Articles Posted in Will

One of the most common questions we receive is: “What is Better in Florida? A Will or a Trust?”

Many clients that we work with think that if they live in Florida and have signed a Florida Last Will and Testament, they no longer have to worry about a probate in Florida.

As Chris Rock can attest, Wills are often a big “slap in the face” to the assets you are trying to protect.  In Florida, assets that pass under the terms of a Last Will and Testament have to go through a process known as probate.

Designating a Preneed Guardian for your Minor Child in Florida

Designating a preneed guardian for your minor child is one of the most important things a parent can do. A designation of preneed guardian is a legal document that permits you to choose the individual who will care for your children if you pass away. You can only choose a guardian for minor children. In Florida, most people use a will to designate the preneed guardian of a minor.

How does a will designating a preneed guardian for a minor work?

Is Equal Fair with Estate Planning?

Most of our clients want to treat their children fairly and equally.  Splitting assets equally among the children may be easy, but is it fair? When dividing assets, it is often important to determine the needs of the kids as well as what you have previously provided.  This is where it can become difficult.

Some gifts can be considered advancements against an inheritance, but most people do not take the right steps to have them considered an advancement.  A trust can be designed to deal with previously gifts or outstanding loans.  After all isn’t an outstanding loan really a debt that is now owed in part to the other siblings.
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There have been many reports of unintended consequences related to the use of online wills over the past few years.  In fact, I have written about many of these issues on this blog.

It is important for individuals to understand that there is a difference between a document and a plan.  While both contain words it is the way those words are used that determines the difference.  Many Internet forms are generic and may not allow the permit the person named to manage the assets the powers necessary to properly manage or protect the assets. For example, in order to sell the testator’s property, the executor may have to obtain the court’s permission, and consent of the beneficiaries.  This can create additional costs and delays in the distribution of the assets.

This can be important when dealing with a homestead where the asset is not typically subject to probate.  If the homestead is owned by a trust and the house needs to be sold, the trustee can determine if a distribution or sale of the asset is best.  When an individual does not have a will or creates an online will, the home is typically not subject to probate and will pass outside of probate.  This can cause problems including delays and thousands of dollars in additional costs when some of the beneficiaries want to sell the home, and others do not.

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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As a Jacksonville Will Lawyer I have seen an alarming trend in Florida.  Most Americans live fast-paced lives with long work hours, bills to pay, and mouths to feed.  After a long day, the last thing on our minds is our mortality.  But studies show that Americans need to be more concerned.

According to a 2015 survey performed by Rocket Lawyer, 64 percent of Americans do not have a will.  Of those without an estate plan, only 27 percent thought there was not an urgent need to make a will.  The most alarming statistic of them all – 15 percent of those surveyed said they did not need a will at all.  As a Jacksonville Will Lawyer I have noticed  that do have wills have not had them updated in many years.
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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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One question the top Jacksonville elder law and estate planning attorneys often receive is who can make burial arrangements in Florida. Does it have to be the next of kin, or can any family member or interested party make funeral arrangements? Another similar question we often receive is what happens if a family member refuses to sign for burial rights? This article should answer these issues by explaining the current Florida law.

Luckily, Florida law has tried to clear up any burial issues by codifying an extensive set of rules for burial rights. A person can find the relevant law under Florida Statute 497.005 (43). The first part of this statute defines some important terms under the law. For instance, the law defines “human remains” as the body of a deceased human person that requires a death certificate or fetal death certificate, and the body is in a stage of decomposition.

The primary section needed to solve these questions is found under number 43, which is the definition of “legally authorized person.” This definition is a priority list for what individual can make funeral arrangements. According to the statute, the decedent, or the dead person, has priority to make the choice. This means during the decedent lifetime he or she authorized a particular burial plan through an estate planning document. This type of authorization is likely found in a Living Will or another form of an advanced directive. For example, a common type of burial authorization will be a listed preference for burial or cremation.

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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The Florida District Court of Appeals recently applied a little known doctrine called the Doctrine of Dependent Relative Revocation in the case of In Re Estate of Murphy to save an estate from passing through intestacy.

The owner of the estate was Virginia Murphy.  Mrs. Murphy died in 2006 and was predeceased by her parents and husband.  She also died without any siblings or children.  In the years before she passed, Mrs. Murphy executed a number of wills that were prepared by her longtime attorney Jack S. Carney, including the last will she executed in 1994.  The 1994 will named Mr. Carey as personal representative of Mrs. Murphy’s estate; and it purported to leave the bulk of that estate to Mr. Carey, Gloria DuBois (Mr. Carey’s legal assistant), and George Tornwall (Mrs. Murphy’s accountant, who died the year before Mrs. Murphy passed away).
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