Posted By Larry Tolchinsky on August 21, 2012
This month, lots of people that don’t deal with senior citizen issues or the realities of end of life planning and elder law got a big, huge slap in the face as Dr. Mark Lachs called elder financial abuse by family members a “national epidemic.”
That’s right – right up there with heart disease and stuff like that: a public health issue of emergency proportions.
Not that South Florida elder law attorneys and lawyers doing estate planning in places like Broward County aren’t well aware of what’s happening. It’s true — family members do take advantage of elder relatives.
Sometimes it’s credit cards. Sometimes it’s money. Sometimes it’s a lot more. And it can mean that Grandpa gets denied his Veteran’s Benefits when it’s time to move into a nursing home facility. It may mean that the money set aside for his grandchild’s college education has mysteriously disappeared when the Will is read.
What can be done to stop this epidemic?
To read about the study and what Dr. Lachs had to say in detail — as well as what all this can mean to elders and their long term care and their Last Will and Testament, go read our post on About Florida Law.
Posted By Larry Tolchinsky on July 11, 2012
Missing Man Guma Aguiar: Public Domain Image
Here in our local Broward County, Florida, probate court things got very crowded as the understandably upset mother and the very beautiful and upset wife of a missing millionaire came before local Probate Judge Mark A. Speiser to duke it out over what to do about the money, the property, the creditors, and all those other financial decisions now that son, husband, and father Guma Aguiar was nowhere to be found.
The Missing Millionaire – Last Seen on His Boat
No one knows what is up with Mr. Aguiar. It’s a mystery. Maybe James Patterson or John Grisham could build a more interesting mystery, but they’d be hard pressed because last we all knew, Florida oil baron Guma Aguiar walked out of his Fort Lauderdale mansion to go fishing. That’s it.
So what happened in that probate court fight? Guma had done some estate planning and here’s the rest of the story, so far.
Posted By Larry Tolchinsky on May 26, 2012
An attorney preparing a Florida Will must be aware of the law dealing with the testator’s intentions being replaced by the intentions of another. A Florida Will can be declared invalid if it can be proved that it was procured through fraud or undue influence. F.S. 732.5165.
The Florida Supreme Court addressed the issue of undue influence in Estate of Carpenter, 253 So.2d 697 (Fla. 1971). It ruled that if a challenger to the Will establishes that a substantial beneficiary occupied a confidential relationship with the testator and was active in procuring the Will, a rebuttable presumption of undue influence arises. Evidence that might indicate active procurement includes that the beneficiary;
- Was present when the testator spoke of wanting to make a Will;
- Recommended an attorney to draft the Will
- Instructed the attorney on how to prepare the Will;
- Knew the contents of the Will before it was executed;
- Obtained the witnesses to the Will;
- Was present when the testator executed the Will; and/or
- Arranged for the safekeeping of the Will after its execution.
To avoid any question regarding undue influence of a beneficiary, an attorney should meet alone with the client at some point to ascertain whether the client’s decisions have been heavily influenced by another and should take precautions to avoid any appearance of such influence. For example, the lawyer should take instructions from the client only, if possible, and should consider having only the client and witnesses present when the Will is executed.
Posted By Larry Tolchinsky on April 22, 2012
What is Unclaimed Property and Why is Probate Sometimes Necessary?
Unclaimed property (sometimes referred to as abandoned property) refers to accounts in financial institutions and companies that have had no activity generated or contact with the owner for one year or a longer period. Common forms of unclaimed property include savings or checking accounts, stocks, uncashed dividends or payroll checks, refunds, traveler’s checks, trust distributions, unredeemed money orders or gift certificates (in some states), insurance payments or refunds and life insurance policies, annuities, certificates of deposit, customer overpayments, utility security deposits, mineral royalty payments, and contents of safe deposit boxes. Most government agencies use the term “unclaimed property” instead of “unclaimed money.” It’s government speak and typically refers to money — not real estate.
Sometimes people inherit money and do not know about it right away. If a close relative dies, it is wise to check the unclaimed funds website online to determine if you are entitled to the money. Even when a person dies intestate, the closest relatives usually inherit some of the assets. If you find that there is unclaimed money (either public or private) in the name of a deceased relative, in most instances, it is necessary to hire a probate lawyer to do a summary administration, for unclaimed property worth less than or equal to $75,000, or a formal administration for unclaimed property worth more than $75,000. The reason is that the governmental entity requires someone with legal standing to receive the property and the only way to do that in Florida is through a probate proceeding.
Posted By Larry Tolchinsky on October 29, 2011
Some people leave behind a safe-deposit box when they pass away. Often times, the surviving spouse wants to rush to open the box immediately upon death. Florida law differs from other states in that the safe-deposit box is not sealed upon death, as the state does not have a revenue interest in the box’s contents. The estate’s personal representative must account for all of the decedent’s assets, including the safe-deposit box. Thus, your Florida probate attorney will likely advise the personal representative against allowing the surviving spouse or joint lessee from opening the decedent’s safe-deposit box.
If the joint lessee to the box is uncooperative with the personal representative, or if there is no joint lessee, Florida law allows the personal representative with letters of administration to access the decedent’s property in the box. The personal representative can remove all or part of the box’s contents. However, some Florida courts restrict what the personal representatives can do.
The surviving joint lessee can certain make claims of ownership to the box’s contents, including:
- Claiming the property is theirs because it was purchased with the survivor’s funds
- The decedent gave the property to them while alive
- The property was purchased with joint funds
A probate attorney can tell you what, if any, rights of ownership the joint lessee has to property in the box. It may take a judicial determination to decide this issue.
In Florida, any two of an employee of the institution where the box is located, the personal representative or the personal representative’s attorney must witness the initial opening of the safe-deposit box after death. All present have to sign a copy of the box’s inventory as well.
There are other requirements regarding safe-deposit boxes in Florida, including those related to foreign personal representatives and jointly-held boxes. Contact an experienced Florida probate lawyer if you have any questions.
Posted By Larry Tolchinsky on October 29, 2011
All is not lost in Florida when a Last Will and Testament has been lost or destroyed. There is a procedure where a copy of the Will can be admitted to probate by filing a petition to establish the lost or destroyed Will along with other requirements discussed below.
Under Florida law, if a Will cannot be found there is a presumption that the testator (maker of the Will) destroyed the Will in order to revoke it. In order to probate a missing Will, it is necessary to prove that the testator did not revoke it. This can be done by showing the court that the Will was lost or destroyed without the testator’s consent, or with evidence that the testator did not have the capability to revoke the Will while it was in his or her possession.
The petition to probate the missing Will must contain a copy of the Will or its substance and an oath from two witnesses who do not have an interest in the petition’s outcome must be filed with the Court. If there is a correct copy of the Will, that takes the place of one witness. If the copy does not have the testator’s and witness’s signatures, it can still be admissible as evidence of the Will’s contents.
The attorney for the estate will have to send formal notice of the hearing to all persons with interest in the Will. All testimony at the hearing will be put in writing in the event of any future contests to the Will. If only a portion of the Will can be established, that part will go through probate unless it is unintelligible and incapable of interpretation on its own.
Establishing a lost or destroyed Will is possible, but not always easy. Make sure the Florida probate lawyer you hire is well versed on the latest Florida probate case law and procedure.
Posted By Larry Tolchinsky on October 21, 2010
More often than not, the probate process is simple and straightforward. Where the decedent executed a Will, his property is disposed of in accordance with it. Where there is no Will, his property passes to his spouse and/ or children. Sometimes, however, there are complications; for example, the decedent may have disinherited his spouse in his Will or an alleged biological child may pop out of the woodwork. Alternatively, a creditor may bring a disputable claim against the estate for a vast sum of money. Where there is controversy, litigation becomes likely.
Below are some examples of issues that may give rise to probate litigation:
- Will Contest: A party may allege that the deceased person’s Will was not executed with the requisite formalities and is thus invalid, or that he lacked the capacity to execute the Will or was unduly influenced into disposing his property as stated in his Will.
- Personal Representative’s Breach of Duties: The PR of an estate owes its beneficiaries the fiduciary duties of honesty, prudence and loyalty. When those duties are violated, the beneficiaries may petition the court to remove the PR and/ or to compensate the estate for any financial loss suffered due to the wrongdoing of the PR.
- Elective Share: In FL, the decedent’s surviving spouse is guaranteed a certain portion of his estate, which is calculated according to a detailed formula. If she is displeased with the inheritance created by the estate plan, she can instead take her elective share. The surviving spouse must make her election within 6 months of her receipt of the PR’s Notice of Administration.
Posted By Larry Tolchinsky on October 21, 2010
The term “probate property” refers to property that someone inherits upon another’s death. As soon as the administration of an estate is commenced and a Personal Representative is appointed, probate real estate information becomes available at the county courthouse – even if the PR has manifested no interest in selling it. If you’re interested in buying probate real estate, you can access information at the courthouse or subscribe to a probate listing service that collects and provides such data on subject properties to investors at a cost. If you then decide to bid on a property, you can submit an offer to the PR’s attorney, who will forward it to the PR for his consideration.
As with all real estate purchases, there is always a risk that the probate property is somehow encumbered or burdened, which will transfer to your shoulders once you complete your purchase. You should know that if there is an outstanding mortgage on the probate property, it may be paid off with the decedent’s life insurance or other assets, but this is NOT automatic. According to FL Statute 733.803, “the specific devisee of any encumbered property shall be entitled to have the encumbrance on devised property paid at the expense of the residue of the estate only when the Will shows that intent. A general direction in the Will to pay debts does not show that intent.” So the decedent’s beneficiary inherits the property with ALL liens, mortgages and other securities still attached in MOST circumstances. As with all real estate purchases, you should always, always perform a thorough title search prior to purchasing probate real estate, and you should obtain a comprehensive title insurance policy on it.
Posted By Larry Tolchinsky on October 21, 2010
The Personal Representative’s first order of business upon being appointed to administer a deceased person’s estate is to ensure that the decedent’s mail, etc. is being forwarded to him. The biggest reason for this is so that the PR is kept abreast of the decedent’s obligations to third parties (i.e. phone, power/ lighting, credit card, etc. companies). The decedent’s legitimate debts must be paid out of his estate to the extent that funds are thus available before any distributions of probate assets are made, or else the PR may be held personally liable for these debts (i.e. made to pay them himself).
Florida Statute 733.707 provides the order in which the decedent’s debts and/ or expenses associated with the administration of his estate must be paid. All such obligations are divided into “classes” and each creditor, etc. in a given class is entitled to full satisfaction before another class is considered. If at any point the funds contained in the decedent’s estate are extinguished, all unpaid creditors, etc. in classes not yet reached – and the decedent’s intended beneficiaries/ heirs – receive nothing.
- Class 1: The costs/ expenses of administration, and compensation for the PR and the PR’s attorney.
- Class 2: All reasonable funeral, interment and grave marker expenses, whether paid by a guardian, the PR or any other person, not to exceed the aggregate of $6,000.00.
- Class 3: Any unpaid federal taxes, and reimbursement for Medicaid or public assistance payments made on behalf of, or paid to, the decedent.
- Class 4: All reasonable and necessary medical and hospital expenses of the last 60 days of the last illness of the decedent, including compensation of persons attending the decedent.
- Class 5: A family allowance.
- Class 6: Any arrearage from court-ordered child support.
- Class 7: Any debts acquired after the decedent’s death by the continuation of his business, but only to the extent of the assets of that business.
- Class 8: All other claims, including those founded on judgments and/ or decrees rendered against the decedent during his lifetime.
The PR must use “due diligence” to give actual notice of the probate proceeding to known or reasonably ascertainable creditors, so as to allow them sufficient opportunity to file claims against the decedent’s estate (if any). In FL, such notice is provided via personal service and/ or publication of a “Notice to Creditors,” which acknowledges the decedent’s death, the administration of his estate and provides information on the process by which a creditor may file a claim against the estate. The PR must formally and individually serve each known creditor of the decedent. A creditor is “known” if he is referenced in the decedent’s files or if a bill, etc. is sent to the decedent and forwarded to the PR. Additionally, the PR must publish the Notice to Creditors in a widely-circulated public newspaper in the counties in which the decedent was domiciled, resided, maintained property, etc. The Daily Business Review is an appropriate medium for this purpose in Broward and Miami-Dade Counties.
Posted By Larry Tolchinsky on October 21, 2010
The costs of probating an estate vary according to jurisdiction, length/ depth of the process, whether the Personal Representative is required to post a bond and which attorney the PR chooses to represent him. If the administration is relatively straightforward, an attorney may charge a flat fee for his role in the process plus all costs (see below). If there are complications down the road and the attorney is required to perform “extraordinary services” as defined in his retention agreement, the attorney will charge an additional fee based on his hourly rate – $275.00 to $600.00+. Alternatively, the PR’s attorney may adhere to the guidelines for fees contained in FL Statute 733.6171.
Assuming that you have been appointed as PR to administer an estate in Broward County, Florida you will likely be made to pay the following costs (not including attorney’s fees):
- Formal/ Ancillary Administration Filing Fee: $401.00. If, however, the estate is eligible for summary administration (i.e. if the estate is administered more than two years after the decedent’s death, the entire estate is worth less than $75,000.00, etc.), you will pay $236.00 if the estate is worth less than $1,000.00 and $346.00 if the estate is worth more than $1,000.00 but less than $75,000.00.
- Publication of the Notice to Creditors in the Daily Business Review: $172.00.
- Service of the Notice to Creditors on the Florida Agency for Heath Care Administration/ Additional Creditors: Approx. $6.00 per creditor. According to FL law, the PR must officially notify known potential creditors (i.e. credit card, phone, power and lighting companies, etc.) and, under certain circumstances, the FL Agency for Heath Care Administration – which may be entitled to reimbursement for any healthcare costs it bore on behalf of the decedent prior to his death – of the process by which it may seek satisfaction of its claims (if any) against the decedent during the administration of his estate.
- Posting of Bond: If the PR is located outside FL or if the court requires for some other reason that the PR post a bond before it will grant him the power to administer the decedent’s estate, the PR may apply/ pay a nominal fee to a professional company, which will act as his surety – it will agree to be responsible for the PR’s debt to the estate up to a certain stated amount if the PR fails to faithfully perform his duties.
- Personal Representative’s Deed: If there is any real estate in the probate assets, it may be necessary for the PR to execute a deed on the decedent’s behalf granting it to the decedent’s intended beneficiary. The PR will have to pay his attorney a flat or hourly fee to draft this document and an additional cost to record it and for the document tax. If the PR himself is the intended beneficiary of the real property, this step may, in some circumstances, be skipped.