Florida Estate Planning Lawyer Blog

In Florida when an individual left their Florida Will in a bank vault or safety deposit box a court order is necessary to open the box unless there is a joint owner on the account.

The process involves having a judge issue an order to inspect the contents of the box. If there is a will it should be deposited with the court in the probate proceeding.

If you need help getting a Florida will that is stored in a safe deposit box at a bank, you should Contact a Florida Estate Planning Lawyer

In Florida an encumbered property shall be entitled to have the encumbrance on the property paid at the expense of the residue of the estate only when the will shows that intent. A general direction in a will to pay the debts does not show that intent (Florida Probate Code Section 733.803 , Florida Statutes (2002))

In a recent case a Personal Representative tried to make the argument that since the debt was paid off a mortgage during the probate proceeding and that the above rule only applied if the debt was in place at the time of the distribution. In re Estate of Woodward (Fla. 2d DCA Apr 09, 2008)

The court said that the PR could not rewrite the decedents will and pay off the mortgage. The Florida Probate Code makes it clear that without a specific instruction in the will the property was to pass with the encumbrance.

If you are a PR or a beneficiary of an estate in Florida and you have a question about whether you can pay off a mortgage, Contact a Florida Estate Planning Lawyer to discuss your circumstances.

Invalid transfer of Florida Homestead with do it yourself deed leads to unintended consequences!

Man wants his second wife to have a life estate in his homestead after his death with the remainder to go to his children and not his second wife's children.

His mistake, he used a preprinted deed and filled it out wrong. The court found that he did validly convey a life estate to his wife, but did not convey the remainder of the property to his daughter because it must have been signed by both spouses.

The property went back to his heirs per stripes after his spouses death and not to his daughter as intended.

Florida's homestead provisions make it difficult to properly convey real property as you desire. There were valid ways of conveying the property correctly, but a preprinted form does not deal with non traditional families or non traditional conveyances.

Some other examples of Do it your self wills and bad news are covered in my articles listed below

Do it Yourself Wills? More bad news and
Do it Yourself Wills? a Good Idea or Not?
Do it yourself Estate Planning: Bad News Part 3
Do it yourself Estate Planning: Bad News Part 4
Do it yourself Estate Planning: Bad News Part 5
Do it yourself Estate Planning: Bad News Part 6
Do it yourself Estate Planning: Bad News Part 7
Do it yourself Estate Planning: Bad News Part 8

This is a common mistake found in Florida Probate cases, when people try to make their own wills, or transfer their assets without getting professional help from an attorney or accountant who is familiar with the effects of gifting and estate planning.

If you have used software, a form, or an online service to prepare your will, a deed, or other document, you Contacta Florida Estate planning Attorney or Florida Estate Planning Lawyer to review your documents for potential problems.

A federal curt found that Marilyn Monroe was a New Yorker when she died in 1962. This means her estate which has earned more than 30 million dollars licensing her image can not control the licensing. Product makers may be free to use her image without paying licensing fees to her estate because of a difference between California and New York state laws.

Marilyn Monroe LLC plans to appeal the ruling. If you license your image, it may be important to look at the laws of your state to determine what rights your estate will have. If you have questions about licensing in your state you should Contact a Florida Estate Planning Lawyer to discuss the effects of your domicile on your future heirs.

Arthur v. Milstein. et al, 949 So.2d 1163 (Fla. 4th DCA February 28, 2007)

In this dispute regarding who controlled the disposition of the body of Anna Nicole Smith, the trial court ruled that the guardian ad litem for her minor daughter Dannielynn had priority over Anna Nicole Smith’s mother based upon interpretation of Florida Statutes section 406 defining a "legally authorized person" upon whom a funeral home can rely to receive burial instructions. The appellate court indicated section 406 simply protects a funeral home from liability, and Florida common law applies regarding who has the right to possession of the body. The court found the trial court’s ruling was "the right result, but for the wrong reasons," and based upon evidence indicating the intent of Anna Nicole Smith, affirmed the trial court ruling.

This issue could have been avoided with a properly drafted Florida Will. If you would like your Florida Will reviewed please Contact a Florida Estate Planning Lawyer.

City of Key West v. Knowles, 948 So.2d 58 (Fla. 3 DCA January 10, 2007)

A surviving spouse sued the city of Key West, Florida claiming she was deprived of her property interest in her husband’s buried remains without due process in violation of 42 U.S.C. 1983.

The Court found that an individual has no constitutionally protected property interest to a decedent’s remains after the point of burial or other lawful disposition, the appellate court reversed the $15,000 jury verdict that had been entered in favor of the surviving spouse.

Phillips v. Hirshon, 963 So. 2d 227 (Fla. 2007).
The supreme court agreed to hear a case which will determine if Florida's revisions to the homestead laws allow for a cooperative apartment to be considered homestead property for descent purposes. We should have an answer on this question by the end of April.

If you own a property and are concerned about its status as a Florida Homestead please Contact a Florida Estate Planning Lawyer to discuss your circumstances.

Qarcia v. Morrow, 954 So.2d 656 (Fla. 3rd DCA April 4,2007)

This case involves competing petitions for appointment as personal representative filed by a decedent’s grandson with statutory priority to be appointed as personal representative and the former wife of the decedent’s son. After his mother’s death, and while in prison, the decedent’s son acquiesced in a state court order requiring him to transfer his mother’s condominium unit and certain financial accounts to his ex-wife to satisfy past-due child support payments. The son later executed a disclaimer of the interest in his mother’s estate and the grandson filed that disclaimer in support of his petition to be appointed as personal representative. The former spouse argued the fling of the disclaimer was an effort to work a fraud on the court and, without an evidentiary hearing, the court appointed the former spouse as personal representative. The appellate court reversed the decision and remanded for a further evidentiary hearing to determine whether the grandson "lacks the necessary qualities and characteristics" to be personal representative.

Glover v. Miller. 947 So.2d 1254 (Fla. 4th DCA January 31, 2007)

After a 16-year-old child was killed by a police officer, two separate men claimed they were his father and asserted the right to be appointed personal representative of the child’s estate for purposes of pursuing a wrongful death action. One man had been declared the decedent’s father in a paternity action 12 years previously and had been required to pay child support. Post-death DNA testing showed a 99% likelihood that the other man actually was the decedent’s natural father. The appellate court affirmed a trial court’s determination that the man previously declared to be the father was entitled to priority in appointment and that absent having the judgment of paternity vacated and a new determination of paternity entered, the man previously deemed the father was, for purposes of appointment of personal representative, the decedent’s "father in the eyes of the law, regardless of the results of DNA testing."

Hemandez v. Hernandez, 946 So.2d 124 (Fla. 5th DCA January 19, 2007)

A trial court refused to appoint the decedent’s son as personal representative, despite the fact the decedent had nominated a son in his last will, instead appointing an unrelated attorney. The only basis for the courts ruling was that there was animosity between the nominated personal representative and his brother. Citing the absence of any evidence that the nominated personal representative does not meet the statutory criteria to qualify, and that there are no other "exceptional circumstances," the appellate court reversed the trial court.

Fernandez-Fox v. Estate of David P. Lindsay, 33 Fla. L. Weekly D259 (5th DCA January 18, 2008)

Fox and the Decedent had owned real property they had intended to have titled joint with rights of survivorship. Because of an error, the title was not correctly designated in the public records and the decedent died before the error could be corrected. Fox initiated probate proceedings and filed claims for storage fees, funeral expenses, and maintenance of the property. One of the beneficiaries of the decedent’s Florida Will filed a Motion to Strike the claims, which was denied. In the interim, Fox initiated a quiet title action against the Estate and the estate beneficiaries. A personal representative was appointed, and the PR filed objections to the Fox claims nine months after being appointed.

Fox petitioned for an extension of time to file independent action on her claims. The Florida Probate Court denied the motion, ruling that the earlier Motion to Strike was an objection requiring filing of an independent action within 30 days.

On appeal, the decision was reversed on the grounds the Motion to Strike failed to meet the requirements of an objection pursuant to Florida Probate Rule 5.496. The appellate decision had good discussion of the types of actions and information that would serve to put an estate on notice of a potential claim and indicates a request for extension should be granted only if the estate can establish it would be prejudiced or unfairly surprised. Both parties requested fees, claiming their actions benefited the estate.

The court rejected both claims: 1 the reversal allowed Fox to pursue her claims, obviously not of benefit to the estate and 2 the Estate lost the appeal, will be required to litigate the claims and, in the opinion of the court, thus had not benefited the estate.

1. Anscher v. Lebenthal & Co., 963 So.2d 921 (Fla. 3rd DCA August 29, 2007)

Spouse vs. Estate of spouse, co-trustee, & brokerage company

The decedent’s surviving spouse bought an action in probate court against the decedent’s estate, the co-trustees of his trust, and his brokerage for failure to transfer securities out of the trust based upon written instructions from the decedent to the brokerage delivered two days before his death. The spouse settled the claim against the estate and the co-trustees, leaving only the claim against the brokerage.

The probate action became non-adversarial and was subject to being dismissed. To avoid statute of limitations issues, the spouse filed a second action in the general jurisdiction division of the Circuit Court, which was removed to federal court by the defendant. The defendant brokerage filed a motion to dismiss the probate proceeding, which was granted. The appellate court affirmed the lower court, although noting that "the probate court should have transferred the probate action rather than grant the motion to dismiss," but finding that the probate court order of dismissal was harmless.

How can you tell if a Will has been altered?
Most of the time you cannot tell by simply looking at the document. Often these documents are "tampered with" behind the scenes: friends, relatives, heirs or neighbors pressure, threaten or trick someone into changing, modifying or preparing a new Last Will and Testament or Codicil (an amendment to the Will). It takes an experienced lawyer to discover the facts and circumstances behind the preparation and execution (signing) of a Will.

Can a child be cut out of a Will?
In Florida, an adult child can be cut out of a Florida Will . So long as the parent is competent. An adult child can be removed from a Last Will and Testament (or a Florida Revocable Trust) for any reason. If a child is not mentioned in a Florida Will , it may be a mistake and grounds may exist for a Will contest. A child that is born or adopted after the decedent makes a Florida Will , may be entitled to receive 50% of the decedent's estate under the Pretermitted Child statute. However, a minor child has special "homestead" rights which prohibit the decedent from gifting his home if he or she is survived by a minor child.

When is litigation the only option?
Often litigation is cause by a failure to communicate. You will find that if people communicate and treat each other fairly or as they would want others to treat them any disagreements can be resolved amicably and without the need for lawyers. Most Probate disputes, Will contests and Trust litigation end up settling before trial.

When does helping a relative become Undue Influence?
If you make a telephone call to a lawyer to help a relative or friend prepare a Trust or Last Will and Testament, there may be a presumption that you exercised undue influenced over that person, especially if you're a beneficiary of the estate. The lines between helping a person and coercing them often become blurred in a fight over estate assets. Seemingly harmless assistance to a mother or father can be twisted into deceitful or dishonest behavior. Sometimes seemingly harmless assistance is deceitful or dishonest behavior that will go unchallenged without the helped of a skilled attorney. If you are planning on assisting another with the preparation of estate planning documents, ask the attorney what steps can be taken to reduce the appearance of impropriety, influence or over reaching.

Can a Spouse be cut out of a Will or Trust?
No. Florida law requires that in the absence of valid pre/post marital agreement, the surviving spouse is entitled to an elective share (approximately 30% of the fair market value of the decedent's assets); exempt property (household furniture, certain automobiles and Florida College saving programs); family allowance ($18,000); and/or entitlement to an Intestate or Pretermitted share of the decedent's estate. The right of the surviving spouse to receive from the decedent's estate is neither obvious nor straight forward. Multiple overlapping laws come into play that if analyzed incorrectly could costs the surviving spouse a fortune.

Rules regarding wills are usually based upon where the will was created. The general rule is that when a Will is valid at the time of creation, Florida will honor the will.

There is an exception to this and it regards certain handwritten or holographic wills. a Holigraphic Will is not valid in Florida unless it complies with the Florida Statute of Wills.

So even while your Mom's handwritten will in California may be valid, it will not be valid in Florida. To make sure you have a valid Florida Will please Contact a Florida Estate Planning Lawyer

Only five weeks before his death Leonard R. Brener made a change to his will. He decided to change his beneficiaries form four local charities to his niece and her husband who took care of him while he was dying.

The non-profits were stunned and file a suit to battle over the money. The case took more than five years that the state appeals court recently ruled that Brener was mentally competent and his decision to leave the money to his family should stand.

The charities tried to argue that his change was unnatural because it would trigger significant estate taxes which he had previously stated he wanted to avoid.
(Estate taxes on 8M today are 2.7 Million Dollars) with proper estate planning its possible to have reduced the tax to 1.8 Million or less) Although the estate taxes from 2001 were significantly more than they are today.

This lengthy estate battle could have been avoided with the privacy afforded by a Florida Revocable Trust and some explanation within the will as to why the changes were being sought. In addition a Florida Revocable Trust would help to avoid the costs associated with a Florida Probate. If you would like more information on how a Florida Revocable Trust could benefit your or your family, Contact a Florida Estate Planning Lawyer for more information.

All Florida Enhanced Life Estate Deed or Florida LadyBird Deed are not created Equal.
In the past, I have had clients come to me for help when a title company would not accept the language on an Florida Enhanced Life Estate Deed or Florida LadyBird Deed. Each title company has specific language that they look for in the deed. As as result we have had several title companies review our deeds and make recommendations. We took these and complied them into a single form that satisfied all of their requirements.

If the title company is not happy with your current deed, they can refuse to write title insurance. As title insurance is required by every commercial lender in Florida when a home is sold, this can create a problem when you want to sell your home. In some cases, we have had to open or reopen a probate case to get the judge to issue an order to clear up the title concerns.

Often these deeds are used to avoid the delays and expenses of Florida Probate, not create ineligibility periods for medicaid, allow for stepped up basis, and not create unnecessary gift tax. If you would like to create an Florida Enhanced Life Estate Deed or Florida LadyBird Deed or have your deed reviewed please Contact a Florida Estate Planning Lawyer.

When someone dies without a Florida Will Their property is distributed under the Florida Statutes. Chapter 732 define the order of succession to a decedent's property.

732.103 Share of other heirs.--The part of the intestate estate not passing to the surviving spouse under s. 732.102, or the entire intestate estate if there is no surviving spouse, descends as follows:

(1) To the descendants of the decedent.

(2) If there is no descendant, to the decedent's father and mother equally, or to the survivor of them.

(3) If there is none of the foregoing, to the decedent's brothers and sisters and the descendants of deceased brothers and sisters.

(4) If there is none of the foregoing, the estate shall be divided, one-half of which shall go to the decedent's paternal, and the other half to the decedent's maternal, kindred in the following order:

(a) To the grandfather and grandmother equally, or to the survivor of them.

(b) If there is no grandfather or grandmother, to uncles and aunts and descendants of deceased uncles and aunts of the decedent.

(c) If there is either no paternal kindred or no maternal kindred, the estate shall go to the other kindred who survive, in the order stated above.

(5) If there is no kindred of either part, the whole of the property shall go to the kindred of the last deceased spouse of the decedent as if the deceased spouse had survived the decedent and then died intestate entitled to the estate.

(6) If none of the foregoing, and if any of the descendants of the decedent's great-grandparents were Holocaust victims as defined in s. 626.9543(3)(a), including such victims in countries cooperating with the discriminatory policies of Nazi Germany, then to the descendants of the great-grandparents. The court shall allow any such descendant to meet a reasonable, not unduly restrictive, standard of proof to substantiate his or her lineage. This subsection only applies to escheated property and shall cease to be effective for proceedings filed after December 31, 2004.

If you think you may be entitled to a persons property, Contact a Florida Estate Planning Lawyer to help you determine if you could benefit from a Florida Probate