Florida Probate Litigation Lawyer Blog

As a named beneficiary in a Florida will, you have a right to a see a copy of the document. In addition, you have a right to know about all the assets and distributions resulting from the probate of the document. This right is enforceable even if you are only receiving a minor or nominal amount from the will. Thus if a decedent, who resided in Aventura, Florida prior to his death, leaves you only $5 in his will, you are still entitled to see a copy of the entire document and any of the pleadings that resulted from any litigation resulting from the probate of the will.

However, a will is an ambulatory document, meaning it is not operative until the creator of the will dies. Thus, in Florida, a person named as a beneficiary in a will is not entitled to see the contents of that will until the testator dies and the will becomes operative.

In addition, the Florida Statutes under Section 736.0813, give a similar right to all beneficiaries of an irrevocable trust. The beneficiaries of such a trust are entitled to a complete copy of the trust instrument, the right to accountings and any other rights relating to the administration of the trust. Generally, the beneficiaries of a revocable trust are not entitled to a copy of the trust document.

Florida law has strong safeguards for the protection of beneficiaries under a Florida will. Not only do you have a right to a copy of all documents, but you also should have received notifications regarding the probate of the will. If you or someone you know lives in the West Palm, Fort Lauderdale or Miami-Dade area and believe they were not properly given the right to see the contents a Florida will, 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

Bookmark:

In our modern society, individuals disappear or go missing in increasing numbers. What happens to the Estate these missing persons leave behind when they or their bodies are never found and there is no death certificate or confirmation that these individuals are truly gone? For instance, if boating enthusiast Dan from Fort Lauderdale decides to take his Sea Ray for a night cruise and he is lost at sea, can his estate be probated if his body is never found?

The State of Florida has rules in place which will allow interested parties to proceed with probate administration of a missing person’s estate absent a confirmation of death. Florida Statute § 733.209 states 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.” The question then becomes, how does the court determine that the missing person is actually dead? Florida Statute § 731.103(3) provides that “A person who is absent from the place of her or her last known domicile for a continuous period of 5 years and whose absence is not satisfactorily explained after diligent search and inquiry is presumed to be dead. The person’s death is presumed to have occurred at the end of the period unless there is evidence establishing that death occurred earlier. Evidence showing that the absent person was exposed to a specific peril of death may be a sufficient basis for the court determining at any time after such exposure that he or she died less than 5 years after the date on which his or her absence commenced.” In light of these Florida statutes, the answer is “yes,” a missing person’s Estate can be probated. The court can enter an order commencing probate proceedings on a missing person upon a finding of sufficient evidence to presume death.

If you or someone you know has gone missing and is presumed to be deceased, it is important that you hire an experienced attorney so that they can help you determine your rights and receive your proper share of an estate.

Posted by Douglas Schapiro | Permalink | Email This Post

Posted In: Opening an Estate

Bookmark:

Even the most carefully crafted wills may someday need to be altered or revoked entirely in order to adapt to the changes in one’s life. There are three mechanisms provided by the Florida Probate Code that revoke a will: (1) by written instrument, (2) by physical act, or (3) by operation of law. These apply throughout the state of Florida, including West Palm Beach, Fort Lauderdale and Miami.

The ideal method of revocation is outlined in Florida Statute 732.505, which provides that a will can be revoked by executing another will, codicil, or other written document expressly declaring the intent to revoke a previous will. Additionally, any terms in a subsequent will revoke provisions of a previous will to the extent that they are inconsistent. Because it provides more precision and certainty over the other two methods, this method is the preferred means of revoking a will. However, because any such instrument must be executed with the same formalities as a will itself, one should always consult with a skilled attorney to ensure that the true intent of the testator is realized.

Florida Statute 732.506 allows a testator to revoke a will by burning, tearing, canceling, defacing, obliterating, or otherwise destroying the original copy. This method is not at all encouraged, as it must also be shown that the will was destroyed with the intent, and for the purpose, of revocation. Unless one destroys their will, for example, in the middle of a crowded football stadium while clearly declaring their intent to the revoke the will, it will always be a challenge during the probate process to prove intent to revoke. Thus, this self-help method should only rarely be employed and one should instead consult with a professional.

The third method of revocation is less of a planning device and more the effect of changing circumstances in one’s life. For example, Florida Statute 732.507 sets forth that if the testator gets a divorce after the execution of a will providing for their spouse, unless the will expressly provides otherwise, that spouse will be excluded under the will. The effect of such changing circumstances on a will underscores the need to speak with a probate lawyer to ensure that one’s property is devised as intended.

If you or someone you know lives in South Florida and would like to amend or otherwise revoke a previous will, or even just evaluate your rights under someone else’s will, the probate litigation team at Koch & Trushin will help you assert your rights. Please feel free to contact us for an initial consultation.

Posted by Daniel Louis Koch | Permalink | Email This Post

Posted In: Revocation

Bookmark:

Pauline, a lifelong resident of Broward County, Florida, has finally decided to consult with an attorney about drafting a will. Included among the property she wishes to devise is her house, stocks, bonds, her car, savings accounts, and personal property contained inside her home.

An avid collector of antique vases for almost 30 years, Pauline has accumulated a large assortment that brings her much joy, although most of the pieces themselves are not valuable. Upon her death, she wishes to distribute specific vases among her many grandchildren.

As a general rule, it is difficult to successfully update or modify gifts in a will without executing a new will or create an amendment to a will, known as a codicil. Although it makes sense to update a will when one wishes to make significant modifications in regard to high-valued property or the people receiving under a will, it is often a far too complicated process when only tangible personal property, such as the antique vase collection, is concerned. Pauline is constantly adding new items to her collection, and as the proud mother of several children, welcomes a new grandchild into her life almost every year.

Florida Statute 732.515 provides a convenient exception to the rigid general rule described above. It allows a testator (the person creating a will) to maintain a list or statement that is referenced in a will instructing how to distribute tangible personal property. Thus, this provision of the Probate Code gives Pauline the ability to keep a running list of her personal property, such as her vase collection, and update it as often as she pleases without going through the formalities of updating her will.

Note, however, that only tangible personal property may be referenced in a separate writing under Florida Statute 732.515. Property such as Pauline’s house, stocks, bonds, car, savings accounts, etc. cannot be devised in this manner. Additionally, such tangible personal property may not have been used in trade or business, or be property that is otherwise disposed by the will itself.

To be valid, this separate writing must be signed by the testator and adequately describe the items of personal property and the people they are to go to with reasonable certainty. It is important to note that if more than one separate writing disposing of personal property in this manner exists, the most recent writing will control.

Most property of value, however, does not qualify for the limited exception granted by Florida Statute 732.515. Often times, making additions or modifications in a will requires the help of trained professionals to ensure they will be executed as intended. If you or someone you know lives in the West Palm Beach, Fort Lauderdale or Miami-Dade area, the probate team at Koch & Trushin will help create a separate writing for the disposition of tangible personal property, or otherwise help you establish or modify a will. Please feel free to contact us for an initial consultation.

Posted by Douglas Schapiro | Permalink | Email This Post

Posted In: Creating Estate Documents

Bookmark:

This article contrasts the laws regarding disinheritance of a child in a Florida will with our earlier article regarding disinheritance of a spouse. Florida law has some of the strongest legal protections for minor children who are left out of a will.

While a Florida resident is entitled to disinherit their adult children, they cannot completely disinherit their minor children. Florida’s Constitution contains homestead laws which prohibit the head of a family from leaving his or her residence to someone other than their surviving spouse or minor child if either is alive. Under the homestead laws, a surviving spouse is given use of the property for their remaining life and then it passes to the minor children. Therefore, if decedent attempts to devise their Boca Raton home at death to a friend, the homestead laws will prevent this devise. The house will go first to decedent’s surviving spouse, if any, for life and then to their children who were minors at the time of the death. The homestead restrictions provide protection for the decedent’s family by ensuring that they cannot disinherit their dependents.

Additionally, Florida law gives relief to minor children who were born after the execution of a will. Under Florida law, if a child is born to or adopted by a Florida resident after the execution of their will and the will does not provide for a child, that child is deemed a pretermitted child and as a result is entitled to a share of the decedent’s estate. That share is roughly equal to their intestate share which is what the child would have received had the decedent died without a will.

Finally, if a decedent did intend to disinherit either their minor or adult children it should be clearly stated in their will. If it is not clearly stated, than this disinheritance may be grounds for a probate litigation proceeding. The will can be attacked on the grounds that the testator was not of sound mind or was unduly influenced when he or she drafted the will and left out the child(ren).

If you or someone you know lives in the West Palm, Fort Lauderdale or Miami-Dade area and believe they were improperly disinherited from a will or not given their rightful share, 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

Bookmark:

Under Florida Statute 732.201 the surviving spouse of an individual who dies and is also domiciled in Florida, has a right to a share of the elective estate of the decedent. This right gives the surviving spouse up to 30% of the decedent’s elective estate, even if they were expressly disinherited in a will or trust. Thus, even if a will specifically disinherits a spouse, Florida Law will override the terms of the will and apply the spouse’s right to an elective share. For this right to apply, the decedent must have been married and must have been domiciled somewhere within Florida, whether it was Palm Beach, Broward or Dade county, at the time of death.

A surviving spouse does not have to be completely disinherited to opt for the elective share. The elective share can be elected whenever a surviving spouse stands to receive less than 30% of decedent’s elective estate. The only exceptions to this rule come from valid pre nuptial agreements, post nuptial agreements and effective waivers by spouses of their elective share rights.

The 30% is calculated from the “elective estate” of the decedent’s assets. The elective estate tends to include a larger scope of assets than those included in decedent’s probate estate. Florida Statute 732.2035 lists those probate and non-probate assets which are included in the elective estate. Those assets include, but are not limited to, property owned by the decedent, revocable trust assets, funds from payable on death accounts, and any property given away within one year of decedent’s death.

The elective share calculation can be complicated but an experienced probate litigation lawyer can help you evaluate your rights under Florida’s elective share laws. Additionally, acting fast is crucial because a surviving spouse has only 6 months from the time they receive notice of the estate’s administration to make the Florida elective share election. If you or someone you know lives in the West Palm, Fort Lauderdale or Miami-Dade area and was improperly disinherited from a will or not given their rightful share, 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 Douglas Schapiro | Permalink | Email This Post

Posted In: Elective Share

Bookmark:

Personal representatives in Florida are typically responsible for administering estates. While administering the estate, they have a duty to act solely for the benefit of the estate beneficiaries. If the personal representative fails in their duty to properly administer the estate, they can be personally liable to the other beneficiaries for their mistakes. Mistakes include an act or failure to act by the personal representative that causes waste or mismanagement of the estate’s assets. An example of which would be imprudently investing the estate’s assets or failing to properly pay a creditor’s claim when due. A surcharge action must be filed in the proper circuit court where probate case is filed, whether it is in Palm Beach, Fort Lauderdale or Miami.

To remedy for such mistakes, beneficiaries may seek to remove the personal representative. Additionally, those beneficiaries may pursue a surcharge action against the personal representative. The purpose of a surcharge action is to restore the losses to the estate caused by the breach of duty of the personal representative. Under Florida law, unless waived, a personal representative is required to post a bond with the court. When a beneficiary brings a surcharge action they are bringing an action against the personal representative stating that such individual has misappropriated or misused estate funds during the administration. If the surcharge action is successful, the bond company must then reimburse the estate for those amounts, up to the total amount of the bond.

Surcharge actions are intense and complicated procedures that involve tracing assets as well as reviewing business records. If you live in the West Palm, Broward or Miami-Dade area and believe a personal representative is not properly administering an estate, 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 Daniel Louis Koch | Permalink | Email This Post

Posted In: Liability of Personal Representative

Bookmark:

While millions of Americans currently lease safe deposit boxes, few actually pay attention to the question of who should have access to their box at death. Additionally, many individuals choose to leave their Florida will in a safe deposit box. This situation can create problems because under Florida law, a court order is necessary to remove all contents from a safe deposit box unless there is a joint owner, such as a spouse, on the account.

Florida statute 655.935 helps to deal with the issue of a decedent dying when their will is in a safe deposit box. Once satisfactory proof of the decedent’s death is given to the bank, the statute grants limited access to the spouse, a parent or an adult descendant to open the safe deposit box that was leased by the decedent. The statute states that in the presence of a bank officer, the individual may open the safe deposit box and remove the will of decedent along with any burial instructions or life insurance policies found within the box. Nothing else may be removed. The will must then be deposited with the court having probate jurisdiction, whether that is in Palm Beach, Broward or Miami-Dade county.

Once the will becomes admitted to probate by the court, a personal representative will be named. The personal representative is then granted access under Florida statute 733.6065 and court order to open and inspect the contents of the safe deposit box. The personal representative is required to file an inventory of the box to the court within 10 days of opening it. Additionally, the personal representative has a right to remove all contents of the box.

If you or someone you know in the West Palm, Broward, or Miami-Dade area needs help getting a Florida will that is in a safe deposit box, 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 Douglas Schapiro | Permalink | Email This Post

Posted In: Opening an Estate

Bookmark:

Whether an individual dies testate (with a will) or intestate (without a will), there are always expenses and obligations that must be paid by the estate. Whether the estate is in Palm Beach, Miami or Fort Lauderdale, each estate has funeral costs, there are probably some medical expenses, there may even be back taxes that must be paid. Those expenses and obligations are paid prior to the beneficiaries receiving their share, if any, of the remaining estate. Florida Statute 733.707 governs the order of payment:

Class 1 – Costs of the estate administration and fees of the personal representative and attorneys.
Class 2 – Reasonable funeral expenses, not to exceed $6,000.
Class 3 – Debts and taxes that have preference under federal law.
Class 4 – Reasonable and necessary medical expenses of the last 60 days from the illness of the decedent. This includes compensation of professional individuals caring for the decedent.
Class 5 – Family allowance. This allowance can be up to $18,000 and provides the spouse and family with some money to live on during the probate administration.
Class 6 – Past due child support that is court ordered.
Class 7 – Debts that come about after death from the continuing on of decedent’s business.
Class 8 – All other claims, including judgments and decrees.

It is up to personal representative to properly ensure that the expenses and obligations get paid. After the personal representative pays a specific class, if there is not enough remaining money to pay the creditors of the next class, then those creditors are paid ratably in proportion to their claims. If an estate cannot pay all of its claims through Class 8, then it becomes insolvent. If the estate becomes insolvent, the beneficiaries receive nothing. For example, an estate may only have enough money to pay the costs of the probate administration from Class 1 and Class 2 expenses for the funeral home in Aventura. This means, if properly paid, no money will be left for the other classes or beneficiaries.

Formal Florida probate, both testate and intestate, is a long and complicated process. It can often be difficult to determine if you as a creditor or beneficiary received your rightful share of an estate. If you live in the West Palm, Fort Lauderdale, or Miami-Dade area and feel you received your improper share of an estate, 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 Douglas Schapiro | Permalink | Email This Post

Posted In:

Bookmark:

Intestate estates in Florida commence when any interested person (heirs or creditors) files a petition for administration with the local probate court of decedent. For example, if decedent died while domiciled in West Palm Beach, the probate court jurisdiction would be within the 15th Judicial Circuit. The petitioner must state their interest in the estate, information about the last known address of decedent, names of known beneficiaries, a request for the court to appoint a Florida personal representative and finally in an intestate estate, a statement that after exercising reasonable diligence to locate any unrevoked wills, that none can be located.

Under Florida laws of intestacy, the surviving spouse (if any) is entitled to preference in being appointed the personal representative of an estate. If there is no spouse, then a majority in interest of the heirs may select the personal representative. In either case, the court has final say in the decision. Once the court makes that final decision, letters of administration are issued which state that the personal representative has been appointed and qualified by the court to handle the deceased’s estate. The personal representative must be represented by a Florida licensed attorney throughout this process.

After the Letters of Administration are issued, the personal representative must then serve this notice to all known beneficiaries and creditors. A Notice of Administration or Notice to Creditors is then sent to any known party who may have a claim against the estate of the deceased Florida resident. Any interested person who receives notice has three months to file an objection challenging the qualification of the appointed personal representative, the venue, or the jurisdiction of the court.

Once the Florida Probate Court determines that all costs of administration and valid creditors' claims have been paid, the next step is to distribute the Florida probate assets via Chapter 732, the Florida Statutes governing intestacy.

Formal Florida Probate, even under intestacy, is a long and complicated process. It can be often be difficult to determine if you received your rightful share of an intestate estate. If you live in the West Palm, Broward, or Miami-Dade area and feel you received your improper share of an estate as a beneficiary or creditor, 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: Opening an Estate

Bookmark:

Under Florida Statute 732.901, any document purporting to be a last will must be filed with the clerk of court within 10 days after receiving notice that the testator (creator of the will) is dead. Even if you believe that the will is invalid or procured by undue influence, Florida law still requires that the custodian of the will deposit the will with the court. Whether filed in Miami, Fort Lauderdale, or Palm Beach, it is up to the probate judge to decide if the will is valid for probate.

Florida Statute 732.502 sets forth the requirements for a will to be valid. Any document attempting to devise the property of a deceased person after his or her death must be executed or signed by the testator in the presence of two attesting witnesses. You must properly prove this execution so that the probate judge is satisfied. This often involves additional court proceedings and having the witness actually take oaths in front of the presiding judge.

The simplest way to prove proper execution of a will in Florida is by utilizing a self-proving affidavit. Florida Statute 733.201 states that self-proved wills may be admitted to probate without further proof. The self-proving affidavit, defined by Florida Statute 732.503, must be attached to the will. It states that the will was signed by the two witnesses in the presence of the testator, who also signed the affidavit. This affidavit must be notarized by a notary public who takes this sworn statement from the witnesses and from the testator. The self-proving affidavit must specifically contain the aforementioned items or the will won’t be admitted to probate. Without a self-proving affidavit, a witness to the will execution must take an oath before the circuit judge at the testator’s death that the will was properly executed, or if that is not feasible, then the personal representative must take the oath. Either way, it is a burdensome process.

If you live in the West Palm, Broward, or Miami-Dade area and believe that a friend or relative’s will was improperly admitted into probate, 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 Douglas Schapiro | Permalink | Email This Post

Posted In: Creating Estate Documents

Bookmark:

Under Florida Statutes Chapter 735, when a probate estate is valued at less than $75,000.00, the estate qualifies for summary administration, a simplified and much quicker probate process. It is important to remember, however, summary administration is not the default type of administration. To obtain summary administration, a petition must be filed by any beneficiary within two years of the death of the decedent. Once the court approves the petition, the court may enter an order allowing the immediate distribution of the assets of the estate to the persons entitled to them. While summary administration may seem ideal for smaller estates, there may be some disadvantages for estates in Miami, Fort Lauderdale or Palm Beach if, for instance, real property owned by the estate is in foreclosure.

When calculating the assets subject to probate, it is necessary to know that most stock accounts, IRAs, life insurance and primary residences are not usually subject to probate and therefore would not be included in the $75,000 dollar calculation. For most estates, the most valuable asset is the primary residence. When this qualifies under Florida homestead, the residence passes directly to their heirs as proscribed by the Florida Constitution and therefore is not included in calculating the probate estate and not part of the $75,000 to determine whether the estate qualifies for summary administration.

Summary administration may seem like a great idea for an efficient distribution of a smaller estate. One major disadvantage, however, with summary administration is that a personal representative will not be appointed by the court. If a decedent died without a will, the court will not name a personal representative in a summary probate administration as they would in a formal probate administration. There is only a petitioner. This is the individual who files the petition for summary administration. A petitioner is not given the same authority as a personal representative to inquire, manage or dispose of assets as the personal representative does. This can cause a lot of problems with the administration of the estate. For instance, if decedent dies with a home in foreclosure, a personal representative may be necessary to discuss the options on this property with the bank. A petitioner would not have such broad authority.

If you live in the West Palm Beach, Broward, or Miami-Dade area and want to discuss your options with an attorney or feel you received your improper share of an estate as a beneficiary or creditor, 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 Douglas Schapiro | Permalink | Email This Post

Posted In:

Bookmark: