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:

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:

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

Bookmark:

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

Bookmark:

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

Bookmark: