Articles Posted in Probate

Foreign Wills: Will a Florida Court recognize them?

The world is becoming a more global community and with that means the United States has seen an increase in the amount of foreign-born individuals living, visiting, and investing in the U.S. economy. For instance, 12 percent of residential home purchases in Florida were made by foreign buyers.  The question soon becomes how do foreign citizens pass their assets to loved ones in the U.S. and in other counties.  Is a will from another country valid in America?

Florida law allows a foreign will to be admitted to probate if the will is valid under the laws of the country where the will was executed.  This is great news for foreign Florida citizens because it means usually a will be valid even if it doesn’t comply with strict will formalities set by the state.  However, the Florida Probate Code has made two exceptions for a type of will that is never valid under Florida law.  These exceptions are when the will is a holographic will or a nuncupative will.
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Black’s Law Dictionary defines a nuncupative will as a “will made by the verbal declaration of the testator, and usually dependent merely on oral testament for proof.”

A Third District Appeals court in Florida recently ruled that oral wills, or nuncupative wills, that are not signed by the testator or its witnesses cannot be admitted to probate in Florida even if they written, dictated or approved by a notary.

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We often receive calls regarding challenging a will or trust document.  In Florida, before you can file a will or trust challenge, the contestant must renounce any benefit he or she receives under the document they are attempting to challenge.

Reunification is an equitable doctrine in Florida.  In 2013 the 2nd DCA heard the case Fintak v. Fintak, 120 So.3d 177.  Generally, under English law as interpreted by American courts  and individual is estopped from contesting the validity of a document that they received and retained a gift from.  The Florida Supreme Court gave 3 reasons for this rule in Barnett Nat’l Bank of Jacksonville v. Murrey, 49 So.2d 535 (Fla. 1950):

  1. to protect a fiduciary in the event the contested document is held invalid;
  2. to demonstrate sincerity of the contestant; and
  3. to have the property available for disposition at the conclusion of the contest.

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There was a recent appeal by a creditor who claimed they were known or an ascertainable creditor and did not actual  notice to creditors (40 Fla. L. Weekly S517a).  The estate filed a notice in the paper giving creditors 3 months to file a claim. The known creditor missed the 3 month deadline, but filed their claim within the 2 year window provide for in the Florida Statute 733.710.

The question before the court was when a creditor is known or an ascertainable creditor and does not receive written notice, is their claim barred under 733.702(1) of the Florida Statutes which provides for a 90 day deadline or do they get the full two years as provided in section 733.710.  There were several different interpretations of this issue in different courts around Florida so the question we sent to the District Court of Appeal to get an answer.

Here are the facts of the case and how the DCA determined that the 90 day window for filing claims was not effective when the creditor is known or ascertainable. Continue reading

Each probate case is different. Minuscule but crucial variables in a case can easily be overseen and the wrong type of administration for the decedent’s estate can be chosen. To avoid this, I suggest that you discuss the facts of your case with a probate and estate planning attorney before choosing the administration of a decedent’s estate. An attorney can assist you in determining which type of administration is more appropriate according to the facts of your case.

If you decide to select the administration of a decedent’s estate without consulting an attorney, it will be your responsibility to select the appropriate proceeding for your situation. The staff of the Probate Court may not and will not make this determination for you. Furthermore, neither the court nor the county can accept responsibility for incorrect decisions made by the court’s staff. Your best choice to assure and informed decision regarding the administration of a decedent’s estate is to seek assistance of a probate and estate planning attorney. Continue reading

Avoiding probate is one of the main goals of estate planning because it saves money and time, so the beneficiaries can enjoy their inheritances sooner. However, avoiding probate has no effect on the taxes to be paid or the debts owed to creditors.

One common misconception is that a person’s debt will pass to their spouses, family, or friends after he or she dies. This is untrue, as while heirs can inherit the decedent’s assets they cannot inherit the debt. However, there is an exception if someone was jointly liable on the debt.

Where does the debt go? The obligation to pay the debt stays with the estate of the decedent. When someone dies, their estate is born and is the sum of all of that person’s assets. The estate will have an executor that is designated by the will or the court to handle the estate’s affairs. This means transferring assets to the beneficiaries, paying the gift and estate taxes, and settling debts owed to creditors. Continue reading

Florida’s 4th District Court of Appeals recently decided the case of what to do with a will that left the murder’s children the victim’s estate. The trial court held the “slayer statute” did not affect the will, and did not find enough evidence of undue influence to invalidate the will, however, the appellate court did not agree.

The husband Ben was murdered in 2009 and the case became famous when his wife Narcy was arrested and convicted of the murder, and the murder of Ben’s mother, shortly after. The court opinion stated she murdered Ben to assure that she and her family would obtain his considerable wealth. Narcy had a daughter by another marriage, and this daughter had two sons. Narcy’s daughter and the two sons were to inherit Ben’s estate if Ben’s mother and Narcy passed away before Ben. Continue reading

When lawyers draft estate-planning documents they are made with current laws in mind. However, estate-planning laws have changed in some key ways over the last few decades. Here are 4 key dates that have changed estate-planning. If your documents created before these dates it may be time to update them.

HIPAA

The first date to look out for is April 14, 2003, which is when the privacy rules under the Health Insurance Portability and Accountability Act first took effect. Although HIPAA was enacted in 1996, its privacy regulations were not enacted until several years later on April 14, 2003.

This act brought about much stricter guidelines regarding the disclosure of a person’s health information to third parties without explicit permission. Now, only a few people are allowed to receive this information, which becomes a much bigger issue if the person becomes incapacitated, such as in Terri Schiavo’s case. Now, a durable power of attorney is needed to make important health care decisions for loved ones. If your will, revocable trust, durable power of attorney or health care power of attorney was executed before this date, your executor, trustee, or agent may not be able to effectively work with your medical care providers or insurers.

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