Florida Probate Litigation Lawyer Blog

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.

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.

Can a Child be Disinherited from a Will in Florida?

June 15, 2010 | by Bradley H. Trushin

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.

Florida’s Elective Share

June 4, 2010 | by ktlaw4

Under Florida Statute 732.201 the surviving spouse of an individual who dies and is also domiciled in Florida, has a right to a share of the elective estate of the decedent. This right gives the surviving spouse up to 30% of the decedent’s elective estate, even if they were expressly disinherited in a will or trust. Thus, even if a will specifically disinherits a spouse, Florida Law will override the terms of the will and apply the spouse’s right to an elective share. For this right to apply, the decedent must have been married and must have been domiciled somewhere within Florida, whether it was Palm Beach, Broward or Dade county, at the time of death.

A surviving spouse does not have to be completely disinherited to opt for the elective share. The elective share can be elected whenever a surviving spouse stands to receive less than 30% of decedent’s elective estate. The only exceptions to this rule come from valid pre nuptial agreements, post nuptial agreements and effective waivers by spouses of their elective share rights.

The 30% is calculated from the “elective estate” of the decedent’s assets. The elective estate tends to include a larger scope of assets than those included in decedent’s probate estate. Florida Statute 732.2035 lists those probate and non-probate assets which are included in the elective estate. Those assets include, but are not limited to, property owned by the decedent, revocable trust assets, funds from payable on death accounts, and any property given away within one year of decedent’s death.

Surcharge of Personal Representative

April 9, 2010 | by Bart Chepenik

Personal representatives in Florida are typically responsible for administering estates. While administering the estate, they have a duty to act solely for the benefit of the estate beneficiaries. If the personal representative fails in their duty to properly administer the estate, they can be personally liable to the other beneficiaries for their mistakes. Mistakes include an act or failure to act by the personal representative that causes waste or mismanagement of the estate’s assets. An example of which would be imprudently investing the estate’s assets or failing to properly pay a creditor’s claim when due. A surcharge action must be filed in the proper circuit court where probate case is filed, whether it is in Palm Beach, Fort Lauderdale or Miami.

To remedy for such mistakes, beneficiaries may seek to remove the personal representative. Additionally, those beneficiaries may pursue a surcharge action against the personal representative. The purpose of a surcharge action is to restore the losses to the estate caused by the breach of duty of the personal representative. Under Florida law, unless waived, a personal representative is required to post a bond with the court. When a beneficiary brings a surcharge action they are bringing an action against the personal representative stating that such individual has misappropriated or misused estate funds during the administration. If the surcharge action is successful, the bond company must then reimburse the estate for those amounts, up to the total amount of the bond.

Surcharge actions are intense and complicated procedures that involve tracing assets as well as reviewing business records. If you live in the West Palm, Broward or Miami-Dade area and believe a personal representative is not properly administering an estate, the probate litigation team at Chepenik Trushin will help you obtain the proper legal relief. Please feel free to contact us for an initial first consultation.

Access to Decedent’s Safe Deposit Box

April 7, 2010 | by ktlaw4

While millions of Americans currently lease safe deposit boxes, few actually pay attention to the question of who should have access to their box at death. Additionally, many individuals choose to leave their Florida will in a safe deposit box. This situation can create problems because under Florida law, a court order is necessary to remove all contents from a safe deposit box unless there is a joint owner, such as a spouse, on the account.

Florida statute 655.935 helps to deal with the issue of a decedent dying when their will is in a safe deposit box. Once satisfactory proof of the decedent’s death is given to the bank, the statute grants limited access to the spouse, a parent or an adult descendant to open the safe deposit box that was leased by the decedent. The statute states that in the presence of a bank officer, the individual may open the safe deposit box and remove the will of decedent along with any burial instructions or life insurance policies found within the box. Nothing else may be removed. The will must then be deposited with the court having probate jurisdiction, whether that is in Palm Beach, Broward or Miami-Dade county.

Once the will becomes admitted to probate by the court, a personal representative will be named. The personal representative is then granted access under Florida statute 733.6065 and court order to open and inspect the contents of the safe deposit box. The personal representative is required to file an inventory of the box to the court within 10 days of opening it. Additionally, the personal representative has a right to remove all contents of the box.