Articles Posted in Probate

Black’s Law Dictionary defines a nuncupative will as a “will made by the verbal declaration of the testator, and usually dependent merely on oral testament for proof.”

A Third District Appeals court in Florida recently ruled that oral wills, or nuncupative wills, that are not signed by the testator or its witnesses cannot be admitted to probate in Florida even if they written, dictated or approved by a notary.

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We often receive calls regarding challenging a will or trust document.  In Florida, before you can file a will or trust challenge, the contestant must renounce any benefit he or she receives under the document they are attempting to challenge.

Reunification is an equitable doctrine in Florida.  In 2013 the 2nd DCA heard the case Fintak v. Fintak, 120 So.3d 177.  Generally, under English law as interpreted by American courts  and individual is estopped from contesting the validity of a document that they received and retained a gift from.  The Florida Supreme Court gave 3 reasons for this rule in Barnett Nat’l Bank of Jacksonville v. Murrey, 49 So.2d 535 (Fla. 1950):

  1. to protect a fiduciary in the event the contested document is held invalid;
  2. to demonstrate sincerity of the contestant; and
  3. to have the property available for disposition at the conclusion of the contest.

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There was a recent appeal by a creditor who claimed they were known or an ascertainable creditor and did not actual  notice to creditors (40 Fla. L. Weekly S517a).  The estate filed a notice in the paper giving creditors 3 months to file a claim. The known creditor missed the 3 month deadline, but filed their claim within the 2 year window provide for in the Florida Statute 733.710.

The question before the court was when a creditor is known or an ascertainable creditor and does not receive written notice, is their claim barred under 733.702(1) of the Florida Statutes which provides for a 90 day deadline or do they get the full two years as provided in section 733.710.  There were several different interpretations of this issue in different courts around Florida so the question we sent to the District Court of Appeal to get an answer.

Here are the facts of the case and how the DCA determined that the 90 day window for filing claims was not effective when the creditor is known or ascertainable. Continue reading

Each probate case is different. Minuscule but crucial variables in a case can easily be overseen and the wrong type of administration for the decedent’s estate can be chosen. To avoid this, I suggest that you discuss the facts of your case with a probate and estate planning attorney before choosing the administration of a decedent’s estate. An attorney can assist you in determining which type of administration is more appropriate according to the facts of your case.

If you decide to select the administration of a decedent’s estate without consulting an attorney, it will be your responsibility to select the appropriate proceeding for your situation. The staff of the Probate Court may not and will not make this determination for you. Furthermore, neither the court nor the county can accept responsibility for incorrect decisions made by the court’s staff. Your best choice to assure and informed decision regarding the administration of a decedent’s estate is to seek assistance of a probate and estate planning attorney. Continue reading

Avoiding probate is one of the main goals of estate planning because it saves money and time, so the beneficiaries can enjoy their inheritances sooner. However, avoiding probate has no effect on the taxes to be paid or the debts owed to creditors.

One common misconception is that a person’s debt will pass to their spouses, family, or friends after he or she dies. This is untrue, as while heirs can inherit the decedent’s assets they cannot inherit the debt. However, there is an exception if someone was jointly liable on the debt.

Where does the debt go? The obligation to pay the debt stays with the estate of the decedent. When someone dies, their estate is born and is the sum of all of that person’s assets. The estate will have an executor that is designated by the will or the court to handle the estate’s affairs. This means transferring assets to the beneficiaries, paying the gift and estate taxes, and settling debts owed to creditors. Continue reading

Florida’s 4th District Court of Appeals recently decided the case of what to do with a will that left the murder’s children the victim’s estate. The trial court held the “slayer statute” did not affect the will, and did not find enough evidence of undue influence to invalidate the will, however, the appellate court did not agree.

The husband Ben was murdered in 2009 and the case became famous when his wife Narcy was arrested and convicted of the murder, and the murder of Ben’s mother, shortly after. The court opinion stated she murdered Ben to assure that she and her family would obtain his considerable wealth. Narcy had a daughter by another marriage, and this daughter had two sons. Narcy’s daughter and the two sons were to inherit Ben’s estate if Ben’s mother and Narcy passed away before Ben. Continue reading

When lawyers draft estate-planning documents they are made with current laws in mind. However, estate-planning laws have changed in some key ways over the last few decades. Here are 4 key dates that have changed estate-planning. If your documents created before these dates it may be time to update them.


The first date to look out for is April 14, 2003, which is when the privacy rules under the Health Insurance Portability and Accountability Act first took effect. Although HIPAA was enacted in 1996, its privacy regulations were not enacted until several years later on April 14, 2003.

This act brought about much stricter guidelines regarding the disclosure of a person’s health information to third parties without explicit permission. Now, only a few people are allowed to receive this information, which becomes a much bigger issue if the person becomes incapacitated, such as in Terri Schiavo’s case. Now, a durable power of attorney is needed to make important health care decisions for loved ones. If your will, revocable trust, durable power of attorney or health care power of attorney was executed before this date, your executor, trustee, or agent may not be able to effectively work with your medical care providers or insurers.

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In Florida, a personal representative is required to administer the estate of the deceased.   Usually, this person is named in the estate owner’s will, and is someone the estate owner trusts to transfer his or her assets to friends and loved ones. If the person does not have a will, or does not appoint a representative, the court will appoint one. The question then becomes what if the person is not fit to serve as the personal representative? The Florida Probate Code provides some guidelines on how to remove a personal representative.

First, it’s important to understand the rules of how a court appoints a personal representative. If the deceased died without a will, or died with a valid will but did not name a personal representative or grant anyone the power to appoint a personal representative, then the personal representative is appointed by an order of preference as set forth in Florida Statute § 733.301.

Usually for a person without a will, the court will appoint the spouse to serve as the personal representative. If the spouse is not available, the court will appoint the person selected by a majority in interest of the heirs, or the heirs nearest in degree. If more than one of these rules apply, the court may select the person best qualified to administer.

These are the usual rules for how a personal representative is selected in Florida, however, for various reasons, a beneficiary of the estate may wish to remove the person initially named as the personal representative of the estate.

In Florida, a personal representative may be removed for the following:

  1. The personal representative is incapacitated.
  2. A physical or mental incapacity rendering the personal representative incapable of the discharge of his or her duties.
  3. The personal representative has failed to comply with a court order.
  4. Failure to keep proper records of the sale of property or a failure to produce assets of the estate when required.
  5. Wasting or poor administration of the estate.
  6. A failure to give security or a bond for any person
  7. The personal representative has been convicted of a felony.
  8. Insolvency of a corporate representative.
  9. The possession or acquisition of conflicting or adverse interests against the estate that will or may interfere with the administration of the estate as a whole. (This cause of removal does not apply to the surviving spouse because of the exercise of the right to the elective share, family allowance, or other exceptions as provided in the Florida probate codes.
  10. Revocation of the decedent’s will that authorized the appointment of the personal representative or designated the appointment.
  11. The personal representative has been removed of his domicile in Florida, if domicile was a requirement of initial appointment.
  12. The personal representative would not now be entitled to appointment.

Florida Statute 733.504 states that if any of the foregoing causes are present, a person may seek removal of the personal representative.

To start the process of removing a personal representative, the person seeking removal must file a petition for removal in a court that has jurisdiction of the estate’s administration. If you are the beneficiary of an estate and wish to have a personal representative removed, contact the Law Office of David Goldman PLLC to represent your interests in ensuring the estate is properly administered.

In Florida, the Florida Probate Code and the Florida Trust code govern the administration of estates and trusts.   These codes establish the rules and procedures for all probate matters such as the administration of a will. The Florida Legislature has recently amended the Florida Probate Codes.

Attorneys Fees and Costs

Both the probate and trust codes provide that an attorney who has provided services to an estate or trust may be awarded reasonable compensation. The latest update to the codes has been in response to inconsistent application of these laws which used to require there be a finding of “bad faith, wrongdoing, or frivolousness” in order to award a party attorney’s fees and costs. The codes have now eliminated this vague language and have enumerated a list of factors that a court should use when deciding to award attorneys’ fees in a case.   These considerations allow a court to even direct, in its discretion, from which part of the estate or trust attorney’s fees and costs may be paid.

Courts will now award attorney’s fees and costs whenever the court finds it just and proper, and will consider:

  • What impact an assessment will have on the value of each beneficiary’s portion of the estate.
  • The total amount of costs and fees taken from someone’s part of the estate.
  • The extent to which a beneficiary whose part of the estate is to be assessed actively participated in the proceeding.
  • The potential harm to a person’s estate
  • The merits of the claims, defenses, or objections that were asserted by someone who’s part of the estate is to be assessed
  • Whether the person assessed was the prevailing party
  • Whether the person to be assessed unjustly caused an increase in the costs and attorney fees that were incurred by the attorney.
  • Any other relevant facts or circumstances.

New laws for Attorneys acting as Fiduciaries

An attorney serving as a personal representative who provides legal services, administering an estate is permitted to receive compensation for both the personal representative services and for his or her legal services. An attorney can only receive compensation for serving as a fiduciary if the attorney discloses the fee in writing before the will or trust is signed. Failure to obtain written consent will not affect the validity of the will, but it will prohibit the fiduciary from obtaining compensation.

Personal Representatives liable for attorney’s fees if not qualified

A personal representative is a person or entity assigned by a court to administer an estate. In Florida, a personal representative is required to be 18 years old, a resident of Florida, and has full mental capacity. The latest amendment will require personal representatives who are not qualified at the time of appointment to resign. Further, the personal representative may be personally liable for attorney’s fees and costs incurred in the removal proceedings. This will depend on if the representative should have known of facts that would have required him or her to file and serve notice of disqualification.

For more information on the latest changes to Florida’s Probate and Trust codes, see the latest Senate analysis from 2015

In Florida, the assets of an estate can be transferred in three different ways upon the death of the estate owner. Some assets are transferred freely without a court’s approval by contractual terms. A court will also provide limited administration for an estate worth under $75,000. Finally, there is a formal administration for large estates without a valid will. A lengthy probate is not always necessary if the owner of the estate has a will that dictates how a person’s assets are to be distrusted upon his or her death.

Assets that Avoid Probate

There are some types of property that can be transferred to a new owner without a probate court’s approval. One of the most common types of non-probate property is property that is owned by multiple people in joint tenancy with rights of survivorship or as tenants by the entireties.  This property is usually owned by married couples such as a car or house.

Assets held in a trust may also avoid the probate process. The other type of asset that can bypass the probate process is an asset for which the person has designated a beneficiary. A good example of this is a payable on death bank account or life insurance proceeds.

Summary Administration

When a person dies with very few assets, the executor of the estate may use a summary administration. A summary administration is a much quicker process than the formal administration. A summary administration can be used in Florida if: (1) the death occurred more than 2 years ago, or; (2) the value of the probate estate, not including the non-probate assets, is not more than $75,000.00.

To start a summary administration,  the personal representative will file a petition for summary administration.  The petition must be formally served to the beneficiaries, if they did not sign or consent in writing with the petition, If there is no executor, and the court determines that the estate qualifies for summary administration, the court will simply issue an order to release the property to the beneficiaries.

Formal Administration

If the estate does not qualify for a summary administration, formal probate may be necessary. The probate proceeding will usually take place in the county where the deceased person was living at the time of his death. The law in Florida requires anyone who has possession of a will to file it with the local circuit court within 10 days of receiving notice of the death.

The court will then issue a Letters of Administration, which gives the executor the authority to settle the estate. If a will exists, it must be filed with the court and proven valid. Most likely the will be deemed “self-proving.” Under Florida law, a will is self-proving, if the witnesses sign the will in front of a notary public.

The executor will be responsible for gathering assets, paying debts and taxes, and distributing the assets to the beneficiaries. After the estate has been properly distributed, the executor files the receipts of his distribution with the court, and asks the estate to be closed. The court will then issue an order closing the estate and the executor will be relieved of his duties.

For more information on an estate is probated and how a will can prevent a lengthy probate process, contact the Law Office of David Goldman PLLC today at 904-685-1200.

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