Can Personal Representatives of Florida Estates Be Held Liable For The Damages They Cause?

Posted By on May 27, 2015

Florida probate law protects both the personal property and real estate holdings of anyone who passes away in the State of Florida by immediately creating a legal “estate.” The estate acts as legal owner of all that property immediately upon the individual’s passing, and until another legal action (such as a probate judge’s ruling or a will’s disposition) transfers ownership to an heir or beneficiary.

Since the estate isn’t a real person, Florida law requires that someone represent the estate and they are known as the estate’s “personal representative.” A person who agrees to take on the role of personal representative of an estate, also known as an executor (executrix) or administrator (administratrix), will have their actions and conduct monitored by the courts.

Personal representatives of Florida estates are held to the highest standards of conduct as a fiduciary to the estate’s heirs and beneficiaries. If they fail to do their duty, then they can be found guilty of breaching that fiduciary duty and held responsible for the damages that have resulted from that breach.


Florida personal representatives sometimes make mistakes – and sometimes they get caught “self-dealing.”

Liability for a Florida Personal Representative

Usually, a Florida personal representative is a trusted and beloved relative of the person who has passed away; parents, for example, often name one of their children as their estate’s personal representative. Sometimes, uncles or aunts are chosen to take on the job. It’s a decision made by the decedent prior to their death, where their choice is reflected in their Last Will and Testament. Often, they will name their first choice and also provide for a second or third alternative, if that first choice is unable or unwilling to become the estate’s representative.

In complicated estates, it is not uncommon for banks or trust companies to be named as personal representative; this is particularly true of estates with great wealth or where property is held across state lines or in foreign countries.

The Florida Probate Code requires that, in most situations, a lawyer be hired by the personal representative to help them administer the estate, with the lawyer being paid from estate funds for advice given to the estate’s personal representative. Florida Statute 733.6171.  Lots of personal representatives hire lawyers to help them.

However, it’s not required. There are times when personal representatives go it alone. These are situations where mistakes get made, and the personal representative may be guilty of negligence regarding disposition of the estate. Occasionally, there will also be times when the personal representative intentionally does bad things – like taking assets from the estate.

When a Florida personal representative fails in some way, they can be liable for their actions to the estate’s beneficiaries.

Holding a Florida Personal Representative Liable

When a personal representative has failed in their duties, an action must be undertaken in the probate court to challenge them and right the wrongs. These claims may be asserted at various times during the pendency of the estate and by more than one person.

Who Asserts the Claim Against the Personal Representative

A personal representative is liable under Florida law to interested persons for damage or loss resulting from bad faith, self-dealing, conflicts of interest, and breach of fiduciary duty. See, Florida Statute 733.609(l); Kaplan v. Kaplan. This means that there are a number of parties that may file claims against the personal representative of an estate.

1. Beneficiaries

There are times, for example, when one or more of the estate’s beneficiaries may file a request with the probate judge to have the representative ousted or removed. These cases will seek to remove the individual from the job as well as asking for damages for any harm done to the estate.

That’s if the beneficiaries are aware of things. It may be a successor or replacement representative who discovers the problem.

2. Successor Personal Representative

There is no rule that one person must remain as the sole personal representative of an estate, and particularly in long probates, there may be a succession in who is doing the job. In these cases, if something amiss is discovered, it is that new personal representative’s legal duty to file a claim in probate court against his or her predecessor on behalf of the estate itself.

Failure for the successor personal representative to file the claim regarding the questionable acts of their predecessor would be a breach of their fiduciary duty to the estate.

3. Creditors and Other Interested Parties

Finally, creditors or others interested in the assets of the estate may file a challenge to the actions of the personal representative.

Lawsuits Against the Personal Representative

Claims for damages can be based upon alleged negligence by the personal representative, where the harm has resulted from mistakes or incompetence on their part, or upon intentional bad acts done for personal gain. This is usually referred to as “self-dealing.”

Examples of “self-dealing” include letting the representative’s teenager drive the decedent’s car or letting a friend live or vacation in the decedent’s beachfront condo. Mistakes by a personal representative can be things like paying a creditor off whose debt was legally extinguished with the death of the debtor.

Moreover, both the personal representative and the attorney or law firm advising them can be sued for damages involving wrongdoing against the estate. See Bookman v. Davidson.

Personal representatives (and their legal counsel) may be held liable for “ … taxable costs as in chancery actions, including attorney’s fees.” Florida Statute 733.609(l).

If found liable, claims may be paid out of the personal representative’s share of the estate (if they are also a beneficiary) or out of their own assets.

However, these cases are not easy to prove nor are they easy to win.

Defenses of the Personal Representative

Florida probate judges will look hard at claims made against a personal representative by beneficiaries. Probate matters often involve high emotions among family members and disputes between siblings or children of the decedent will be assumed to have an emotional component. Claims against personal representatives must be filled with authenticated, admissible evidence that support the claims of wrongdoing.

Moreover, the decedent may have a say here. In many Florida wills, provisions include language that specifically states that any challenges made after a certain point in time are too late, and the bad acts will be forgiven under the terms of the will itself.

My Sibling And I Can Never Agree On Anything: How Can I Get My Family Member Removed As Personal Representative Of Mom’s or Dad’s Estate?

Posted By on May 20, 2015

When a mother or father does their estate planning and drafts their Last Will and Testament (along with Trusts, etc.), its understandable that when they think of the person they trust the most to deal with distributing their property after their passing, that mom or dad will consider their children first.

After all, who better to know and respect their parent’s wishes than a beloved son or daughter, right?

In South Florida, it’s very common to see grieving sons and daughters in probate court, taking on the responsibility of acting as personal representative of their deceased father’s estate or the estate of a mother who has recently passed. Often, these are responsible children from close-knit families who understand well the duties and requirements of this legal role as well as the emotional stresses everyone in the family is experiencing, and they handle the job with integrity and compassion.

When Brothers and Sisters Abuse Their Power as Personal Representative of Their Parent’s Estate

However, there are times when a sibling is appointed to oversee the administration of a Florida Estate who falls prey to the temptation to take advantage of their new legal role and the power that comes with it. These personal representatives do all sorts of unacceptable things, from minor faults like failing to deal with the beneficiaries, i.e., their brothers and sisters and other family members / beneficiaries, with respect and caring in a difficult time, to more serious actions.

Brothers or sisters appointed to act as personal representatives can also do very bad things, like taking advantage of their role for their own personal gain or acting in ways that mismanages the assets in their deceased parent’s estate.

If siblings have been appointed as joint personal representatives of the estate, then there’s an additional problem of failure to cooperate and work together in getting the job done. Failing to work with your brother or sister in making decisions, handling tasks, and completing the administrative duties of a personal representative can cripple the efficiency of the probate process as well as crippling family relationships in a time of grief.

When Brothers and Sister Cannot Agree Regarding Estate of Mother or Father

A brother or sister that refuses or fails to listen to their siblings or is unable to reach consensus on decisions regarding the estate may need to be removed from their role as personal representative or estate executor. This is a formal process to be undertaken before the probate court judge governed by Florida Probate Code chapter 733; however, it is not an easy thing to do.

Removing Them From the Job

Removal of a personal representative of your parent’s estate means that you must gather together facts as admissible evidence to prove to the court that there is an irreconcilable conflict between the two of you as co-representatives regarding the management of your parent’s estate. This can be done by providing facts showing things like:

  • Each sibling has taken action regarding the estate without consulting with their co-representative (or co-executor).
  • The two siblings don’t get along – there exists a “spirit of intense antagonism” between them (quoting Henderson v. Ewell, 149 So. 372, 111 Fla. 324 (1933)).
  • Impasses between the co-representatives are resulting in numerous hearings before the court in order to resolve the disputes.
  • One of the co-representatives has been misusing estate assets in some way, either for personal gain or to spite their sibling.
  • One of the co-representatives is failing to do a competent job (neglecting things, making mistakes, hampering others like the CPA from getting things done, etc.).

See,  Rand v. Giller, 489 So.2d 796, 798 (Fla. 3d DCA 1986).

Breach of Fiduciary Duty Claim

At times, there may be a claim of “breach of fiduciary duty” to be made here. Fiduciary duty is the highest duty recognized in Florida law; it exists “… where confidence is reposed by one party and a trust accepted by the other.”

In these situations, there will be evidence that the brother or sister has taken advantage of their role by “self-dealing” or they have been terrible at the job and are negligent. Fiduciary duty challenges to the personal representative are serious matters, and the harshest avenue to getting a sibling removed as estate representative.

High Burden to Justify Removing a Brother or Sister as Personal Representative

When a sister or brother goes before a Florida probate judge and asks that their sibling be removed from their appointed role as executor or personal representative, they need to be ready to withstand scrutiny by that judge. Why? Probate judges work very hard to respect and honor the last wishes of those who have died and are depending upon others, like the judge, to make sure that their decisions regarding the disposition of their property is respected. See Estate of Murphy, 336 So. 2d 697 (Fla. 4th DCA 1976).

Which means that the Probate judge will give great weight to the fact that the mother or father who appointed that challenged representative did so with the idea that they should handle their parent’s estate after the mother or father passed away. To alter the decision made by the parent, the challenge must be strong and solid on its facts and the judge must be persuaded that the estate and the beneficiaries are best served by disregarding the desired wishes and decisions of appointment made by the decedent. Robinson v. Tootalian, 691 So. 2d 52 (Fla. 4th DCA 1997).

Probate Trial Over Removal of the Personal Representative

Unless an agreement can be reached in settlement, these removal actions can result in a full trial held in a Florida probate courtroom. Brothers and sisters wanting to remove their brother or sister as personal representative or co-executor of their parent’s estate must be ready to put witnesses on the stand and provide documents as evidence to prove their case by a preponderance of the evidence.

Which means that anyone considering ousting their sibling from representing their parent’s estate needs to be prepared for litigation and should have an experienced Florida probate lawyer with trial experience at their side.

For more information about the probate process, see our web site resources page.

Challenging an Inheritance in Florida: Meeting the In Re Carpenter Factors in a Florida Will Contest

Posted By on May 12, 2015

Today, Florida Statute 733.107 has been passed to override part of the Florida Supreme Court’s decision back in 1971, when the famous (at least in legal circles) case came down: In re Estate of Carpenter, 253 So.2d 697 (Fla. 1971).  The Florida Legislature can pass laws that block what the Highest Court in the State has ruled.

However, In Re Carpenter is still important to anyone seeking to contest a Last Will and Testament here in Florida. Much of Carpenter still applies today.

Carpenter and Undue Influence Challenges to Florida Wills

For one thing, the Carpenter case sets out the basic legal requirements here in Florida for what someone must do to prove there has been undue influence exerted over the decedent by an evildoer when the decedent created his or her will.

As established by the Florida Supreme Court, “undue influence” must be proven by evidence provided by the person challenging the will in specific ways. Never-mind that it may be hard to find facts and documents and witnesses to support what is suspected in these cases!

In Florida, the judge and jury will be legally required to presume there has been undue influence once there is evidence that:

1. The alleged evildoer had a “confidential relationship” with the decedent (that’s a specific kind of relationship with certain characteristics to be shown);
2. The alleged evildoer inherited a lot under the challenged will (in legalese, was a “substantial beneficiary”); and
3. The alleged evildoer was involved in getting the Last Will and Testament finalized.

Once these three things have been proven with authenticated, admissible evidence by the party challenging the will, then the law will find the challenged will to be unenforceable and the court will deem it “invalid.” In legal terms, the “burden of proof” shifts.

At that point, the prior will takes effect. If there was no prior will, Florida intestacy laws determine who gets what of the decedent’s property.

Background of In Re Carpenter: The Bad Sister

In the Carpenter case, the widow Carpenter made a will only 4 days before she died, leaving all her worldly goods to her daughter Mary. Mary’s three brothers were cut out of inheriting anything by this will; two of them, Ben and Bill, filed a will contest. They argued that their mother had been “unduly influenced” to make that will and exclude them (and their brother Sam).

A Florida judge in the local probate court made the initial determination. He found that the Widow Carpenter, who died at the age of 52 years, not only took care of her own business affairs until the time of her death, but that she had followed all the usual formalities of a Last Will and Testament: it was witnessed by two people, etc. The judge also found that the Widow had voiced she wished to leave her estate to her four children equally, and that she was most fond of her son Ben, who had helped her more than her other children in many ways, including financially.

As for Mary, the judge found that when Mary visited her mother shortly before her death, and realized she was seriously ill, she moved her mother into a local hospital. There, Mary had the phone removed from the hospital room and rushed her lawyer to the scene, where she told the attorney her mother’s wishes were that Mary get everything.

The lawyer drafted the document accordingly. He testified that alone in the room with the Widow Carpenter, he asked her on two separate occasions if she wished to disinherit her sons and leave her entire estate to Mary and it was only after he was sure this was her intent that he brought in the witnesses and finalized the will.

The Florida judge found that there was undue influence, pointing to the fact that no doctor was consulted about the Widow Carpenter’s ability to understand what was happening at the time the will was executed, as well as Mary keeping the new will secret from her brothers before it was executed; and there being no evidence to support the explanation given in the will for the disinheritance, i.e., that her “sons didn’t love her.”

The Carpenter Factors

Of course, Mary appealed the probate judge’s ruling. The Florida Supreme Court ruled that there was undue influence here, and gave guidance to both probate lawyers and probate judges on situations of undue influence in a will contest.

These have come to be known as the “Carpenter Factors” and they are:

a) presence of the beneficiary at the execution of the will;
b) presence of the beneficiary on those occasions when the testator expressed a desire to make a will;
c) recommendation by the beneficiary of an attorney to draw the will;
d) knowledge of the contents of the will by the beneficiary prior to execution;
e) giving of instructions on preparation of the will by the beneficiary to the attorney drawing the will;
f) securing of witnesses to the will by the beneficiary; and
g) safekeeping of the will by the beneficiary subsequent to execution.

Florida Statute and In Re Carpenter: Who Has the Evidence Burden

After the Carpenter case, the Florida Legislature amended Florida Statute 733.107 regarding the burden of proof in an undue influence will contest in Florida. The new law doesn’t gut what the Supreme Court found to be factors that show or establish undue influence in the making of a will (the Carpenter Factors). It changes who has what burden of bringing evidence to the court in a will contest based upon undue influence.

Under the statute, as a matter of public policy, the job of providing evidence of the claim cannot be shifted — once a will has been shown to be sufficient on its face as meeting the requirements of a Last Will and Testament under the Florida Probate Code, and a will contest is filed, there will be a legal presumption of undue influence unless the defender can prove otherwise:

1. The party asserting there has been undue influence must provide evidence that there is enough for a legal presumption of undue influence (as established in Carpenter);
2. If that burden of proof is met, then the person defending the challenged will as valid must show that there was NOT undue influence (by a preponderance of the evidence, roughly 51%).

From Florida Statute 733.107:

(2) The presumption of undue influence implements public policy against abuse of fiduciary or confidential relationships and is therefore a presumption shifting the burden of proof under ss. 90.301-90.304.

Challenging a Will in Florida

If you or a loved one believe that there may have been some questionable circumstances surrounding the drafting of a loved one’s will, then you need to get the advice and counsel of a Florida Probate Lawyer who can help you determine what has happened legally and what documents and testimony you will need to prove (and win) your case.

Undue influence challenges can be complicated and emotional fights, and it can be difficult to find support that cannot only be authenticated as proper to serve as evidence before the court, but can also be admitted over challenges to evidence that include hearsay and the like.

Death and Taxes: Common Taxes in Estate Planning and Florida Probate

Posted By on April 14, 2015

Before tomorrow’s April 15th deadline, people will be making financial decisions, like depositing funds in an IRA (individual retirement account), in an effort to pay less federal income tax.  Some of these tax decisions can also be used as part of an estate planning tax strategy (other tax strategies that can have duel usage, include investing in a life insurance policy or investing in an annuity). (Also see “2014 Year End Estate Planning.”)


Taxes Payable At Death

Taxes are a part of life, and the after life (since they are paid by your estate). Common taxes that must be paid and that are related to someone dying, include:

  1. Federal income taxes on income earned in the year of the death;
  2. Federal income taxes on income earned by the estate during the estate administration;
  3. Gift taxes;
  4. Capital gains tax on assets sold in the year of the death;
  5. Federal estate tax.

Proper planning with an estate planning lawyer can limit the amount of taxes that must be paid from your estate.  The benefit to this planning, of course, is to increase the amount that your beneficiaries will inherit from your estate.

What’s Happening With The Death Tax?

The federal estate tax is also known as the federal “death tax” and it’s always been controversial. It is a tax calculated on the estate’s net taxable assets, which is tallied by deducting allowable deductions from the total estate value, aka the gross estate (the definition of “gross estate” is not a simple calculation and it should be explained and calculated by a lawyer or accountant since certain assets owned at the time of death, and some transferred prior to death, for example, are included in calculating this figure).

If a federal estate tax is due, then the personal representative of the estate (aka executor) must file the federal estate tax return (Form 706) and determine what assets will be used to pay the tax.

This estate tax is different from an income tax that may be due by the estate.

Right now, there is a great deal of news coverage over a joint Senate and House effort to repeal the federal estate tax. The Death Tax Repeal Act Of 2015 would end the current tax levied on an estate.

Whether or not it will become law is debatable: Congress may pass the Death Tax Repeal Act but President Obama has already announced that if the bill reaches his desk, he will veto it. The President’s position is not to repeal estate taxes

Estate Planning Is For Everybody — It’s Not Just for the Rich

Given the changes that happen in tax laws each year on both the federal and state level, as well as the changes that happen regarding the federal estate tax, it is important to have estate plans in place and reviewed annually.  This is especially true if you have any concerns about maximizing how much inheritance you pass to your loved ones or your favored charities.

A Florida lawyer who handles estate planning and/or probate matters can help you determine the best route for you to take in estate planning – from drafting and finalizing a Last Will and Testament, to choosing between other asset transfer vehicles, like IRAs, Trusts (revocable, irrevocable, life insurance), etc.

It it surprising to learn how many people think they don’t need to have an estate plan in place — it’s not just something for the rich and the wealthy to consider – estate planning also includes planning for health issues – like who has the authority to make medical decisions for you or do you want certain measures taken to keep you alive, etc.

Also, life insurance policies, including burial insurance, can be purchased on many kinds of budgets that can provide for surviving families; and establishing trusts for minor children so they can go to college is always a good thing to consider – no matter how small your estate may be.

Finally, setting up an estate plan does not have to be expensive or complicated. It may not take that much time, either. And while most people do procrastinate about their estate plans, most people don’t want to pay, or don’t want their family to pay, any more in taxes than they have to — so maybe tomorrow’s Tax Deadline is a good incentive to get your estate plan in place!

Florida Probate Lawyer Costs and the Attorneys’ Fees Statute in Florida

Posted By on March 10, 2015

One of the biggest questions involved in probating someone’s estate after their passing is how much will the probate process before a Florida Probate Court itself cost? There are variables here depending upon each case, of course.

Different kinds of property may involve unique expenses. Having investments in other states or foreign countries can warrant specific expenses in the transfer of ownership and clearing of creditors, payment of taxes.

Larger estates will bring more probate costs than smaller estates, especially for those who have not done advance estate planning (where many assets can be removed from the probate process).

However, one cost that may be concretely identified and known — even in advance of any probate needs — is the cost that the Florida probate lawyer will bring to the table. This is because the Florida Legislature has passed specific Florida laws that establish and set attorneys’ fees for Florida estates moving through the Florida Probate Court judicial process.


Florida Probate Lawyer Fee Schedule Per Florida Statute

According to Florida Statute 733. 6171, the following Florida Probate Lawyer Fee Schedule applies in Florida Probate matters. Homestead properties are not included here, and the lawyer’s fee is based upon not only the assets included in the probate estate at the time of filing, but any income that is generated by these assets during the probate case.

From Florida Statute 733.6171(3) the lawyer’s fee schedule is as follows:

(a) One thousand five hundred dollars for estates having a value of $40,000 or less.
(b) An additional $750 for estates having a value of more than $40,000 and not exceeding $70,000.
(c) An additional $750 for estates having a value of more than $70,000 and not exceeding $100,000.
(d) For estates having a value in excess of $100,000, at the rate of 3 percent on the next $900,000.
(e) At the rate of 2.5 percent for all above $1 million and not exceeding $3 million.
(f) At the rate of 2 percent for all above $3 million and not exceeding $5 million.
(g) At the rate of 1.5 percent for all above $5 million and not exceeding $10 million.
(h) At the rate of 1 percent for all above $10 million.

Does This Always Apply? No.

This schedule is set up for efficiency in probating general probate matters where there isn’t any big surprise, allowing for payment of the probate lawyer without the need for a judge to review the legal fees and judge them to be reasonable.

If the Florida probate attorney’s bill comes within these amounts in the schedule, it is deemed to be “reasonable” and ready for payment by the estate. As the Florida Statute explains, “Attorneys for personal representatives shall be entitled to reasonable compensation payable from the estate assets without court order.”

However, the Florida probate lawyer and the estate’s personal representative (along with those “….bearing the impact of the compensation”) may contract around this schedule. For many reasons, there may be a need for legal compensation to be paid differently than what is set out in this general fee schedule. A written agreement can be made that is different than this Legal Fee Schedule and that is fine under Florida law and is usually done when everyone agrees that specific legal work is needed in the case.

What might that be? Florida probate lawyers may need to take steps to insure that there is no unwarranted will contest in the case, as well as defending against a challenge to the probated will should one be filed. That’s one example.

Other “extraordinary services” defined by Florida law here include:

  • will construction.
  • proceeding for determination of beneficiaries.
  • contested claim.
  • elective share proceeding.
  • apportionment of estate taxes.
  • any adversarial proceeding or litigation by or against the estate.
  • representation of the personal representative in audit or any proceeding for adjustment, determination, or collection of any taxes.
  • tax advice on postmortem tax planning.
  • review of estate tax return and preparation or review of other tax returns required to be filed by the personal representative.
  • preparation of the estate’s federal estate tax return.
  • purchase, sale, lease, or encumbrance of real property by the personal representative or involvement in zoning, land use, environmental, or other similar matters.
  • legal advice regarding carrying on of the decedent’s business or conducting other commercial activity by the personal representative.
  • legal advice regarding claims for damage to the environment or related procedures.
  • legal advice regarding homestead status of real property or proceedings involving that status and services related to protected homestead.
  • involvement in fiduciary, employee, or attorney compensation disputes.
  • proceedings involving ancillary administration of assets not subject to administration in this state.

Ordinary vs Extraordinary Legal Services

Bottom line, the Florida Legislature has set up a schedule for everyone to follow regarding standard, ordinary, and expected work that a Florida probate lawyer will have to undertake in any probate matter in order to complete the probate process. If the estate goes outside that standard, general route with any number of unique (or extra-ordinary) situations, like a will contest or confusion over language of a will provision that needs judicial construction, or complications due to ongoing business activities, zoning issues, taxing matters, and the like, then the schedule does not apply.

In these extraordinary circumstances, the Florida probate lawyer will undertake specific legal work to meet those unique issues and challenges to the estate and the legal fees and expenses will be unique to that situation, controversy, or court fight.

If a Florida estate is valued in excess of $100,000, then there may well be extraordinary issues involved in probating that estate. It is wise to work with a Florida probate lawyer who will discuss fees and rates with the estate’s representative and who is amenable to fee arrangements that include flat fees, specific hourly rates, etc.

How to Avoid Florida Probate: 5 Ways to Transfer Your Property Other than a Will

Posted By on February 10, 2015

Ask most people here in Florida about how they will pass along their property to their kids or spouse or favorite charity, and odds are high that they’ll say they are doing this with their Last Will and Testament. After all, writing your will is a traditional and historic way of leaving your valuables — your land, your home, your jewelry and artwork — to your loved ones.

Broward County Courthouse in Fort Lauderdale, FL; Photo by Georgia Guercio; 2010-11-21


Anyone who uses a Will to leave property to their heirs and beneficiaries also leaves them with having their estate administrated in accordance with the Florida probate statutes and probate rules. Under Florida probate law, the probate court oversees the process of how that will’s instructions are followed.

Everything from confirming who the beneficiaries are under the will, to who acts as the personal representative of the estate, to paying off creditors, paying taxes, transferring title to real estate, and more, must be routed according to the probate laws.

Due to the time it takes to administrate an estate, as well as other misconceptions about the probate process, Florida probate lawyers are often asked by their clients for ways to avoid the Florida probate process, if possible.

5 Examples of How to Avoid Florida Probate


1. Don’t own any property.

If you don’t have any property to transfer, then there is no need for a Florida Probate Court to be involved, as a general rule.  This is where gifting comes into play as well as jointly owned property with rights of survivorship.

2. Have a Trust.

If you create a trust (e.g., a revocable living trust) your trustee has the job of following the trust’s instructions on the property you’ve transferred to the trust.  When transfer all of your assets to your trust, then you may not need a probate administration after your passing. However, your trustee may need to file a Notice of Trust with the Probate Court.

3. Checking Accounts with Others

If you keep your money in a checking account with a child or spouse that is “joint tenancy with right of survivorship” (JTWROS), then the person named on the account with you becomes sole owner of that account when you pass, there’s no need for this to go through probate. (there are risks in setting up your accounts this way, including tax issues, creditor issues and possible divorce issues related to the co-owner, among other issues.)

4. Own Your Home as a Life Estate

If you transfer your home or other real estate to a beneficiary, but keep a “life estate” for yourself, then the land automatically transfers in full upon your death because the “life estate” ends by its own terms. No need for a probate court to be involved here. (Again, there are risks in using this strategy, including possible restrictions on lifetime transfers and possible divorce issues related to the co-owner, among other issues.)

5. Contracts that Pay Upon Your Death

Life insurance policies, IRAs, annuities, and other contracts name beneficiaries that will receive ownership of these assets upon your passing. It is controlled by contract law, and the Florida Probate Code isn’t applicable to these agreements.

Warning Before Using These Probate Alternatives

As always, there are things to consider when Florida law comes into play. The above non-probate avenues are tools to be used to avoid the cost in time and money to your beneficiaries of a Florida probate administration. However, if you are not careful, then you may end up creating a legal mess that gives them a bigger headache than just writing out a simple Last Will and Testament would have caused.

Before deciding to do things like add your child to your checking account or transfer your home to your spouse, it’s important to get the guidance of a Florida probate lawyer. Each person is an individual and each situation is unique. A meeting with an attorney to confirm that your plans are sound and without any legal surprises isn’t that expensive and getting legal advice here is not only a relief to you but a comfort to your loved ones in the future.

What Are The Two Main Types of Notices Given To Parties in a Florida Probate Administration?

Posted By on January 13, 2015

Florida law defines the types of notices that are to be given in the administration of a Last Will and Testament in a Florida probate court proceeding. What notice a party receives, and what notices must be sent, are governed by Florida probate statutes, procedures and probate rules.

What Information is Provided in Florida Probate Notices?

In any Florida probate matter, there are two major areas of information that need to be shared with anyone interested in the property that makes up the decedent’s estate: first, there is general information about the estate itself; and second, there is specific information about the probate court proceedings and the issues that are being determined as part of the probate process.

Florida probate administrations are court cases where someone’s Last Will and Testament,  as well as other end of life estate planning issues, are administrated in a judicial process with the purpose of transferring the decedent’s property according to his or her wishes.  General information about a probate matter includes things like the date the probate matter was filed; the name of the personal representative representing the decedent’s estate (with contact information); and other overall basics. Specific information about a probate case focuses upon targets like a particular piece of property or the rights of a particular creditor or a particular claim.

Some of this information is shared under the Florida Probate Code through one of two types of notice documents: the Notice of Administration or the Notice to Creditors. In accordance with Florida Statute 733.2123, and the probate rules, each of these notices must be sent to a party in a specific way (in writing, within a set time frame, by regular mail, by certified mail, etc.).

1. What is a Notice of Administration?

Pursuant to Florida Statute 733.212, the personal representative must promptly serve a copy of the notice of administration on:

(a) The decedent’s surviving spouse;

(b) stated beneficiaries;

(c) The trustee of any trust described in Florida Statute 733.707(3) and each qualified beneficiary of the trust as defined in Florida Statute 736.0103, if each trustee is also a personal representative of the estate; and

(d) Persons who may be entitled to exempt property.

The Florida Notice of Administration must provide details on specific information as specified by law. The Notice of Administration must give notice of the following:

  • the name of the decedent (the person who has passed away),
  • the file number of the estate,
  • the designation and address of the court in which the proceedings are pending,
  • whether the estate is governed by a Last Will and Testament (i.e., testate or intestate),
  • the date of the will and any codicils,
  • the name and address of the personal representative,
  • the name and address of the personal representative’s attorney, and
  • an explanation that the fiduciary lawyer-client privilege applies with respect to the personal representative and any attorney employed by the personal representative.

Key in the Notice of Administration is information given to those who may challenge the probate in some way. The Notice of Administration must also provide noticed that any interested person has 3 months from service of the notice to assert their objection that challenges the validity of the will, the qualifications of the personal representative, the venue, or the jurisdiction of the court.

For other components to a Florida Notice of Administration, see Florida Statute 733.212(2).

2. What is a Notice to Creditors?

Florida Statute 733.2121 in Chapter 733 of the Florida Probate Code controls Notices to Creditors. The Notice to Creditor must be published once a week for two weeks in a row “…in a newspaper published in the county where the estate is administered or, if there is no newspaper published in the county, in a newspaper of general circulation in that county.”

Under Florida law, the personal representative of the estate must provide a specific, detailed notice to creditors — but not all creditors have valid claims against the estate. Some creditors’ claims will be barred under Florida Statute 722.702 and 733.710. For those creditors who have valid claims for payment against the estate in probate, the Notice to Creditors must be sent that includes:

  • the name of the decedent,
  • the file number of the estate,
  • the designation and address of the court in which the proceedings are pending,
  • the name and address of the personal representative,
  • the name and address of the personal representative’s attorney, and
  • the date of first publication of the Notice to Creditors.

Each notice must explain to the creditors that they have a statutory deadline to meet in filing their claims against the estate. These deadlines are set forth in Florida Statute 733.702. If the creditor misses the deadline, then that creditor’s claim is barred and uncollectable.

The personal representative has to search for creditors as a part of the representative’s duties to the estate. How extensive that search must be, and the consequences of a personal representative failing to discover a creditor, is explained in Florida 733. 2121(2).

If you believe that you may be entitled to, but did not receive, notice of a probate administration or a probate proceeding, or if you have issues concerning a probate notice from a Florida personal representative, then it may be in your best interest to contact a Florida probate lawyer to learn your legal rights and remedies under Florida’s probate law.

2014 Year End Estate Planning

Posted By on December 9, 2014

In a matter of days, we’ll be entering a new year and 2014 will be a part of history. However, it’s still early enough in December for you to consider or update your Florida estate planning before the new year.

There are reasons why you should, legally. For instance, some laws change on January 1, 2015, that may impact your estate plan.

One example that may not impact lots of Floridians, but is a big deal to those with a significant estate, is the change to the Federal Unified Estate And Gift Tax Exemption. The Federal Unified Estate and Gift Tax exemption jumps to $5.43M/person on January 1, 2015.

Granted, most Floridians do not have taxable estates and don’t need to worry about federal estate taxation — but if you do, then this change is something to consider in your estate plan before New Year’s Eve.

2014 End of Life Estate Plan Considerations

Aside from federal gift tax implications, other things to consider for year-end estate planning are things like:

1. The Beneficiaries Named in Your Retirement Accounts

Is everyone listed as a beneficiary that you want to be there? Do you want to add a new child or grandchild?

2. The Beneficiaries Named in Your Insurance Policies

Who is the primary beneficiary on your life insurance policy (or policies)? Is this still best scheme for you? Do you have your estate listed as a beneficiary — and is this wise?

3. Charity Donations

For income tax deductions, you need to make your charitable contributions before year-end.

4. Gifts To Avoid Federal Gift Tax

In 2014, you can gift up to $14,000 per person to as many folk as you deem fit and there will be no federal gift tax. It goes up to $28,000 if you’re not married.

5. Think About a 529 Education Plan

With this plan, you can make 5 years of gifts in one year’s time for future expenses related to education.

Estate Planning Is For Everyone

Remember, estate planning is for everyone — and young people (including new or expectant parents) as well as established couples and independent seniors are well served by having an end of life legal plan established in the event of their passing. It’s not as complicated as it seems, and many already have begun an end of life estate plan without realizing it.

Do you have life insurance? Then you’ve already begun an end of life estate plan!

It’s important to have a plan for what happens to your property when you die. If you die without the basics of an estate plan in place, then your loved ones and survivors can be harmed.

For one thing, the State of Florida’s intestacy statutes will decide who gets what — and that may go against your wishes and what is fair in your family situation. If you have minor children or beloved pets, then who will take care of them when you die? It’s important for their protection to have that decision and end of life plan in place.

Other Things That Might Be Part of Your Estate Plan

Most people will have wills and life insurance policies as part of their estate plan; however, Florida law provides for many other protections for people and their estates, such as:

  • Power of Attorney
  • HIPAA Medical Waiver
  • Health Care Surrogate
  • Living Will
  • Trusts

Having a basic plan in place gives you peace of mind and provides not only for a smooth transition for your property, but also provides protections for your children, your pets, and your spouse. Taxes that would otherwise be due and payable to the federal government can be legally avoided with an estate plan.  Estate planning is for every adult, not just for older Americans.

10 Reasons Why Your Parents Need a Health Care Surrogate

Posted By on November 11, 2014

What is a Florida Health Care Surrogate?

In Florida, a Health Care Surrogate is a person who makes your health care decisions for you when you are not able to make these decisions for yourself. This is someone who will have legal authority to pass on your wishes to your health provider (doctor, hospital, etc.) when you cannot. Often, people like spouses, adult children, parents, brothers or sisters, or sometimes close friends are named as Health Care Surrogates. This is done by executing a legal document, like this online example provided by the Florida Bar.


10 Reasons Why Your Parents Need Health Care Surrogates

Children may want to discuss the need for a Health Care Surrogate (”HCS”) with their parents in advance of the need for having one, as part of their parents’ estate planning needs. Why do this? Here are ten reasons from a Florida probate lawyer’s perspective on why your parents need health care surrogates:

1. Parents Can Make Sure That Siblings Aren’t Overwhelmed by Tough Decisions to be Made

In the future, adult children may not be able to figure out what the best interests of their parent may be. These decisions can involve lots of complicated decisions, including if certain types of medication should be used or if surgery should take place. With a Health Care Surrogate in place, the burden of these decisions can be avoided. The HCS may be required to investigate all available options and makes the decision on when it’s best to do things like moving a parent to a care facility.

2. Parents Can Decide Now, Before Disability Choices Must Be Made

There are times when it is obvious to everyone except the parent(s) that changes need to be made for the best interests of Mom or Dad. Particularly for independent parents, it can be hard to face the reality that physical limitations (or mental challenges) warrant the need for care. Having a Health Care Surrogate helps children with a parent who is resisting recognizing new realities.

3. Parents Can Protect Against Emotional Fights Between Children Over Care Issues

Sometimes, children cannot agree on what is best for their parent. Emotions can run high, and there can be fierce fighting among siblings about what is best for Mom or Dad. Having a designated Health Care Surrogate established by the parent beforehand helps the family avoid all this strife.

4. Parents Can Protect Against One Child Controlling the Situation

In some situations, one child may attempt to control the entire situation of how to care for an aging parent, to the exclusion of their brothers and sisters, as well as other family members. This often happens when this child is in the position of caregiver for an elderly parent. Having an advance planning Health Care Surrogate naming more than one child as a HCS could keep the caregiving child from distancing other children from the parent and excluding them from important decisions about health care that may have to be made.

5. Financial Needs of Children for Contributing to Care Can Be Evaluated

Health Care Surrogates can also help in decision making that involves financial considerations. Parents can instruct the HCS in advance how they wish to have finances impact future health care decisions as well as applying for public assistance benefits (i.e. VA benefits or Medicaid).

6. Parents Can Decide How Best to Share Caregiving Among Loved Ones

Health Care Surrogates will be able to help ease the burden on children and family members who are trying to deal emotionally with the decline of their parent by freeing the children to love and comfort and enjoy their remaining time with their parent without the details and stresses of determining their shared health care responsibilities. HCS decisions can be made with the parent’s preferences for how children are to participate in care-taking of the parent, such as whether or not the parent will live in any particular child’s home or if they will stay in their own home with outside home health care support.

7. Surrogate Will Know How to Deal with Potential Situation of One or More Parents All Needing Care from Kids

Children may be facing the decline of more than one parent at the same time. Children may have parents that are both facing serious health issues. Children can face both Mom and Dad having health care needs simultaneously. Having a HCS in place in advance helps ease the burden here on everyone involved.

8. Treatment Choices Can Be Communicated by the Parent In Case They Can’t Do It in the Future

Health Care Surrogates will be able to act with an understanding of what the patient wants to have for medical treatment because they will have instructions in advance from a parent long before the need to address decisions on medical care for a parent incapacitated in some way, e.g. in a coma or with advanced dementia.

9. End of Life Decisions Can Be Clarified By the Parent Now

Health Care Surrogates will be able to act in accordance with the parent’s wishes when the time comes for end of life decisions, such as experimental procedures or removal of a feeding tube for someone deemed to be brain dead by their physicians.

10. If Your Parents Don’t Decide on Surrogate Now, the Court May Decide for Them

Parents who have the foresight to appoint a Health Care Surrogate not only protect their family in the future, they also protect their own desires and preferences for what their future decisions should be. Absent making this appointment, parents may face a Florida probate judge making this appointment for them. This person may be trusted by the judge, but this court-appointed HCS will never have the in-depth understanding of the parent’s wants as someone who was personally appointed first-hand by that parent.

10 Reasons Why New or Expectant Parents Should Have a Will

Posted By on October 14, 2014

Congratulations if you are reading this post because you are expecting a child or if you are a new parent. There are few joys in life as great as raising a child! Congratulations, too, on investigating how to protect your family in the event of an untimely passing on the part of you or your spouse.

Here are 10 reasons why a Last Will and Testament is especially important for new and expectant parents:

1. Guardians.

By doing some estate planning now, you can establish pre-need guardians for your child and family. These are people you trust to be either their financial guardian and/or their guardian of the person. One person can undertake both roles (like a parent does) or different people can act here, splitting up the money decisions from the day to day responsibilities.

2. Unmarried Parents.

Not every child is born to parents with a marriage license. If mom and dad are not married, then having a will set up will protect the baby in the event one of those parents passes away. When parents are not married, without a Florida will, the family home as well as savings, etc., may not pass under Florida law to a live-in partner to care for the child(ren). Florida “intestacy” laws will apply.

3. Step-Children.

In today’s modern families, often there are blending situations where step-parents are doing their estate planning. In a Florida will, these parents can look after the interests of step-children, including appointing guardians for them (see above).

4. Transfer of Property Between the Couple.

Under Florida intestacy laws, if one parents dies, some of their property might not go to their surviving spouse, but directly to their children. This might not be best for the family and preparing a will protects everyone here.

5. Heirlooms and Treasures.

Often, there are specific pieces of property that parents wish a particular child to have. The grandmother’s engagement ring to their daughter, the father’s pocket watch to the son. With a will, specific assets such as jewelry, collectibles, letters or vacation properties that you want to leave to a specific child can be accomplished through specific bequests.

6. Education Decisions.

If you should die before your child reaches adulthood, how do you want my children to be educated? Planning for your child’s schooling can be done through your Last Will and Testament: your estate can pay for a tutor to continue their homeschooling, for instance. If your kids are in private school, a portion of your estate can cover their tuition.

7. Paying for College.

You can plan within your will for part of your estate to be held in trust for college tuition or other post secondary education.

8. Special Needs Child.

Special needs children face unique challenges and you can protect them with a Special Needs Trust, which can protect future government benefits for which they may be eligible as well as insuring they will have the ability to pay for medical care.

9. Timing.

Children have the right to a childhood, and your estate planning can protect that time of innocence. If they are to inherit a substantial amount of property or cash, for instance, you can decide in your will both how and when your children receive their inheritance.

10. Protecting Them From Themselves.

If your family has a history of addiction issues, you can try to keep your children free from drugs, gambling, etc. by adding a provision to your Last Will and Testament that prevents them from inheriting or delays inheritance if they are exhibiting addictive behavior, such as using drugs or gambling.

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