Recently in Probate Litigation Category

August 27, 2012

The Benefits of being a "Reasonably Ascertainable" Creditor

florida-case-law.jpgServing as a personal representative to an estate comes with many rights and obligations (see chapter 733 of the Florida Statutes). One of those duties, for example, involves contacting creditors of the deceased person and letting those creditors know of the death. Those creditors then have a period of time to file a claim to be paid. Whether or not they are ever paid depends upon a variety of factors, largely dependent upon the estate actually having money to pay them.

The personal representative's job can be somewhat difficult in notifying the creditors. Credit card loans and mortgage debts, for example, are pretty obvious: the bills probably come directly to the deceased person's home. The personal representative generally would not have a difficult time in figuring out whom to contact to let the lender know of the death.

Some lenders, however, are not so easy to find. This is an important distinction. If a lender is relatively easy to find, it is considered a "reasonably ascertainable" creditor and has two years after the estate's "notice of creditors" is published in order to file its claim. But, if the creditor is not "reasonably ascertainable," it has only three months to file its claim. In other words, if you're a creditor, you have some interest in being dubbed not "reasonably ascertainable," as it gives you more time to file your claim.

But whose job is it to define your status? Well, according to Florida's Second District Court of Appeals, the creditor essentially has the burden of proof. In Lubee v. Adams, a personal representative contacted several creditors to inform them of the death of a debtor. The personal representative did not contact Mr. Lubee. Mr. Lubee did not file a claim until about a year later, claiming he was a "reasonably ascertainable" creditor and the failure to receive notice of death meant he could file his claim any time within the two-year window afforded to other reasonably ascertainable creditors.

The personal representative had not identified Mr. Lubee as a "reasonably ascertainable" creditor; therefore, according to the court, Mr. Lubee had two options. Option A: Mr. Lubee could file his claim within the three-month window afforded to all creditors. Option B: Mr. Lubee could file for an extension of time within that two-year window. Option B would essentially provide Mr. Lubee with status as a "reasonably ascertainable" creditor, but the burden would be on Mr. Lubee to prove that status.

Mr. Lubee unfortunately did not choose either option, but instead simply tried to file a claim. Since the three months had passed, his claim was barred. Instead, he should have filed for an extension of time. While this would have required him to prove he was a "reasonably ascertainable" creditor, doing so would have been more beneficial than simply trying to file a claim that was destined to be thrown out.

Creditor's rights in probate proceedings can be complicated, as Mr. Lubee's case highlights. As always, a Jacksonville Probate Litigation Attorney can help answer any questions you have regarding probate procedures.

August 24, 2012

The Importance of Proving Damages in a Tortious Interference Case

florida-case-law.jpgAt face value, "tortious interference" occurs when someone interferes with some sort of expectation to a level that prompts judicial involvement. It often occurs in a business context, referred to as "tortious interference of business expectations," and typically involves a defendant who has interfered with another party's contract expectations.

A relatively new form of tortious interference has emerged in the realm of family law, dubbed "tortious interference with an expected inheritance," and its name gives away the focus of the claim. Of course, like many tort claims, tortious interference with an expected inheritance involves five elements, each of which must be proven before a plaintiff can recover anything. The five elements are:

  1. The existence of an expectance on the plaintiff's part involving the inheritance,
  2. The defendant's intentional interference with that expectancy,
  3. Involvement of tortious conduct, such as fraud, duress, or undue influence, in the defendant's interference,
  4. Reasonable certainty that but for the defendant's interference the plaintiff's expectancy would have been realized, and
  5. Damages.

It bears repeating that each and every one of these elements must be proven. The court will simply toss out the case if even one element is missing, and this includes damages. It is not enough to simply tell the court that someone has harmed you; you must also prove the amount of the harm with some reasonable certainty. For example, in Saewitz v. Saewitz, two sisters sued their stepmother, accusing her of tortuously interfering with their inheritance.

The sisters were able to show the first four elements. They had a reasonable expectation that they would receive some inheritance from their father, and they could even show that their stepmother deprived them of that. But they did not prove damages. They had three witnesses, none of whom could offer a reasonable estimate on the value of the estate the sisters were to receive at the time of their father's death. In other words, each witness could offer some vague generalization of the value of the estate, but none of them could peg down a more specific value of the estate at the time it was actually due to the sisters.

The court found this insufficient to establish the "reasonable certainty" threshold of the fifth necessary element. Reasonable necessity must be "sufficiently certain for a reviewing court to perform its review obligation," and the generalized testimony of three witnesses did not meet this standard.

You might be wondering how nobody at court was able to figure out the value of the man's estate. Well, the estate was in control of the stepmother, who was unsurprisingly difficult to deal with when her daughters came to sue her. She apparently prevented the sisters from proving their damages by refusing to provide (as required by discovery rules) certain accounting documents that would show the amount of damages.

The sisters of course brought this argument to the court's attention. The court replied, however, that there were other methods by which the sisters could have obtained the documents. Alternatively, the sisters could have called in expert witnesses (instead of laypersons and speculation) who could testify to the value of the estate. The sisters did none of these things, and paid dearly for it.

This is perhaps the most important point to take away from this case: you must be able to prove your damages. Don't rely on someone else to do it. Don't rely on speculation. Proving damages may be difficult. Other parties may not cooperate. Nevertheless, the burden is on the plaintiff to prove them.

As an aside, this case brings up another point that plaintiffs in similar positions must consider; that is, the difficulty that will surely arise when suing a family member. The estate in this case was apparently valued around several million dollars, which may have convinced the sisters that a lasting relationship with their stepmother was not very valuable. But the fact remains that their family is likely seriously shaken by the legal process they just went through. Family members will take sides and things will get ugly. Facing such a scenario is not something a person should go through alone, and a Florida Estate Planning Lawyer can help with any questions you might have.

June 6, 2012

Removing a Personal Representative in a Florida Probate

In Florida the personal representative is appointed by a court and does not become a personal representative until appointed even if they are named as the personal representative in a decedent's Will. The court will look first to any Will that specifies the priority of a Florida personal representative. If there is no Will, the court will look first to a surviving spouse and then a person selected by a majority of the heirs.

It is difficult but not impossible to remove a personal representative who has been appointed by the court unless there has been a failure to provide proper notice of the probate proceeding.

Removing A Florida Personal Representative
There are circumstances when a Florida probate court can override a decedent's choice of an executor or personal representative. Sometimes there is a dispute over the validity of a Last Will and Testament or problems between people with equal representation. In some of the cases the Florida Probate Court may choose to appoint a temporary personal representative or a curator to serve as the personal representative.

A personal representative or curator are entitle dot a reasonable compensation under the Florida Probate Code. Compensation in estates with less than 1 million in assets is approximately 3% of the probate estate. The Florida Probate Code has a schedule of reasonable fees that cover ordinary duties. If there is additional litigation or tasks outside of the ordinary course of a probate proceeding, the personal representative may be entitled to a larger fee. In some cases when an attorney is appointed to serve as a personal representative by the court, the fee may be based on an hourly rate as approved by the court.

When there is more than one person who is legally qualified to act as a personal representative the probate judge my select the one who is "best qualified".
Reasons to Remove a Personal Representative.

Because of the duty owed to the estate, a personal representative may be removed if they do not act in the best interest of the estate. In such a case, the court can remove the personal representative and appoint a successor.

The Florida Probate Code lists causes for removal of a Personal representative.
If the Personal representative becomes adjudicated by a court to be incapacitated.
A physical or mental incapacity which leaves the personal representative unable to perform his or her duties.

  1. Failure of the personal representative to comply with a court order.
  2. Failure to account for the sale of property or provide an inventory.
  3. Wasting the assets of an estate.
  4. Failure to post bond.
  5. Conviction of a felony.
  6. Insolvency or a corporate personal representative.
  7. Except for a surviving spouse, acquiring a conflict of interest that may or will interfere with the administration of the estate.
  8. Revocation of the will naming the person as personal representative.
  9. Removal of Florida as a Domicile unless domicile is not a requirement.
  10. If the personal representative would not now be entitle to appointment.
Any "interested person" can petition the court for removal. This is quite a low bar, and means that anyone who stands to lose something due to the personal representative's actions (usually a person who anticipates receiving assets of the estate) can file a petition. Alternatively, the court can initiate removal proceedings on its own.

Once a personal representative has been removed, he or she must file a final accounting of his or her administration and surrender any assets in his or her possession to the new personal representative appointed by the court.

If you are involved in a probate where you feel that the personal representative is not qualified or should be removed, or you believe that your appointment as a personal representative in a Florida probate will be challenged, you should contact a Jacksonville Probate Lawyer to discuss your circumstances and options.

May 24, 2012

Tort and Probate Law: Tortious Interference and Expected Inheritance

The recent decision of a Florida appellate court has shed some light on a little discussed aspect of tort and probate law in the state of Florida. The Third District Court of Appeals ruled in the case of Saewitz v. Saewitz that to sustain a prima facie case for tortious interference with expected inheritance the plaintiff must prove damages.

In this case, two daughters, Mercedes and Brooke Saewitz claimed that while their father was dying their step-mother Lynn Saewitz manipulated their father and tortuously interfered with their inheritance. At trial, the case was dismissed because the trial judge held that the daughters did not prove the damage element required to make a prima facie case of tortious interference. The elements of the cause of action are as follows:

(1) expectancy by the plaintiff to receive an inheritance;
(2) intentional interference with that expectancy by the defendant;
(3) defendant's interference involves tortious conduct;
(4) reasonable certainty that but for the defendant's tortious interference the plaintiff would have his/her expectancy; and
(5) damages.

Like any tort or crime, all of the elements must be met in order to sustain the claim. If one of the elements is missing, the plaintiff cannot recover. In the Saewitz case the plaintiffs could not determine with any certainty the value of the property that they claim was tortiously interfered with. At trial, three witnesses testified regarding the value of the property, however no one could provide a specific value of the property at the legally recognizable time. Florida requires that the value of the property be measure at the time of conversion. Since no one testified about when the property was actually converted, there is no proper measuring standard.

Because this tort is relatively new in the state of Florida, those who may be going through probate would need a Florida estate planning attorney to assist them if they believe someone has tortiously interfered with their inheritance. If you questions regarding Florida probate law, contact the Apple Law Firm PLLC and speak with a Jacksonville Probate Litigation Attorney today at (904) 685-1200.

Source: "Tortious Interference with Expected Inheritance in Florida," published at BusinessReviewUSA.com.

May 23, 2012

Florida Appellate Court Adds New Requirement for Trust Contestants

The Fourth District Court of Appeals recently handed down a decision which may impose new requirements on probate plaintiffs who are challenging trusts. In Pasquale, Jr. v. Loving, et. al., the Court held that if a person is contesting a trust, the contestant must also contest the will if the trust is incorporated by reference into the will.

The plaintiffs filed a complaint with the probate court challenging trust documents that accompanied a last will and testament. The complaint did not address the last will and testament directly. The defendants moved to dismiss the complaint because the defendant's argued that the plaintiff's complaint did not attack the will, which was required since the trust was incorporated into the last will by reference. "In other words, the Defendants argued that even if the Plaintiffs were somehow successful in overturning the Trust instruments, the Will would still govern per its incorporation of the overturned Trust into the Will." The probate court agreed with the defendant's and dismissed the probate suit with prejudice.

The Fourth District Court of Appeals reversed the probate court's ruling, even though the language of the appeal suggested that the Court agreed with the defendant's reasoning. The Court held that a trust contestant is required to challenge the will if the trust is incorporated into the will by reference, but when the Court analyzed the facts of this case, it held that the complaint could be construed as challenging the will even though the precise language is missing.

What is important for probate attorneys is that the Court has imposed a new requirements for when a client is claiming that a trust is legally ineffective. Such a requirement may be overlooked by those pursuing probate claims without the assistance of a Jacksonville estate planning attorney. If you have questions about a Florida Probate, an estate, or about a will or a trust, contact the Apple Law Firm PLLC today at (904) 685-1200.

Source: "Fourth DCA: A Trust Contestant May Need to Challenge the Will, Too [Florida]," by Charles Rubin, published at JDSupra.com.

See Our Related Blog Posts:
Jacksonville Gay and Lesbian Issues Lawyer with Breaking News

What are Probate Assets in Florida?

January 30, 2012

Is Non Probate separate Property That Increases in Value During a Marriage Part of the Elective Share Calculation?

The 2nd District Court of Appeals for Florida held in McDonald v Johnson that the increase in a company stock value that happened during the marriage can be used to determine the value of an elective share calculation. The lower court ruled that the surviving spouse had no right to discovery of a company's financial information because the company stock was not subject to probate. The 2nd DCA found that Section 742.2155(6)(c) excluded non-martial assets as defined in Section 61.075. Because the increase in value of an asset that happens during a marriage is a martial asset, they concluded that the spouse was entitled to do discovery that was necessary to determine if it would be to her benefit to claim an elective share.

Section 732.2155(6) provides as follows:
Sections 732.201-732.2155 do not affect any interest in property held, as of the decedent's death, in a trust, whether revocable or irrevocable, if:

(a) The property was an asset of the trust at all times between October 1, 1999, and the date of the decedent's death;
(b) The decedent was not married to the decedent's surviving spouse when the property was transferred to the trust; and
(c) The property was a non-marital asset as defined in s. 61.075 immediately prior to the decedent's death.

The courts reasoning is as follows:

We conclude that the fact that section 732.2155(6)(c) cites to section 61.075 without a specific citation to the subsection defining non-marital property indicates the legislature's intent that the entire statute, which defines both marital and non-marital property, is to be considered in determining whether the property in the revocable trust was non-marital at the time of death. The definition of marital assets includes "[t]he enhancement in value and appreciation of non-marital assets resulting either from the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds or other forms of marital assets, or both." § 61.075(6)(a)(1)(b), Fla. Stat. (2010). In other words, if the value of the MCC stock in the decedent's revocable trust increased pursuant to the terms of section 61.075(6)(a)(1)(b), that increase would not be excluded from the elective share under section 732.2155(6)(c). Thus, to the extent the information sought by the surviving spouse is necessary to her determination whether the MCC stock value was enhanced during the marriage due to the efforts of the decedent, it is relevant.

September 9, 2011

Personal Represntative of Yale Student's Estate Files Wrongful Death Lawsuit

It is the PR's job in a Florida Probate case to take actions to gather the assets and distribute them to the beneficiaries. When wrongful death claims are not assets subject to distribution under Florida Probate, it is the personal representative of an estate who pursues a Wrongful Death Claim in Florida or another state. The Jacksonville Wrongful Death Lawyer will often work directly with a Florida Estate Planning Lawyer to pursue the claim for the family and children of the decedent.

The Yale Daily News is reporting that

The estate of former pharmacology student Annie Le GRD '13 filed a wrongful death lawsuit against the University in New Haven Superior Court on Tuesday, alleging that pervasive sexual harassment at the University "emboldened" her killer, Raymond Clark III, who is serving a 44-year sentence for the murder and who the suit claims was hired through Yale's negligence.

While many states have broader statutes dealing with wrongful death claims, Florida limits which family members can have a claim and often when an elderly person dies, the adult children may not be able to file a claim.

It is important to talk with a Florida Estate Planning Lawyer who is familiar with the Florida Wrongful Death Statute and requirements so that the correct form of probate is opened and unnecessary estate or personal assets are not waisted when there is no claim that can be recovered.

July 5, 2011

Florida Trust Case When Asset Generates No Income

A recent Florida appellate court decision, 2010 WL 4226204, came to the conclusion that if a trust only has a piece of real property as its sole asset and the trust documents provide an intent that the trust give 5% of its annual principal disbursements to the beneficiary, no monies needs to be paid to the beneficiary. However, as a substitute, the court ordered this trust to pay 5% of the interest in the principal asset to the beneficiary. The court ruled that this would be an "equivalent transfer of interest."

What this may mean to you: If you find yourself as the beneficiary of a trust where the sole asset is a house or some other type of real property and you are expecting a disbursement from the trust, you may be entitled to a substitute payment in an interest in the house. On the other hand, if you are a trustee of a trust with no money to make disbursements, you may still have some options depending on the language of the trust. In either case, you should contact a Jacksonville Florida Trust lawyer who can look over the facts of your particular situation, and let you know the possible legal avenues you can pursue. Or, if you are further down the road leading to litigation, you can contact a Florida Trust Litigation attorney who can represent you in court.

February 25, 2011

"Do it yourself" Wills: Prepare According to Florida Law

Thumbnail image for Last Will and Testament 1.jpgPreparing your will without the assistance of a Jacksonville Estate Planning Lawyer may cost your family future trouble and costs. Your Will must be clearly worded, otherwise, your intentions may be disputed by family members.

A Florida Will contest may result in a lengthy and expensive court battle, which is exactly what you did not intend for your surviving family. A Last Will and Testament must meet the requirements of the Florida Statutes. If your Florida Will is not signed and witnessed in the proper fashion, a Probate Judge may refuse to admit your will to Probate, resulting in your property being distributed as if you had no Will at all.

To avoid any challenge to your Florida Will, it is advisable that you consult with a Jacksonville Estate Planning Lawyer . An Attorney will prepare your Last Will and Testament according to your directions and supervise the execution (signing) of your Will to ensure that it is witnessed according to Florida Law.

February 22, 2011

Estate Planning and Criminal Defense Lawyer

We often do not think of Criminal Defense in connection with Florida estate planning. We have a Jacksonville Criminal Defense Lawyer who has been helpful in dealing with crimes committed by fiduciary agents. Every month we get contacted by individuals who have had their parents or families life savings depleted because someone with a Power of Attorney or other fiduciary position thinks that they can treat the other persons funds as their own. Not only are we able to help represent the individuals who have lost the money, but we often represent other family members that have lost their inheritance because of the bad acts of others.

Often it is a difficult choice to decide whether to just go after recover of the money or to also package the information for the state to review for possible criminal charges. Florida has very strict laws when it comes to financial abuse of the elderly.

If you believe that a Power of Attorney or trustee or other person with a fiduciary responsibility has acted inappropriately, contact a Florida Estate Planning Lawyer or a Jacksonville Criminal Lawyer to discuss your situation. You may also review the Jacksonville Criminal Defense Lawyers Blog or more information on this and other financial crimes.

January 25, 2011

Probate Does Not Have to Be Deadly

Thumbnail image for moneybag.pngThe ABA Journal recently reported an unusual case when an attorney's client was targeted for murder by his own brother. The parents of the brothers passed away leaving an unexpected $20 million dollar estate. The brother's were the sole heirs of the estate, but apparently sharing the money was not in the one brothers plan. He was arrested for putting a murder contract out on his younger brother.

Money does crazy things to people. A consulting with a Ponte Vedra Estate Planning Law Firm may offer numerous ways in which you can provide for your heirs, which may prevent them from receiving too large of an inheritance at one time. Discussing the benefits of preparing a Florida will or Florida trust can be an important tool for anyone leaving assets to children or other family members.

If you are a named beneficiary in someone's will, or if you expect a conflict with other beneficiaries, a Ponte Vedra Probate Firm can guide you through the probate procedure and any adversarial proceedings which may arise.

September 7, 2010

When can Notice to the Creditors Be sent

probate.jpgCreditors only have 90 days to file claims in a Florida Probate once notice has been published. For this reason it may be beneficial to publish notice as soon as possible. Unfortunately, you can only publish notice once a Personal Representative has been appointed. If there is a dispute about who will be the PR in a Florida Probate case the ability to publish notice to the creditors will not happen until the Florida Court appoints a Personal Representative.

Creditors claims are barred 90 days after publication or 2 years after the death of the decedent. If you have a question about a Florida Probate case or want to speak with a Jacksonville Probate Lawyer contact us by phone or email.

August 19, 2010

Lost Wills in Florida Require Live Witnesses

will.jpgA 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.

July 19, 2010

Contesting a Will in Florida

will.jpgFlorida Will Contests:

Occasionally a family member or friend passes away with a Florida Will that gives less than expected to an heir of the decedent. This situation usually gives rise to an inquiry about a will contest. A will contest happens when the disgruntled heir challenges the will by suing the estate under some legal theory claiming the will is invalid. Will contests commonly happen when the testator attempts to leave a small amount to an estranged child or a large amount to someone who would not be expected to inherit under a Florida Will.

To guard against the potential of challenges to the will, you may see a No-Contest clause added by the testator. A no-contest clause is a provision of a will that penalizes the beneficiary who challenges the will, or the contestant. While these clauses may be valid in other states, Florida law specifically makes them unenforceable. According to the Florida Probate Code, "a provision in a will purporting to penalize any interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable." Furthermore, the Florida Trust Code, as amended in 2007, addresses no-contest provisions by making them unenforceable in any trust instrument. This does not mean that they should not be considered as they may be enforceable if one changes which laws the documents will be interpreted under.

The possibility that an estate could be tied up in Probate court for a long period of time is almost certain when there is a contestant of the will. Your beneficiaries will be prevented from receiving their money and assets for prolonged periods while at the same time the estate funds are being depleted by attorney's fees. If you would like information on ways in which Florida residents can protect their assets from these will contests contact a Florida Estate Planning Lawyer today for guidance.

June 30, 2010

Gary Coleman’s Will Contest

will.jpgDuring the late 1970’s through mid 1980’s, Gary Coleman became a promising young star on the television sitcom Different Strokes. His character’s catchphrase "What you talkin' 'bout, Willis?” made numerous people laugh during the shows 8 year run. Sadly after his passing and subsequent cremation, his relatives will not be able to hold a funeral until a judge in Utah decided who will permanently control his estate.

There are records that indicate Coleman created a will in 1999 and another in 2005. However, a handwritten amendment was added to the 2005 will later on, in 2007. The significant difference between the 2005 will and the 2007 amendment is that the 2005 will leaves his entire estate to ex-girlfriend and former business associate Anna Grey while the 2007 amendment leaves the entire estate to his ex-wife Shannon Price.

Price and Grey are both claiming in court they should be entitled to the entire estate but have significant legal obstacles to overcome. Price’s strongest argument is that Utah is one of the states that recognize holographic (handwritten) wills, although they must be entirely written in the handwriting of the person, signed and dated. However, Grey’s best argument is that the 2007 amendment was revoked because it was made while Price and Coleman were married. Since they divorced there is a presumption that the amendment was automatically revoked and struck from the will. Price is trying to rebut this presumption by claiming she and Coleman were living in a common law marriage at the time of his death.

In Florida, holographic wills and amendments are disfavored and held unenforceable because of the potential for coercion or duress. Most of these issues could have been avoided with a properly prepared estate plan. For information on avoiding estate planning consequences contact an experienced Florida Estate Planning Lawyer for any questions or concerns you may have with your Florida Will.