Florida Probate Litigation Lawyer Blog

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.

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.