Florida Estate Planning Lawyer Blog

Magee v. Magee, 32 Fla. L. Weekly 02307 (Fla. 2d DCA September 26, 2007)

In a challenge to the constitutionality of Florida’s elective share statutes, the Second District Court of Appeal upheld a lower court ruling that the statute is constitutional. The Court applied a test of whether there is "any reasonable relationship between the act and the furtherance of a valid governmental objective," and rejected the challenger’s argument that the "far more rigorous analysis" of whether the statute is "reasonably necessary to protect the public." The Court found that the state has a strong public policy concerning protection of the surviving spouse about
marriage in existence at the time of the decedent’s death and that, therefore, the provisions of the elected chair statutes serve a legitimate legislative purpose. On February 20, 2008, the Florida Supreme Court refused to accept jurisdiction for an appeal of this decision.

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.

The Florida Bar has released consumer information on Florida Probate where they describe many of the issues related to Probate in Florida. They discuss the following:

1. WHAT IS PROBATE?
2. WHAT ARE PROBATE ASSETS?
3. WHY IS PROBATE NECESSARY?
4. WHAT IS A WILL?
5. WHAT HAPPENS TO PROBATE ASSETS IF THERE IS NO WILL?
6. WHO IS INVOLVED IN THE PROBATE PROCESS?
7. WHERE ARE PROBATE PAPERS FILED?
8. WHO SUPERVISES THE PROBATE ADMINISTRATION?
9. WHAT IS A PERSONAL REPRESENTATIVE, AND WHAT DOES THE PERSONAL REPRESENTATIVE DO?
10. WHO CAN BE A PERSONAL REPRESENTATIVE?
11. WHO HAS PREFERENCE TO BE PERSONAL REPRESENTATIVE?
12. WHY DOES THE PERSONAL REPRESENTATIVE NEED AN ATTORNEY?
13. HOW ARE ESTATE CREDITORS HANDLED?
14. HOW IS THE INTERNAL REVENUE SERVICE ("IRS") INVOLVED?
15. HOW IS THE FLORIDA DEPARTMENT OF REVENUE INVOLVED?
16. WHAT RIGHTS DO THE SURVIVING FAMILY HAVE IN THE PROBATE ESTATE?
17. WHAT RIGHTS DO OTHER POTENTIAL BENEFICIARIES (OTHER THAN THE SURVIVING SPOUSE AND CHILDREN UNDER CERTAIN CIRCUMSTANCES) HAVE IN THE PROBATE ESTATE?
18. HOW LONG DOES PROBATE TAKE?
19. HOW ARE FEES DETERMINED IN PROBATE?
20. WHAT ALTERNATIVES ARE AVAILABLE TO FORMAL ADMINISTRATION?
21. WHAT IF THERE IS A REVOCABLE TRUST?

If you have questions about a Florida probate case please contact a Florida Probate Lawyer.

A Florida Probate Lawyer Long Duong is reporting a mistake a client of his made with a modification to a Florida Will. The document was not properly executed and it was held to be invalid. This mistake cost the intended beneficiaries over $75,000.

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?

Recently I saw a Florida Probate case, where a mistake was made in a will that changed a homestead to non-homestead property. Luckily there were no creditors, but in the even that there were creditors, the home could have been lost because of this mistake.

If you have used software, a form, or an online service to prepare your will, you should have it reviewed by a Florida Estate planning Attorney for potential problems.

As a Jacksonville Estate Planning Lawyer, I learned that Florida did not recognize common law marriages. About a week ago, the founding partners of the law firm I work at, came into my office and asked me about an estate plan involving a couple that were married under the common law many years ago.

Later I discovered that common law marriages prior to 1969 were valid in Florida. I asked some divorce Lawyers some questions and learned, that once married under the common law, you must still be divorced in a court. The divorce is the same process as with a traditional marriage.

Then I began to think that with the number of people who separate and never get divorced, there must be some estate plans had the potential for disruption because of an unreported common law marriage.

For example, a Husband and Wife were married under common law in Florida prior to 1969. They are later separated but not officially divorced. There would not be an official record of their marriage, so when one dies, there is an opportunity for the property of the estate to be distributed incorrectly.

If you were married through common law and now live in Florida It is important for you to have a Valid Florida Will that represents your wishes, if you are sepearted from your spouse and married either under the common law or by the state, you need to evaluate your Florida Estate Plan to make sure you assets are distributed as you desire.

Florida has some unique benefits for the spouse, if you were married under the common law and not divorced in a court, and your spouse died in Florida, you are probably entitled to some or all of your spouses assets. You should talk with an Jacksonville Florida or other estate planning attorney where your spouse lives or where your spouse died.

A Florida Enhanced Life Estate Deed (sometimes called "The Lady-Bird Deed") is a tool used by Florida Estate Planning Attorneys, Florida Elder Law Attorneys, and other by Florida Lawyers to preserve the homestead for the benefit of the family. Upon the death of the homeowner’s the property will pass to the people designated without the need for a costly probate process.

Why Use an Enhanced Life Estate Deed?
The Enhanced Life Estate Deed provides a mechanism to bypass the probate process and thus the creditors. Under this document, the husband and/or wife retain a Life Estate Interest under which he or she retains the right to live on the property for their life. Unlike a Life estate, the husband and/or wife retain the right to sell, mortgage, convey, gift, or cancel the remainder interest at any time during their life. If there is any property interest upon the last to die of the husband and/or wife, the remainder will pass in fee simple to the designated individuals named in the deed.

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