What Happens When You Can’t Find the Will?

Posted By on November 18, 2015

Probating Lost Wills in Florida

No one likes to think about dying, and it’s not easy for many of us to sit down and deal with planning for death.  Still, most families have some sort of estate planning in place, even if it’s only a life insurance policy.

Many people do plan ahead with a finalized Last Will and Testament to explain how they want their property distributed after their death as well as naming who they want to oversee the process (I.e., their “Personal Representative”). Lots of new parents, for example, will write their wills after their first child is born, to make sure the baby is protected should something happen to them.

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And there will be occasions when family members do discuss their last wishes with loved ones; lots of these chats are going to take place now, during this holiday season. Who gets mother’s fine china may be talked about over Thanksgiving. Where are the stock certificates and personal papers may be discussed between father and son after lighting the menorah or while watching one of the 13 NFL games scheduled for Sunday, December 27th (that’s right: 13).

Which means that most family members will share their plans and when the time comes, everyone will understand what Dad wanted or what Grandma’s final wishes are. And they will know that there is a Last Will and Testament to be located and submitted for probate.

But what happens if the family cannot find the Will?

You know it exists, but it’s not where it should be. What can you do then?

Florida Law for Families Who Cannot Find the Last Will and Testament

These are not situations where someone is hiding the will or has destroyed it, in order to better themselves in an inheritance. We’ve discussed that situation in a prior post.

Here, families are grieving and now frustrated because no one can locate the document. No one is contesting it exists; no one wants to challenge what it provides. It is simply not where it’s supposed to be, so there’s not a document to present to the probate court.

Here, Florida law helps families to reestablish the lost will. There will be legal hurdles to jump. Evidence will be needed, and certain procedural rules followed – but it can be done.

It can be very important for families in most situations to try and clear these hurdles and reestablish the lost will for several reasons:

1. because if there is no will, Florida’s intestacy laws may kick it to control who gets what;
2. a prior will, maybe many years old, may otherwise control; and
3. someone may decide they want to fight the resulting plan of distribution in an adversary proceeding.

Steps to Probate a Lost Will in Florida

The first of these hurdles is to overcome the assumption that it was intentionally tossed by the decedent. In Florida, there will be a legal presumption that a will known to exist and in the possession of the testator which cannot be found has been destroyed by the person who wrote it. It is the job of the person who is the proponent of the lost will to prove this isn’t what happened. See, In re Estate of Yost, 117 So.2d 753 (Fla. 3d DCA 1960).

Evidence It Wasn’t Intentionally Destroyed

How can they do this? By bringing witnesses and documents to court that show things like:

(1) the testator wasn’t capable of revoking the will while it was in his possession (maybe he was sick); or
(2) facts that show the will was lost without the decedent’s approval or consent (maybe the house got flooded and now, it appears the will got thrown out in the debris).

Copy of the Lost Will

Key here is to provide the court with a copy of the original will: a copy of the will, or its substitute. Florida Probate Rule 5.5 10(b). As one court explained, that copy may be the “best evidence available” as to the original will’s contents. Stewart v. Johnson, 142 Fla. 425, 194 So. 869 (1940).

Two disinterested witnesses who saw that will being signed need to testify, too. Disinterested means they aren’t going to inherit anything if the lost will is admitted to probate. And they both have to give sworn testimony, confirmed in a writing that’s filed in the court record, that the copy is a true duplicate of the original that they saw being signed.

Once the legal presumption has been countered, then the lost will can be admitted to probate via the copy that has been provided. Probate of the duplicate can be granted now, assuming that there has been formal notice on those who, but for this Lost Will, would be entitled to inherit.

The Sister’s Lost Will and its Carbon Copy

For instance, in the case of Silvers v. Estate of Silvers, Mrs. Silvers passed away and left her home as her principal asset. She made a will that left her sisters as her beneficiaries, and she kept the original will while mailing her lawyer a carbon copy. When she died, all her papers and belongings were searched — by one of her sisters, as well as her lawyer and his secretary. No one could find that original will.

So, an administrator was appointed for her estate and Florida intestacy laws were going to be applied. Then, seven months later, the lawyer’s office found the carbon copy of the will in his files with the letter from Mrs. Silvers that accompanied it. This was filed with the court. Next, her sister Julia testified that Mrs. Silvers had told her about the will and who witnessed it. The carbon copy was deemed credible by the probate judge and it was used instead of the lost will and admitted to probate.


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Challenging a Will: Consider the Deceased’s Wishes Before You File a Will Contest

Posted By on November 12, 2015

Whe a will is brought before a Florida probate judge for admission to probate and the appointment of a Personal Representative, things seem straightforward. You would think things go smoothly from there; just follow the instructions – they are written out for you – settle the estate’s claim and distribute to the beneficiaries. Wills are presented to probate judges in Broward, Miami-Dade, and Palm Beach counties every day — and most proceed through the probate process without a problem, just as any person with a good estate plan in place would have expected.

However, every year in Florida, many Wills are challenged, and there’s no way to know at the time of execution, or filing for probate, if somebody out there is going to bring a Will contest for some reason. The P.R. takes on the job knowing they will have duties like paying the tax and making an inventory of the property; they may be surprised to discover that the job can also include defending an ugly lawsuit.

If an heir or beneficiary suspects that the Will does not truly voice the final wishes and desires of the person who passed away, and it has already been filed in a probate court, then they may be able to file a formal challenge to the admitted will and seek its revocation from probate. This is called a “will contest,” and it is a full-on lawsuit filed in the probate proceeding. If one has been appointed already, the Personal Representative essentially sits at the defense table to fight for the will as probated, while the contesting beneficiaries act as plaintiffs, arguing for its revocation in favor of another will, or to let the estate pass under the laws of intestacy. The probate judge has the final say in what to do with the probated will; there are no jury trials for Florida will contests.


Is there evidence of undue influence to support a will contest? That’s the question to answer before a lawsuit is filed.


How Complex is a Will Contest?

Depending on the size of the estate, the relationship of the parties, and even the aggressiveness of the attorneys retained to handle it, it can be a very big deal to file a will contest. They are emotional proceedings that can and do tear families apart. Additionally, they can be complicated proceedings that go on for years and rack up tens of thousands in legal fees. Yet in other situations, they are less complex, and the answer is obvious. It depends upon how much evidence will be needed in the form of witnesses and documents and the fact and legal issues involved.

Small will contests can take less time and less money. These are more likely to be filed. One of these smaller contests are those that focus upon a narrow time window, like the events that happened the day that the will was signed. However, before any will contest is teed up, it’s important to evaluate its likelihood for success as well as its costs emotionally and in familial relationships.

Main Beneficiary Is Present When the Will is Signed

What if the primary beneficiary of the will was present when the contested will was signed? The mere fact that they were there, in the room, when the will was signed by the testator may be enough for lots of folk to suspect the worst. Add to that scenario a beneficiary who helped with the preparation of that will in some way, and things get even dicier.

Florida law may even come into play. A legal presumption of “undue influence” may be asserted by the will contestants here. They may argue that there’s been some manipulation of the deceased person by the person who was there at the time the will was finalized and who now stands to inherit most, if not all, the estate’s assets.

If they can establish this legal presumption, then the will is presumed to be tainted unless the beneficiary can prove otherwise. The burden shifts to the beneficiary to prove they did nothing wrong. It’s a slam dunk for the will contestants.

However, whether or not the judge presumes that this beneficiary illegally influenced the testator is the big question. Just because the will contestants are upset and sure that there’s been wrongdoing, this does not mean that the legal presumption they argue will be applied.

Suspicion can be raised when a beneficiary takes part in preparing and executing of a will from which he or she inherits, but that is not enough under Florida law to invalidate the will or even to raise the presumption of undue influence.

Why? Because of the person who died. The judge will consider the testator.

Even if that beneficiary helped get the lawyer who drafted the will, as well as being in the room when it was signed and having a detailed knowledge of the will’s contents, that’s not going to be enough for the contestants to get the will tossed out. Evidence that the person who passed away was of an independent mind, and knew what he or she was doing in that document, will be enough for the judge to honor that will and rule against the will contest.

Case study: The Fiercely Independent Doctor and Her Sons’ Unsuccessful Will Contest

Consider the case of the Florida doctor whose daughter was present when the doctor’s will was signed.

In the case of Derovanesian v. Derovanesian, 857 So. 2d 240 (Fla. Dist. Ct. App. 2003),

Dr. Zevart Manoyian died on Christmas Eve at the age of 83 years; she was a wealthy woman who left a multi-million dollar estate and a Last Will and Testament that bequeathed almost everything to her daughter Mary and a very small amount of cash to each of her three sons. Nine years earlier, she had written an earlier will that divided everything equally between her four kids.

So, the three brothers filed a will contest trying to get the probated will tossed out and the older will put in its place. Their argument? Mary had unduly influenced Dr. Manoyian into leaving everything to her.

The evidence did show that Mary helped to get the lawyer for her mother who drew up the new will; that Mary was there when her mother signed the documents; and that she knew what the will provided both beforehand as well as after her mother signed it.

However, there was no evidence that Dr. Manoyian was manipulated by her daughter — or anyone else. Ever.

Under Florida law, for the three sons to win, they had to provide evidence that “… the free use and exercise of the testator’s sound mind in executing [her] will was in fact prevented by deception, undue influence, or other means.” In re Carpenter’s Estate, 253 So.2d 697, 704 (Fla.1971).

The reviewing court found they had zip to prove Mary “exercised any influence, let alone undue, upon her mother in making the disposition in her favor.”

Evidence of what happened on the day that Dr. Manoyian signed her new will established that Mary was only doing what her mother instructed her to do — as part of Mary’s role in taking care of her elderly mother who lived with her.

The character and personality of the testator was key here. Evidence was provided that mother knew daughter needed financial help while her sons were independently wealthy in their own right and didn’t need her money. Witnesses testified that Dr. Manoyian was clear in explaining why she was doing what she was doing in her bequests.

And there was evidence of Dr. Manoyian’s fierce personality. From the court:

“Dr. Manoyian, a remarkable person who was one of the first female physicians in Florida, was an indomitable, fiercely independent individual, who was peculiarly unsusceptible to the influence of others, and who retained that individuality and strength of mind (and even practiced medicine) after she was diagnosed with terminal stomach cancer and up to perhaps only a few weeks before her death.”

Need to Evaluate a Potential Will Contest?

You may suspect that a loved one was unduly influenced in how they left their property in the Last Will and Testament that was entered in probate.  However, before you file a will contest, it’s important to evaluate the strengths and weaknesses of your case from a legal perspective.  It’s also important to gauge the ramifications of filing a will contest upon family relationships in the future.  An experienced probate lawyer can help you here, as you decide what is best for you and what best honors your loved one who has passed away.


Picture of Larry TolchinskyDo you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.



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Personal Representative’s Discretion to Sell Estate Assets Before Distribution

Posted By on November 4, 2015

In Florida, laws exist creating temporary ownership of a decedent’s property in an estate.  An estate is legally a separate entity, and is administered by a Court-appointed personal representative.

At the exact moment of death, legal ownership instantly moves from the person who has passed away to their “estate.” Everything titled in the decedent’s name goes into the estate; this can include a home, cars, jewelry, antiques, guns, heirlooms, bank accounts, securities, etc.

Overseeing the administration of the estate is the personal representative.  Under the Florida Probate Code, the P.R. has many duties and tasks to perform (for more, see our earlier post), including paying valid debts of the estate, before the assets can be distributed to the beneficiaries.  It’s an important job, and it comes with lots of responsibility and sometimes power.


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Selling Estate Assets Before Inheritance Is Distributed

One of the things that a personal representative in Florida has the authority to do is to control all the estate’s property. The personal representative collects all the estate property and files an inventory of all assets, liquid and illiquid. This means they have the legal right to collect estate assets from the possession of anyone else.

If there is cash or jewelry in a safe deposit box, the personal representative can go and get it. If there is a car loaned to a friend, the personal representative can demand its return. Insurance policies, credit card bills, all of these issues and more will have to be sorted by the personal representative over the course of the estate’s administration.

Once the personal representative has possession and control over all the estate property, and an inventory has been filed, decisions may have to be made on selling some or all of the property. Under the Florida Probate Code, and usually within the terms of the decedent’s Last Will and Testament, the personal representative will have the right to sell estate assets if a sale is needed for continued administration of the estate, such as to acquire money to pay debts.

This means that the personal representative has the power to sell assets; it doesn’t matter that the heir or beneficiary may expect to inherit those specific assets, unless a specific devise was made in the Will.

Jewelry, artwork, even cars or houses can be sold by the personal representative — no matter how much the heir wants to have that piece, or how much sentimental value or family tradition comes with the property.

Sometimes the personal representative will need to go to the probate court and get the probate judge to okay the sale. In other cases, the Will may provide the personal representative with the discretionary power to sell assets as he or she deems necessary. The Will can give the power to sell assets with no need for court approval.

Still, there are limits on the sale of estate assets by the personal representative. Whenever the personal representative decides to sell estate assets, the sale needs to be clearly supported as being (1) in the best interests of the estate, and (2) for the benefit of persons interested in the estate. This can include creditors, where the personal representative has to sell estate assets in order to get cash to pay things like mortgage payments or estate taxes. If an asset is sold and it cannot be supported, then the personal representative may be liable to the heirs for a breach of duty.

“The House That Hazel Bought”

In the probate case of In re Estate of Smith, 200 So. 2d 547 (Fla. Dist. Ct. App. 1967),  Robert Smith died in Lake County, Florida, and his Will was presented for probate there.  The judge approved its admission to probate.

The Will provisions left all of Mr. Smith’s assets, “real, personal, and mixed” in equal shares, “share and share alike” to beneficiaries Dorothy and Alice, and named June Creighton as the will’s executrix with the power to “to dispose of any of my property and to execute all instruments of conveyance therefor without order or confirmation of any court.”

Under the Smith will, the personal representative could sell estate property without going to court for an okay.  So she did.

Three days after the Florida probate judge approved June Creighton as personal representative of Mr. Smith’s estate, she conveyed the only piece of real estate that Mr. Smith had owned to Hazel Johnson of Elyria, Ohio.

Dorothy and Alice sued June Creighton over the sale to Hazel: they argued that the sale was improper and they wanted the court to void it. They won.

Upon reviewing what the personal representative had done in the sale of the estate asset, the court reviewed the property held within the estate upon the passing of Robert Smith. After an accounting was performed, it was determined that the estate had lots of cash in checking accounts, savings accounts, and bonds, as well as jewelry, furniture, and furnishings.

There was no need to sell the real estate to pay debts.  June sold the place to Hazel without a financial need to do so.

While the Last Will and Testament of Robert Smith did give the personal representative the right to sell property without court approval, the reviewing court also read the document with limitations. The will did not state she had unlimited power to sell things.

This, combined with a lack of any financial need to sell the land, meant that her decision to sell the real estate rather than allowing it to be transfered to the beneficiaries of the estate was wrong. She had exceeded her power as personal representative of the estate in the sale.

As the Florida reviewing court explains:

The mere fact that a Will gives the Executor a general power of sale does not necessarily mean that the Executor has a carte blanche, unconditional, uncontrolled, right, of his own volition, to sell off all or any part of the real or personal assets of the estate, ignoring the Probate Court entirely in the process. It provides no magic formula giving the Executor an “open sesame” to deal with the decedent’s property entirely as if it were his own.”

Do You Question the Sale of Assets in a Florida Estate?

If you suspect that assets have or may be sold which you stand to inherit, then you may want to seek the counsel of an experienced Florida probate lawyer to determine whether or not the sale can take place, and what to do about it should the property be sold. Personal representatives do have the power to sell estate assets, but this power is not absolute. A review of the will language together with the provisions of the Florida Probate Code can help you decide what action, if any, you need to take.

For more information check out our probate litigation page.


Picture of Larry TolchinskyDo you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.



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What Happens If There’s Not Enough Money To Pay Creditors of A Florida Estate?

Posted By on October 28, 2015

Florida Personal Representatives Have A Fiduciary Duty to Creditors of the Estate

When someone dies in the state of Florida, the law allows for the creation of an “estate” to act as the owner of the decedent’s  property, real and personal, as well as the decedent’s debts (bills, taxes, etc.).  If a formal probate administration is opened, a personal representative is appointed by the Florida Probate Court to manage the estate including paying all legitimate claims of the estate and, after all claims have been paid and all fiduciaries (personal representative and attorney) have been paid, distribute the decedent’s assets to the rightful owners (heirs, beneficiaries, creditors, and the like).

Once appointed, the personal representative’s work is supervised by a probate judge until his or her work is completed.  Once completed, the judge then releases the p.r. from further responsibility by signing a court order. The work of a personal representative can take months, or even years to complete.




Asset Management of a Florida Estate

Some of the biggest jobs of the Florida personal representative is to collect the decedent’s assets and to make reasonable and prudent investment of those assets. Also, the p.r. is required to make sure that ongoing bills are paid, like the monthly car payment or mortgage payments on the home or condo. Juggling the duty to protect the estate’s assets while making sure that debts are paid can be a problem for a personal representative who has to deal with an estate with little or no liquidity.

In these instances, the personal representative may have to make decisions about which assets to sell in order to cover the estate’s liabilities (in some situations, court approval may be necessary to sell certain assets because the court restricted the personal representatives authority by stamping instructions on the Letters of Administration). Alternatively, the p.r can opt to borrow money to cover the estate’s expenses and cash needs.

However, what happens when there isn’t enough cash or assets in the estate to cover creditor claims, taxes, and the administration expenses like the estate lawyer and its accountant? What happens then?

What Happens When the Estate Doesn’t Have Enough Money to Pay Creditor Claims?

The Florida Probate Code outlines for the Personal Representative, as well as all other interested parties, what must be done in situations where the estate simply doesn’t have enough to pay all of the debts of the estate. Before claims are paid, the Personal Representative must first make a “reasonably diligent search” to determine who the creditors are (names and addresses) and then give them prompt notice (by publishing and/or serving a Notice To Creditors) that if they have a claim against the estate then should file the claim within the creditor period (3 months from publication or 30 days from date of service upon the creditor, whichever is later).

After that notice to creditors is published, and the creditor period runs, the Personal Representative is required to file a verified statement with the probate court that he or she, among other things, has made a diligent search of the names and addresses of any creditors and other persons having claims or demands against the estate.

Once this has been completed, the Florida Probate Code then provides a schedule of who gets paid first. This is called the “Priority of Payment” list and it appears in Florida Statute 733.707. There are eight classes in this list. The first class gets first priority, the second class gets second priority in payment, etc.

From the statute:

(1) The personal representative shall pay the expenses of the administration and obligations of the decedent’s estate in the following order:
(a) Class 1.—Costs, expenses of administration, and compensation of personal representatives and their attorneys fees and attorneys fees awarded under s. 733.106(3).
(b) Class 2.—Reasonable funeral, interment, and grave marker expenses, whether paid by a guardian, the personal representative, or any other person, not to exceed the aggregate of $6,000.
(c) Class 3.—Debts and taxes with preference under federal law, claims pursuant to ss. 409.9101 and 414.28, and claims in favor of the state for unpaid court costs, fees, or fines.
(d) Class 4.—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.
(e) Class 5.—Family allowance.
(f) Class 6.—Arrearage from court-ordered child support.
(g) Class 7.—Debts acquired after death by the continuation of the decedent’s business, in accordance with s. 733.612(22), but only to the extent of the assets of that business.
(h) Class 8.—All other claims, including those founded on judgments or decrees rendered against the decedent during the decedent’s lifetime, and any excess over the sums allowed in paragraphs (b) and (d).

The statute also explains exactly what should happen if there’s not enough cash to cover all these bills. If there isn’t enough left in the estate after paying one class to pay all of the next class in line, then that succeeding class is paid ratably in proportion to the amount of the obligation. Florida Statute 733.707(2).

Note: if there is a revocable living trust created by the decedent, those trust assets must be used to pay the creditors here once the Personal Representative certifies that there’s not enough in the estate itself to do so. See, Florida Statute 733.607(2).

The Case of the Estate and the Unpaid Credit Card

In the case of Chase Manhattan Bank, USA, N.A. v. Estate of Silveira, 815 So. 2d 770 (Fla. Dist. Ct. App. 2002),  Chase Manhattan Bank, USA, N.A., had a credit card claim against the Estate of Patricia Silveira.

Mrs. Silveira died without a will in January 1999. Her husband was appointed to act as Personal Representative of her estate. He filed a Statement of Claim for $14,289.10, which was the balance left due and owing on her credit card. He identified it as a Class 8 claim under the Priority List (see above).

Medical expenses and attorneys’ fees were paid by the Personal Representative, and there was nothing left after that to pay the creditors’ claims. So the widower petitioned the probate judge for an Order Striking Class 8 Claims, asking that the court strike the Class 8 claims so that he could be discharged as personal representative and the estate closed.

Chase Bank didn’t agree. They wanted to keep their credit card debt alive. They didn’t dispute theirs was a Class 8 claim.  They argued that insufficiency of estate assets was not a valid reason to strike a creditor’s claim. The probate judge allowed it to be struck, but the appeals court reversed him.

They ruled that the Florida Probate Code did not provide that a personal representative can strike a claim due to insufficient assets in the estate. On the contrary, Florida Statute 733.903 allowed for the administration to continue after discharge in the event that additional money is recovered by the estate.

The husband, as personal representative could be discharged from the job. A final settlement of the estate could be filed.

But the debt could not be erased by the personal representative: Chase could keep its hope alive — however remote it might be — that in the future, assets might appear that could be used to pay its obligation.


Picture of Larry TolchinskyDo you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.



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Challenging A Forged Last Will And Testament: Handwriting Experts Vs Eyewitnesses in Will Contests

Posted By on October 21, 2015

It should go without saying, but a Last Will and Testament has to be signed by the person making the will in order for the will to be effective — an unsigned will isn’t valid in Florida. In fact, Florida Statute 732.502 requires the following for a will to be valid here:

Execution of wills.—Every will must be in writing and executed as follows:
(1)(a) Testator’s signature.—
1. The testator must sign the will at the end; or
2. The testator’s name must be subscribed at the end of the will by some other person in the testator’s presence and by the testator’s direction.

However, there are times when the signature on the Last Will and Testament deposited with the court seems suspicious. There may be loved ones, business associates or con artists so familiar with the decedent’s handwriting and signature that they may be convinced that there’s been some wrongdoing involved with the execution of the will. If those forgery suspicions are strong enough, and other circumstances suggest something is not right, one of the interested parties to the estate can commence a will contest to prevent the admission of the will to probate.


How To Establish That A Florida Will Has Been Forged?

In Florida, a will contest is an actual lawsuit, and those contesting a will must bring forth evidence to prove their case just like any other lawsuit. They have to provide witnesses and other evidence to support their claims. In a will contest alleging forgery of the Last Will and Testament, the will contestants usually present the testimony of a handwriting expert who gives his or her professional opinion that the signature on the will is a fake and/or forgery.

In Florida, the testimony of an independent third-party handwriting expert is enough to prove a forgery. However, the expert opinions are not set in stone. It is possible for those seeking to admit the will, and to fight against the claims of forgery, to win even if there are experts testifying that the decedent’s signature is a forgery.

A probate judge can hear and accept the eyewitness testimony of those who saw the decedent sign that Last Will and Testament over the expert opinions of a handwriting expert (or several experts). In this situation, two eyewitnesses will be needed to give their testimony. And their testimony about the signature being valid must be considered credible to the judge.

If those eyewitnesses give any conflicting statements regarding the circumstances surrounding the decedent signing the will presented to the court, then their testimony won’t be strong enough to prevail over the opinions of the handwriting experts. Inconsistencies and contradictions in the eyewitness testimony can destroy their credibility, likely causing the judge to give little or no weight to their testimony.

The Case of the Suddenly Discovered Will Behind a Picture

In the unique case of Mauldin v. Reel, 56 So. 2d 918 (Fla. 1951), the Last Will and Testament of Julia C. Kearney was found to be a forgery by a Dade County judge, whose decision was subsequently affirmed by the Florida Supreme Court on appeal. In that case, Julia Kearney lived alone in Miami for many years as a recluse who appeared to have very little money. However, after she passed away it was discovered that Julia Kearney had a significant amount of securities in her possession ($120,000 worth, in 1948 dollars).

The local news media picked up the story of “The Rich Recluse” and it gained traction — soon the story of the lonely woman who died in poverty while having riches in securities right there in her home went viral. It was carried in newspapers all over the world, and (to no surprise) soon all sorts of people were claiming to be heirs of the mysterious Ms. Kearney. Over 80 people from all over the globe were filing their claims with the Miami probate clerk — but these all filtered down to three sets of claimants who were serious in claiming entitlement to the Kearney Estate. They were:

1. Julia’s brothers and sisters;
2. Mary Moxley Calton, alleged to be Julia’s daughter; and
3. Bernice Mauldin, alleged to be Julia’s niece.

Hearings were held in the probate court where lots of people took the stand to give evidence. The probate judge had the job of sifting through everything and figuring out who really was a legal heir to the decedent and who was not. Eventually, Mary Calton was found not to be her daughter, and Bernice Mauldin was found not to be her niece.

Two months later, after the judge had ruled against her, Bernice Mauldin reappeared before the court — this time, with a will. She argued that the document was the Last Will and Testament of her Aunt Julia — and that she had found it stashed behind a picture. In this newly discovered will, Mary Moxley Calton was identified as “the blood daughter” of Julia Kearney and named as the sole beneficiary, with Bernice Mauldin as the executrix.

Curiously, at the same time, the judge was presented with ANOTHER will that had “popped up,” purporting to also be the Last Will and Testament of Julia Kearney.

The judge held more hearings, heard more testimony, and ruled that both the documents were forgeries. Bernice Mauldin appealed this decision — and lost.

According to the Florida Supreme Court, in an opinion that has been widely referenced in Florida will contests based on forgery, “[w]hile undoubtedly in a proper case the testimony of expert witnesses ought not to prevail in the face of direct and credible evidence to the contrary, there is no such situation here.”

Even though Bernice Mauldin did provide people to testify that they were eyewitnesses to Julia Kearney signing the will discovered by Bernice behind a picture, that was not enough.

First, the Supreme Court pointed out there were several handwriting experts who found the signature of Julia Kearney on this document to be a forgery. Their integrity as independent third party professionals was recognized by the court.

Second, not only did the timing and circumstances of the sudden discovery of this document make the court suspicious of its authenticity, there were enough inconsistencies and contradictions in the testimony of the proponents of the will to confirm that the trial judge had been correct to rule it forged.

“From our examination of the record, we think there can be no question that this was the correct decision.”

Do You Suspect A Last Will And Testament Has Been Forged?

If you or a loved one suspects that the signature on a will being admitted to probate is a fake or forged document, then it is a good idea to seek the advice of a Florida probate lawyer to determine what actions are best to take to deal with the situation.  Call Sackrin & Tolchinsky, P.A. today for a free initial consultation to answer any questions you may have.

For more information check out our probate litigation page.


Picture of Larry TolchinskyDo you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.



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Sale of Estate Assets by Personal Representative

Posted By on October 7, 2015

Here in Florida, the job of overseeing the distribution of someone’s property to their heirs after they have passed away is undertaken by a person appointed by the Probate Court to be the “Personal Representative” of the decedent’s estate (which many may recognize as the role of an “executor” or “administrator,” as they are referred to in other states).

How that property, both real and personal, is handled depends upon both the language of the Last Will and Testament as well as the requirements of Florida law.


Islamorada, Florida


Duties of Personal Representatives and Estate Property

A Florida Personal Representative has many duties to perform during the administration of an estate. For one, all property left in the decedent’s name and/or possession, real and personal, must be inventoried and valued. From the big assets, like the condo and the car, to the smallest pieces of personal property, like kitchen appliances and items of clothing, all must located and safeguarded by the Personal Representative in preparation for asset distribution and eventually closing of the estate.

When Does a Personal Representative Have to Sell Estate Assets?

There are several situations where the Personal Representative must oversee the sale of assets of the Estate. See Florida Statute 733.608. These include:

1. Circumstances Require the Sale of Physical Assets

While there is a general preference in Florida law that estate assets will be distributed in kind to the beneficiaries, there are situations where that is not practical, and sometimes even impossible to do so. See, In re Estate of Gamble, I83 S0.2d 849 (Fla. lst DCA 1966). In these circumstances, the Personal Representative may sell the assets and then distribute the proceeds from the sale to the beneficiaries.

2. Paying Debts and Obligations

Additionally, creditors must be notified and proper debts must be paid. Tax returns, if applicable, must be filed. Estate administration expenses have to be covered (attorneys don’t usually work for free!). The Personal Representative may face a situation where some of the property held by the estate must be sold in order to gather enough funds to meet the estate’s obligations. No heir or beneficiary is allowed to receive their inheritance until all the valid debts due and owing by the estate have been honored and paid.

3. Selling Assets Pursuant to the Will Provisions

Sometimes, the Last Will and Testament may direct the sale of property, too. There may be certain assets that the Personal Representative is specifically directed to sell under the terms of the will. Some testators may go so far as directing the Personal Representative to liquidate the estate and distribute the net sales proceeds to the beneficiaries in percentages he or she provides.

Regulating the Sale of Estate Assets by a Personal Representative

However, how and when the Personal Representative can sell estate assets is heavily regulated in Florida. Not only must the court approve of the action, but specific legal guidelines must be followed in facilitating the sale of the particular asset as well as confirming the tax consequences to the estate of the sale (as well as any exchange of property).

For instance, Florida Statute 733.608(l) requires the Personal Representative sell estate assets to pay state and federal estate taxes, but the law specifically forbids the homestead to be sold in order to meet this tax obligation.

The Case of The Widower’s $141,000 Condo and No Minor Children

Consider the case of McKean v. Warburton, 919 So. 2d 341 (Fla. 2005). Here, Mr. Henry Pratt McKean II passed away here in Florida.  According to his will, $20,000 was devised to Russel Cappelen, Jr., and $150,000 to his nephew Peter Warburton. He left his car to Glenn Van Hest, and “all of the oil interest I own and royalties due me in Exxon Will, Webster Field,” to his half-brother, Robert McKean. Everything else in his estate (the “residuary”) was left to his half-brothers, Robert, Thomas, John, and David McKean, in equal shares per stirpes.

At the time that Mr. McKean died, he owned his home: a Florida condominium that was sold for $141,000.00. The entirety of his remaining property was valued at $10,000.00. The condo was considered his “homestead” under Florida law, and thus was exempt from the claims of creditors. As for liabilities, his estate had debts of $14,000 plus the fees for the estate attorney and the personal representative.

Because the only real asset to be distributed in the McKean Estate was the proceeds from his homestead condo, legal arguments broke out between the beneficiaries about who should get the proceeds from the sale of that asset.

  • Nephew Peter Warburton argued that the assets from the homestead property should be used to fund the cash gift to him under the language of the Will as “pre-residuary property” which means that it would not be used to pay any creditors’ claims.
  • The four half brothers argued that Nephew is wrong: that the homestead property sales proceeds passed through the Will’s residuary clause of the will to them.

Their fight was heavily litigated, and proceeded all the way to the Florida Supreme Court.   The highest court of the state held that, in this situation, where homestead property is not specifically devised in a testator’s will, and that testator does not have a surviving spouse or minor children:

1. The devise of his homestead property to certain family members was protected from creditors and the sales proceeds from the condo could not be used by the Personal Representative to pay debts of the estate.

2. The homestead passed under the residuary clause to the four half brothers because the Will did not specifically devise the protected homestead property, the condo itself, to nephew Warburton.

Moreover, the Florida Supreme Court pointed out, the Florida probate statute was aligned with this result. Florida Statute 733.607, the Court explained, provides that the Personal Representative takes possession or control of the decedent’s property, except for protected homestead. Technically, the protected homestead passes as a matter of law at death to the decedent’s heirs, and is not truly an asset of the estate. The Personal Representative must protect the estate until distribution, though nothing in the Florida Probate Code provides for a legally-protected homestead to be distributed as part of the estate, as Warburton argued. The McKean Will did not direct the Personal Representative to sell the condo and make the sales proceeds part of the general estate; rather, it was silent on that issue, but left the residuary to the four half-brothers, who would have inherited it even had there not been a will under the laws of intestacy.

Sounds pretty simple, right? If you or a loved one find yourself in a complicated probate situation like the one above, the experienced attorneys at Sackrin & Tolchinsky, P.A., are ready and able to take on your case and bring clarity to an otherwise cloudy, confusing situation.  Call us today for a free consult on your issue, or click around our blog to find answers to more difficult questions such as this.


For more information check out our probate litigation page.


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What Happens When A Will Has Been Destroyed?

Posted By on September 30, 2015

A will contest is a lawsuit that happens when a beneficiary challenges a Last Will and Testament that has been presented to the probate court for the purpose of administrating a decedent’s estate. Essentially, one will has been offered for probate, and another party contends that the will offered is not valid or otherwise should not be admitted to probate. The adversarial proceeding to determine which will, if any, shall be admitted is sometimes colloquially called a will contest.

Family members, loved ones and other interested parties seeking to contest a will as NOT being a valid document do so in a formal adversary proceeding (the “will contest.”)  Family members, specifically children, siblings and spouses, commonly start the proceedings after believing they were supposed to inherit from a loved one, but seeing that a document describing different intentions has been filed in probate court.  The rightful beneficiary contests the will not out of their own personal desire to prevail and inherit their expectancy, but out of a desire to see that their loved one’s final wishes are carried out and that property should be distributed according to those wishes.

Many Florida will contests are based upon some kind of “undue influence” claim.  An undue influence claim is asserted against the probated will, with the party making the claim arguing that the new beneficiary did bad things (”unduly influenced”) in order to procure their inheritance under the new will.

As one court has defined it ( Raimi v. Furlong, 702 So.2d 1273, 1287 (Fla. 3d DCA 1997)):

“When a will is challenged on the grounds of undue influence, the influence must amount to over persuasion, duress, force, coercion, or artful or fraudulent contrivances to such an extent that there is a destruction of free agency and willpower of the testator.” 

What happens if the prior Last Will and Testament has been destroyed? What remedies do family members have to fight against undue influence when there’s no actual will?


1. How Do You “Prove Up” a Destroyed Will?

Under Florida law, when the original of a will is missing, destroyed, or cannot be found, it is presumed that the testator destroyed the will with the intent to revoke it. Estate of Parker, 382 So.2d 652 (Fla. 1980). However, if evidence can be provided that the testator did not intend to revoke the document, the burden of proof shifts.  In order to accomplish this, two disinterested witnesses will be needed to testify about the specific content of the destroyed will. Florida Statute §733.207.

2. Is a will contest the only option available?

If the will contestants cannot provide sufficient admissible evidence to “prove up” the destroyed will’s contents with two disinterested witnesses, showing by clear and convincing evidence that the testator did not intend to revoke the will, are they stuck? The probate court will not have the destroyed will before it under Florida law, nor have the contents of the will been substantially proven. Does that mean the wrongdoer always gets to inherit under the phony will they procured?

No. In these situations, Florida law provides for a cause of action called “tortious interference with a testamentary expectancy.” Also see: DeWitt v. Duce, 408 So.2d 216 (Fla.1981).

Here, damages can be assessed against the defendant because of Florida’s longstanding equitable maxim “that no wrong shall be without a remedy.” Since the probate court cannot right the wrong of undue influence by probating the valid and correct Last Will and Testament, Florida law allows for a lawsuit to be filed for damages under tort law.  This cause of action is also sometimes called tortious interference with an inheritance.

The Case of the Disinherited Brother and the Disappearing Will

Consider the case of ln re Estate of Hatten, App. 3 Dist., 880 So.2d 1271 (2004).  A Florida woman named Louise Hatten had seven brothers and sisters.  Several years before her death, Louise showed her Last Will and Testament to one of her sisters, Antoinette.

In her will, Louise had expressly cut out (disinherited) her brothers Louis and George, as well as one of Louise’s nephews, Joseph. Each of these three men were left a single dollar by Louise.  (Louise explained that she was not leaving them anything in the will because they had borrowed money and never repaid it.)  The beneficiaries of the remainder of her estate, as named in the will, were Louise’s three sisters and one remaining brother.

During a vacation four years later, Louise discussed the contents of her will (and the disinheritance provisions) with another sister, Jeannette.  However, she did not show Jeannette the actual document.

Three months later, Louise Hatten passed away.

The day after she died, Antoinette and brother Louis Hatten went to Louise’s condo, needing to pick out Louise’s burial outfit.  A neighbor named Helen Baer came along to help.  As they were searching for the clothing, they found a paper bag filled with documents.  Louis took the bag as well as some metal boxes.  He did not show Antoinette or Helen what was in the paper bag or the metal boxes.

Louis later filed a Petition for Administration seeking to probate his late sister’s estate, and requested that he be named Personal Representative. His filing claimed that there was no will; he stated that Louise had died without a will, and therefore the estate would have to proceed as “intestate.”  The Florida state intestacy laws would be followed in distributing Louise’s assets; in this situation, Louise’s six surviving siblings would each stand to inherit equal 1/7th shares of her estate, after fees and administrative expenses are paid.

Antoinette and her sisters could not file a will contest in the Florida probate court, because there was no filed will to challenge.  Instead, they sued brother Louis for “tortious interference with a inheritance.”  They argued that Louis must have discovered the will that Louise had shown to one sister and described to another sister in the stuff he took out of the condo. Since that will only provided for Louis to inherit $1.00, they argued, it made sense for him to destroy it.

They sued Louis for the amount of money that they would have inherited under the destroyed will.  The trial court initially granted summary judgment to Louis, essentially saying that even if everything the siblings had alleged Louis had done were true, it still did not prove Louis’s conduct rose to the level of a tort.  The third district court of appeals of Florida disagreed, reversed the lower court’s decision and remanded for a full trial on the matter of whether or not Louis maliciously destroyed his sister’s will.

What Should You Do About A Destroyed Will?

If you or a loved one faces the problem of being unable to find a prior will and believes it may have been destroyed for the financial benefit of a current beneficiary, then it is in your best interests to seek the advice of an experienced, knowledgeable Florida probate lawyer from Sackrin & Tolchinsky, P.A. on how best to deal with your potential legal claims. It is possible that you may have a personal claim for damages against the wrongdoer instead of a will contest in probate court.  Time may be of the essence; call today!

For more information check out our probate litigation page.


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What Is The Deadline for A Creditor to File a Claim Against An Estate?

Posted By on September 23, 2015

In Florida, when a person passes away the law leaving property or other assets,  an estate is commonly opened to distribute the assets according to the decedent’s wishes or by the laws of intestacy.

However, before any distribution of estate assets can be done there will be debts to be paid. Who gets paid, and how much they get paid, however, isn’t always that easy to decide for the personal representative of the estate.

Does An Estate Have to Pay Off Creditors Before Beneficiaries Get Their Inheritance?

In Florida, creditors must be notified of their debtor’s death by the personal representative. This includes the publication of a written notice in the local newspaper, called the “Notice to Creditors.”  In certain situations, the personal representative is required to go one step further and actually send the Notice directly to those creditors that are reasonably ascertainable, such as credit card companies.


Iphone calendar screen


What Are The Deadlines That Creditors Have to Meet for Claims Against Estates?

The “creditor period,” as it is sometimes called, remains open for three months after the first publication, and 30 days after direct service on reasonably ascertainable creditors, during which time the creditors must file a Statement of Claim in the estate case.  Absent a showing of good cause, any claims filed after these deadlines will be forever barred.

The creditor has to attach their invoice or other documentation in writing to the Statement of Claim.  It doesn’t matter if the debt is contested or if the debt is “… unmatured, contingent or unliquidated.Florida Statute 733.702(1).

The difficulty in many debt controversies is the timing of the presentation of that invoice or documentation to the personal representative. In what many consider to be a legal “trap,” creditors who do not promptly present their demands for payment with the personal representative may find their claims objected to.

What Happens if a Creditor Misses the Deadline to File a Claim?

If there is a concern that the creditor has missed that limitations deadline, then the personal representative has a fiduciary duty to the estate beneficiaries to challenge the claim as being time-barred. This can mean that adversary proceeding lawsuits can be instituted in order to dispute a claim that was not filed timely under Florida law.

The Time Barred Personal Injury Claim

Consider the the case of Grainger v. Wald, 29 So.3d 1155 (Fla. 3d DCA 2010).  This case began with a car accident where a man named Samuel Gus Felos and another man named Howard Wald collided in a serious crash. (The accident involved an automobile and a motorcycle.)

Settlement negotiations of the claim made by Mr. Wald for injuries sustained in the accident were not successful. So, a personal injury lawsuit was filed based upon the accident in a Florida civil district court by Mr. Wald against Mr. Felos.

Sometime after this lawsuit was filed, Mr. Felos died. Athena Grainger was appointed the personal representative of Mr. Felos’ estate by the Florida probate judge. As personal representative, she filed the necessary papers to substitute into the personal injury case on behalf of Sam Felos as the new defendant, the Felos Estate. Now, the case had a “substituted party defendant,” with Ms. Grainger at the defense table instead of Mr. Felos.

The personal injury lawsuit was won by Mr. Wald at the trial court level, and $1 Million was awarded to him. The Felos Estate, through its personal representative, appealed the case; that decision was reversed and a new trial ordered. That decision was appealed by Mr. Wald to the Florida Supreme Court.

Meanwhile, while the claim was pending before the High Court, there came an independent legal proceeding in the probate court regarding the case. Ms. Grainger, as personal representative, filed a petition to strike a claim filed against the estate by Mr. Wald as untimely under Florida Statute 733.702(1). She argued that the statute of limitations under Florida Statute 733.702 had not been met, so the Estate didn’t have to honor any claim for payment presented by Mr. Wald.

The probate judge denied her petition but the appeals court reversed that judge.

The appellate court found that the Notice to Creditors had been properly served on Mr. Wald, for one thing. Under the statute, the requirement is that all claims against the estate that arise before the date of death have to be filed (1) within 3 months of the Notice to Creditors’ publication date or (2) 30 days after personal service of the Notice to Creditors upon the creditor.

Ms. Grainger served notice upon Mr. Wald’s attorney of record in the injury lawsuit on May 23, 2007. This, the appeals court found, started the time clock and created a deadline of June 22, 2007, for Wald to file his creditor’s claim.

It did not matter that Mr. Wald’s lawyer was in the personal injury case and not on the records of the probate court. The Wald claim against the estate was not timely filed.

Creditors Claims and The Calendar

There can be complications when creditors’ claims are presented to the Estate for payment. Getting proper notice is one thing. Another is making sure what is the limitations period deadline for filing of the claim. As the Grainger case demonstrates, calendar counts can mean not only lots of money at stake in the debt itself, but also in the expenses of time and money in fighting the probate argument over the time bar.  If you think you might be a creditor of a Florida estate, time is of the essence… Contact the experienced probate attorneys at Sackrin & Tolchinsky, P.A. today for help.

For more information check out our probate litigation page.


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21 Duties of a Florida Personal Representative According to Florida Law

Posted By on September 16, 2015

In Florida, when a person passes away owning property within the state, that person leaves behind a “probate estate.” Florida law requires that someone be appointed the estate’s “personal representative” (in other states sometimes referred to as an executor, executrix, administrator or administratrix).

The personal representative can be an individual, such as a family member or close friend of the decedent, or it can be a bank or a trust company.  As long as they are over the age of 18 years, a resident of Florida, or, regardless of their residence, the spouse, sibling, parent, child, or other close family relative of the person who has passed away, they can be entrusted with this important job and the duties and responsibilities that come with it.


Taking on the Appointment

Personal representatives are officially officers of the court. They are issued Letters of Administration by the probate judge to use as proof of their actual authority to act on behalf of the estate.  In some instances, they must secure a bond. Furthermore, if the personal representative knows, or discovers later in the process, that he or she isn’t qualified to serve as the estate’s representative, then he or she has a duty to resign immediately. See, e.g.:

Florida Statute 733.3101 Must Resign if Not Qualified – a personal representative shall resign immediately if the personal representative knows that he or she was not qualified to act at the time of appointment. Any time a personal representative, who was qualified to act at the time of appointment, knows that he or she would not be qualified for appointment if application for appointment were then made, the personal representative shall promptly file and serve a notice setting forth the reasons.
Florida Statute 733.406 Pay Bond Premium – a personal representative required to give bond shall pay the reasonable premium as an expense of administration.
Florida Statute 733.5036 File Final Accounting Upon Resignation – a resigning personal representative shall file and serve a final accounting of the personal representative’s administration.
Florida Statute 733.508 Accounting and Discharge Upon Removal. A removed personal representative shall file and serve a final accounting of that personal representative’s administration.
Florida Statute 733.509 Surrender of Assets Upon Removal.—Upon entry of an order removing a personal representative, the removed personal representative shall immediately deliver all estate assets, records, documents, papers, and other property of or concerning the estate in the removed personal representative’s possession or control to the remaining personal representative or successor fiduciary.
Florida Statute 733.602 Standard of Care. A personal representative is a fiduciary who shall observe the standards of care applicable to trustees. A personal representative is under a duty to settle and distribute the estate of the decedent in accordance with the terms of the decedent’s will and this code as expeditiously and efficiently as is consistent with the best interests of the estate. A personal representative shall use the authority conferred by this code, the authority in the will, if any, and the authority of any order of the court, for the best interests of interested persons, including creditors.
Florida Statute 733.603 When to proceed With Settlement and Distribution. – A personal representative shall proceed expeditiously with the settlement and distribution of a decedent’s estate and, except as otherwise specified by the code or ordered by the court, shall do so without adjudication, order, or direction of the court.

Responsibilities of a Florida Personal Representative


1. Identifying and Locating Estate Property

The personal representative has the job of finding, identifying, protecting, storing, and establishing the value of all estate assets. He or she also has to send out a “Notice of Administration” that gives details on how the estate is going to be administered under Florida law and what someone should do who has an objection to it.

See, e.g.:

Florida Statute 733.212 Serve Notice of Administration – requires the personal representative to promptly serve a copy of the notice of administration on specific persons who are known to the personal representative, including the decedent’s surviving spouse, beneficiaries, the trustee of any trust described in s. 733.707(3) and each qualified beneficiary of the trust as defined in s. 736.0103, and persons who may be entitled to exempt property.
Florida Statute 733.604 Furnish Inventories and Accountings. Upon written request to the personal representative, a beneficiary shall be furnished a written explanation of how the inventory value for an asset was determined, or, if an appraisal was obtained and a copy of the appraisal.
Florida Statute 733.6065 File Safety Deposit Box Inventory – Opening safe-deposit box. Subject to the provisions of s. 655.936(2), the initial opening of a safe-deposit box that is leased or coleased by the decedent shall be conducted in the presence of any two of the following persons: an employee of the institution where the box is located, the personal representative, or the personal representative’s attorney of record. Each person who is present must verify the contents of the box by signing a copy of the inventory under penalties of perjury. The personal representative shall file the safe-deposit box inventory, together with a copy of the box entry record from a date…
Florida Statute 733.607 Take Possession of Decedent’s Property. Except as otherwise provided by a decedent’s will, every personal representative has a right to, and shall take possession or control of, the decedent’s property, except the protected homestead. The personal representative shall take all steps reasonably necessary for the management, protection, and preservation of the estate until distribution and may maintain an action to recover possession of property or to determine the title to it.

2. Creditors

The personal representative has the job of publishing a Notice to Creditors in the newspaper to let those who have a right to be paid for debts incurred by the decedent can file their claims with the estate. The personal representative also has to track down “reasonably ascertainable” creditors and let them know the time frame for filing their claims for payment. If there are claims that don’t seem right, the personal representative has to challenge them and even file an “adversary proceeding” lawsuit if necessary.

See, e.g.:

Florida Statute 733.2121 Serve Notice to Creditors – requires, unless creditors’ claims are otherwise barred by s. 733.710, the personal representative shall promptly publish a notice to creditors. The notice shall state that creditors must file claims against the estate with the court during the time periods set forth in s. 733.702, or be forever barred. The personal representative shall promptly make a diligent search to determine the names and addresses of creditors of the decedent who are reasonably ascertainable, even if the claims are unmatured, contingent, or unliquidated, and shall promptly serve a copy of the notice on those creditors.
If a decedent at the time of death was 55 years of age or older, the personal representative shall promptly serve a copy of the notice to creditors and provide a copy of the death certificate on the Agency for Health Care Administration within 3 months after the first publication of the notice to creditors, unless the agency has already filed a statement of claim in the estate proceedings.
Florida Statute 733.608 Provide an Estoppel Of The Balance of Debt When Requested. Within 14 days after receipt of the written request of any interested person, the personal representative shall deliver to the requesting person at a place designated in the written request an estoppel letter setting forth the unpaid balance of the debt secured by the lien referred to in this section. After complete satisfaction of the debt secured by the lien, the personal representative shall record within 30 days after complete payment, a satisfaction of the lien in the official records of the county where the property is located.
Florida Statute 733.701 Notifying Creditors.—Unless creditors’ claims are otherwise barred by s. 733.710, every personal representative shall cause notice to creditors to be published and served under s. 733.2121.
Florida Statute 733.705 Payment of and Objection to Claims. The personal representative shall pay all claims within 1 year from the date of first publication of notice to creditors, provided that the time shall b…  Interest shall be paid by the personal representative on written obligations of the decedent providing for the payment of interest. On all other claims, interest shall be allowed and paid beginning 5 months from the first publication of the notice to creditors.

3. Taxes

The personal representative has to pay any taxes due and owing as well as prepare and file final tax returns for the estate. See, e.g.: Florida Statute 733.817 Apportion Estate Taxes. If the personal representative or fiduciary does not have possession of sufficient property otherwise distributable to the recipient to pay the tax apportioned to the recipient, whether under this section, the Internal Revenue Code, or the governing instrument, if applicable, the personal representative or fiduciary shall recover the deficiency in tax so apportioned to the recipient..

4. Getting Help

It’s up to the personal representative to get the expert help he or she needs to get the job done. Certified public accountants may be needed for the taxes; appraisers may be needed to put values on the property; lawyers may be needed to deal with creditor claims; etc.

5. Paying Debts

Once debts have been confirmed as valid, the personal representative has to pay them. The personal representative also has the job of paying the expenses that are incurred during the estate administration. See, e.g.: Florida Statute 732.2145 Duty to Collect Contribution; Florida Statute 733.707 Pay Expenses and Obligations in a Certain Order. The personal representative shall pay the expenses of the administration and obligations of the decedent’s estate in the following order ….

6. Distributing the Estate Assets

Once the creditors have been dealt with, the personal representative has the task of paying the amounts required by statute and by the provisions of the Last Will and Testament to the widow or widower as well as the other family members and beneficiaries. See, e.g.:
Florida Statute 733.801 Time Frame to Deliver Devises and Distributive Share of The Estate. No personal representative shall be required to pay or deliver any devise or distributive share or to surrender possession of any land to any beneficiary until the expiration of 5 months from the granting of letters. Except as otherwise provided in the will, the personal representative shall pay as an expense of administration the reasonable expenses of storage, insurance, packing, and delivery of tangible personal property to a beneficiary.
Florida Statute 733.815 Honor Private Contracts Among Interested Persons.—Subject to the rights of creditors and taxing authorities, interested persons may agree among themselves to alter the interests, shares, or amounts to which they are entitled in a written contract executed by them. The personal representative shall abide by the terms of the contract, subject to the personal representative’s obligation to administer the estate for the benefit of interested persons who are not parties ….

7. Closing the Estate

After the debts have been paid and the assets distributed, the personal representative must finalize the legal “closing” of the estate.  See, e.g.:

733.901 Final discharge.— (1) After administration has been completed, the personal representative shall be discharged; (2) The discharge of the personal representative shall release the personal representative and shall bar any action against the personal representative, as such or individually, and the surety.


Personal Representatives and Probate Litigation

Not only should a personal representative have an experienced Probate attorney to help them maneuver through all the twists and turns of administering a Florida probate estate, beneficiaries and creditors may also benefit from the advice of a Florida probate lawyer on how best to deal with probate matters.

This is especially true if there is a suspicion that a Florida personal representative has violated their legal duties in the administration of the estate. The personal representative may be responsible for legal claims based upon intentional misconduct as well as mistakes or errors they have made.

For more information check out our probate litigation page.


Picture of Larry TolchinskyDo you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.



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Will Contest for Undue Influence of a Husband or Wife: Two Brides, Two Results

Posted By on September 9, 2015

So far in our Summer series on undue influence cases in Florida probate courts, we have discussed at length:

For our final installment, we will explore one of the most difficult scenarios in which to prove the existence of undue influence — and successfully keep a will procured under dubious circumstances OUT of probate — will contests based upon alleged undue influence by a decedent’s husband or wife.

The standard of proof is no different in these cases; “undue influence” still must be clearly and convincingly proven with authenticated, admissible evidence that demonstrates conduct involving persuasion, duress, force, coercion, or artful or fraudulent contrivances that is so overwhelming that it destroys the free agency and independent willpower of the testator. See, In re Estate of Carpenter, 253 So.2d 697 (Fla. 1971).

Two golden wedding rings


Husband or Wife Will Contests

When a will contest involves a widow or widower as the challenged beneficiary — the one who is alleged to have unfairly benefited from influencing the decedent — the law does consider the fact that the decedent’s husband or wife is involved. Florida law honors and respects legally-valid marriage, and encourages the cultivation of the close bond that typically exists between spouses. It is expected that each spouse will favor the other in an inheritance. It is expected that each spouse can have a great amount of influence over the other; if a surviving spouse is left the entire estate, that’s not necessarily something that raises an automatic red flag to a probate judge.

The point here: when a couple is involved in a probate situation, and a family member or loved one seeks to challenge a will admitted to probate as being something that the probate judge should toss out and disregard (rule it to be “void”), the party contesting the will has a big task for providing facts to support their allegations. Anytime someone files a will contest to claim that the surviving spouse took advantage of their husband or wife in order to inherit what the deceased did not originally intend, then the contestant has a big fact presentation to mount.

Case #1: The “December Bride” – No Undue Influence

In the case of Tarsagian v. Watt, 402 So. 2d 471 (Fla. Dist. Ct. App. 1981), Sarah and Andrew first met in 1969 while Andrew was still married to his first wife. She died in 1972. After her death, Andrew moved into Sarah’s house: at that time, Andrew was 77 years old and Sarah was 62 years of age. Over the next five years, whenever Andrew got sick, Sarah took care of him. This made sense: Sarah had worked for years as a registered nurse.

In 1977, Andrew was in a car crash. He was severely injured. While he was in the hospital recovering from the injuries he sustained in the accident, his doctors discovered that Andrew had cancer (leukemia). When Andrew was discharged from the hospital, he returned to the home he shared with Sarah. A month later, they got married.

It wasn’t long after they wed that Andrew made a Last Will and Testament. He lived for another two years after that, and then Andrew died.

That same will was then made the subject of a will contest by beneficiaries who didn’t think that Sarah should get what this will decreed. They lost.

Using the Carpenter Factors (see our earlier post for details), the court found that evidence “overwhelming established” that Andrew was NOT unduly influenced by Sarah in the making of this will.

Calling the marriage of the 77-year-old and his 62-year-old bride a “December marriage,” the court explained that a husband’s intent to leave “his last companion” all his worldly goods should not be treated lightly. It is to be assumed that the person writing the will has the right to do as he chooses with his money and property.

The fact that his children from his first marriage are unhappy about the “December bride” inheriting their father’s estate alone is not sufficient to prevail in a will contest; there must be evidence that their father’s choice was not “freely made.”

Here, the children failed to meet that burden of proof. The evidence showed that Sarah’s only connection to the contested will was in accompanying her husband to his lawyer’s office and waiting outside while Andrew met with his attorney. This widow had no prior relationship with the lawyer; in fact, there was evidence that she had only met him briefly once prior.

After Andrew executed the will, the original was kept in Sarah’s safety deposit box — but that was something the couple shared; Andrew had no separate safety deposit box of his own in which to store it.

Finally, and perhaps most importantly, there was evidence that Sarah was not involved in any of Andrew’s financial affairs during their entire relationship, either before or after they were married. Andrew managed his money and property independently.

Case #2: The 4th Bride – Will Contest Successful

Compare, however, the recent case of Blinn v. CarlmannNo. 4D13-1156 (Fla. Dist. Ct. App. Mar. 18, 2015),  in which a daughter successfully challenged the purported will of her late father that left everything to his new bride. In this case, an 82-year-old man named Richard Blinn married his fourth wife in August, 2007. At that point, there was sufficient evidence to show that his mental faculties had been deteriorating for almost two years and his physical body was frail. He would continue to suffer from various physical ailments, as well as succumbing to dementia, until his death in 2012.

As early as 2007,  the year of his re-marriage, Richard began making unusual financial decisions. He started playing foreign country “lotteries” where he thought he was winning lots of money, though he never received any cash from it. He was being scammed somewhat regularly.

In 2011, things got so bad that his daughter Patty was appointed his plenary guardian by a Florida judge. Patty had run the family business with her dad for many years, and was familiar with the nature and bounty of her father’s estate.

However, by that time Richard had already drawn up a Last Will and Testament leaving everything to his new wife. That will was executed on April 2, 2008. Two lawyers were involved in the making of this will: the referring lawyer- a friend of Richard and his bride — was “loaned” money by the bride (and this sum had never been repaid), while the drafting lawyer testified that he never saw or met Richard and his bride until they showed up at his office on April 2, 2008, to sign their new wills. He testified that his law firm provided no prior legal advice to the couple, he had no knowledge of the decedent’s prior wills, and that it was the referring lawyer who gave him instructions for the preparation of the decedent’s will.

There was also evidence that the new bride had succeeded in driving a wedge between Richard and his kids. Before their marriage, father and children were close. However, no one in Richard’s family and none of his friends were invited to the wedding. And by doing things like blocking phone calls, etc., the bride succeeded over the years in keeping her new husband away from his children.

The court held that the children had successfully proven undue influence by the new bride over their deceased father, and the 2007 Will was adjudged to be void because it was the result of undue influence.

Was Your Parent the Victim of  Undue Influence in a Florida Last Will and Testament?

If you think that your father or mother or other loved one was victimized by their spouse and that the will admitted to probate (or sought to be admitted) may be the product of undue influence, then you may have a legal claim to assert in probate court as a will contest based upon undue influence.

The experienced Florida probate lawyers at Sackrin & Tolchinsky, P.A., are ready, willing and able to fight to preserve your loved ones’ testamentary intentions. If you have any questions about undue influence in a Florida will, call or email us today.

For more information check out our probate litigation page.


Picture of Larry TolchinskyDo you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.



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