Florida Probate Litigation Lawyer Blog

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.

Payment of Expenses and Claims for Intestate Estate

March 29, 2010 | by ktlaw4

Whether an individual dies testate (with a will) or intestate (without a will), there are always expenses and obligations that must be paid by the estate. Whether the estate is in Palm Beach, Miami or Fort Lauderdale, each estate has funeral costs, there are probably some medical expenses, there may even be back taxes that must be paid. Those expenses and obligations are paid prior to the beneficiaries receiving their share, if any, of the remaining estate. Florida Statute 733.707 governs the order of payment:

Class 1 – Costs of the estate administration and fees of the personal representative and attorneys.

Class 2 – Reasonable funeral expenses, not to exceed $6,000.

Opening an Intestate Estate

March 16, 2010 | by Bradley H. Trushin

Intestate estates in Florida commence when any interested person (heirs or creditors) files a petition for administration with the local probate court of decedent. For example, if decedent died while domiciled in West Palm Beach, the probate court jurisdiction would be within the 15th Judicial Circuit. The petitioner must state their interest in the estate, information about the last known address of decedent, names of known beneficiaries, a request for the court to appoint a Florida personal representative and finally in an intestate estate, a statement that after exercising reasonable diligence to locate any unrevoked wills, that none can be located.

Under Florida laws of intestacy, the surviving spouse (if any) is entitled to preference in being appointed the personal representative of an estate. If there is no spouse, then a majority in interest of the heirs may select the personal representative. In either case, the court has final say in the decision. Once the court makes that final decision, letters of administration are issued which state that the personal representative has been appointed and qualified by the court to handle the deceased’s estate. The personal representative must be represented by a Florida licensed attorney throughout this process.

After the Letters of Administration are issued, the personal representative must then serve this notice to all known beneficiaries and creditors. A Notice of Administration or Notice to Creditors is then sent to any known party who may have a claim against the estate of the deceased Florida resident. Any interested person who receives notice has three months to file an objection challenging the qualification of the appointed personal representative, the venue, or the jurisdiction of the court.

Florida Self-Proving Wills

March 4, 2010 | by ktlaw4

Under Florida Statute 732.901, any document purporting to be a last will must be filed with the clerk of court within 10 days after receiving notice that the testator (creator of the will) is dead. Even if you believe that the will is invalid or procured by undue influence, Florida law still requires that the custodian of the will deposit the will with the court. Whether filed in Miami, Fort Lauderdale, or Palm Beach, it is up to the probate judge to decide if the will is valid for probate.

Florida Statute 732.502 sets forth the requirements for a will to be valid. Any document attempting to devise the property of a deceased person after his or her death must be executed or signed by the testator in the presence of two attesting witnesses. You must properly prove this execution so that the probate judge is satisfied. This often involves additional court proceedings and having the witness actually take oaths in front of the presiding judge.

The simplest way to prove proper execution of a will in Florida is by utilizing a self-proving affidavit. Florida Statute 733.201 states that self-proved wills may be admitted to probate without further proof. The self-proving affidavit, defined by Florida Statute 732.503, must be attached to the will. It states that the will was signed by the two witnesses in the presence of the testator, who also signed the affidavit. This affidavit must be notarized by a notary public who takes this sworn statement from the witnesses and from the testator. The self-proving affidavit must specifically contain the aforementioned items or the will won’t be admitted to probate. Without a self-proving affidavit, a witness to the will execution must take an oath before the circuit judge at the testator’s death that the will was properly executed, or if that is not feasible, then the personal representative must take the oath. Either way, it is a burdensome process.

Summary Administration of Wills in Florida: The Pros and Cons

March 1, 2010 | by ktlaw4

Under Florida Statutes Chapter 735, when a probate estate is valued at less than $75,000.00, the estate qualifies for summary administration, a simplified and much quicker probate process. It is important to remember, however, summary administration is not the default type of administration. To obtain summary administration, a petition must be filed by any beneficiary within two years of the death of the decedent. Once the court approves the petition, the court may enter an order allowing the immediate distribution of the assets of the estate to the persons entitled to them. While summary administration may seem ideal for smaller estates, there may be some disadvantages for estates in Miami, Fort Lauderdale or Palm Beach if, for instance, real property owned by the estate is in foreclosure.

When calculating the assets subject to probate, it is necessary to know that most stock accounts, IRAs, life insurance and primary residences are not usually subject to probate and therefore would not be included in the $75,000 dollar calculation. For most estates, the most valuable asset is the primary residence. When this qualifies under Florida homestead, the residence passes directly to their heirs as proscribed by the Florida Constitution and therefore is not included in calculating the probate estate and not part of the $75,000 to determine whether the estate qualifies for summary administration.

Summary administration may seem like a great idea for an efficient distribution of a smaller estate. One major disadvantage, however, with summary administration is that a personal representative will not be appointed by the court. If a decedent died without a will, the court will not name a personal representative in a summary probate administration as they would in a formal probate administration. There is only a petitioner. This is the individual who files the petition for summary administration. A petitioner is not given the same authority as a personal representative to inquire, manage or dispose of assets as the personal representative does. This can cause a lot of problems with the administration of the estate. For instance, if decedent dies with a home in foreclosure, a personal representative may be necessary to discuss the options on this property with the bank. A petitioner would not have such broad authority.

Rights and Duties of Creditors Under Florida Law

February 23, 2010 | by Bradley H. Trushin

Florida has very strict time restrictions as to when a creditor can file a claim against an estate, and if the deadline passes they are likely barred from the claim.

To start the process, the personal representative is charged with the duty of publishing notice to all creditors that the decedent has passed away. Publishing notice means that the personal representative must document this prescribed notice in a countywide newspaper once a week for two consecutive weeks. Such notice can be accomplished by publishing it in a major Miami or Fort Lauderdale newspaper.

If a creditor seeks a claim against the estate, the creditor’s statement of claim must then be filed with the Clerk of the Circuit Court within three months of the date of the first notice published by the personal representative. If the creditor is late in filing, then the claim will likely be barred.

TIME PERIOD FOR FILING AN OBJECTION TO A WILL

November 6, 2009 | by Bradley H. Trushin

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.

Is a no-contest clause in a will enforceable in Florida?

September 10, 2009 | by ktlaw4

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.