Florida Inheritance: If You Didn’t Inherit Under the Will, Can You Sue the Lawyer Who Wrote It? Maybe.

Posted By on April 8, 2014

Last month, we posted about what happens here in Florida when someone believes that they are going to inherit something, money – property – jewelry – heirlooms, and then learns that the Will states otherwise.  In some situations, Florida law grants heirs or beneficiaries with the right to sue the person (or persons) that they believe illegally interfered with their expected inheritance.

Lawyers call this a case of “tortious interference with an inheritance,” “tortious interference with an expectancy,” or “tortious interference in estate planning.”

The example we gave was a daughter who sued her father’s second wife after he died for interfering with the daughter’s expected inheritance.

Most of these cases do involve family members — widow or widowers and children from a prior marriage; estranged siblings and the like. However, the Florida courts have also opened the door for another sort of defendant to be sued when there’s a inheritance issue: lawyers.

Florida Courts Allow Lawsuits against Estate Planning Lawyers

In the past, lawyers who wrote Wills and Trusts and other estate planning documents could tell unhappy heirs and beneficiaries that if they were upset, they could not sue the lawyer because of something called “privity.” Under the rule of privity, only a client (the decedent) can sue a lawyer for negligence or malpractice, not heirs and beneficiaries because they were not considered a client.  Thus, a privity defense was a strong ally to a Will drafting lawyer.

However, over time, Florida courts have created a loophole to the privity defense where Will drafting errors can now be claimed by a third party who was the intended beneficiary of the client/decedent.  In these cases, the focus is on the Will itself.  See, Hodge v. Cichon, 78 So. 3d 719, 722 (Fla. 5th DCA), review denied, 99 So. 3d 942 (Fla. 2012).

Then, in 2013, a Florida appellate court changed things even more. In the case of Dingle v. Dellinger, the rule of privity was given some grander exceptions to include other documents and other aspects of estate planning.

In the Dingle case, a lawyer was sued because the plaintiffs claimed the lawyer (and the lawyer’s law firm) made a professional error (or “legal malpractice”) when she drafted documents that gifted land to them.

It seems that a man named John Kyreakakis had hired the defendants to draft a quitclaim deed to gift the property to the plaintiffs, even though another lawsuit resulted in a determination that Mr. Kyreakakis didn’t have the legal right to make the gift. You can’t give what you don’t have, so the plaintiffs’ deed wasn’t worth the paper it was written on.

So, they sued the lawyer (and her law firm) who drafted the quitclaim deed for malpractice and they won.

The court decided that if the plaintiffs could show that the defendants owed any sort of legal duty to them, then they would have a valid legal malpractice claim (the privity rule wouldn’t hold to block them just because they weren’t clients of the lawyer). Why? One of the reasons that an estate planning client hires a lawyer is for the goal of benefiting his or her heirs or beneficiaries.  So, when the client’s intent is thwarted by an error made by a lawyer — like a will or a trust, or here, where Kyreakakis had a deed drafted that was not legally valid — it harms the intended beneficiary.

Florida Heirs and Beneficiaries May Have a Lawsuit against The Decedent’s Lawyer

Bottom line, if you are expecting to inherit something in Florida and are shocked to learn that the Last Will and Testament of your loved one does not provide for it, or that other documents have failed you in your expected inheritance, then you may have a legal claim against the person who may have interfered with your expected inheritance — or against the lawyer or law firm that was responsible for the creation of that Will or other corresponding estate planning document(s).  It all depends on the facts.

Therefore, if you suspect a problem with an inheritance (or lack of one), then it’s advisable to investigate matters and speak with a Florida probate lawyer to learn about your rights. Remember, that there are time deadlines (statutes of limitations) that apply, so don’t procrastinate because your claim, however valid a claim it may be, can be time-barred.

Tortious Interference With An Inheritance or Expectancy — Can You Sue When You Fail to Inherit Under a Florida Will?

Posted By on March 11, 2014

In Florida, unlike some other states, there is case precedent on the books (court opinions) which establishes the legal right for someone to sue and win a claim that their expected inheritance was illegally interfered with by the defendant, despite the language of the probate documents and the fact that they did not inherit under the probated will’s terms.

This case is based upon a claim of “tortious interference with an inheritance” also known as “tortious interference with an expectancy,” or “tortious interference in estate planning”.

As explained in the Restatement (Second) of Torts § 774B, this is a claim where “One who by fraud, duress, or other tortious means intentionally prevents another from receiving from a third person an inheritance or gift that he or she would otherwise have received is subject to liability to the other for loss of the inheritance. . . .”

You can sue for damages when something like this happens in Florida – knowing this is especially important for people who have moved here from other states, they may not realize this kind of cause of action exists.

This type of lawsuit is a claim for relief that has been created by the Florida judiciary: there is no specific statute drafted and passed by the Florida legislature which allows this. It is therefore something that many heirs and beneficiaries in Florida may not know exists, if they do not have a probate lawyer to counsel them, or they do not investigate Florida inheritance laws themselves (e.g., by reading blog posts like this one).

Tortious Claim Based Upon Interference with Inheritance That Was Expected But Not in the Probated Will

This tort is a valid basis for challenging a Last Will and Testament in the State of Florida and was first recognized as a valid probate litigation claim by the Florida Third Circuit Court of Appeals in the case of Allen v. Leybourne. In that 1966 case, the Florida court helped a daughter who went to court to fight for an inheritance she claimed was promised to her by her late father but did not appear in his will as it was probated, because of “wrongful acts” by the defendant, his second wife who was the sole beneficiary of the probated will.

From Allen:

It is our opinion that when there is an allegation that the testator had a fixed intention to make a bequest in favor of the plaintiff and there existed a strong probability that this intention would have been carried out but for the wrongful acts of the defendant there exists a cause of action. While it is true that such a cause of action is difficult to prove, that does not affect the existence of a ground of tort liability.

What is Needed to Prove a Tortious Interference Claim for Expected Inheritance in Florida?

These cases are not easy to bring in Florida — there may be many unhappy relatives and associates after someone dies in Florida who expected to inherit, but did not get included in someone’s will. It’s not enough to be surprised or shocked that you’ve been excluded from a Last Will and Testament.

In Florida, to win a case for Tortious Interference with An Inheritance you must jump a lot of legal hurdles.  These include:

1.  You must be able to provide evidence of these elements of this cause of action:

(1) the existence of an expectancy;
(2) intentional interference with the expectancy through tortious conduct such as duress, fraud, or undue influence;
(3) causation; and
(4) damages.
Nationwide Life Insurance Company v. Perry, citing Claveloux v. Bacotti, 778 So. 2d 399, 400 (Fla. Dist. Ct. App. 2001); Whalen v. Prosser, 719 So. 2d 2, 5 (Fla. Dist. Ct. App. 1998); Allen v. Leybourne, 190 So. 2d 825, 829 (Fla. Dist. Ct. App. 1966); see also Chase v. Bowen, 771 So.2d 1181, 1186 (Fla. Dist. Ct. App. 2000)(Sharp, J., dissenting).

2. You have to be able to show the Florida Probate Judge that you are advancing the Tortious Interference With An Expected Inheritance lawsuit as a last resort after unsuccessfully attempting to get adequate relief in other ways.

As the Florida Supreme Court explains in the case of DeWitt v. Duce, “… if adequate relief is available in a probate proceeding, then that remedy must be exhausted before a tortuous interference claim may be pursued.”

3. You must be able to show that the person who has died, the “testator” is the person who has been wronged — not you, the beneficiary.

The purpose of this tort claim is not to help beneficiaries or heirs, it is to protect the deceased person’s “… right to dispose of property freely and without improper interference. In a sense, the beneficiary’s action is derivative of the testator’s rights.” Whalen v. Prosser.

As the Whalen court explains:

Interference with an expectancy is an unusual tort because the beneficiary is authorized to sue to recover damages primarily to protect the testator’s interest rather than the disappointed beneficiary’s expectations. The fraud, duress, undue influence, or other independent tortious conduct required for this tort is directed at the testator. The beneficiary is not directly defrauded or unduly influenced; the testator is. Thus, the common law court has created this cause of action not primarily to protect the beneficiary’s inchoate rights, but to protect the deceased testator’s former right to dispose of property freely and without improper interference. In a sense, the beneficiary’s action is derivative of the testator’s rights.

4. You must be able to obtain your damage award from the defendant, the individual wrongdoer, if you win your case.

This is a tort action against this person, and any judgment for the plaintiff will be one for money damages against the defendant’s individual assets. As with other torts, both compensatory and punitive (punishment) damages are available. However, the claim will not allow you to alter the language of the will itself or amend its terms.

Florida Probate Law: Why You Need Strict, Careful Drafting or Risk a Surprise Result in Probate Court Fight: The Lesson of Cessac v. Stevens

Posted By on February 11, 2014

scales of justice, public domainThe Florida First District Court of Appeal recently ruled on a family situation that provides a real lesson for all Floridians on how important careful drafting of estate documents (wills, trusts, powers of attorney, etc.) are in the State of Florida if you want to avoid probate litigation and probate court determinations of your future property distributions.

In the case of Cessac v. Stevens, the court had before it a controversy over how a power of appointment should work under Florida law, and, in a a surprise to some, the appellate court decided that a Florida power of appointment is a power that must be strictly followed – even if there are facts which demonstrate a different intent on how to exercise the power.  This is only the second case on the books of Florida case law that deals with this particular issue (the other is Talcott v. Talcott).

Lesson in this case: if you’re not careful, you may leave a Last Will and Testament with a provision stating that certain assets are to be distributed in a certain way after your death only to have those assets later be legally found to be restricted in how they are to be distributed: your Will’s provision may be deemed unenforceable. It will not matter how clear the language is in the Will as to what you want to happen.

The result of this opinion may be viewed as harsh and rigid to some, but Florida courts have the power to decide the rights of those who come before them with controversies. In other words, once a case is in litigation and it works its way to the appellate court, the parties will most likely have to live with what the appellate court’s ruling (or appeal it to the Florida Supreme Court, if that high court agrees to review the case).

Cessac v. Stevens

In this situation, Sally Christiansen wrote a Last Will and Testament which left the remainder of her estate to Joanne Cessac. Sally Christiansen left nothing to her children. They were disinherited heirs.

Sally Christiansen was also the beneficiary of three Trusts that her father had set up long before, and it was clear in the language of her will that she intended for the assets in these three Trusts to go to Joanne Cessac.

However, the Florida court ruled that the assets in the Trusts would go to Sally Christiansen’s children instead. Why? The language that her father had placed in each of the Trusts included an identical restriction:

“Upon the death of my daughter, [Ms. Christiansen], the Trustees shall transfer and deliver the remaining principal of this share of the trust, … as my daughter may, by her will, appoint, making specific reference to the power herein granted…. If [Ms. Christiansen] … dies without exercising the power of appointment granted herein, [her] share of this trust shall be divided into equal shares so that there shall be one share for each child of [Ms. Christiansen]….”

In Sally Christiansen’s Will, she did mention the three Trusts but her will did not reference the power granted in each Trust allowing her to devise her shares in them via her Will. The fact that the Will referenced the three Trusts as existing was argued to evidence Sally Christiansen’s desire that the assets of the Trusts go to Joanne Cessac.

The children sued. They won.

The court agreed with the children’s probate lawyers: because her Will failed to provide any “specific reference to the power [of appointment]” the trust assets were to be distributed as Sally Christensen’s father provided when he drew up the original trust documentation: “divided into equal shares” between Ms. Christiansen’s children.

From the Cessac opinion:

In sum, we conclude that to properly exercise a power of appointment such as the powers provided for in the trusts at issue in this case, the decedent must at least make reference in his or her Will to the powers of appointment held by the decedent. Here, the mere reference to one of the trusts and to the location of the property of the other two trusts was not sufficient to even substantially comply with the “specific reference” requirements in the trusts. Accordingly, because the decedent failed to comply with the requirements of the trusts when attempting to execute her powers of appointment, the assets in the trusts did not become part of her estate and must pass to the decedent’s children, as directed in the original trusts, rather than to Ms. Cessac as provided in the decedent’s will. We recognize the seemingly harsh result of our conclusion that Ms. Cessac will not receive the assets the decedent apparently intended for her to receive. However, this result is a function of the intent of the original donor, who had the right to place whatever restrictions he desired on the disposition of his property. The decedent was obligated to comply with these restrictions, and compliance would not have been difficult here, as all that was necessary was some reference to powers of appointment in the decedent’s will.

Lesson of Cessac v. Stevens

Florida probate courts respect document language; they will review documents word by word to determine how the document is to be interpreted according to Florida law and determine the distribution of assets after someone has died. Estate planning documents needs to be carefully prepared in order to protect the decedent’s last wishes.

From this case, it is clear that probate litigation often involves fights over provisions that are 25 words or less but those words can be the deciding factor in who gets what in a sizable estate. However, that fight may be worth the effort in some situations.  In this case, the result is that the children were able have their mother’s wishes disavowed and instead had the wishes of their grandfather fulfilled.  Probate litigation can be tricky.

In Florida, Joint Tenancy With Right of Survivorship as an Estate Planning Tool to Avoid Probate: What Are The Risks in This Form of Florida Joint Ownership?

Posted By on December 26, 2013

Florida law allows two people (think a husband and wife, or a parent and child) the ability to own Florida property together as joint owners in several ways, one of which is known as the “joint tenancy with right of survivorship.” The Joint Tenancy With Right of Survivorship (JTWROS) is familiar to bankers, lawyers, CPAs, and especially estate planners, as a means that legally enables property in Florida to pass immediately to the surviving owner when the other owner dies.

check, banks,

Banks have respected Joint Tenants With Right of Survivorship accounts for many, many years.

Why Use a Joint Tenancy With Right of Survivorship in Florida?

Why is JTWROS used here in Florida? Because property that is held as Joint Tenancy With Right of Survivorship means there is no need for probate to transfer the property from one party to another. The asset transfers legally from one joint tenant to the sole ownership of the surviving, still living, joint tenant – Florida probate law doesn’t come into play.  Thus, this technique is a basic estate planning tool because it saves lots of people lots of trouble (and possibly money).

Usually, bank accounts between a husband and wife are held as JTWROS because when one spouse dies, the surviving widow or widower can freely use and access the account without the need to file a probate. This can be emotionally as well as financially beneficial to a spouse who has to cope with the loss of a loved one – bank accounts designated as JTWROS have been used for many years because of their ease of administration to address issues like these.

Florida banks, credit unions, and financial institutions all allow bank accounts held by ”joint tenants with right of survivorship” and usually there is no problem with a bank recognizing these accounts as being the sole property of the surviving tenant when one of the owners passes away.

Risks of Joint Tenancy With Right of Survivorship as an Estate Planning Tool: The Creditor Pops Up

Joint tenancy with right of survivorship, therefore, is a popular estate planning tool in the State of Florida. Before someone decides to use JTWROS as part of their estate plan, along with a Last Will and Testament or Trust, they need to know that there’s a risk involved with this form of ownership.

The big risk? The surprise of a creditor showing up, with a legal claim against the asset despite the fact that the other owner knew nothing about that creditor or their debt.

Creditors’ Claims Against Joint Tenancy With Right of Survivorship

Most creditors with outstanding debts will, of course, take steps to make sure that the debt owed gets paid…and one of the ways that the creditor will do this involves the creditor actually filing a lawsuit. If the creditor is successful and obtains a judgment from that lawsuit, it can use the judgment to collect against the assets of the debtor, including assets held as a Joint Tenant With Right of Survivorship — this can be done even if the other person owning the asset, had no idea that the debt existed (certain exceptions apply, including assets held by husband and wife).

Other Risks of a Florida Joint Tenancy With Right of Survivorship

There are other risks besides the surprise creditor when someone holds property in a Joint Tenancy with Right of Survivorship to someone else. One joint owner can legally take the money from the account and the other owner, the joint tenant, does not have to approve or even be aware that this has happened.

Another risk: by avoiding probate, a JTWROS may cause conflict among beneficiaries who were expecting the decedent’s estate would be spit according to a Last Will and Testament.

The Example of the Riches’ Bank Account in Wexler v. Rich: a Joint Tenancy Fight

A few years ago, a Florida man named Donald Rich died and his daughter from his 1st marriage, Linda Wexler, believed that Mr. Rich’s widow, the decedent’s second wife, was trying to take estate assets that rightfully belonged to Ms. Wexler.

Specifically, Ms. Wexler claimed that the widow had manipulated Donald Rich into moving money from a bank account where Ms. Wexler had access into another account, which Mr. And Mrs. Rich held as joint tenants with right of survivorship.

There was a huge courtroom battle over money held in the bank accounts, with the Florida appellate court deciding that the accounts were held as Joint Tenants With Right of Survivorship, reversing the trial court’s ruling, allowing the widow to be respected as the sole owner of the bank account.

Here is the Florida Court’s explanation (emphasis added):

The Supreme Court identified two ways to expressly disclaim the entities account status; first, “an express statement signed by the depositor that a tenancy by the entireties was not intended, coupled with an express designation of another form of legal ownership” and second, “if the financial institution affirmatively provides the depositors with the option on the signature card to select a tenancy by the entireties among other options, and the depositors expressly select another form of ownership option of either a joint tenancy with right of survivorship or a tenancy in common.” Id. at 60.

This case demonstrates the second type of express disclaimer contemplated by Beal Bank. Bank United provided the Riches with account agreements containing the option of a tenancy by the entireties, but that option was not selected. Rather, the agreements established joint tenancies with right of survivorship. The Riches signed the agreements after having had a chance to review them. Freedom of contract “includes freedom to make a bad bargain.” Posner v. Posner, 257 So.2d 530, 535 (Fla.1972). Florida adheres to the principle that a “party has a duty to 1101*1101 learn and know the contents of a proposed contract before he signs” it. Mfrs.’ Leasing, Ltd. v. Fla. Dev. & Attractions, Inc., 330 So.2d 171, 172 (Fla. 4th DCA 1976). Therefore, “[o]ne who signs a contract is presumed to know its contents.” Addison v. Carballosa, 48 So.3d 951, 954 (Fla. 3d DCA 2010). When the Riches signed the account agreements, they “expressly select[ed]” a form of account ownership other than a tenancy by the entireties, within the parameters set by the Supreme Court in Beal Bank.

Florida Court Rules Palm Beach’s Ruth Perelman Estate Will Be Probated in Pennsylvania: The First to File Lesson For Those Owning Homes in Florida and Elsewhere

Posted By on December 19, 2013

Ruth and Raymond G. Perelman Building of the Philadelphia Museum of Art: one of many philanthropic endeavors of the late Ruth Perelman.

This is a story about Ruth Perelman who executed a Last Will and Testament in 2010 and died in July 2011 leaving two sons, Jeffrey and Ronald. A few weeks ago, the Fourth District Court of Appeals here in Florida made national news when it published its decision about where the late Ruth Perelman’s estate would be probated. The decision is a lesson in Florida probate law that every Floridian could benefit from knowing if they own property in another state besides Florida.

Here’s the Ruth Perelman Probate Story.

Jeffrey Perelman and his father, Raymond Perelman, were on opposing sides in the Florida probate appeal.  This was a big case, not just because of the legal nuances being argued and decided but also because of the size of the estate itself: the Perelmans are a billionaire family, known for their charitable endeavors. (Read Ruth Perelman’s 2011 obituary here.)

Mrs. Perelman’s 2010 Will did not name her husband Raymond as her executor and personal representative of her estate; instead, Ruth named her son Jeffrey. Ruth died at the age of 90 years in Pennsylvania, only 2 months after she and Raymond had made a $225,000,000 donation to the University of Pennsylvania School of Medicine (she died at their hospital).

Jeffrey, as personal representative under the Ruth Perelman 2010 Will, filed his mother’s Will in the Pennsylvania probate court. Two weeks later, his father and recent widower Raymond Perelman filed to probate the late Ruth Perelman’s estate in Florida based upon her earlier 1991 Last Will and Testament.

Father and son were adversaries at this point: Raymond pointing his finger at Jeffrey, accusing the son of manipulating documentation in order to establish his mother’s legal domicile as Pennsylvania in order to file for probate in Pennsylvania and not Florida. Specifically, dad said son had forged information on the death certificate itself in order to support his legal maneuvering in Pennsylvania.

The Death Certificate Dispute

Raymond Perelman, wanting a Florida probate, argued to a Montgomery County District Attorney that his son had worked with a funeral director to alter the primary residence on Ruth Perelman’s death certificate from Palm Beach, Florida, to another residence they owned in Pennsylvania. According to Raymond Perelman, he and his wife lived in Palm Beach as their primary residence; thus, Florida was her domicile when she died. Mr. Perelman alleged that his own son acted illegally just to get his mother’s Will into a Pennsylvania court.

Son Jeffrey countered that his father was simply upset that Mom had chosen son over dad regarding administrating her estate and that nothing illegal had happened here.

Florida vs. Pennsylvania – Which State Has Probate When There are Homes in Two States?

The issue became which state would handle this probate matter when the decedent had homes in two states. Which probate court should adjudicate the dispute? The Fourth District Court of Appeals here in Florida decided the case should go back up to Pennsylvania because of the following:

1. Florida determined that the Pennsylvania court had priority because Raymond had filed first — 13 days before his dad filed his probate petition.  Pennsylvania was held to be the state that had first exercised its jurisdiction.

Under Florida’s priority test, not only was the paperwork filed in Pennsylvania first, that court actually took some action before any Florida court had done so. From their opinion:

Here, Pennsylvania was the first state to exercise jurisdiction. We conclude that Pennsylvania first exercised jurisdiction on August 12, 2011, when the Register of Wills issued a notice to Raymond’s counsel stating that Ruth’s 2010 Will would be probated “without further notice to you” unless Raymond filed a formal caveat. The notice in this case clearly stated that relief would be granted unless Raymond filed a formal caveat. Therefore, following the Second District’s reasoning in Morrison, the Register’s notice indicated that “the ball [was] rolling” in Philadelphia, twelve days before Raymond filed his Florida petition on August 24, 2011.

2. Was there any way that Florida could have probated this case? Yes, if there had been evidence of “extraordinary circumstances.”

In situations like these, where two states are involved, there are often complicated fact patterns, particularly when the estates are large in assets and monetary value. Just because another state probate court performed some action in a probate matter there does not mean that the State of Florida will automatically tip its hat to that state’s jurisdiction and either stay or dismiss the Florida probate proceeding. If the Florida probate proponent can introduce admissible evidence that there are “extraordinary circumstances” to probate the estate in Florida, then Florida will do so.

However, this evidence was not shown in the Perelman matter. From the Florida opinion:

Having concluded that Pennsylvania was the first state to exercise jurisdiction, we next consider whether the trial court abused its discretion in refusing to stay Raymond’s petition in Florida. The trial court’s order simply denied the motion to stay and did not make any finding of extraordinary circumstances that would justify refusing to apply the principle of priority as a matter of comity. Nor did Raymond make any showing that the Pennsylvania proceeding would cause undue delay. All he offered in this regard was speculation. The mere fact that Pennsylvania allows for the possibility of a de novo proceeding in the Orphans’ Court does not, without more, establish undue delay.

While Raymond argues that this case is controlled by Parker v. Estate of Bealer, 890 So.2d 508, 512 (Fla. 4th DCA 2005), we find that Parker is distinguishable. There, although the Maryland proceeding was filed first, the Maryland probate court had never admitted the will to probate, no probate proceedings in Maryland had begun, estate administration had been ongoing for six months in Florida, and significant adverse tax consequences would have occurred if the will was probated in Maryland. The extraordinary circumstances in Parker simply are not present in this case.

Accordingly, we reverse the final judgment and the order on domicile, and remand for the trial court to issue a stay pending the resolution of the Pennsylvania probate proceeding.

Bottom line: When someone dies and there is the possibility of probate in either Florida or another state in the United States, then where the decedent’s estate will ultimately be probated may rest on a “rush to the courthouse” decision (to meet that first requirement).  However, Florida probate courts will also be amenable to considering “extraordinary circumstances” in determining where a probate should occur, (for example, tax consequences), if facts are introduced into evidence to support this consideration.

Breach of Fiduciary Duty Claims by Florida Heirs and Beneficiaries: What Happens When the Estate’s Representative Goes Rogue and Does Bad Things?

Posted By on December 5, 2013

What happens to property, real and personal, in Florida after someone dies in the State of Florida is well-settled: Florida statutes and Florida case law work together to insure that there is a smooth transition in ownership of everything from raw minerals and undeveloped land to jewelry, works of art, and personal belongings like clothing and cars.  In a series of laws passed by the Florida legislature, Chapter 733 of the Florida Statutes’ Estates and Trust Code deals specifically with the administration of the probate estate.

One of the lynch-pins in the Florida probate process is the appointment of an individual to oversee this transition, the “personal representative” of the decedent’s estate.

 

Florida Personal Representative of the Estate Is Responsible for Handling Estate Matters from Start to Finish

Once someone is appointed to be the personal representative of an estate here in Florida, that person has a job to do in overseeing all the responsibilities connected with that estate (the property and liabilities left by the decedent) until the final action of closing the estate. The estate’s representative is appointed by the Florida probate judge, and the term “personal representative” under Florida law can describe the role that some may recognize as executor (executrix) or administrator (administratrix).

The Florida personal representative is often a person who was trusted by the person who has died. However, banks or trust companies are often appointed as personal representative appointees in Florida courts, especially in large or complicated estates.

Duties of a personal representative under Florida law are varied. These include:

  • Finding the probate assets — the representative must locate the assets no matter how troublesome this may be, and protect and safeguard the estate’s assets so they can be distributed to heirs and beneficiaries.
  • Finding the creditors who are owed money — the representative has to make sure that debts left by the decedent are respected; creditors must be notified so they can decide on filing claims against the estate for payment. This includes publication of an official “Notice to Creditors” in the local newspaper by the representative and taking reasonable steps to find these creditors.
  • The representative also has to provide a “Notice of Administration” that gives details about how Florida estates are probated with information of how to file objections to anything that is done in the course of the estate administration.
  • Tax returns must be completed and filed, and taxes must be paid as they come due.
  • Claims that are submitted must be reviewed to make sure they are legitimate and if they are, then the representative must pay them.
  • Claims that are suspicious must be challenged.
  • Creditors who sue the estate for payment must be fought by the personal representative on behalf of the estate.
  • To the extent necessary, the personal representative must hire those he or she needs to help him or her, including lawyers, CPAs, financial advisors, etc.
  • The personal representative must determine the amount to be paid under Florida statutes to any surviving spouse as well as other family members
  • The personal representative must distribute estate assets according to Florida law and the testamentary documents (which includes transfers of title, etc.)
  • The personal representative must close the estate (close bank accounts, etc.) and notify the court accordingly.

Breach of Fiduciary Duty – When Personal Representatives Mismanage the Estate or Take Advantage for Personal Gain

Obviously, the personal representative appointed to oversee the administration of a Florida estate undertakes lots of responsibility and wields lots of power. Heirs and beneficiaries depend on the personal representative to do the right thing and to act with integrity — however, there are occasions where temptation is too great and personal representatives take advantage of their position for their own gain, and other situations where they simply mismanages the decedent’s probate estate.

In these situations, Florida law allows the heirs and beneficiaries to file legal claims against the personal representative for any harm they suffer from the representative’s bad acts. This is done through a lawsuit based upon the personal representative’s breach of his or her fiduciary duty to the beneficiaries or heirs.

Fiduciary duty is the highest duty recognized in Florida law; as the Florida Supreme Court explained long ago in the oft-cited case of Quinn v . Phipps, a confidential relationship exists “where confidence is reposed by one party and a trust accepted by the other.”

The personal representative can be sued for either negligently performing his or her duties or for handling the estate administration in such a way that he or she has personally gained at the expense of the beneficiaries or heirs as a form of Florida probate litigation.

Self-dealing examples here can include things like renting out the decedent’s oceanfront condo to friends during the administration process at a lowball rate, or letting someone use the decedent’s car (like their teenager).

Negligent examples can include allegations of poor investment choices for estate assets during the pendency of the administration or the payment of claims without adequate vetting.

Personal representatives may mount successful defenses to these allegations; Florida probate judges understand these can be emotional cases where beneficiaries may view value of assets and investment/creditor decisions with different perspectives than a representative (particularly an institutional one). Self-executing accounting defenses may also exist if the testamentary documentation foresaw a challenge and included language that forgives any bad acts if there has been no challenge for a certain period of time.

As detailed in Florida Statute 733.504, the following are all bases for the removal of personal representative:

(1) Adjudication that the personal representative is incapacitated.
(2) Physical or mental incapacity rendering the personal representative incapable of the discharge of his or her duties.
(3) Failure to comply with any order of the court, unless the order has been superseded on appeal.
(4) Failure to account for the sale of property or to produce and exhibit the assets of the estate when so required.
(5) Wasting or maladministration of the estate.
(6) Failure to give bond or security for any purpose.
(7) Conviction of a felony.
(8) Insolvency of, or the appointment of a receiver or liquidator for, any corporate personal representative.
(9) Holding or acquiring conflicting or adverse interests against the estate that will or may interfere with the administration of the estate as a whole. This cause of removal shall not apply to the surviving spouse because of the exercise of the right to the elective share, family allowance, or exemptions, as provided elsewhere in this code.
(10) Revocation of the probate of the decedent’s will that authorized or designated the appointment of the personal representative.
(11) Removal of domicile from Florida, if domicile was a requirement of initial appointment.
(12) The personal representative would not now be entitled to appointment.

Removing a personal representative is not easy to do in Florida, but it can occur when any of the preceding elements exist, including where the personal representative is acting for their own gain and/or where the p.r. mismanages the decedent’s probate assets.

Deathbed Marriages in Florida: Why This is a Recipe For An Undue Influence and Will Contest Claim Against the Surviving Spouse

Posted By on November 21, 2013

Quick marriages or secret weddings close to someone’s death, particularly when they are of a certain age, aren’t just the stuff of murder mysteries — they happen more often than many people realize; so much so, in fact, that the Florida Legislature actually addressed the issue a few years ago and passed a special law to try and protect ill and elderly people from being manipulated into marriage (and an alternative distribution of their estates upon their death) by opportunistic spouses.

 

This law is commonly referred to as the Florida “Deathbed Marriage” law. Florida Statute 732.805 states (in part, read the full text of the Deathbed Marriage law here):

(1) A surviving spouse who is found to have procured a marriage to the decedent by fraud, duress, or undue influence is not entitled to any of the following rights or benefits that inure solely by virtue of the marriage or the person’s status as surviving spouse of the decedent unless the decedent and the surviving spouse voluntarily cohabited as husband and wife with full knowledge of the facts constituting the fraud, duress, or undue influence or both spouses otherwise subsequently ratified the marriage:

(a) Any rights or benefits under the Florida Probate Code, including, but not limited to, entitlement to elective share or family allowance; preference in appointment as personal representative; inheritance by intestacy, homestead, or exempt property; or inheritance as a pretermitted spouse.

(b) Any rights or benefits under a bond, life insurance policy, or other contractual arrangement if the decedent is the principal obligee or the person upon whose life the policy is issued, unless the surviving spouse is provided for by name, whether or not designated as the spouse, in the bond, life insurance policy, or other contractual arrangement.

(c) Any rights or benefits under a will, trust, or power of appointment, unless the surviving spouse is provided for by name, whether or not designated as the spouse, in the will, trust, or power of appointment.

(d) Any immunity from the presumption of undue influence that a surviving spouse may have under state law.

(2) Any of the rights or benefits listed in paragraphs (1)(a)-(c) which would have passed solely by virtue of the marriage to a surviving spouse who is found to have procured the marriage by fraud, duress, or undue influence shall pass as if the spouse had predeceased the decedent.

What is a Illegal Deathbed Marriage in Florida?

Not every wedding performed shortly before one of the spouses passes away is a marriage to be challenged as fraudulent and wrong.   However, there are situations where an individual is vulnerable to being swayed or conned by a caretaker, nurse, or family friend who persuades the person to enter into a husband and wife relationship with them with the intention of financial reward through inheritance once the individual passes away.

This happens all the time, and many states do not allow will contests to be filed against a surviving spouse after their spouse has died. Illinois, for example, does not allow it. Florida did not provide for this either, until 2010 when Florida Statute 732.805 was passed into law.

Now, in Florida, any interested person (as that term is defined by Florida probate law) has a legal right to file a formal challenge to a Will that has been entered into Florida probate, challenging the surviving spouse’s right to inherit because of alleged fraud, duress, or undue influence of the decedent.

What Happened?

Florida is a haven that attracts people from all over the country, as well as all over the world, as a great place to retire. Our warm climate, beautiful scenery, and large elder population (with accompanying services and benefits targeting this market sector) are all reasons that people move to the Sunshine State. Unfortunately, scam artists are also attracted to Florida because of all of the elder citizens.

And for those with sizable estates, it can be tempting for scammers to try and take advantage of some of these people by inducing them into marriage. Particularly a “deathbed marriage.”

In 2008, the Florida Bar’s Probate and Trust Litigation Committee studied this problem and compiled its findings into a report that helped get Florida Statute 732.805 passed. Florida, the report pointed out, was an enticing place for “deathbed marriage” scams because surviving spouses get great legal benefits here — like homestead rights, among other things. Couple the legal advantages to surviving spouses with the aging population here in Florida, and undue influence is bound to create lots of advantage weddings.

Read that report here, entitled “Subcommittee Report On Challenges To The Validity Of Marriage After The Death Of A Spouse In Probate Proceedings.”

Hannah’s Marriage to Charles Savage as One Example of an Illegal Florida Deathbed Marriage

The report used as one example the Florida Supreme Court case of Savage v. Olsen 9 So. 2d 363 (Fla. 1942):

At some point after the accident, the Defendant, Charles Savage, showed an unusual interest in Hannah. He subsequently proposed marriage, which was performed, but never consummated. Savage lived apart from Hannah after the ceremony, held himself out as a single person, and executed mortgages on property belonging to Hannah without her knowledge.

The Court also noted that Savage had a long criminal record. Savage lived and cohabitated with another woman before and after his wedding to Hannah.

Sixty days after they were married, Hannah died in a car accident when the automobile in which she was a passenger, driven by Savage, plunged into a canal. Savage escaped unharmed and when talking to officers and the funeral director after the accident, he referred to Hannah as a “friend.”

The funeral was held before Hannah’s relatives were informed, and two days after her death, Savage became the administrator of Hannah’s estate and immediately emptied her safe-deposit box. The Florida Supreme Court affirmed the lower court’s ruling that the marriage was void, and stated that Hanna’s mental condition, as well as Savage’s “artful practices” justified the decision.

The Court stated:

“It is true that much of the testimony was in conflict, but it was abundantly shown that the mental condition of Hannah Ford, although she would not be said to be actually insane, made her easy prey to the machinations of Charles B. Savage. Examining together her plight and his artful practices, we think the chancellor was fully justified in the decision he rendered declaring the marriage void. The testimony which he elected to give credit fully substantiated the allegations of the bill of complaint anent fraud of one and incapacity of the other.”

Who Gets Your Property if You Die Without a Will in Florida? Determining Heirs Without a Will Under Florida Law

Posted By on November 7, 2013

In Florida, it’s important to have a valid will — if you die without a valid Florida Last Will and Testament, then Florida law is going to decide where your property goes and who gets what.  In lawyer-language, that means Florida law will “determine the heirs of the estate under the provisions of Florida intestate law.”

key biscayne, florida

Key Biscayne, Florida, is a beautiful place to buy a retirement condo – but who gets it when there’s no valid Florida will?

Example: Florida Condo Owner Mr. Smith Dies Without a Will

For instance, say Mr. Smith owns some nice, sunny, oceanfront Florida real estate, and procrastinates on getting his Florida Last Will and Testament written. Mr. Smith dies an untimely death, and everyone is very sad about his passing. In the midst of their grieving, however, some family members notice that bills keep coming and soon questions start to be raised about Mr. Smith’s property.

Everyone searches for a will. They can’t find one (which is, of course, because Mr. Smith never made one.)

What to do? Mr. Smith’s family members must seek legal counsel to find out what happens next, because Florida law now controls what is going to take place.

Florida intestate law answers this question and others as to how assets are distributed, including Florida real estate. This is true even if Mr. Smith lives in Topeka, Kansas, and he bought a Florida condo as an investment, and never ever ever came to visit the beautiful Sunshine State.

Assuming that there is a widow in the Mr. Smith Scenario, she is considered a “surviving spouse” under Florida law.  What happens next, depends on the answers to various questions. For example;

  • If Mr. And Mrs. Smith have no kids or grandchildren, then Mrs. Smith gets everything (100%).
  • If there are children, things get tricky under Florida law and lots of questions arise: were these the offspring of Mr. Smith and Mrs. Smith? Is this now homestead property? Was the death before or after October 2011?

For details on these questions, check out our Distribution Discussion on our HallandaleLaw web resources page.

Sometimes Everyone Gets Something: The Case of the Key Biscayne Condo

A few years ago, Hillard J. Aronson died without a will – however, he didn’t neglect his estate matters: Mr. Aronson created a trust as part of an estate plan. He owned a condo in Key Biscayne, among other property.  When he died, there was a lot of litigation over his estate as to who got what asset (between Mr. Aronson’s widow, Doreen, and his kids).

The Aronson situation provides a good example of how sometimes Florida law can work to the benefit of everyone in these situations.

Here’s what happened.

The Aronsons originally lived in Massachusetts, until Hillard and Doreen decided to move to Florida.  They sold their Massachusetts home and put all the sales proceeds into buying their Key Biscayne condominium.

Sadly, Hillard Aronson died a year after their move, leaving Doreen a widow living in their new Florida condo.

The family looked to the language of the Hillard J. Aronson Revocable Trust, which held the Key Biscayne condominium as an asset.  That’s when a legal battle erupted over who got what property.

Here, the Key Biscayne condo was ultimately ruled by the Florida appeals court to be Mr. Aronson’s homestead under Florida law, and this condo had passed outside of probate to his wife as a life estate with his two sons receiving an interest in the real estate per stirpes. (Florida Statute 732.401(1)).

The Florida Homestead Law provides in part:

732.401 Descent of homestead.—
(1) If not devised as authorized by law and the constitution, the homestead shall descend in the same manner as other intestate property; but if the decedent is survived by a spouse and one or more descendants, the surviving spouse shall take a life estate in the homestead, with a vested remainder to the descendants in being at the time of the decedent’s death per stirpes.
(2) In lieu of a life estate under subsection (1), the surviving spouse may elect to take an undivided one-half interest in the homestead as a tenant in common, with the remaining undivided one-half interest vesting in the decedent’s descendants in being at the time of the decedent’s death, per stirpes.

Here, Mr. Aronson’s widow took the Key Biscayne condominium as a “life tenant” – she could live their during her lifetime – which meant she was legally responsible for the condo’s daily expenses.  Basically, it was her home for as long as she lived under Florida law. Once she passed away, the property was then transferred to Mr. Aronson’s children.  Hopefully, that’s was Mr. Aronson intended to happen.

For more details, see Aronson v. Aronson.  

What is a “Sound Mind” in Florida? Will Contests and the Need for Testmentary Capacity in Florida to Have a Valid Florida Will

Posted By on October 24, 2013

Florida will contests based upon lack of testamentary capacity are often emotionally difficult as the “sound mind” of a loved one must be challenged in a formal court proceeding.

 

The Florida Legislature provides the following law as a guide for everyone who is making a Last Will and Testament here in the State of Florida; according to Florida Statute 732.501:

Any person who is of sound mind and who is either 18 or more years of age or an emancipated minor may make a will.

Sounds simple enough, but the legal phrase “sound mind” has created lots and lots of conflict regarding whether or not a document can be given the legal respect as a Last Will and Testament here in Florida. Countless lawsuits have been filed in Florida probate courts on this issue; there are many issues to consider when reviewing the circumstances surrounding the preparation and signing of a Will to determine whether or not “sound mind” and “testamentary capacity” existed.

Testamentary Capacity in Florida

As explained by the Florida appeals court for the Second District of Florida in the case of In re Bailey’s Estate:

Whether one has testamentary capacity is a question determinable only by mental capacity of the testator at the time he executed his will. The making of a will does not depend upon a sound body but upon a sound mind.   The term, “sound mind”, means the ability of the testator “to mentally understand in a general way the nature and extent of the property to be disposed of, and the testator’s relation to those who would naturally claim a substantial benefit from the will, as well as a general understanding of the practical effect of the will as executed.”   In re Wilmott’s Estate, Fla. 1953, 66 So.2d 465, 467, 40 A.L.R.2d 1399; Newman v. Smith, 1919, 77 Fla. 633, 82 So. 236, 241; Hamilton v. Morgan, 1927, 93 Fla. 311, 112 So. 80; and Neal v. Harrington, 1947, 159 Fla. 381, 31 So.2d 391.

The person can be very sick and even close to death at the time he or she signs a Will and this does not, in and of itself, mean that the person lacks a sound mind. As explained in In re Wilmott’s Estate:

A sick person may make a valid will in his last illness or even when in a dying condition. “And, unless the surrounding circumstances are such as to show that not only was the testator afflicted with an impairment of his senses, such as would ordinarily be occasioned by diseases * * * but is, by reason of the effect of disease on his mind, also unable to comprehend and understand the nature of the undertaking in which he is engaged when he attempts to make his will, it cannot be said as a matter of law that testamentary capacity is shown to be so lacking as to render a will made during one’s affliction and last illness invalid for want of sufficient testamentary capacity. If the testamentary requisites are found, the will may be valid, although executed by one of great age, whose mind is enfeebled, whose body is debilitated, whose memory is failing or whose judgment is vacillating, especially where the will appears to have been fairly made, is not an unnatural one, and apparently was made under conditions not inconsistent with the inference that it emanated from a free mind.” Smith v. Clements, 114 Fla. 614, 154 So. 520.

Evidence to Show Testamentary Capacity to Make a Florida Will

In Florida, a “sound mind” and “testamentary capacity” must exist before someone can make a valid will disposing of their property under Florida law. Here, the person, among other things, has to have an understanding of what they own and what they want to do with that property – how they want to dispose of it, and which people should receive specific items when they die. The testator (man) or testatrix (woman) needs to know and be competent as to these general issues when they are making their Will, but they don’t have to know all of the legal details and complications involved in doing it.

For those that read the person’s Last Will and Testament after the person has passed away, there may be concerns that the document does not accurately reflect the decedent’s wishes — and there may be a suspicion that the person did not have the necessary understanding (or capacity) at the time that they signed the document.   They do not believe that the Will that is being presented for probate, and used to distribute the decedent’s property, is accurate, and that by relying upon its provisions will not result in the true and honest wishes of the person who has passed away will be respected.

This means that the questioned Will must be challenged.  This entails a formal filing in the Florida probate court as a Will Contest.  It is a lawsuit filed against the Estate of the decedent, where the document becomes an issue to be decided by the Florida probate court Judge.

Here, these concerns over “sound mind” and “testamentary capacity” must be made formally before a Florida Probate Court in formal pleadings, where evidence will be heard in open court proceedings.

For those seeking to establish that the Will lacks testamentary capacity, the burden becomes one of providing evidence that it is more probable that not that the person lacked a “sound mind” at the time that the will was signed.  During this formal lawsuit, and after some procedural steps are followed, experts and lawyers (who use discovery methods like interrogatories, depositions, and the like) and the judge are legally required to presume the Will is valid, leaving the challenger to bring forward evidence to support their claim of a lack of testamentary capacity.

From Hendershaw v. Estate of Hendershaw:

The burden of invalidating a will because of lack of testamentary capacity is a heavy one and must be sustained by a preponderance of the evidence. Estate of Bailey, 122 So.2d 243, 245 (Fla. 2d DCA 1960); see also In re Donnelly’s Estate, 137 Fla. 459, 188 So. 108 (1938)(It is well established that a last will and testament shall be held valid whenever possible).

Testamentary capacity is determined only by the testator’s mental capacity at the time he executed his will. Estate of Bailey, 122 So.2d at 245. “`[S]ound mind’ means the ability of the testator `to mentally understand in a general way the nature and extent of the property to be disposed of, and the testator’s relation to those who would naturally claim a substantial benefit from the will, as well as a general understanding of the practical effect of the will as executed.’” Id. (citations omitted).

The probate court’s findings in a will contest shall not be overturned where there is substantial competent evidence to support those findings, unless the probate judge has misapprehended the evidence as a whole. Id. at 247; see also Estate of Parson, 416 So.2d 513 (Fla. 4th DCA 1982)(The findings of the trial court are to be presumed correct and are to be given the same weight as a jury verdict).

 The bottom line is that these cases can be complicated.

Florida Wills: What Are The Basic Requirements for a Valid Will Under Florida Law? – Are You Sure Your Last Will and Testament Will Be Respected by Florida Probate Courts?

Posted By on October 10, 2013

Florida law has some basic requirements for a Will to be considered a valid in the State of Florida; without these requirements being met, no Florida probate court judge will admit the Will to probate. This is true no matter how many witnesses come to the judge and explain that the decedent believed the Will to be valid.

Tennessee Williams will, Florida wills

Tennessee William’s Will was valid under Florida law and probated in a Key West County Probate Court.

 

Basic Requirements of a Will Under Florida Law

In the State of Florida, a Last Will and Testament, to be legally binding, must meet the following criteria pursuant to Chapter 732 of the Florida Probate Code:

  • The person who made the Will must have been at least 18 years old at the time. Only those 18 years of age or older can made valid wills in Florida, unless they have been legally emancipated.
  • The Will must be in written. Oral wills (called “nuncupative wills”) are not considered legally valid in Florida.
  • The Will must be witnesses by two (2) people.  Holographic wills (handwritten, no witnesses) are not recognized in Florida.
  • The Will must be signed by the person making the will.
  • The witnesses and the maker of the will all have to sign at the same time — they must all see each other signing the document.
  • The person must be of sound mind at the time that the will is signed.

Florida Residents From Other States Need to be Aware of Florida Law Regarding Valid Wills

Those who move to Florida from other states, either as full-time retirees, as Snowbirds (part-time residents), investors, etc.,  may not think that it’s necessary to revisit their Last Will and Testament if they are happy with their dispositions. However, if they come from states where nuncupative wills (oral wills) or holographic wills (handwritten, unwitnessed) are respected, for example, then they need to know that these wills are not recognized in Florida.  Their wills need to meet other Florida criteria, as well (including being valid under the laws of the state or country where the will was executed, etc.).

Therefore, for these people, as well as other Floridians, it’s important to have their will drafted and/or reviewed by a Florida lawyer to insure that it is VALID under Florida law so that their property (real estate, personal property, cash) is distributed or disposed of in accordance with their wishes.

Note: the Florida Legislature has made an exception here for military personnel, “[a]ny will executed as a military testamentary instrument in accordance with 10 U.S.C. s. 1044d, Chapter 53, by a person who is eligible for military legal assistance is valid as a will in this state.”

Additionally, Florida Statute 732.502(2) does provide for sister-state reciprocity for written wills originating in other states:  ”[a]ny will, other than a holographic or nuncupative will, executed by a nonresident of Florida, either before or after this law takes effect, is valid as a will in this state if valid under the laws of the state or country where the will was executed.

Self-Proving Affidavits Under Florida Law

Florida Statute 732.503 provides for the use of “self-proving affidavits.” These affidavits allow the Will to be entered into probate by the Florida Probate Judge without need for an evidentiary hearing to prove that the document is authentic and admissible as the person’s Last Will and Testament (the witnesses to the will don’t have to be tracked down and brought to court to testify, for instance).

Florida Statute 732.503 states:

(1) A will or codicil executed in conformity with s. 732.502 may be made self-proved at the time of its execution or at any subsequent date by the acknowledgment of it by the testator and the affidavits of the witnesses, made before an officer authorized to administer oaths and evidenced by the officer’s certificate attached to or following the will, in substantially the following form:

STATE OF FLORIDA
COUNTY OF

I, , declare to the officer taking my acknowledgment of this instrument, and to the subscribing witnesses, that I signed this instrument as my will.

Testator

We, and , have been sworn by the officer signing below, and declare to that officer on our oaths that the testator declared the instrument to be the testator’s will and signed it in our presence and that we each signed the instrument as a witness in the presence of the testator and of each other.

Witness

Witness

Acknowledged and subscribed before me by the testator, (type or print testator’s name), who is personally known to me or who has produced (state type of identification—see s. 117.05(5)(b)2.) as identification, and sworn to and subscribed before me by the witnesses, (type or print name of first witness) who is personally known to me or who has produced (state type of identification—see s. 117.05(5)(b)2.) as identification and (type or print name of second witness) who is personally known to me or who has produced (state type of identification—see s. 117.05(5)(b)2.) as identification, and subscribed by me in the presence of the testator and the subscribing witnesses, all on (date).

(Signature of Officer)

(Print, type, or stamp commissioned name and affix official seal)

Bottom line, if you die without a Last Will and Testament that is recognized as legally valid by Florida law, then it is akin to dying without having any will at all. The document – no matter how official it may appear – will not be respected by a Florida probate court.

What happens if you die without a valid will in the State of Florida? Check out our firm resource page for the answer to that question.

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