Florida Probate Litigation Lawyer Blog

Can a spouse be unintentionally disinherited in a will in Florida? – Pretermitted Spousal Rights

June 9, 2011 | by Bradley H. Trushin

What happens when you marry someone after they have already made a will and sometime after the marriage your spouse dies without revising that will or making a new will? For example, Joe, a successful businessman from North Miami, creates a will leaving all of his property to his two sons. Several weeks later, Joe meets Sally, a doctor from Palm Beach, and they get married. Unfortunately, on their honeymoon Joe gets into an accident and dies without revising his will to include Sally. It may seem that because Sally is not provided for in the will before marriage that she will not be able to inherit from Joe’s estate.

However, Florida Statute 732.301 addresses this very scenario and provides that the surviving spouse will receive a share in the estate of their deceased spouse equal to what they would have received had their spouse died without a will (intestate). The spouse will then receive a share of the estate

When this occurs, the spouse is considered pretermitted.

Procedures to Determine Incapacity in Florida

May 31, 2011 | by ktlaw4

It is an unfortunate but inevitable fact of life that, as we grow older, there is a tendency for our mental abilities to begin to fade. When a person’s mental abilities fade to the point where they can no longer look after their own interests and are unable to understand the implications of certain decisions, in legal terms they are said to be “incapacitated.” Sometimes it becomes necessary for family members to step in and take control of some aspects of the incapacitated person’s life and their finances. This can be a very difficult and emotional process, since many times the incapacitated person is extremely resistant to giving up control, especially when that person has always taken great pride in being independent. Although there may be slight differences in the procedures to determine incapacity between Miami-Dade, Broward and Palm Beach counties, the Florida Statutes set forth general guidelines for the determination of incapacity.

The first step of the process occurs when a person files sworn papers with a court stating that they believe an individual is incapacitated. The court will then prepare a notice for hearing that set a time and place for an initial hearing to determine if the person actually is incapacitated. These documents, by law, must be shown to the person claimed to be incapacitated as well as his or her attorney and immediate family members, because they all have a right to be at the hearing. Those documents will also appoint an attorney for the person claimed to be incapacitated, although he or she is welcome to select his or her own attorney if they are able. Sometimes the court will appoint a person to act as the emergency temporary guardian of an incapacitated person. The emergency temporary guardian’s purpose is to make sure the incapacitated person’s rights and needs are accounted for.

Next, the court will appoint a committee of three people to decide if the person is incapacitated. One member of the committee must be a doctor. The other two members can also be doctors or they can be psychologists, nurses, or anyone the court believes has enough experience and education. Even though the personal doctor of the person cannot be on the committee, the committee members are required to consult with him or her. If the person claimed as incapacitated does not speak English, an interpreter will be provided so that he or she can communicate with the committee. This is because a person has a right to speak up against being declared incapacitated because taking away a person’s liberty, even if it is for their own good, is involves the removal of fundamental rights. Such rights are afforded serious and substantial protections under the law.

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.

Amendments to the Florida Probate Code

March 14, 2011 | by Bradley H. Trushin

The Supreme Court of Florida has adopted amendments to the Florida Probate Code effective on January 1, 2011, at 12:01 a.m. Significant changes were made to Section 732.401, Florida Statutes and will effect the way homestead property is inherited by surviving spouses. For instance, prior to the changes, if a resident of Fort Lauderdale, Florida died and was survived by a spouse and one or more children, the surviving spouse took a life estate in the homestead, and the blood relatives of the deceased would receive the homestead upon the death of the surviving spouse. A life estate means that the surviving spouse has the right to use the homestead property for the duration of his/her life, but upon the death of the spouse, the homestead belongs to deceased’s blood relatives. Additionally, the surviving spouse who has a life estate is responsible for the costs of maintaining the property.

Upon taking a life estate in the homestead property, a spouse may be confronted with new economic duties, such as property taxes, insurance, ordinary maintenance, and mortgage interest. These may be expenses that the surviving spouse cannot afford. In response to these new found financial responsibilities, some practitioners attempted to use disclaimers, a process by which the surviving spouse essentially declines to accept the homestead property, to avoid inheriting a life estate. However, the courts reached inconsistent results.

The adopted amendments to the Florida Probate Rules now provide that, instead of a life estate, a surviving spouse may elect to take an undivided one-half interest in the homestead as a tenant in common. A “tenant” is the legal term for co-owner of property. If the surviving spouse chose to take a tenancy in common, instead of a life estate, the spouse would possess the property with someone else, in this case, the blood relatives of the deceased. A tenancy in common essentially means that two or more people (the surviving spouse AND the blood relatives of the deceased) would co-own the homestead property.

Florida’s Simultaneous Death Law

March 8, 2011 | by ktlaw4

In our society, it is common for spouses, family members, or close friends to travel together for various purposes. As such, whether travelling by automobile through Miami, by plane over Fort Lauderdale, by train through Boca Raton, or even by boat along the coast of West Palm Beach, there is, unfortunately, always a risk that a tragic accident may occur that would result in the death of multiple people. The issue of simultaneous death arises when an individual with a will, trust, or life insurance policy dies in the same accident as the beneficiary of that will or trust, and when there is uncertainty as to which person died first – the testator (creator of the will) or the beneficiary (the person who is designated under the will to receive some or all of the assets of the estate, trust or life insurance policy).

For instance, imagine that a newly married couple creates separate wills that leave all of their individual assets to the other spouse upon death. In this case, the wife would be the primary beneficiary of the husband’s will, and the husband would be the primary beneficiary of the wife’s will. Also imagine that the husband’s will states that if his wife dies before he does, all of his assets would go his brother. Thus, the husband’s brother is the contingent beneficiary of the husband’s will. Similarly, the wife’s will states that, if her husband dies before she does, all of her assets would go to her mother as the contingent beneficiary. Now, the issue of simultaneous death may arise if, for example, the couple gets into a fatal accident while driving from Boca Raton to Miami Beach.

In this scenario, if the husband dies instantly, but the wife dies one week later in the hospital, then it is clear the husband died first. As a result, all of his assets would go to his wife as the beneficiary under his will, and then they would go to his wife’s mother, because she was the contingent beneficiary under his wife’s will. Therefore, all of the husband’s assets would go to his wife’s mother upon his death.

So what exactly is a “sound mind” in Florida?

March 4, 2011 | by Bradley H. Trushin

According to Florida Statute § 732.501, any person who is of sound mind and legal age (at least 18 years old or emancipated) can make a will. Florida is home to an eclectic and wide ranging group of people, especially in Miami, Ft. Lauderdale, and Palm Beach. However, not every one of its adults or emancipated minors is qualified to make a will that would later be enforceable. Those lacking a sound mind, otherwise known as incapacited, may have their wills challenged by effected beneficiaries.

So what exactly is a sound mind? Florida courts have held that several behaviors could disqualify a person from making a valid will. For instance, an individual suffering from alcohol or drug addiction, mental weakness, illness, or old age may not be able to create an enforceable will; yet the presence of such condition(s) alone is not enough to invalidate a will. The residing probate court will enforce the will if the testator (creator of the will) had sufficient wherewithall and memory to understand the consequences of his/her action at the time the will was executed. If the substance abuse or condition impaired one’s mental capacity to comprehend the consequences of a will, then the court may not enforce it.

Courts will determine the mental capacity of the testator on a case by case basis to see whether there was indeed a lack of capacity. The mental state of the testator is determined at the time the will is created and executed, not the time subsequent. Thus, if Aunt Lucile created a will and then developed a drug problem, a court would likely enforce the will after a finding that she was not mentally incapable at the time she made the will.

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.

Beneficiaries’ Rights to see Contents of a Will

August 16, 2010 | by Bradley H. Trushin

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.

“Miss Me?” – Can the Estate of a Missing Person be Probated under Florida law?

July 20, 2010 | by ktlaw4

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.

Revocation of Wills Under the Florida Probate Code

July 6, 2010 | by Bart Chepenik

Even the most carefully crafted wills may someday need to be altered or revoked entirely in order to adapt to the changes in one’s life. There are three mechanisms provided by the Florida Probate Code that revoke a will: (1) by written instrument, (2) by physical act, or (3) by operation of law. These apply throughout the state of Florida, including West Palm Beach, Fort Lauderdale and Miami.

The ideal method of revocation is outlined in Florida Statute 732.505, which provides that a will can be revoked by executing another will, codicil, or other written document expressly declaring the intent to revoke a previous will. Additionally, any terms in a subsequent will revoke provisions of a previous will to the extent that they are inconsistent. Because it provides more precision and certainty over the other two methods, this method is the preferred means of revoking a will. However, because any such instrument must be executed with the same formalities as a will itself, one should always consult with a skilled attorney to ensure that the true intent of the testator is realized.

Florida Statute 732.506 allows a testator to revoke a will by burning, tearing, canceling, defacing, obliterating, or otherwise destroying the original copy. This method is not at all encouraged, as it must also be shown that the will was destroyed with the intent, and for the purpose, of revocation. Unless one destroys their will, for example, in the middle of a crowded football stadium while clearly declaring their intent to the revoke the will, it will always be a challenge during the probate process to prove intent to revoke. Thus, this self-help method should only rarely be employed and one should instead consult with a professional.