Florida Probate Litigation Lawyer Blog

Florida Statute 731.103(3) creates a presumption of death if a person is missing for five years. Once this happens, the person’s estate can be probated and their assets can be distributed. However one does not always have to wait for five years to pass. With enough circumstantial evidence, a person can be presumed dead before the five years is up. In an interesting Florida case involving a West Palm Beach family, the West Palm Beach Court of Appeals dealt directly with this issue.

In the mid 1990’s a wife attempted to have the court declare her husband deceased before he was missing for five years. The lower courts said that the courts could not do so until five years had passed. On appeal the court found that the wife had presented enough circumstantial evidence to allow the court to declare the husband deceased and allow for probate of his assets.

Her husband had been a crew-member of the cruise ship, Club Royale. As Hurricane Erin approached on August 2, 1995, the captain of the ship took it out of port and tried to ride the hurricane out in the open sea off the coast of Cape Canaveral. In the hurricane, the ship capsized and sank. The United States Coast Guard conducted an extensive search by aircraft and surface vessels to search for survivors for four days. It combed over 41,000 nautical miles of open-ocean and found eight crewmen alive on two separate life rafts. It recovered the body of a ninth crew-member on a third raft. Eventually the Coast Guard located 27 of the 30 life rafts from the ship. It found no trace of the husband or the Captain of the ship.

Continue reading "A Cruise Ship Accident and Death at Sea" »

The situation may arise where a person who had a will prepared dies and then the will cannot be found. If a family member dies and you cannot find their will to admit to probate, the court will presume that your relative intend to destroy the will and that your family member wished for their estate to pass according to intestate laws. If you want to prove that there was indeed a will, you have to will have the burden to produce evidence that a will existed.

Anybody interested in the estate may establish the terms of a lost will and offer it to probate. An interested person generally means someone who may have been named in the decedent’s will or who would stand to inherit if no will is found or proved. This may include a brother of the decedent living in Miami-Dade County, a niece living in Broward County or even an old neighbor living in New York.

Continue reading "Lost or Destroyed Wills" »

Various types of lawsuits have different requirements for venues. A venue deals with the locality of the lawsuit or where the lawsuit will be filed or commenced. Typically, the venue is a county or district and is chosen based on the subject matter of the case or the where the defendant resides. For instance, if there is a cause of action for a slip and fall occurring in Fort Lauderdale, Broward County, Florida will be the venue of the lawsuit.

In matters of probate administration, Florida Statute 733.101 lays out the possibilities for venues. It states that the venue shall be (a) in the county in this state where the decedent was domiciled. “Domicile” is defined in Florida Statute 731.201(13) as “a person’s usual place of dwelling and [domicile] shall be synonymous with residence.” Florida Statute 733.101 also gives two options if the decedent was not domiciled in Florida: a probate administration may commence in any county where the decedent’s property is located or if they have no property in Florida then in the county where any debtor of the decedent resides.

A short example can help explain these three paragraphs. James, John, and Chris were driving in a car on I-95 and get in a wreck. All three of them unfortunately pass away. James was a resident of Miami-Dade County and his domicile was there. John permanently lived in Georgia but had an apartment he rented out in Broward County as an investment. Chris lived in Michigan but bought and financed his Porsche through a dealership whose business operates through headquarters in Palm Beach County. James’ last will and testament will be admitted in Miami-Dade County since his domicile was in that county. John’s last will and testament will be admitted in Broward County if need be. Chris’ last will and testament will be admitted in Palm Beach County if need be.

Venue is important to understand because, according to Florida Statute 733.103(1), a will shall be ineffective until the will is admitted to probate in this state or in the state where the decedent was domiciled. The best way to ensure that the probate administration process is handled correctly is to consult an experienced probate attorney.

If you or someone you know lives in the West Palm, Fort Lauderdale, or Miami-Dade area and need help opening an estate or creating or amending an estate plan, the experienced attorneys at Chepenik & Trushin will help with these estate planning needs. Please feel free to contact us for an initial consultation.

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.

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 Chepenik & Trushin will help you obtain the proper legal relief. Please feel free to contact us for an initial first consultation.

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 Chepenik & Trushin will help you obtain the proper legal relief. Please feel free to contact us for an initial first consultation.