 – Incapacitated Father 0: An Unreasonable Conclusion Based on Statutory Construction Gordon v. Fishman, 253 So.3d 1218 (Fla. 2d DCA 2018) In 2005, Ron Priever executed a will devising property to his then fiancée, Silvia Gordon.  Priever and Gordon married in 2007 and divorced in 2013.  Mr. Priever died in 2015, leaving no spouse and no children and never having changed his will; however, Priever was survived by his incapacitated father, Bernard, who was the ward of a guardianship.  Bernard’s guardian petitioned for administration, treating the estate as if Priever died without a will, which would leave Bernard the intestate beneficiary.  The court granted the petition and appointed the guardian as personal representative.  Thereafter, Gordon filed Priever’s original will with the court claiming that she was the beneficiary under the terms of Priever’s will executed before their marriage and divorce.  The guardian objected, claiming that once Priever and Gordon divorced […]

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Convicted Felons Cannot Serve as Personal Representative

Written by on May 14, 2016| Posted in: Probate Litigation

In Florida, a person is not qualified to act as personal representative of a decedent’s estate if the person has been convicted of a felony.  See, Fla.Stat. 733.303.  In a recent opinion, the Fourth District Court of Appeals recently upheld the trial court’s denial of a father’s petition for administration of his daughter’s estate. (See, In re: Estate of Sharonda Renae Butler, 41 Fla.L.Weekly D979a.) The father claimed that because he was the sole heir that his prior felony conviction, which disqualifies him under the statute, should not disqualify him in his daughter’s estate.  The trial court disagreed and the Fourth DCA sided with the trial court.   Although the father’s position is understandable from a beneficiary’s view point – that as the only beneficiary there is no one else to object to or be affected by his appointment as personal representative –  it also overlooks the other large class the Florida Probate […]

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Priority in Florida Probate Proceedings

Written by on Nov 26, 2013| Posted in: Probate Litigation

It is often the case that people pass away with real property located in various states.  What occurs when there is a bona fide dispute over where your loved-one was actually domiciled on the date of his or her death?  What if there is a question as to which state should administer the estate?  The 4th District Court of Appeals recently heard a matter where there was such a dispute.  The late mother of the appellant died in Philadelphia, Pennsylvania in 2011.  The appellant subsequently opened a probate proceeding in Philadelphia seeking to probate a 2010 Will.  When the mother’s surviving husband received notification of this proceeding, he subsequently filed a petition to open a probate administration in Palm Beach County, Florida, asserting that this 2010 Will was invalid due to undue influence and requested that the estate probate her 1991 Will instead. The appellant (son) objected to the Florida […]

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What’s the hold up?

Written by on Nov 24, 2009| Posted in: General

My sister is not giving me my share of my mother’s estate – what do I do? It depends why you’re not getting your share.  Is it too early? Florida law provides the duties and powers of a personal representative commence upon appointment.  The personal representative is under a duty to marshall, settle and distribute the assets of the decedent in accordance with the terms of the decedent’s Last Will and Testament and Florida law as expeditiously and efficiently as is consistent with the best interests of the estate.     What does that mean?  Well it’s a case-by-case basis because no two estates are alike; however, the law requires certain action by the executor, designed to keep all beneficiaries informed and the process honest.  For example, within 60 days of being appointed executor, the law requires that an inventory of the probate assets be filed with the court and served […]

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The Duties of Remaindermen

Written by on Nov 3, 2009| Posted in: Estate Litigation

Duties of Remaindermen: sometimes beneficiaries have duties, too! Court Allows Claim for Establishment and Foreclosure of Equitable Lien My practice is frequently faced with inquiries regarding the rights of remaindermen.  A remainderman is the person who inherits or is entitled under the law to inherit property upon the termination of the estate of the former owner. Usually this occurs due to the death or termination of the former owner’s life estate, but this can also occur due to a specific notation in a trust passing ownership from one person to another. For example, if the owner of property makes a grant of that property “to John for life, and then to Jane,” Jane is entitled to a future interest, called a remainder, and is termed a remainderman. As is often the case, the remaindermen and the life estate owner don’t always get along.  Sometimes, the friction is caused by what […]

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Playing by the Rules

Written by on Aug 28, 2009| Posted in: General

Questions often arise concerning whether and to what extent the Rules of Civil Procedure govern probate proceedings. Generally, the Florida Probate Rules provide that certain proceedings, such as to remove a personal representative, to determine beneficiaries, and to partition property for the purposes of distribution, constitute adversary proceedings.  In addition, the court can determine any proceeding to be adversary on its own, or by motion of a party. Once a proceeding is determined to be adversary in the probate court, the Florida Probate Rules specify that the proceedings, as nearly as practicable, are to be conducted similar to suits of a civil nature and the Florida Rules of Civil Procedure are to govern. Fla.Prob.R. 5.025(d).

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