Probate Litigation

May 22, 2014

Who Gets Child’s Remains When Parents Do Not Agree?

There was an interesting case published today regarding who got the remains of their son’s cremated ashes when the mother and father could not agree. One parent tried to state that the remains should be split and filed a partition case in much the same way as one would do with a home or a piece of land.

In reviewing the case history and what other courts have done, the Florida appellate court agreed with the trial judge who found that “ashes were not property” and hence were not subject to a partition. The court noted that while the division of ashes among heirs by funeral homes may be a common practice where the heirs are in agreement as to the division, a decedent’s remains, including ashes, are not “property” subject to ownership or court-ordered partition.

The opinion starts off discussion comments by William Blackstone in 1753 and moves forward through Florida case law. If you would like to review the case and facts you may read the case here. The cite for the case is 39 Fla. L. Weekly D1037a

March 17, 2014

Undue Influence Florida

by David M. Goldman

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:

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

October 24, 2013

Improper gift to a lawyer in a will or other estate instrument void

by David M. Goldman

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.

October 21, 2013

How to Remove the Personal Representative of an Estate in Florida

by David M. Goldman

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:

A court enters judgment declaring the PR incapacitated.
The PR suffers a mental or physical incapacity that renders him incapable of the discharge of his or her duties.
The PR fails to comply with any order of the court, unless the order has been superseded by an appeal.
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.
The PR wastes or fails to properly administer the estate.
The PR fails to give bond or security for any purpose.
The PR is convicted of a felony.
In the case of a corporate PR, the corporation lacks financial resources.
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.
The Probate Court revokes the decedent’s will designating the appointment of the PR.
The PR no longer has a domicile in the State of Florida and domicile in Florida was a requirement of the initial appointment.
The PR would not now be entitled to appointment.

Procedure to Remove the Personal Representative of an Estate

October 20, 2013

How to Object to the Appointment of the Personal Representative of an Estate in Florida

by David M. Goldman

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

October 16, 2013

How to File a Claim Against Your Agent for Breaching his or her Fiduciary Duties in Florida

by David M. Goldman

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.

August 27, 2012

The Benefits of being a “Reasonably Ascertainable” Creditor

by David M. Goldman

Serving as a personal representative to an estate comes with many rights and obligations (see Chapter 733 of the Florida Statutes). One of those duties, for example, involves contacting creditors of the deceased person and letting those creditors know of the death. Those creditors then have a period of time to file a claim to be paid. Whether or not they are ever paid depends upon a variety of factors, largely dependent upon the estate actually having money to pay them.

The personal representative’s job can be somewhat difficult in notifying the creditors. Credit card loans and mortgage debts, for example, are pretty obvious: the bills probably come directly to the deceased person’s home. The personal representative generally would not have a difficult time in figuring out whom to contact to let the lender know of the death.

Some lenders, however, are not so easy to find. This is an important distinction. If a lender is relatively easy to find, it is considered a “reasonably ascertainable” creditor and has two years after the estate’s “notice of creditors” is published in order to file its claim. But, if the creditor is not “reasonably ascertainable,” it has only three months to file its claim. In other words, if you’re a creditor, you have some interest in being dubbed not “reasonably ascertainable,” as it gives you more time to file your claim.

August 24, 2012

The Importance of Proving Damages in a Tortious Interference Case

by David M. Goldman

At face value, “tortious interference” occurs when someone interferes with some sort of expectation to a level that prompts judicial involvement. It often occurs in a business context, referred to as “tortious interference of business expectations,” and typically involves a defendant who has interfered with another party’s contract expectations.

A relatively new form of tortious interference has emerged in the realm of family law, dubbed “tortious interference with an expected inheritance,” and its name gives away the focus of the claim. Of course, like many tort claims, tortious interference with an expected inheritance involves five elements, each of which must be proven before a plaintiff can recover anything. The five elements are:

The existence of an expectance on the plaintiff’s part involving the inheritance,

June 6, 2012

Removing a Personal Representative in a Florida Probate

by David M. Goldman

In Florida the personal representative is appointed by a court and does not become a personal representative until appointed even if they are named as the personal representative in a decedent’s Will. The court will look first to any Will that specifies the priority of a Florida personal representative. If there is no Will, the court will look first to a surviving spouse and then a person selected by a majority of the heirs.

It is difficult but not impossible to remove a personal representative who has been appointed by the court unless there has been a failure to provide proper notice of the probate proceeding.

Removing A Florida Personal Representative

May 24, 2012

Tort and Probate Law: Tortious Interference and Expected Inheritance

by David M. Goldman

The recent decision of a Florida appellate court has shed some light on a little discussed aspect of tort and probate law in the state of Florida. The Third District Court of Appeals ruled in the case of Saewitz v. Saewitz that to sustain a prima facie case for tortious interference with expected inheritance the plaintiff must prove damages.

In this case, two daughters, Mercedes and Brooke Saewitz claimed that while their father was dying their step-mother Lynn Saewitz manipulated their father and tortuously interfered with their inheritance. At trial, the case was dismissed because the trial judge held that the daughters did not prove the damage element required to make a prima facie case of tortious interference. The elements of the cause of action are as follows:

(1) expectancy by the plaintiff to receive an inheritance;