Florida Probate Litigation Lawyer Blog

Do you know of a will in South Florida that is being administered and want to object to the validity of that will, someone’s appointment as personal representative or the jurisdiction of the probate court? If so, then you must move quickly to object on these issues.

The Florida Statutes state that once you are served with a notice of administration, you have only 3 months to file any objection on such issues. Therefore, it is critical that you file your objection with the court prior to the expiration of 3 months.

The three month time period begins when you are served with notice of administration. Service of notice generally means any reasonable informal method of receiving the notice of administration. If an individual is represented by an attorney, then serving notice on an attorney would be sufficient as well. Generally, you will only get served with this notice if you are the decedent’s surviving spouse or beneficiaries.

Take for example a situation where an individual from Fort Lauderdale passes away in June. His son, a resident of West Palm Beach, was served with notice of the estate administration on July 15 by the personal representative. The son has until October 15th to file an objection with the court challenging the validity of his father’s will, the appointed personal representative, the jurisdiction of the court, or any combination of these issues.

If you or someone you know in the West Palm, Broward, or Miami-Dade area has been served with a notice of administration and wishes to file an objection regarding it, the probate litigation team at Koch & Trushin will help you obtain the proper legal relief. Please feel free to contact us for an initial first consultation.

Posted by Bradley H. Trushin | Permalink | Email This Post

Posted In: Will Contests

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A “no-contest” clause in a will is a provision typically used to scare off potential legal challenges by potential beneficiaries who feel they have not received their proper share of an estate. The provision often contains langauge similar to “anyone who challenges this will, shall forfeit any inheritance they may have under this will”. The reason for such clauses is that the testator wants his heirs to avoid any legal proceedings after his death and for his estate to be administered without any disruption.

However, both the Uniform Probate Code and the Florida Trust Code provide that a provision in a will that penalizes any interested person for contesting the will is unenforceable. Thus, these no-contest clauses, often termed “in terrorem” provisions, will not be recognized by a Florida judge in will contest proceedings.

What does all of this mean for you? If you feel cheated out of the share you received in a decedent’s will, you may contest this will despite there being a no-contest provision.

For example, your father, who was a resident of Fort Lauderdale, passes away and leaves in his will $100,000 to your brother and only $15,000 to you. Additionally, his will contains a no-contest provision. You believe your brother unduly influenced your father to gain a larger share in his will. In Florida, you may contest this will under the undue influence theory, or any other legal theory, and you will not forfeit any part of your inheritance by doing so.

If you or someone you know is interested in contesting a will to receive their proper share of an estate, it would be best to consult an attorney to accomplish that goal.

Posted by Douglas Schapiro | Permalink | Email This Post

Posted In: Will Contests

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Have you been wrongfully denied your share in a will? If so, you may want to contest the validity of that will so that you may obtain your perceived share of the decedent’s estate. A will can be challenged in a Florida probate proceeding on a number of grounds.

Fraud – A person was fraudulently induced into signing their will through lies, trickery or deceptive acts. For example, decedent’s son places a document in front of his dad stating it is a form that needs to be signed for the mortgage on decedent’s home in Miami, Florida. The truth is that the form is not a mortgage but rather a will leaving the entire estate to his son.

Duress/Coercion – A person acts under duress when an unlawful threat or pressure forces that person to do something in their will that they would not normally do. For example, decedent’s daughter of Palm Beach threatens that she will physically hurt her father, unless he rewrites his will to leave at least half of his estate to her.

Undue Influence – When a lawyer, family member, friend or confidant through immoral acts or tactics takes advantage of another to procure an advantageous provision in a will or trust. Undue influence is similar to duress without the physical pressure. For example, when decedent had a diminished ability to provide for himself, his son paid for an estate planning attorney to set up decedent’s will. The son spoke often with the attorney and was there for every meeting concerning his father’s will including the will execution. As a result, decedent left his son the entire estate.

Lack of Testamentary Capacity – A person could not have understood what they were signing when their will was executed due to Dementia, Alzheimer’s, medication, etc. For example, decedent executed a will after being medically diagnosed with organic brain damage where he did not know his name, the year, or where he was. In the will he completely excluded his children who had all treated him very well in his late years.

If the will is held invalid, the court may invalidate all the provisions of the will or only the challenged portions. Additionally, a trust can be challenged under the same grounds.

You need to contest the will as early as possible in the probate process because there is not an unlimited amount of time to contest it. If you or someone you know is interested contesting a will, it would be best to consult an attorney to discuss your options.

Posted by Bradley H. Trushin | Permalink | Email This Post

Posted In: Will Contests

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For his or her services, a personal representative of an estate is entitled to compensation from the estate assets, without a court order. Florida Statute §733.617 provides the general rule in Florida for the commission of a personal representative. The Statute provides that the commission will be presumed reasonable for ordinary services provided by the personal representative. The commission is based on the value of the estate, which includes the inventory value of the probate estate assets and any income earned by those assets during administration. The commission is calculated as follows: 3% for the first $1 million, 2.5% above $1 million and not exceeding $5 million, 2% above $5 million and not exceeding $10 million, and 1.5% for all above $10 million.

For example, assume an estate where decedent was domiciled in Palm Beach, Broward or Dade County, is valued at $20 million dollars. The personal representative is entitled to 3 percent of the first $1 million dollars or $30,000. For the amount between $1 million and $5 million dollars, the personal representative is entitled to 2.5 percent or $100,000. For the amount between $5 million and $10 million dollars, the personal representative is entitled to 2 percent or $100,000. And for the amount above $10 million and up to our $20 million dollar estate, the personal representative is entitled to 1.5 percent or $150,000. Thus, for an estate worth $20 million dollars, the personal representative is entitled to $380,000 in commissions.

In addition to this commission, a personal representative is allowed additional reasonable compensation for extraordinary services including sales of real or personal property, conducting litigation for or against the estate, any involvement in court or IRS proceedings, running the decedent’s prior business and issues with protected homestead such as with a home in Fort Lauderdale, Florida.

What if the will sets forth the compensation of a personal representative? If the compensation of a personal representative set forth in a will is different than the compensation set forth in the above referenced statute, the personal representative has a choice of taking either compensation rate. The personal representative will likely want to take the higher of the two compensation schemes. The personal representative also has the option of receiving some or none of the compensation they are entitled to.

What if there is more than one personal representative for an estate? If you have an estate worth at least $100,000 and there are two personal representatives, each personal representative can take the full commission that a sole personal representative would take. However, if there are three or more personal representatives for the estate then all personal representatives must apportion among themselves the compensation that two personal representatives would be entitled to. If the estate is less than $100,000, then one commission must be apportioned among all the personal representatives.

What if the appointed personal representative is also a lawyer and has rendered legal services in connection with the administration of the estate? Under Florida law, an attorney shall receive a fee for their legal services in addition to a full fee as personal representative.

If you or someone you know is interested in bringing an action regarding a personal representative’s compensation, it would be best to consult an attorney to establish a proper strategy to accomplish that goal.

Posted by Douglas Schapiro | Permalink | Email This Post

Posted In: Personal Representative

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If you or someone you know has been appointed a personal representative of an estate then it is important to realize that Florida law imposes certain duties on a personal representative to act in the best interest of all interested persons. One of those duties includes determining all possible identities and locations of beneficiaries of that estate.
Although a personal representative does not have to prove beneficiaries’ identities beyond all certainty, they must use reasonable diligence to determine the identity and location of those people who may be heirs to an estate.
It is important for a personal representative to keep a detailed record of their methods of investigations, when trying to determine whom is a potential beneficiary or heir of an estate. This detailed record will allow a personal representative to show that they used an effective search method and prove they have fulfilled their duty. While a personal representative has the autonomy to conduct searches in a variety of ways, the following list indicates some preferred and commonly used search tools: government records from agencies such as Social Security Administration, Internal Revenue Service, The Census Bureau, the Department of Defense, the Department of Homeland Security, and various Property Appraisers websites. Other institutional record holders such as courthouses can provide birth certificates, marriage licenses, marriage applications, death certificates, employment records, adoption applications, records of divorce, child support obligations, custody determinations, and various other administrative paperwork. Personal files and miscellaneous records can also be found from other resources that include those documents contained in hospitals and cemeteries, financial records held by banks, such as deeds to houses and automobiles. Furthermore, it may be helpful to confer with insurance companies, credit unions, credit card companies, etc. Finally, a comprehensive search can include internet searches and other records contained by various civic organizations, religious institutions, and various family records such as genealogical records, pictures and family trees.

Once the information has been collected and a personal representative can determine facts such as the city born, the maiden name, or any other information, they can use this to widen their search to others who could potentially be heirs to an estate.

As can be expected, a search for potential beneficiaries can often be exhaustive and time consuming as much information is needed. However, under Florida law, a personal representative has the duty to act expeditiously and to effectuate this purpose, A personal representative usually can act without a court order or any direction. In an attempt to find out who may be a beneficiary or heir, a personal representative may generally hire a private investigator without the court’s permission, provided that the cost to do so is not unusually great. A court will generally treat the costs incurred by hiring an investigator as those necessary in order to conduct a good faith search.

If you or someone you know has been appointed as a personal representative, it is important that you hire an experienced attorney so that they can help you to determine your rights and duties.

Posted by Douglas Schapiro | Permalink | Email This Post

Posted In: Personal Representative

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Perhaps the most important goal when it comes to settling one’s estate is to make sure that the desires of the decedent are properly met. In other words, a probate court’s goal is to make sure that the deceased’s assets are being distributed to those parties intended by the testator or those whom are legally entitled to benefit. If it can be demonstrated that a will was not settled in accordance with the decedent’s wishes, or certain individuals were improperly excluded or enriched a dispute may arise. Therefore, Florida Statute §733.903 allows for reopening of estate after it has been closed. In order to petition and then successfully reopen an estate that has been settled by a court, someone, whether in Miami, Fort Lauderdale or Palm Beach, must have good cause and for that reason, petitions to reopen estates are usually unsuccessful.

Good cause is limited to certain circumstances. For example, a trustee of an estate must show facts that allege some sort bad faith, such as fraud, or intentional errors in the initial estate determination. In some situations, motives such as greed and spite will influence an individual’s decision with regard to settling a family member’s estate. In this regard, if an estate was settled by a relative of a decedent, and this relative had reason to know that there were other family members (such as cousins, children, siblings, etc) that should also be considered heirs to the estate at issue, and the relative knowingly settled the estate without notifying or including these people, then those individuals could petition to a court to reopen the estate.
Another example that would justify the reopening of an estate under Florida law would be when a beneficiary under the will knew that the Testator was legally incompetent before settling the will, therefore making the will invalid. In other words, a person cannot a will is invalid if the testator is found to be incompetent. Incompetence can be established by legal disabilities which include being convicted of a felony, having been adjudicated as being mentally unable to understand the nature of the assets or implications of the will, or if one is under the age of 18. In estate cases, a beneficiary that knew of a Testator’s incompetence when the will was executed has a duty to notify the court and other beneficiaries. If it can be shown that the beneficiary knowingly neglected this duty, the other beneficiaries could reopen the estate if they properly petition the court.

When a petition to reopen an estate is filed, a probate court can review the record of the closed estate to determine whether there is any factual basis for the allegations that would lead to the petition. A unique feature of this review that distinguishes it from other civil courts is that the probate court can look to any factual circumstances surrounding the matter at hand, meaning that it does not have to rely solely on the complaint and the record. Therefore a party can introduce new evidence, which the probate court is allowed to take into consideration when deciding whether or not to reopen the estate. The complexity and unique review process by the court makes the hire of an experienced and knowledgeable attorney crucial for any individual that is looking for a favorable result.

If you or someone you know is interested in reopening an estate so that an individual may be properly included as an heir, it would be best to consult an attorney to establish a proper strategy to accomplish that goal.

Posted by Bradley H. Trushin | Permalink | Email This Post

Posted In: Reopening an Estate

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When is a personal representative subject to personal liability? As a general rule, a personal representative is not personally liable for liabilities that arise out of the personal representative’s actions pursuant to administration of the estate. A personal representative may nevertheless subject themselves to personal liability.

In Florida, unless otherwise provided by contract, a personal representative is not personally liable on contracts entered into on behalf of the estate. However, a personal representative will be personally liable on a contract for attorney’s fees.

If the personal representative is personally at fault, he or she may be personally liable for obligations that arise from the control or ownership of the estate or for any torts committed by the personal representative during the administration of the estate. For instance, if the personal representative committed fraud against a creditor of the estate, that creditor can then sue the personal representative for damages incurred by the personal representative’s fraudulent acts.

All contracts entered into by a personal representative in their capacity as a fiduciary of the estate subjects the personal representative to liability in their capacity as a personal representative, but not individually. In other words, if an independent contractor sues the estate for breach of contract, that independent contractor would name the personal representative of the estate as a defendant, but only in his or her capacity as personal representative. Thus, when suing the estate a plaintiff would identify the defendant as “Joe Smith, as Personal Representative of the Estate of Sally Johnson.”

However, such contracts only subject the personal representative to personal liability if the contract causes the personal representative to breach their fiduciary duty to the estate and the beneficiaries of the estate. Claims against the personal representative in their capacity as personal representative of the estate may also be brought against the personal representative by the estate itself.

If the beneficiaries of an estate later sue the personal representative for breaches of fiduciary duty or some other action, any issues of liability between the personal representative as an individual and the estate may be determined in a proceeding for indemnification, surcharge or accounting or other appropriate proceeding.

If you or someone you know is interested in bringing an action against a personal representative, it would be best to consult an attorney to establish a proper strategy to accomplish that goal.

Posted by Douglas Schapiro | Permalink | Email This Post

Posted In: Liability of Personal Representative

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How can one determine whether a personal representative is qualified to be the personal representative? Generally, in the State of Florida any person who is sui juris and is a resident of Florida at the time of the death of the decedent is qualified to act as personal representative. A person is sui juris if they have the capacity to manage their own affairs and are not under any legal disability. A legal disability is any characteristic which by operation of law precludes an individual from having the legal capacity to perform an act. Some legal disabilities that may disqualify a person from acting as a personal representative include being convicted of a felony, having been adjudicated as being mentally or physically unable to perform the duties or if one is under the age of 18.

For example, when Aunt Alice was thirty-five years old, she had a new will drafted and it was validly executed. The will named her twelve year old nephew, Ned as the personal representative of the estate. If Aunt Alice lived to be over eighty years old that would mean her nephew Ned was nearly sixty years old at the time of her passing. Ned’s jealous brother Benjamin contested Ned’s qualifications as the personal representative, alleging that Ned was not qualified to be the personal representative of Aunt Alice’s estate because when the will was executed, Ned was not sui juris because he was only twelve years old at the time.

Assuming Ned still has legal capacity to conduct his own affairs, has not been convicted of a felony and is mentally and physically able to perform the duties of a personal representative, Ned has satisfied all of the qualifications required of a personal representative.

As long as the personal representative is qualified when the decedent dies, it does not matter whether the personal representative was qualified when the decedent’s will was executed.

If you are interested in contesting the qualifications of a personal representative, you should consult an attorney to establish a proper strategy to accomplish that goal.

Posted by Douglas Schapiro | Permalink | Email This Post

Posted In: Personal Representative

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