We often get questions about contesting a will because of Undue influence in Florida. Undue influence is a cause of action that is used to challenge the validity of a will, trust, or other testamentary document. You can not challenge a will until the person who has created it has died. The conduct of a person charged with undue influence must amount to over-persuasion, duress, force, coercion, or artful or fraudulent contrivances to such a degree that there is destruction of the free agency and will power of the one making the will.

The primary case on this topic is the Estate of Carpenter. This case holds that to prove undue influence in Florida with a will or trust, the person claiming the undue influence must show that the decedent ( the person who died) was unduly influenced by 1) a substantial beneficiary under the contested document 2) and that beneficiary had a confidential relationship with the decedent and 3) actively procured the will or trust.

In providing this the Florida Supreme Court provided seven criteria to help determine undue influence:

  1. presence of the beneficiary at the execution of the will/trust;
  2. presence of that beneficiary on occasions when the testator expressed a desire to make the will/trust;
  3. recommendation by the beneficiary of an attorney to draw the will/trust;
  4. knowledge by the beneficiary of the contents of the will/trust prior to its execution;
  5. giving of instructions on preparation of the will by the beneficiary to the attorney drawing the will;
  6. securing of witnesses to the will by the beneficiary; and
  7. physical possession of the will by the beneficiary after its execution.

While active procurement is necessary to prove undue influence, it may be necessary to look at other factors which may provide for the active procurement. There are many newer cases that have addressed other ways of proving these factors and it is important to fully evaluate the situation.

The presumption of undue influence is a rebuttable one under F.S. §733.107. Once proper execution of the Will(or trust) has been established, the individual challenging the document has the burden of presenting evidence to prove the elements of undue influence by a preponderance of the evidence (more likely than not). If the case of undue influence has been established by the contestant, the burden of proof then shifts to the proponents of the will, who provide evidence that the will was not the result of undue influence. Proving undue influence is difficult but proving that it did not occur is also difficult and expensive. The outcome of many cases depends on who has the burden of proof.

Undue influence can be a very expensive claim to pursue and unfortunately it will not make financial sense in all cases. For larger cases where the claims are in excess of $500,000 it may be possible to hire lawyers to pursue these claims on a contingency basis. If you suspect that someone used undue influence to change estate planning documents in which you lost a substantial inheritance, you should contact an Florida trust litigation or Florida will contest lawyer to discuss your situation.

We get many calls from children who want to know where they can get a copy of their parent’s will or find out if they had life insurance.

First, if your parent is alive, you have no right to demand or see a copy of your parent’s will. While it would be a good idea for them to share it with their children there may be reasons why they have chosen not to.

If your parent is incapacitated, and you acting as the agent under a power of attorney or the guardian over the property, you may look for these documents in order to preserve your parents assets or provide for them. A guardian or agent must be careful to avoid taking actions that could be considered changing the beneficiaries. They may also not create a will for someone else.

If your parent has passed and their will is not able to be found you may look to see if your parent had any bank accounts where they may have a safe deposit box. See if they have any documents which indicate if they had an attorney. If you still cannot find the will, you may also check with financial advisors or stock brokers to see if they can help you find out who your parent’s lawyers was. Many people think that they can search the court records to find a parent’s will. In Florida, one can no longer file their will with the court before death.

There is no easy way to find out if your parent had life insurance unless you can find a copy of an old bill. To do this you might check their bank records over the last 12-24 months and continue to watch their incoming mail for tax statements and account updates.

If there is no will or a valid will cannot be found, Florida does have a system for distributing assets to the person’s surviving spouse, children, or other close family members. If you would like to learn more about probate in Florida, you may want to request the Florida Probate Handbook or contact us for more information.

New Florida Statutes §732.806, which is effective October 1, 2013, makes an improper gift to a lawyer in a will or other estate instrument void.

The new statutory provision is here: http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0732/Sections/0732.806.html

The new Florida statute in effect tracks 4-1.8(c), Rules Regulating The Florida Bar and incorporates it into the probate code, and makes a violation of the statute a basis for voiding any part of a will, trust or other written instrument which makes an improper client gift to the drafting lawyer or a person related to the lawyer. The statute also provides exceptions to this prohibition, including gifts where the lawyer or other person is related to the person making the gift as well as title to property acquired for value from a person who receives the property which violated the statute.

The previous (common law) rule in Florida probate was that gifts made to lawyers in violation of Bar Rule 4-1.8(c) were not automatically void; however, the gifts created a rebuttable presumption of undue influence by the drafting lawyer.

F.S. §732.806(1) states:.

732.806 Gifts to lawyers and other disqualified persons.– Section (1) Any part of a written instrument which makes a gift to a lawyer or a person related to the lawyer is void if the lawyer prepared or supervised the execution of the written instrument ( a will, a trust, a deed, a document exercising a power of appointment, or a beneficiary designation under a life insurance contract or any other contractual arrangement that creates an ownership interest or permits the naming of a beneficiary.), or solicited the gift, unless the lawyer or other recipient of the gift is related to the person making the gift.

F.S. §732.806(7)(a) further states in section (7) For purposes of this section: (a) A lawyer is deemed to have prepared, or supervised the execution of, a written instrument if the preparation, or supervision of the execution, of the written instrument was performed by an employee or lawyer employed by the same firm as the lawyer.

As of this month (October 1, 2013), improper client gifts made by a lawyer to him or herself in a testamentary instrument are now void as a matter of law.

One or more of the persons interested in the decedent’s estate usually are unhappy with the personal representative (PR). Some have valid reasons, but others are influenced by sentiments of jealousy or by past rivalry. If you are unhappy with the PR of an estate in which you have an interest, you might be entitled to request the court to remove him or her. However, you must allege at least one of the below discussed causes to remove the PR of an estate. Animosity between you and the PR does not suffice to remove him or her from the appointment.

Causes to Remove the Personal Representative of an Estate

The Probate Code states the causes to remove the PR. Any interested person in the decedent’s estate can request the court to remove the PR if one of the following circumstances arise:

  1. A court enters judgment declaring the PR incapacitated.
  2. The PR suffers a mental or physical incapacity that renders him incapable of the discharge of his or her duties.
  3. The PR fails to comply with any order of the court, unless the order has been superseded by an appeal.
  4. The PR fails to account for the sale of property, or to produce and exhibit the assets of the estate when he or she is required to do so.
  5. The PR wastes or fails to properly administer the estate.
  6. The PR fails to give bond or security for any purpose.
  7. The PR is convicted of a felony.
  8. In the case of a corporate PR, the corporation lacks financial resources.
  9. The PR has an adverse interest against the estate that will or may interfere with the administration of the estate. However, this does not apply if the PR is decedent’s surviving spouse and he or she is seeking to exercise his or her right to the elective share, family allowance, or an exemption.
  10. The Probate Court revokes the decedent’s will designating the appointment of the PR.
  11. The PR no longer has a domicile in the State of Florida and domicile in Florida was a requirement of the initial appointment.
  12. The PR would not now be entitled to appointment.

Procedure to Remove the Personal Representative of an Estate

A proceeding to remove the PR may be initiated by the court, or after an interested person in the decedent’s estate files a petition requesting the court to remove him or her. If you are an interested person seeking to remove the PR and alleging one of the abovementioned causes to remove him or her, then you must file a petition for removal in the probate court administering the decedent’s estate. The court will remove the authority of the PR to act on behalf of the decedent if it grants the petition for removal. Also, the removal of the PR does not exonerate him or her from any liability. It is wise to contact an estate attorney for assistance with this issue. For an estate attorney in Florida, contact the Law Office of David M. Goldman PLLC at (904) 685 – 1200.

A family member or someone you care for has just passed away and you have been served with a copy of the notice of administration of his or her estate. The copy should include the name and address of the preferred or nominated personal representative (PR) of the decedent’s estate.1 If you disagree with the qualifications of the PR , then you can object to the appointment.2 However, you must do so within the three months after the date of service.3 Below, you will find the available grounds for objecting to the appointment of the PR.

NON-STATUTORY GROUNDS

Intestate Estate
A decedent has an intestate estate in Florida if he or she does not have a valid will when he or she dies. The appointment of the PR for an intestate estate is a discretionary act of the probate court and is regulated by section 733.301 of the Probate Code. This section states that the probate court must follow the following order of preference when appointing a PR in an intestate estate:

A. Surviving spouse;
B. Person selected by the majority of the beneficiaries;
C. The heir nearest in degree. If more than one applies, the court may select the one best qualified.

Someone with preference to be appointed as the PR of the intestate estate does not have an absolute right to be appointed. The court will not appoint the preferred PR if he or she is not qualified by character, ability, or experience to serve as the estate fiduciary.4 Therefore, you must show that the preferred PR is not qualified to perform his or her duties under the decedent’s estate to prevent his or her appointment.

Testate Estate
A decedent has a testate estate in Florida if he or she has a valid will when he or she dies. In a testate estate, the decedent nominates the PR of his or her estate in the will and the court will afford great deference to the selection. The court has the discretion to refuse to appoint the PR nominated in the will. However, the court will only exercise this discretion in “exceptional circumstances.” Courts have broad discretion in refusing to appoint the selected PR on non-statutory grounds. If you successfully allege hat one of the below circumstances has taken place, then the court will not appoint the nominated PR.

  1. Unforeseen circumstances arise, which clearly would affect the decedent’s decision and decedent had no reasonable opportunity prior to his or her death to change the will.
  2. There are facts at the time of the appointment that would support removal of the PR after he or she has been appointed.
  3. The court concludes that the selected representative does not have the qualities and characteristics necessary to properly perform the duties of an administrator.
  4. There is a dispute between the PR of the estate and one of the beneficiaries that will cause unnecessary litigation and impede the administration of the estate. The court would consider the totality of the circumstances to make a determination.

STATUTORY GROUNDS

  1. If you successfully allege one of the below mentioned statutory grounds, which prevent the appointment of the PR, then the court will not appoint him or her.
  2. Fla. Stat. § 733.303: PR has been convicted of a felony, is mentally or physically unable to perform the duties, or is under the age of eighteen years.
  3. Fla. Stat. § 733.304: PR is a nonresident of Florida and he or she is not a legally adopted child or adoptive parent of the decedent; related by lineal consanguinity to the decedent; a spouse or a brother, sister, uncle, aunt, nephew, or niece of the decedent or someone related by lineal consanguinity to any such person; or the spouse of a person otherwise qualified under this section.
  4. Fla. Stat. § 733.307: The PR of the estate of a deceased PR is not authorized to administer the estate of the first decedent. On the death of a sole or surviving PR, the court shall appoint a successor PR to complete the administration of the estate.

CONTACT THE Law Office of David M. Goldman PLLC
If you have been served with a copy of a notice of administration of someone’s estate and desire to object to the appointment of the PR, then you should strongly consider hiring an estate attorney to assist you with this issue. For an estate attorney in Florida, contact the Law Office of David M. Goldman PLLC at (904) 685 – 1200.

Life is full of instances where taking a decision seems to be extremely challenging. The task is even more difficult if the decision concerns the medical treatment for a loved one that is incapable of deciding for him or her self. Deciding health care matters for patients that cannot do so is emotionally wrenching for families and represents an ethical dilemma for physicians. This difficult scenario is better illustrated with the Terri Schiavo case.

Terry Schiavo Sad Case.

Ms. Schiavo was sustained by artificial hydration and nutrition through a feeding tube for 15 years after suffering a cardiac arrest, triggered by extreme hypokalemia caused by an eating disorder. Ms. Schiavo’s husband, Michael Schiavo, faced a public legal struggle with his wife’s parents and siblings about whether Ms. Schiavo’s life-sustaining medical treatment should be continued or stopped. Mr. Schiavo and the two neurologists that he selected to testify in court stood for the position that Ms. Schiavo’s condition met the criteria for a persistent vegetative state and believed that her treatment should be stopped. Ms. Schiavo’s parents, siblings and the neurologists testifying in court for Ms. Schiavo’s estate stood for the position that Ms. Schiavo’s condition could improve in the future and believed that treatment should be continued.

After years of legal battle, Mr. Schiavo was able to terminate his wife’s life-support treatment. By then, however, his family had been tainted by bitter moments trying to guess Ms. Schiavo’s desires regarding life-sustaining medical treatment. This could have been avoided if Ms. Schiavo had left her written wishes about receiving life-support treatment in a living will. With a proper living will, Ms. Schiavo could have decided under which circumstances she desired life-support machinery, and under which ones she did not.

5 Steps to Create an Efficient Living Will

  1. Appoint a health care agent: You appoint someone as your health care agent with a durable power of attorney known as Designation of Health Care Surrogate. Your agent will have the legal authority to make health care decisions for you if you are no longer able to speak for yourself.
  2. Attach a signed HIPAA release form: You must provide your health care provider with a HIPAA release form so that he can discuss your medical information with your agent. It is wise to provide a release form to all of your physicians and insurance carrier.
  3. Draft instructions for health care: Write instructions for your future health care outlining your wishes about life-sustaining medical treatment in the event that you can no longer speak for yourself. Your agent will be directed to implement your written instructions. This will be your living will.
  4. Revise: Your written instructions must be absolutely clear to be enforceable. Moreover, your written instructions must clearly answer the question about life-sustaining care.
  5. Notify your attending physician: Once you draft your living will, it is your responsibility to notify your physician that you have a one. Also, it is important that you discuss your health care desires with your physician. He or she is likely to be the one carrying for you if your instructions become relevant and is more likely to honor requests that have been communicated to him or her directly.

Important Considerations
Often a living will is part of a more complex document which also contains a designation of health care surrogate and a HIPAA release.
You must sign your living will in the presence of two subscribing witnesses. The witnesses cannot be your spouse or your blood relative. If you cannot sign your living will, then one of the witnesses must subscribe your signature in your presence and at your direction. While you are not required to seek legal advice to prepare a living will, it is a good idea to do so to ensure that the actual instructions for your wishes are stated accurately. For assistance in drafting a living will in Florida, call the Law Office of David M. Goldman PLLC at (904) 685 – 1200.

An agent is someone you chose to act on your behalf. If an agent acts on your behalf and under the scope of his or her authority, then you will more likely than not be bound to his or her decisions. However, your agent has the fiduciary duty to act with the highest degree of good faith on your behalf. If your agent failed to act under the scope of his or her authority or acted against your best interest, then he or she is liable to you and to your successors in interest.
THE PROCEDURE IN YOUR CLAIM AGAINST YOUR AGENT

1. File a petition in court requesting the judge to terminate your agent’s authority, to remove the agent, or to grant an appropriate relief.

2. Show the court that you shared a relationship with your agent where you placed your trust and confidence in him or her; and your agent undertook such trust and assumed a duty to advice, counsel, and/or protect you.

3. Allege that your agent breached one of his or her fiduciary duties.

• Non-mandatory fiduciary duties: You can modify these duties on the document that granted power to your agent to act on your behalf.

i. Duty of loyalty: Your agent must act solely in your interest.
ii. Duty of care: Your agent must perform his or her functions with a high level of competence and thoroughness according to his or her level of skill and expertise

• Mandatory fiduciary duties: These duties are not subject to modification.

i. Duty to act in good faith: Your agent must act in good faith, within the scope of his or her authority, and not contrary to your best interests and expectations as actually known by him or her.
ii. Non-delegation of authority: agent may not delegate authority to a third person to act on your behalf.
iii. Keep records: Your agent must keep detailed records concerning all transactions he or she engages in on your behalf.
iv. Keep your money separated: Your agent must keep his or her money separated from yours. The agent must create and maintain an accurate inventory each time he or she access your income or safe-deposit box.

4. Prove that your agent’s breach caused you to suffer damages. For example, if your agent’s breach negatively affected one of your properties he or she will be liable for the amount required to restore the value of your property to what it would have been had the violation not occurred. The agent must also reimburse you or your successors in interest for the attorney’s fees and costs paid in an action brought against him.

Seek Assistance of an Estate Attorney
Before filing a claim against an agent, it is important to understand the elements of the claim and the available defenses. For example, an agent is not liable if the value of the principal’s property declines unless he or she breaches one of his or her fiduciary duties. For an estate attorney in Florida, call the Law Office of David M. Goldman PLLC at (904) 685 – 1200.

In Florida, a Durable Power of Attorney (DPA) is a document that allows you to designate someone to act on your behalf if you ever become incapacitated. The person creating the DPA is known as the “principal” and the person receiving authority to act on your behalf is known as the “agent” or “attorney-in-fact.” Depending on the DPA, your agent will have authority to handle your financial transactions or to oversee your medical care.

Steps to Create a DPA

DPA for your finances: With this type of durable power of attorney, you can give a trusted person as much authority over your finances as you like. Your agent can handle simple tasks like sorting through your mail, or more complicated ones like watching over your investments. To create a Financial DPA follow the following steps:

  1. Choose your agent: Your agent must be a natural person who is 18 years of age or older. Your agent can also be a financial institution that has trust powers, has a place of business in the state of Florida, and is authorized to conduct trust business in Florida. Although your agent does not have to be a financial expert, you should trust that he or she has and will use common sense in making decisions that are in your best interest.
  2. Draft the DPA: A DPA must contain the phrase “this durable power of attorney is not terminated by subsequent incapacity of the principal except as provided in chapter 709, Florida Statutes.” Otherwise, the document is a power of attorney and the authority granted to your agent to act on your behalf will terminate if you ever become incapacitated. Your DPA must also state how much authority do you grant to your agent to handle your finances, be signed by you and by two subscribing witnesses, and acknowledged by you before a notary public. Lastly, the document must state that your agent can exercise his or her power under the DPA only in the event that you become incapacitated.

DPA for your health: The name of this type of DPA is Designation of Health Care Surrogate (DHCS). To create a DHCS, follow the same steps to create a financial DPA but mention in the document that you grant the authority to your agent to oversee your medical health care in case you ever become incapacitated. Also, you must attach the following documents to your DHCS:

  • HIPAA release form: This form authorizes your health care providers to release your medical information to your agent.
  • Living will: This document allows you to draft instructions to your agent as to how to decide whether or not you will receive life support.

Why Do You Need a DPA Life is unpredictable. A sudden accident or illness can prevent you from being able to manage your financial affairs. Or even worse, it can leave you unable to tell the doctors what kind of medical treatment you desire. If this happens to you and you do not have a DPA, your relatives or loved ones will have to go to court to request a judge to name someone to manage your affairs. This proceeding can be expensive and will create a record available to the public. Moreover, the person selected by the judge might not know your desires and might even act contrary to them.

A DPA prevents this daunting scenario by allowing you to name someone you trust to handle your affairs if you are unable to do so, and allows you to draft instructions to that someone so that he or she can act according to your desires. Your instructions must be clear; therefore, it is wise to call an estate attorney for assistance with this matter. For an estate attorney in Florida, call the Law Office of David M. Goldman PLLC at (904) 685 – 1200.

Do you own firearms? If so, an estate plan should include provisions on how to deal with your firearms in the event of your death. The problem with traditional estate planning or using the state’s default rules is that they are both designed to deal with objective decision-making while the thought process involved in giving someone a firearm is objective as well as subjective.

Think about the following issues that do not cause problems with a bank account or other financially based asset but could be devastating with firearms.
1) The location you your children or beneficiaries live at when you die.
2) The legal status of the firearms you own in those states.
3) The logistics of getting the firearms to those states, assuming it would be legal to do so.
4) The legal status of your beneficiary on the date of your death or at the time the transfer is contemplated.
5) What are the legal requirements of possession or use in the state where your beneficiaries live.
6) Who will be your successor trustee or personal representative?
7) The legal status of them to possess or manage firearms?
8) The subjective decision as to if it would be proper to give one or more of the beneficiaries the firearms. ( are they mature and responsible enough as well as is it the right moment in time that you would hand them a gun if you were there to make a decision)

A normal will or trust typically says wait until my child is 25 then give them my Glock or ther firearm. Some of the problems may be that you child lives in CA or one of the states where your Glock is not legal, you child has decided that medical marijuana is wonderful and is a prohibited person under federal laws, your child is in the middle of a nasty divorce or under great financial pressure.

Under these or other circumstances it is easy to see how your firearm could become a weapon and cause your family member to be incarcerated. In addition, there is no legal standard to make sure the family member or friend that you typically would choose to manage your other assets will know anything about guns or be legal to possess them.

As you can see a Gun Trust is the responsible way to own firearms and can even offer asset protection for you and your family members. If you own firearms and would like your estate plan reviewed to correct inadvertant mistakes that are made on a regular basis or to have us create an estate plan for your and your family, use the contact form on the right or call us to discuss your situation.

Thumbnail image for probate.jpgWho has the right to make funeral / burial arrangements in Florida?

Florida Statute 497.005 defines human remains and who is the legally authorized person to dispose of the human remains.
38) ”Human remains” or “remains,” or “dead human body” or “dead human bodies,” means the body of a deceased human person for which a death certificate or fetal death certificate is required under chapter 382 and includes the body in any stage of decomposition.
(39) ”Legally authorized person” means, in the priority listed:

  • (a) The decedent, when written inter vivos authorizations and directions are provided by the decedent;
  • (b) The person designated by the decedent as authorized to direct disposition pursuant to Pub. L. No. 109-163, s. 564, as listed on the decedent’s United States Department of Defense Record of Emergency Data, DD Form 93, or its successor form, if the decedent died while serving military service as described in 10 U.S.C. s. 1481(a)(1)-(8) in any branch of the United States Armed Forces, United States Reserve Forces, or National Guard;
  • (c) The surviving spouse, unless the spouse has been arrested for committing against the deceased an act of domestic violence as defined in s. 741.28 that resulted in or contributed to the death of the deceased;
  • (d) A son or daughter who is 18 years of age or older;
  • (e) A parent;
  • (f) A brother or sister who is 18 years of age or older;
  • (g) A grandchild who is 18 years of age or older;
  • (h) A grandparent; or
  • (i) Any person in the next degree of kinship.

In addition, the term may include, if no family member exists or is available, the guardian of the dead person at the time of death; the personal representative of the deceased; the attorney in fact of the dead person at the time of death; the health surrogate of the dead person at the time of death; a public health officer; the medical examiner, county commission, or administrator acting under part II of chapter 406 or other public administrator; a representative of a nursing home or other health care institution in charge of final disposition; or a friend or other person not listed in this subsection who is willing to assume the responsibility as the legally authorized person. Where there is a person in any priority class listed in this subsection, the funeral establishment shall rely upon the authorization of any one legally authorized person of that class if that person represents that she or he is not aware of any objection to the cremation of the deceased’s human remains by others in the same class of the person making the representation or of any person in a higher priority class.

Contact Information