Articles Posted in Probate Litigation

What is the Florida Statute Of Limitations on a Will?
A common question Jacksonville estate planning lawyers are often asked is how long does a person have to Florida will contest a will or what is the statute of limitations to contest a will in Florida.  As with most legal answers it depends on the rest of the facts.  The statute of limitations to dispute or contest a will depends on what documents you have received and what type of notice were given.

The relevant statutes dealing with the Florida statute of limitations on a will can be found under Florida Statute Section 733.212.  If a person receives a copy of the Petition for Administration via Formal Notice before the Letter of Administration being issued, then he or she will have 20 days to file any objections to the will.  However, it is more likely that a person will be served a copy of the Notice of Administration after Letters of Administration are issued.
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Zsa Zsa Gabor is one of the latest celebrity deaths to sadden America.  The actress passed away at 99 years old and was known for being one of Hollywood’s first stars due to her colorful personality.  She was also known for her many marriages and divorces.

Gabor married nine times, which resulted in seven divorces and an annulment.  These complicated series of marriages and breakups has made her estate extremely interesting to estate planning attorneys.

Zsa Zsa’s ninth husband, Frédéric Prinz von Anhalt, will have to move out of Gabor’s luxurious Bel Air home where the actress lived for nearly 40 years.  What is interesting to note is that for the past three years the couple lived in the large bungalow even though they no longer owned the house.

Often we get clients who are interested in objecting to a will because of undue influence.  In Florida there is a split of authority over what happens to a previous will when the most recent will is invalidated by undue influence.  The results can be very different and may provide planning opportunities that could insulate from claim of undue influence.  As you can see in the case information below, the court determined that the previous will should be valid, while other courts in the states have found that intestacy is the proper method distributing assets after a successful  claim of undue influence.  If you are changing your will or would like to talk about how to protect from claims of undue influence in Florida, you might talk with a Jacksonville Estate Planning lawyer or Jacksonville Undue Influence Lawyer about your options.

The case of Rocke v. Am. Research Bureau (In re Estate of Murphy), 184 So. 3d 1221

This is a case where the probate court revoked a will due to undue influence.  The question then turned on whether or not the decedent’s estate should pass through intestate succession or by a previous will.

History of the case leading up to the claim of Undue Influence.

The testator was Virginia Murphy, a woman that passed away at the age of 107.  Her estate was worth 12 million dollars.  The decedent executed six wills throughout her lifetime.  Murphy’s parents and husband predeceased her, and she had no children or siblings.

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A will or trust is one of the essential documents that every person should create.  These documents dictate how a person’s assets should pass after death to a personal representative or a trustee.  However, will and trusts are sometimes contested by family members when the documents are legally invalid, or someone suspects foul play was involved in the procurement of the document.

What many do not know is that a person that brings a will or trust contest in bad faith can be punished by a Florida probate court.  The procedures for bad faith can be found in Florida Statute section 57.105 if a defendant or the court suspects the case was brought in bad faith.

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Florida medicaid Liens. Florida residents that suffer from injuries caused by another person are lucky because they can often pay costly medical bills through Medicaid if they qualify for coverage.  Medicaid is a government assistance program that provides long-term health coverage to those with low income and few assets.  It is sometimes necessary for the person injured to seek further relief by suing the person that caused the injury.

However, what many people do not realize is Medicaid can place a lien on any judgment or monetary settlement a plaintiff receives for wrongful injury or death.  The issue then becomes should Medicaid receive a reimbursement for all services given to the recipient or just the medical expenses.
This issue came up in the case of Ark. HHS v. Ahlborn, 547 U.S. 268 (4th DCA July 20, 2016).  In this case, the recipient Heidi Ahlborn was severely and permanently injured by in an auto accident with another driver.  The other driver was at fault for the accident.  Ahlborn owned little assets, which made her able to qualify for Medicaid coverage in her state.

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Elder law is one of the most important legal fields in Florida because it helps address the unique needs of this state’s large elderly population.  One of the growing concerns in the legal community is the rise of elder abuse.   The abuse is frequently under-reported, and worse, the abusers are the persons that often benefit from the abuse.

The elder law attorneys at The Law Office of David M. Goldman PLLC frequently come across older clients that have suffered some form of physical or emotional abuse that allows the abuser to exploit the client.  Tragically, the abuser is often a person close to the client such as a family member or a close friend.   Studies show that elder abuse is a growing problem in Florida and areas like Jacksonville and Ponte Vedra.

Why Are The Current Laws Not Enough?
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Florida’s 3rd District Court of Appeal held on October 26, 201 that an estate planning attorney must break the attorney-client privilege for  deceased client must by testifying in a will contest trial for undue influence.  The trial court ordered the attorney to testify, and the attorney refused.  The attorney appealed the trial court’s order to the court of appeal to review the issue as a matter of law.  The 3rd District Court of Appeal denied the attorney’s petition and the trial court’s order now must be enforced.

The events of what led to the holding are interesting.  The original proceedings by the plaintiffs sought to revoke the probate of two wills, one that was executed in 2012 and another that was executed in 2013.  Four of the testator’s children challenged their mother’s mental capacity to make these wills, and assert the wills were the product of undue influence by the fifth child.  The fifth child was the only child listed as a beneficiary in the 2013 will, while the other children were disinherited.

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Today I received a copy of a recent Florida’s 4th District Court of Appeal dealing with a remainder beneficiary and a the ability to demand an accounting from a revocable trust before the death of a grantor.  John J. Pankauski Sent me a well-written summary of the Case from October 26, 2016 which I have adapted for the purpose of this blog.  The Case ruling stated that a remainder beneficiary of a Florida trust has no right to a trust accounting, when requested post-death, for the time period of the grantor’s life, absent breach of trust allegations.   This was a revocable trust which became irrevocable upon the death of the grantor/settlor.

In  Hilgendorf v. Estate of Coleman, the grantor  or the person who created the trust was alive, competent,  and was acting as her own trustee of her revocable trust. During grantor’s life, she was did not remain the trustee and a successor trustee took over the management of the trust.  It appears that the grantor still continued to direct the actions of the successor trustee and to “run” things.   The grantor never requested an accounting from the successor trustee during her lifetime.  After the grantor passed away, the PR or executor of the decedents estate, who was also a beneficiary, requested an accounting for the time period when the grantor was alive and the when the trust was revocable.

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This year the Florida Probate Rules Committee has a added a few new rules to the Probate Code. Many of these rules are minor amendments to the old rules or clarifications of previously vague language. The biggest change to the code was the addition of a separate rule for Guardian Accounting under 5.696. This means there are now different rules for guardian accountings from the other types of probate accountings.

Below is a summary of the 2016 amendments to the Florida Probate Rules

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The general rule in estate planning is that if something is not in writing it usually will not be legally valid.  For instance, Florida law requires a Will or trust must be in writing to be effective.  However, one question we often receive is if a promise to create a will or trust is enforceable by a court?

The answer is a promise can be enforceable. However, certain conditions would have to occur.  To further explain, the promise would have to meet the formal requirements of a contract.  A contract, whether written or oral, must have three elements to be enforceable.
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