Estate Planning and Documents

Is a step-child considered a lineal descendant in Florida?

May 24, 2011 | by Bradley H. Trushin

In Florida, “lineal descendant” or “descendant” is defined to mean “a person in any generational level down the applicable individual’s descending line.” Essentially, a descendant is a blood-relative of the deceased. Under Florida law, adopted children are also considered descendants for the purposes of Probate.

So what does this really mean? Suppose John, a resident of Fort Lauderdale, Florida, makes a will that simply states, “I leave everything I own to my lineal descendants.” Now, suppose John has two children from his previous marriage (related by blood), and his second wife, Jane, has two children from her previous marriage, neither of which John has adopted. This means, if John dies without modifying his will, John’s step-children receive nothing.

John’s step children will receive nothing because, under Florida law, a technical term, such as “descendant,” used in a Will, is accorded its legal definition unless obviously used by the deceased in a different sense. Additionally, in construing a will, the courts look to the intent of the deceased and try to give effect to the deceased’s wishes. In determining the intent of the deceased, the courts look to the wording of the will. If the will says the word “descendant,” and the word is not defined, the court will assume that the deceased intended “descendant” to have its ordinary legal meaning.

Abatement of Devises in a Will to Satisfy Claims Against an Estate in Florida

February 24, 2011 | by ktlaw4

In a perfect world, a testator’s estate will have enough funds to not only cover all of the bequests provided for in the testator’s will, but also pay for the costs of administering the estate, debts, and other unexpected expenses like elective or pretermission shares. Much of the time, however, the value of devises (gifts) contained in a will exceed what the estate can actually provide for after such costs associated with the probate process have been paid. When this occurs, certain devises made by the will are put toward satisfying these debts instead of going to the devisees referenced by the will in a process called abatement.

Florida Statutes section 733.805 provides the order by which devises will abate absent a scheme already provided for in a will. The order provided by the statute relies primarily on the type of the devise. For example, take Lea, a resident of Miami-Dade County, who has recently passed away leaving the follow devises in her will: (1) $400 cash to her son, Abe; (2) $400 to be paid for by the sale of her 1987 Oldsmobile Cutlass to her daughter, Betsy; (3) her iPhone to her daughter, Chelsea; and (4) everything that is left over to her favorite charity. All four of these devises illustrate a different type of devise, which, under Florida Statutes section 733.805 will abate in a certain order when satisfying claims against Lea’s estate.

The first category of devises that will abate are those passing through intestate succession. For example, if someone dies intestate (without a will), all those who would receive an intestate share of the estate take a pro-rata deduction in what they would otherwise take to cover costs that deplete the estate. Also, any leftover property in one’s estate that is not provided for by the will at all passes through intestacy and abates before the actual devises made in the will. An example of this first category is not in Lea’s estate, as her will provides for payment of leftover property to her husband.

The Advantages and Disadvantages of Referencing Separate Writings Containing Tangible Personal Property in a Will in Florida

June 28, 2010 | by ktlaw4

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 Self-Proving Wills

March 4, 2010 | by ktlaw4

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.