Probate Disputes

Joint proprietorship of real estate and divorce, what happens when one passes away?

April 15, 2019 | by Chepenik Trushin LLP

Foreign Property, Divorce, and Florida Probate Proceedings: Do not Assume Anything

In Florida, if for some reason your marriage ends, there are some instances where your ex-spouse’s rights to inheritance under your estate plan are automatically severed. In Florida, the ex-spouse is automatically cut out of any estate planning documents, reducing the need to amend a will in the event of a divorce. Also, if a couple owns a house in Florida as tenants by the entireties, that joint interest is severed upon divorce and they become tenants in common. The divorce changes the property interest, and allows that each ex-spouse inherits their half, but the other half does not automatically transfer to the surviving ex-spouse. However, all of these automatic changes happen when the property is located in Florida. What changes if the property is located in a foreign country? A case out of the Second District Court of Appeals addressed the issue in Ebanks v. Ebanks.

Arthur and Diane Ebanks were divorced in Florida in 2008. Arthur executed his will on the day he filed for divorce in 2006. The Ebanks jointly owned three water front properties in the Cayman Islands. In his will, Arthur provided that upon his death, the property jointly held will pass to the survivor. The property in the Cayman Islands was owned under “joint proprietorship,” which is a form of holding title in the Cayman Islands which is similar to joint tenancy with right of survivor ship. Under “joint proprietorship” the interest of the deceased proprietor would transfer to the surviving proprietor. There is no law in the Cayman Islands dissolving a joint proprietorship in the event of divorce.

Missing person. Now, what’s next, probate court and the impact of intestacy.

February 12, 2019 | by Chepenik Trushin LLP

Probating the Estate of a Missing Person

Even more excruciating than the death of a beloved person is arguably the uncertainty when the beloved person goes missing and his or her body is never recovered. Florida laws contain rules that allow the surviving family members to complete the mourning process, declare the missing person dead, and move on with their lives. One of the issues that the surviving members must deal with is the distribution of the estate of the deceased. Can you probate a missing person’s estate?

The answer is yes. However, as the first step, the missing person must be declared fictitiously dead. Under Florida Statute §731.103(3), a person who is absent from the place of his or her last-known domicile for a continuous period of five years and whose absence is not satisfactorily explained after diligent search and inquiry is presumed to be dead. The thoroughness of the search for the missing person is considered on a case by case basis; therefore, what may be enough in one case might be insufficient in another one. What is clear though is that at least some search must be done every time.

Contest a Will.

December 20, 2018 | by Chepenik Trushin LLP

What is my Deadline to Contest a Will in Florida?

Surprisingly, as astounding 55% of adults in the United States do not have a Will or any other sort of estate plan in place. While planning one’s estate certainly makes matters easier for loved ones after death, problems can arise even when one does make a will. There are dozens of reasons one may want to contest a will. Some of these include including lack of testamentary capacity, undue influence, fraud, lack of the required number of witnesses or discovery of a later will. But when one realizes there is an issue with a will, what does one do and how much time does one have to challenge it? Legal actions typically have a statute of limitations. As defined by Black’s Law Dictionary, a statute of limitations is the “time frame set by legislation where affected parties need to take action to enforce rights or seeks redress after injury or damage.”

In Florida, the time limitation to challenge a will is statutory. While Florida allows years to pass on claims before barring actions with a statute of limitations, the Florida Legislature only gives three (3) months for someone to contest a will. Florida Statute §733.212 (the “Statute”) outlines the process and deadlines for the filing of objections. It states in relevant part:

Florida Anti Lapse law, estate planning and potential will contest environments

December 5, 2018 | by Chepenik Trushin LLP

Florida Anti-Lapse Statute

When preparing a Will, it is assumed that the beneficiaries that you name will outlive you. If you expect someone to die before you, it would not make sense to leave any of your wealth and assets behind for them. However, unexpected things happen. Unfortunately, testator’s live beyond the life of their beneficiaries all the time. Sometimes, people do not update or even think about their Will for decades and those named years ago as beneficiaries have passed away. What happens to the gift(s) left for someone who is now deceased?

This concept is known as “lapse.” The original, common law understanding of lapse, was that if a beneficiary predeceases the testator, the specific gift will fall back into the residuary estate of the testator, not the estate of the deceased beneficiaries. For example, if the will states “Car to X, everything else to Y,” and X dies before the testator, the car will fall back to the residuary estate and go to Y. If both X and Y die, the testator’s estate will pass through intestacy.

Proactive Wills

August 7, 2018 | by Chepenik Trushin LLP

Legal Capacity and Estate Planning – How to Safeguard a Will from Future Litigation or Contests

When a loved one grows older, ages and declines, their caretakers’ ever growing to-do list can become overwhelming. After dealing with the basic, everyday needs of an aging family member, it may sometimes be easy to overlook the fact that your loved one does not have a valid will. By not addressing this issue, the task of handling final affairs and estate distribution after their death becomes increasingly more difficult. If you are responsible for someone who is at risk for developing Alzheimer’s, dementia, or any other disease that can affect their mental capacity, it is important that you consult with an estate planning lawyer who can ensure that a proper will is drafted in accordance with the laws of the state of Florida.

Florida courts have held that a will can be properly admitted to probate if the testator was competent at the time the will was executed. Jervis v. Tucker, 82 So.3d 126 (FL 4th DCA 2002). A testator will be found to have been competent if they possessed the ability to “mentally understand in a general way the nature and extent of the property to be disposed of, and the testator’s relation to those who would naturally claim a substantial benefit from the will, as well as a general understanding of the practical effect of the will as executed.” American Red Cross v. Estate of Haynsworth, 708 So.2d 602, 605 (FL 3rd DCA 1998). Florida courts will apply these standards and also evaluate the facts specific to a particular case in order to determine if a testator was of “sound mind” when they created the will. Estate planning lawyers play an important role in this process and have the responsibility of ensuring that the testator is legally competent at the time the will is created.

Our farmers are at high risk

July 18, 2018 | by Chepenik Trushin LLP

Elder abuse: the farmer population as the next potential target

Florida is a state well-known for its agriculture. In fact, within the United States, it is safe to presume that most people think that the best oranges come from Florida (we certainly think they do). Agriculture is the second most important economic activity in Florida, preceded only by tourism. Agriculture contributes $104 billion in revenue to the state and employs two million people.

According to a 2016 study by Oregon State University and Portland State University, the average age of farmers is 60 years old. Additionally, it is believed that in the next twenty years, 10 million acres of farmland are going to change ownership. Like all other people, we can expect health issues to arise as our farmers age. Studies suggest that 38% of people who are over 85 years old have dementia or some impairment in their mental faculties.

Will contests in probate court, a recent Florida law update

May 29, 2018 | by Chepenik Trushin LLP

A Will can be challenged by Caveat or Functional equivalent

On March 9, 2018, Florida’s Second District Court of Appeal held that the functional equivalent of a caveat may serve to properly contest a will.[1] The court observed that the Appellant in the case at issue “filed a pleading styled ‘Answer and Affirmative Defenses’ and did not file a pleading styled ‘caveat.’”[2] Nonetheless, the court found the pleading sufficient to function as a caveat.[3] Here is why.

First, what is a Caveat?

Lack of Testamentary Capacity, know the expectations of undue influence

May 14, 2018 | by Chepenik Trushin LLP

Undue Influence

For a Will to be valid, certain conditions must be met. The testator must have legal capacity, be at least eighteen years old, have testamentary intent, and the will must not be a product of undue influence or duress. The first two requirements are usually relatively easy issues to resolve, but undue influence and duress are not always clear. As the Supreme Court of Florida explained, “[u]ndue influence is not usually exercised openly in the presence of others, so that it may be directly proved, hence it may be proved by indirect evidence of facts and circumstances from which it may be inferred.”[1]

The Fourth District Court of Appeal, in Blinn v. Carlman,[2] stated that, “[w]hen a will is challenged on the grounds of undue influence, the influence must amount to over persuasion, duress, force, coercion, or artful or fraudulent contrivances to such an extent that there is a destruction of free agency and willpower of the testator.” When a will is a product of undue influence, it, by definition, is not the intent of the testator, and therefore courts should not give effect to it.

As a business owner, react or act – probate court expenses

April 30, 2018 | by Chepenik Trushin LLP

What is Probate?

Probate is a process, which the court supervises, for settling a deceased person’s estate. The process involves identifying assets belonging to the estate, paying the decedent’s debt, and distributing the remainder of the assets to the decedent’s beneficiaries. Costs for the probate proceeding have first priority for payment from the estate’s assets.

If a decedent dies testate (with a valid will) and designates a personal representative, then the will’s provisions govern disposition of the decedent’s probate assets. If a decedent dies intestate (without a valid will), then Florida law will govern selection of a personal representative and will govern who will receive the decedent’s probate assets.

A Will seems simple, but when executed, it can be a rocky road

January 10, 2018 | by Chepenik Trushin LLP

How to comply with formal requirements of Will execution

Florida law places great emphasis on compliance with its statutes regarding execution of wills. This is to assure the authenticity of such an important document profoundly affecting many lives, and prevent fraud and imposition in its execution. The statutory provisions, which appear in Florida Statute §735.502, set out four main requirements for executing a will. Failure to comply with the formal requirements can invalidate the will and force the estate to pass through intestate succession. It is therefore important to comply with and understand these formal requirements.

Firstly, the will must be in writing. This means that the document can be handwritten, typed, or printed. Florida does not recognize oral wills (nuncupative wills) or wills without witnesses (holographic wills). Nuncupative wills are allowed in only few jurisdictions and typically require witnesses and some exigent circumstances such as a car accident or a heart attack. Contrarily, many states recognize holographic wills and have different requirements as to their validity.