Florida Probate Litigation Lawyer Blog

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.

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 Chepenik & Trushin will help you assert your rights. Please feel free to contact us for an initial consultation.