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Florida Probate Blog

Posts Tagged: probate

Intestacy and Same Sex Couples: Probate Needs Progressive Help from Legislatures

Written by on Mar 30, 2009| Posted in: Probate Litigation

The laws of intestacy exist in every state and take effect whenever a person dies without a Last Will and Testament or where a Last Will and Testament is judicially voided. The purpose of the intestacy laws, which distribute inherited wealth according to the table of consanguinity (closest biological heirs), is to protect the family of the deceased. The law presumes that the deceased relative intends to distribute his or her wealth to his or her loved ones. Many legal observers have criticized the probate laws of the states, including Florida, for failing to adapt to our changing society and the nuclear family. For many, the intestate system is flawed because it fails to consider the effect upon people who cannot get married: those persons in same sex partnerships.

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How Far May the Witness Wander?

Written by on Mar 12, 2009| Posted in: Probate Litigation

Fifth District Court of Appeals Shed’s Light on the meaning of the requirement that witnesses must sign in the testator’s presence. A frequent issue in contests involving the validity of instruments, whether a last will and testament, trust or trust amendment, or even a prenuptial agreement, is whether the instrument was properly executed or signed. Section 733.502 of the Florida Probate Code provides that, among other things, it is essential to the validity of a last will for the witnesses to sign in the testator’s and each other’s presence. An improperly attested, signed or executed last will cannot be admitted to probate.

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Hey! Where’s My Gift?

Written by on Mar 9, 2009| Posted in: Probate Litigation

Ademption: Specific Gifts Not Owned At Time of Will Execution Do Not Adeem Ademption is a probate concept wherein a determination is made as to the disposition of property gifted under a person’s will, but not in existence (or not in the person’s probate estate) when the person dies. For specific property, the general rule is that the property is adeemed, and the gift fails. For example, if a person gifts a piece of jewelry to a specific person, but the jewelry was not owned by the person at the time of her death, the gift would be adeemed and the person would receive no gift at all. However, a general gift, usually cash gifts, is never adeemed. If there is not enough money in the probate estate to satisfy the gift, then other assets in the residuary estate are liquidated or sold to raise the money necessary to satisfy […]

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What happens to frozen sperm after the donor’s death?

Written by on Mar 6, 2009| Posted in: General

Joseph and Iris Kievernagel were married for ten years and then decided to have a child using in vitro fertilization (“IVF”). After the fertility center inseminated Iris with Joseph’s sperm, it also froze a sample of his sperm as in case there was a need for it in the future. Joseph signed an agreement indicating his choice to have the frozen sperm discarded upon his death instead of authorizing its release to Iris. After Joseph was killed in a tragic helicopter accident, Iris petitioned the probate court for an order to require the fertitlity clinic to hand over Joseph’s sperm.

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Presumption of Death

Written by on Mar 4, 2009| Posted in: General

Can the estate of a missing person be probated? Sometimes individuals disappear or have an accident and their bodies are never recovered.  In cases like these, where no death certificate has been issued by the state, there are rules in place which allow interested parties to proceed with probate administration absent a death certificate. Florida Statute section 733.209 provides that:  Any interested person may petition to administer the estate of a missing person; however, no personal representative shall be appointed until the court determines the missing person is dead. So, how does a family member get the court to determine that a missing person is dead?  Florida Statute 731.103 pertains to evidence as to death or status and provides in subsection (3) that: A person who is absent from the place of his or her last known domicile for a continuous period of 5 years and whose absence is not satisfactorily explained after […]

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Survivorship Accounts

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

Does creation of joint accounts with survivorship rights alter the dispositive provisions of a pre-existing last will and testament? The question of whether, and under what circumstances, a joint, Totten, or tentative trust in bank deposits can be revoked, either expressly or impliedly, by a written or oral declaration made by the settlor during his lifetime or by the terms of the settlor’s will is often debated among probate litigators and judges. There are few appellate opinions in Florida providing clear guidance for some scenarios. However, Florida and most other states follow the rule adopted by the Restatement of Trusts 2d §58 comment (c) that a tentative trust is revoked by the depositor’s will, if, by its terms, it indicates explicitly or implicitly that the depositor intended to effect such a revocation. Litsey v. First Federal Sav. & Loan Association 243 So.2d 239 (Fla. DCA 1971) (recognizing rule.)

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What is a Prenuptial Agreement?

Written by on Jan 30, 2009| Posted in: Estate Litigation

First District Upholds Integrity of Contracts in Recent OpinionA prenuptial agreement is a contract entered between partners before marriage, or civil unions in those jurisdictions recognizing those. The contract’s contents typically include provisions for the division of marital assets and spouse support in the event the relationship terminates. Prenuptial agreements usually arise in two very different legal contexts: (1) divorce and (2) probate. In Florida, the rules applying to these two vastly-different courtrooms are exclusive of one another. My experience has been dealing with prenuptial agreements in the probate arena, where the marital relationship has been severed not by divorce, but by the death of one of the spouses.

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Pretermitted Children

Written by on Jan 20, 2009| Posted in: Estate Litigation

Evidence Must Be Compelling to Disinherit What is a Pretermitted Child? A pretermitted heir describes a person who would likely stand to inherit under a Last Will and Testament, except that the person who wrote the Will did not know or did not know of the child at the time the Will was written. Many jurisdictions have enacted statutes that allow a pretermitted child to demand an inheritance under the Will Florida’s probate code provides when a testator omits to provide by Will for any of his or her children born 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 if the testator had died intestate, unless it appears from the Will that the […]

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Same Sex Couples and Probate

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

How to Overcome the Disparate Impact of Succession Statutes, Inheritance Laws, and the Uniform Probate Code Laymen and probate practitioners may debate issues concerning same sex marriages. However, what is not debatable is that same-gender couples lack true donative freedom under current probate law. Brian Edwards explores the problems facing same sex couples in the enaction and enforcement of their testamentary plans in his recent and well written article, True Donative Freedom: Using Mediation to Resolve the Disparate Impact current Succession Law Has on Committed Same-Gender Loving Couples, 23 OHIO ST.J. ON DISP. RES. 715 (2008). Edwards suggests that mediation can be used to create a plan for same sex couples for enforcement of their donative intentions. He also argues that mediation can be used to solve problems and address other issues that typically arise between the surviving blood relatives and the surviving partner in a committed same sex relationship.

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Paternity: Can a Decedent’s Body Be Exhumed for Genetic Testing?

Written by on Jan 8, 2009| Posted in: Estate Litigation

State’s highest court authorizes opening of decedent’s grave to resolve a claim by an individual to be the decedent’s child. The rights of relatives to the body parts of their deceased family members has been the topic of much legal debate. [See Blog Entry dated September 19, 2008 Wait, Don’t Throw That Away! Do A Decedent’s Next Of Kin Have A Protected Right In The Decedent’s Blood Samples, Tissue, Organs And Other Body Parts That Have Been Removed And Retained By A Coroner For Forensic Examination And Testing?] The extent to which a court has authority over the dead body of the decedent was examined in the recent published opinion by the Maine Supreme Court in In re Estate of Kingsbury, 946 A.2d 389 (2008). Estate of Kingsbury involved the probate of the estate of Bruce H. Kingsbury, who died in 2006, leaving a will nominating his daughter, Robin Whorff, […]

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