Florida Probate Litigation Lawyer Blog

Oftentimes when individuals hear the term “homestead,” they fail to truly understand the protections that a Homesteaded property brings with it. While any homeowner with a Homestead property surely appreciates the $50,000.00 Homestead Exemption when tax season rolls around, this Exemption is only the tip of the iceberg as far as the expansive, inviolable protections that the Florida Constitution affords the homestead. Under Article X of the Florida Constitution, “a homestead of 160 acres of rural land or one-half acre of urban land and one thousand dollars worth of personal property is to be exempt from execution and forced sale.” While it may not be evident from the plain language of the Florida Constitution, the protections derived from Article X extend far beyond just the tax exemptions and protections from creditors. Understanding these implications-those that benefit as well as those that impede an estate plan-is a necessity in order to create a comprehensive estate plan.
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While many of Tony Soprano’s most iconic quotes are of the NSFW variety, one of his “work friendly” quotes comes to mind in light of the criticism directed towards James Gandolfini’s estate plan: “A wrong decision is better than indecision.” While the benefit of hindsight makes it easy to point out the perceived tax flaws of the last will and testament that Roger S. Haber drafted for Mr. Gandolfini, at least Gandolfini and his attorney made a decision! By seeking legal counsel to draft a testamentary instrument devising his possessions, Gandolfini avoided a fate that has befallen luminaries such as Abraham Lincoln, Pablo Picasso, Stieg Larsson, Howard Hughes, and Bob Marley-dying without a will. Regardless of whether Mr. Gandolfini would have chosen for Uncle Sam to receive such a hefty portion of the fruits of his lifetime of labor, Gandolfini can rest in peace knowing that he was able to convey his feelings with one final act of affection.
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Vehicles often comprise part of a person’s estate after they pass. It is sometimes possible to distribute vehicles very soon after a person’s death, sometimes even without an order from the probate court.

If the beneficiary of the vehicle is either the surviving spouse, or, if there is no surviving spouse, the children of the decedent and the decedent was domiciled in Florida at the time of death, the beneficiary may have a right to have the vehicle designated “exempt property.” Fla. Stat. §732.402(1). Exempt property is protected from all claims against the estate, except secured interests on the property itself, and can be distributed directly to the surviving spouse or children after the court authorizes the designation of the property as exempt. Fla. Stat. §732.402(3). A vehicle can be designated as exempt property by filing a Petition for Determination of Exempt Property with the probate court. Fla. Prob. R. 5.406. Up to two vehicles can be designated as exempt property if individually they (1) weigh less than 15,000 pounds, (2) are held in the decedent’s name, and (3) were regularly used by the decedent or members of the decedent’s immediate family as their personal motor vehicles. Fla. Stat. §732.402(2)(b). If a surviving spouse or children of the decedent do not file a petition for determination of exempt property on or before the later of the date that is four months after the date of service of the notice of administration or the date that is forty days after the date of termination of any proceeding involving the construction, admission to probate, or the validity of the will or involving any other matter affecting any part of the estate, they will be deemed to have waived their right to the exempt property status. Fla. Stat. §732.402(6). After a court authorization, the exempt property may be distributed directly to the surviving spouse or children.
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An interesting case recently surfaced involving the $200 million estate of a North Carolina real estate developer Henry Faison. Mr. Faison created a will devising his estate in 2000, but decided to make changes last year. Unexpectedly, Mr. Faison passed away in his office just before signing the second will. As should be expected, multiple parties have an interest in Mr. Faison’s large estate, and a lawsuit claiming unjust enrichment on the part of the 2000 will’s primary beneficiary was filed in the courts to determine which of the two wills should control distributions of the estate’s assets. This begs the questions of what the probable result of this lawsuit would be were it decided in Florida, and what can one do to avoid a similar situation?
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The Florida legislature recently saw fit to amend the Florida Power of Attorney Act (the “Act”). The revised Act, reflected in Ch. 709 of the Florida Statutes, became effective on October 1, 2011, as lawmakers re-wrote the entire chapter in order to conform more closely to the Uniform Power of Attorney Act. While only 13 states and the Virgin Islands have enacted the Uniform Power of Attorney Act, two more states (Mississippi and Pennsylvania) introduced it this year alone. These changes to Florida law, some of which are described below, reflect a nationwide trend that is expected to pick up steam in the coming years.
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