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Florida Probate Blog

Posts Tagged: probate

What is probate?

Written by on Oct 28, 2008| Posted in: General

The legal process of proving before a court of competent jurisdiction that a document offered as the last will and testament of a deceased person is genuine.  In addition to proving a will, it is the process of appointing an executor (sometimes referred to as a “personal representative”), and settling an estate, which includes marshalling the decedent’s assets and giving the decedent’s creditors an opportunity to have their valid claims resolved before the beneficiaries receive their distributions.

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Florida Intestacy and Illegitimate Children

Written by on Oct 24, 2008| Posted in: General

Morality and the Probate Code: The Law’s Treatment of Illegitimate Children and IntestacyIt wasn’t too long ago that having a child born out of wedlock was universally considered taboo, thereby placing a stigma on the child which had significant social and economic implications through no fault, choice, or conduct of the child. Today, evidence suggests that one in three children born in our great country is born out of wedlock. Generally, a child born out of wedlock is also thrust into our world with a legal disadvantage. The child’s intestacy rights are no exception to this general rule. While the intestate succession system in Florida, and most other states, was written to provide an inheritance for a child through receiving the bulk of his or her parent’s estate, non- marital children are treated differently than marital children. Many jurisdictions require non-marital children to jump through many hoops before they can […]

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Estate of Carpenter

Written by on Oct 24, 2008| Posted in: Probate Litigation

In Re:  Estate of Carpenter – the presumption of undue influence in Florida and the Florida Probate Code. I have written at great length of the various factors I assess when determining whether to accept a case for prosecution. I now turn my attention to the Florida decisional case law from the Florida Supreme Court in the seminal case of In re Estate of Carpenter, 253 So.2d 697 (Fla. 1971) its practical application, and the Florida legislature’s response through enactment of section 733.107 of the Florida Probate Code which today supersedes Carpenter. When the validity of a will or trust is challenged based upon the theory of undue influence, the challenger must prove the instrument at issue (will or trust document) resulted from the exercise of undue influence on the mind of the person executing the will or trust instrument. The Carpenter decision from the Florida Supreme Court sets forth […]

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What are probate records and where are they kept?

Written by on Oct 22, 2008| Posted in: General

Probate records are those documents found and filed in a probate court. A probate court is responsible for keeping the original Last Will and Testament of a person and keeping original codicils (Will updates) on file for review and inspection. Most probate courts have modernized the probate record-keeping process by automating the retention and review of pleadings, motions, and correspondence filed with the probate court. If you are curious about what documents are filed with the probate court for a deceased person, start by contacting the city/county for the state where the decedent resided (which may be different from where the decedent died) and ask how best to review the probate records. After time, probate records will be “archived” or stored which usually happens when an estate is closed for a sufficient period of time. Probate Records Research Steps 1. Determine where the decedent was living at time of death. […]

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What is a Probate Estate?

Written by on Oct 21, 2008| Posted in: General

A decedent’s probate estate refers to all of the decedent’s assets that require probate, which is the court-supervised marshalling and distribution of a decedent’s sole-named assets.  As a rule of thumb, if an asset is in the decedent’s name alone and is not payable to anyone else (ex., pay on death account, life insurance), then that asset will need a court probate process to distribute to beneficiaries.  The probate estate may be only part of the decedent’s whole estate.  For example, a decedent was worth $5,000,000 at the time of death; $3,000,000 was in a living trust, $1,500,000 was jointly-owned, and a piece of real estate worth $500,000 was in his sole name.  The decedent’s “gross estate” would be $5,000,000, but his “probate estate” would only be $500,000.

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Undue Influence: Lawyers Who Name Themselves or Family Members as Beneficiaries of Wills

Written by on Oct 21, 2008| Posted in: Probate Litigation

All too often I am asked to investigate and ultimately prosecute will contests which involve attorneys playing an active role, not only in the procurement of the will, but in having themselves or their relatives named as beneficiaries under the will. The Florida Supreme Court has adopted a portion of the American Bar Association’s Model Rules of Professional Responsibility, and in particular, the prohibition against lawyers playing a role in the drafting and execution of a will or trust where they are named as a beneficiary. Rule 4-1.8. Conflict of Interest; Prohibited and Other Transactions (c) Gifts to Lawyer or Lawyer’s Family. A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related […]

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Amazing Grace: Religion and Undue Influence

Written by on Oct 17, 2008| Posted in: Estate Litigation

It is no secret that many priests, clergyman, and spiritual advisors, share a deep, committed and trusting relationship with their followers and church congregation. The degree and extent of this trust grows with time, and recent cases I have handled in Florida lead me to conclude that the elderly often share a very special relationship with their spiritual advisors and others who the elderly person views as in a position of religious authority or spiritual leadership. Because the nature of this relationship often equates with what the law defines as a confidential relationship, some legal commentators have recently suggested that the law creates a per se rule raising the presumption of undue influence when an eleventh hour will is executed and religious leaders are active in its procurement, or involved in the will’s preparation and are named as beneficiaries. As Professor Jeffrey G. Sherman recently stated: “The best solution to […]

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Revocation of Will

Written by on Oct 15, 2008| Posted in: Probate Litigation

A Look at the Requirements of Will Revocation by Physical Act Flush It Down the Toilet! The Law Florida is one of several states that have a strict requirement for revocation of a person’s Will. Florida law allows a person to revoke their will by either written instructions, or by physical act. For revocation by writing, the document must be a subsequent Will, codicil, or other writing executed with the same formalities required for the original Will (signed at the end and witnessed.) See Fla.Stat. §732.505. Florida Statutes section 732.506 sets forth the requirements for revocation by act: “A will or codicil is revoked by the testator, or some other person in the testator’s presence and at the testator’s direction, by burning, tearing, canceling, defacing, obliterating, or destroying it with the intent, and for the purpose of revocation.”

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What is Probate Law?

Written by on Oct 14, 2008| Posted in: General

Probate is the legal process of settling the estate of a decedent, specifically resolving all claims made by creditors (for example, credit card companies, hospitals, automobile loans) and distributing the decedent’s property to the beneficiaries named under a valid will or, if there is no valid will, to the beneficiaries named in the state intestacy laws.

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Do I Have a Case? The Presumption of Undue Influence?

Written by on Oct 14, 2008| Posted in: Estate Litigation

Do I Have a Case? (Part Four) As I have indicated in prior posts, there are certain categories of evidence that I look for in order to prove undue influence, which has been defined by Florida courts as conduct amounting to overpersuasion, duress, force, coercion, or artful or fraudulent contrivances to such a degree that the free agency and will power of the testator is destroyed. In re Carpenter’s Estate, 253 So. 2d 697 (Fla. 1971). In Florida, the legislature has created a presumption of undue influence.  What does this mean?

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