Articles Posted in Will Contests

Sometimes a situation might arise where a person who has a will dies and then the will cannot be found. What would happen? What steps should you take to avoid this unfortunate situation? The first important step a person can take to prevent this problem is finding an experienced attorney to help make sure the will is properly executed and properly preserved in a safe location. If you find yourself in this situation, for example, maybe your grandmother in Boca Raton, Florida passes and her will cannot be found, you will also want the assistance of an attorney. If you live in Miami-Dade, Broward or West Palm Beach County there are many options.

If a family member dies and you cannot find their will to admit to probate, the court will presume that your relative intended to destroy the will and that your family member wished for their estate to pass according to intestate laws. If you want to prove that there was indeed a will, you have to will have the burden to produce evidence that a will existed. In some situations this burden may be easier, for example if there is evidence that your grandmother was bed-ridden and incapacitated in Boca Raton Regional Hospital for the last month of her life, and unable to access the will at the time it went missing.
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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.

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.

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.

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.

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.

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.