Florida Estate Planning Lawyer Blog

A lost Florida Will is a will that was lost or destroyed without the decedent's knowledge or consent and without his or her intent to revoke. The original Florida Will of a testator can be revoked in a number of ways but the individual must have the intent to revoke the will. When the original will of the decedent cannot be located after her death, it is presumed that the will was destroyed with the intent to revoke it. Overcoming this presumption in Florida requires the proponent of a lost will to carry the burden of introducing competent and substantial evidence.

In the recent case Brennan v. Estate of Brennan, the issue addressed by the 5th District Court of Appeals was whether affidavits alone are enough to prove a lost will or whether live witness testimony is required. Relying on a similar issue addressed by the Florida Supreme Court and the 3rd DCA, the 5th DCA determined that in order for a lost will to be admitted to probate Fla. Stat. § 733.207 requires testimony of one disinterested witness and a "correct copy" of the will, or testimony from two disinterested witnesses. Affidavits merely swearing the witnesses saw the decedent execute the lost will and that witness signed the will are insufficient to fulfill this requirement.

From this decision it is apparent that a draft of the will or some evidence be provided for admission to the probate court and depending on whether a "correct copy" of the will is offered, the testimony of one or two disinterested witnesses. Florida Probate issues are anything but simple so if you feel the need for assistance don't hesitate to contact a Florida Probate lawyer or Florida Estate Planning Lawyer. If you are considering a Florida Will modification, it may be wise to do a full disclosure to all beneficiaries and those close to you because it will provide peace knowing your final wishes have been acknowledged.

Whether a death is expected or unexpected, the deceased will probably die with some outstanding debts. It is the responsibility of the estate of the decedent to pay whatever outstanding debts are owed. If you are wondering whether a debt owed by a recently deceased person is collectible, a probate judge will make that decision for you under Florida Statutes. Normally, tax debts are collected first followed by probate fees and all other debts including mortgages, account payables and credit card bills.

In order to pay the remaining debts the executor of the estate will use estate assets, which may require selling off illiquid portions of the estate to create funds to pay the debts. However, if there are not enough assets in the estate to cover all the debts then you may be left wanting. A creditor must file a claim with the estate within a fixed date after the death of the debtor. Therefore, you will go onto a list of creditors to be paid if you meet this deadline. A creditor will always be paid before a beneficiary unless the beneficiary also can make a claim as a creditor. As a result, if an individual leaves their estate insolvent, creditors will end up with their pockets full while your beneficiaries end up with nothing.

With an economy still slow to recover, more and more estates are left insolvent. A Florida Estate Planning Lawyer or Jacksonville Estate Planning Lawyer may be able to assist you in creating an Florida Estate Plan that can protect assets from some types of creditors and allow your heirs to receive a larger portion of your estate. If you would like a Free Florida Probate Handbook, let us know

Yes, heirs have a right to see the will and to know everything about the assets and distributions. Yes, some personal effects can be distributed before the "will closes" or the probate is closed.

Florida probate laws include many protections for the beneficiaries of a probate estate. If you are a beneficiary under a Florida Will and there are assets that were required go through probate, you should have received some notifications.

You should require that the Custodian of the will deposit it with the court. If they refuse, they can be ordered to by the court and are subject to reimbursement of your legal fees.

If you have a relative that is unwilling to share the contents of a Florida Will you should contact a Florida Estate Planning Lawyer or Florida Probate Lawyer to discuss your options.

Note, in Florida you do not have any right to see a will while they are still alive.