What Is An Interim Accounting By The Personal Representative?

Posted By on January 27, 2016

When someone passes away in Florida, laws come immediately into play, creating an “estate” which then owns all that person’s property until it can be safely distributed to the heirs and beneficiaries. A Florida Probate Judge will approve an individual (or sometimes a bank or trust company) to act as “Personal Representative” of that estate. This person may be named as executor in the Last Will and Testament, or it may be someone appointed by the court; either way, they get official documents called “letters” and the probate process begins.

The Personal Representative has lots of power and lots of responsibility. In fact, they are held to the highest legal standard in how they administrate the estate on behalf of beneficiaries and creditors and their actions are often reviewed for impropriety.

Florida Personal Representatives Act Under the Highest Standard of Care: They Have A Fiduciary Duty

Under Florida Statute 733.602, Florida law makers have explained this heavy and strict legal standard of operation as follows:

(1) 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.
(2) A personal representative shall not be liable for any act of administration or distribution if the act was authorized at the time. Subject to other obligations of administration, a probated will is authority to administer and distribute the estate according to its terms. An order of appointment of a personal representative is authority to distribute apparently intestate assets to the heirs of the decedent if, at the time of distribution, the personal representative is not aware of a proceeding challenging intestacy or a proceeding questioning the appointment or fitness to continue. Nothing in this section affects the duty of the personal representative to administer and distribute the estate in accordance with the rights of interested persons.

What does this mean, really?

Fiduciaries are to act with the utmost honesty and trustworthiness. As the Florida Supreme Court has explained, quoting the SCOTUS case Meinhard v. Salmon, it is stricter than the morals of the marketplace, and the “punctilio of an honor the most sensitive.See, Donahue v. Davis, 68 So.2d 163, 169 (Fla.1953).

It doesn’t get higher that this. The “fiduciary duty” is the gold standard; it means acting to protect another party’s interest. And every single Personal Representative takes the job with the understanding that they have to meet this requirement.

For more on all the responsibilities that the Personal Representatives must undertake while abiding by this standard of care, read our blog post, “21 Duties of a Florida Personal Representative According to Florida Law.”



Interim Accountings and the Personal Representative

At the conclusion of the probate administration, the Personal Representative must present a “final accounting” (unless the beneficiaries waive their right to receive a final accounting). This document will detail all the assets, debts, and transactions that he or she has undertaken on behalf of the estate.

However, there’s no rule that says everything must wait until the end of the road for the Personal Representative to report what he or she is doing. The Personal Representative has the opportunity under Florida law to provide an “interim accounting,” too.

Given that high standard of care that all Personal Representatives must meet, there are times when the Personal Representative will think it prudent and reasonable to prepare and file an Interim Accounting of the Estate. This can be months or years before a Final Accounting is necessary.

What is an Interim Accounting?

An Interim Accounting is a voluntary accounting prepared by the Personal Representative. Sometimes, but not very often, the probate judge will ask that an Interim Accounting be performed. As an accounting of the estate, the interim accounting must comply with Florida Probate Rule 5.346 just like a Final Accounting.

10 Things That Must Be Included in an Interim Accounting

Florida Probate Rule 5.346 requires all accountings to be done in a specific way. This includes making sure that they comply with the following requirements:

1. They must be written in a way that someone who isn’t savvy on accounting terms or procedures can still understand it;
2. They have to include a summary of everything at the start, so everyone gets an overview;
3. They have to give an explanation at the top, telling why the accounting is a good idea according to the Personal Representative;
4. Details must be given so that every person interested in the estate (heirs, creditors, etc.) has an understanding of the big transactions that have taken place;
5. A list of all the estate assets must be included;
6. All the assets must have either their acquisition value (if they were bought by the estate) or carrying value (if they were owned by the decedent at the time of death);
7. All the assets must also have their current fair market value listed, no matter how small it might be;
8. All the gains made on the assets must be shown;
9. All the losses incurred by the estate must be shown; and
10. Any big transactions made by the Personal Representative that didn’t impact the value of things or the bottom line also has to be included.

Why do an Interim Accounting?

There’s no probate law or statute that demands this accounting be performed. Only the Final Accounting has to be prepared under Florida law (unless the beneficiaries waive their right to receive the document). However, interim accountings are sometimes a good idea. And they can be done at any time that the Personal Representative decides it’s a good idea to stop and create the document.

This might be a pretty fast job, or it might be a complex task. The only real difference between an Interim Accounting and a Final Accounting is that the Interim Accounting does not have to explain how specific assets are to be distributed, including the real estate owned by the decedent, and all the documentation that supports it (the “substantiating papers”) doesn’t have to be filed with the court.

Because this can be a cumbersome and costly thing to do, the Personal Representative has to notify all interested persons that he or she intends to do an Interim Accounting, and give the reasons why it’s a good thing. The persons receiving the document have 30 days to file their objections, and if there are parties objecting to have an Interim Accounting done, then the probate judge will decide on it at a hearing.

Normally, Interim Accountings are prepared when the estate is complex. Usually, that means the estate has lots of assets. However, a complex estate can also have a few assets but the assets are volatile in value or otherwise unique. An estate may own a few pieces of artwork, for instance, or sets of foreign currency, that need special care and attention because their market values fluctuate.

Interim Accountings can also help when it’s time to prepare tax returns. Sometimes, they can help in maintaining income records of estate assets when the estate owns lots of income-producing property.

Are Interim Accountings Prepared For The Protection Of The Personal Representative?

Insofar as challenging the actions of the Personal Representative in how he or she is handling the estate, filing an Interim Accounting doesn’t serve as a shield for the Personal Representative down the road. He or she won’t be able to argue that an interested party can’t sue for breach of fiduciary duty because they failed to object to the Interim Accounting, for instance. See, Sheffield v. Dallas, 417 So. 2d 796 (Fla. Dist. Ct. App. 1982).

Questions or Concerns About an Interim Accounting?

If you or a loved one has been notified of an Interim Accounting being performed for an estate in which you are an heir or beneficiary, or maybe an estate that you are owed money as a creditor, then you need to take legal steps not only to review that notice but to decide if you need to object to it. If you have an Interim Accounting in hand, then it may give rise to legal issues that are best addressed now — while the estate is being probated — instead of down the road when the creditors are being paid and the assets are being distributed to the beneficiaries.

An experienced probate lawyer can help you here. And the cost of having a Florida probate attorney go over these things with you can be much less in time and money than many folk assume.

A good piece of advice is to at least talk with a Florida probate lawyer to learn about your rights.  Most probate lawyers, like Larry Tolchinsky, offer a free initial consultation (either over phone or in person, whichever you prefer) to answer your questions.


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 About the Car? 8 Things to Know About A Florida Personal Representative And The Decedent’s Automobile

Posted By on January 20, 2016

When someone passes away in Florida, laws immediately come into play to protect the decedent’s property. An “estate” is formed under Florida law as the official owner of the decedent’s real estate and personal property until those assets are sold or distributed to the heirs. The person that takes care of overseeing the sale or distribution  is called the “Personal Representative,” which many may recognize as an “executor” or “administrator.” The personal representative is appointed by a probate judge, and is usually a person named in the decedent’s Last Will and Testament.

Role Of The Florida Personal Representative

The Personal Representative is granted the power, through the issuance of Letters of Administration, to carry out the estate administration.  He or she searches for the decedent’s assets, gathers these assets (and safeguards them), file tax returns, and make sure valid debts are paid.  For details on the steps that the Personal Representative must undertake, consult our earlier post, “21 Duties of a Florida Personal Representative According to Florida Law.

Most Florida Estates Include One Common Asset

Florida estate assets can be as varied and unique, just as unique as the people who come to live and play here in our beautiful oceanfront communities. It’s not unusual for Florida estates to hold things like famous works of art, yachts or real estate holdings for property located in other parts of the world.

However, one asset common to most Florida estates is an automobile.  And, believe it or not, this asset has caused controversy in lots of Florida estates over the years.  Who can drive the car, does it need to be insured, where should it be stored, and when can it be sold or distributed to the beneficiaries? After all, it’s just sitting there ….
Automobile MG A 001

8 Common Issues Florida Personal Representatives Face With A Car Or Truck


1. Locating The Official Certificate Of Title For The Vehicle

Before anything can be done regarding any motor vehicle owned by an estate, the Personal Representative has the legal duty to confirm ownership of that car or truck. This is part of preparing the inventory of the estate, one of the first big tasks handled by the Personal Representative.

How is ownership verified? The personal representative should try and locate and review the official Certificate of Title issued by the Florida Department of Highway Safety and Motor Vehicles, which is the agency where all Florida motor vehicle records are maintained. If the title cannot be located, then the Personal Representative must request a duplicate Certificate of Title. Once the car is ready to be sold or distributed to the beneficiaries, the certificate of title is then signed by the Personal Representative transferring title to the new owner. See Florida Statute 319.28.

2. Fixing Problems With The Certificate Of Title For The Car Or Truck

For instance, the name on the Certificate of Title may not be the same as the name of the decedent on the Death Certificate. Maybe a name change wasn’t filed with the DMV after marriage or divorce.

If there is any problem with the Certificate of Title, the Personal Representative must fix it before the car can be transferred to a third party.

3. There’s More Than One Titleholder On The Title

Things are easier when the car or truck is held solely in the name of the person who has passed away. However, there are occasions when the Personal Representative is faced with two or more titleholders on the Certificate of Title. In this instance, the ownership interest in the vehicle must be investigated to see if the decedent’s interest survives his or her passing.  If so, the car or truck is an asset of the estate, subject to estate administration (including creditor claims).

4. Is There Adequate Insurance For The Car Or Truck?

The automobile policy issued to the deceased titleholder may extend past the date of death, but steps need to be taken to make sure the insurance company will continue coverage. The Personal Representative must protect the vehicle as soon as possible by notifying the insurance carrier that their insured has died and that a personal representative has been appointed for his or her estate. The insurance company may then issue an endorsement to the insurance policy naming the Personal Representative as the insured party.

It’s also part of the Personal Representative’s job to make sure that the insurance policy is sufficient to cover the vehicle in case of a loss. Did the decedent have the correct coverage for a vintage or rare car? If not, the estate may need to pay for additional coverage.

5. Protecting The Motor Vehicle

One of the immediate jobs of the Personal Representative is to find out where the car or truck is located and make sure that it is safe from harm. If it’s not in a safe location, then it must be moved and stored. Additionally, the motor vehicle needs to be safeguarded from being used, temporarily. The surviving spouse, and other family members, may need to be warned against using the motor vehicle while the Personal Representative is locating and gathering assets and determining insurance coverage issues. Some Personal Representatives may be forced to have someone disable the vehicle during this interim period.

6. Deciding The Value of the Motor Vehicle

The Personal Representative has the duty of confirming the fair market value of the motor vehicle.  This information is used for the preparation of the inventory and for the Federal Estate Tax Return, if one is filed.

7. Is The Car Exempt Property?

Under Florida Statute 732.402, the surviving spouse (and if there is no widow or widower, then the surviving children) has a legal right to “exempt property” as that is defined in the statute. This includes up to two automobiles used by the decedent or members of his or her immediate family. However, it must have been used as a personal vehicle — an everyday car — and it cannot weigh over 15,000 pounds as a general rule.

There is a four month deadline for the widow or widower (or surviving children) to notify the Personal Representative that they are claiming the car as exempt property.

If the car is specifically mentioned in the Last Will and Testament, then it’s not considered exempt property. In these instances, the Personal Representative handles an “early distribution” of the automobile to the widow or widower (there may be some limitations here on partial distributions that complicate things).

8. What About Sales Tax?

Florida law protects the transfer of title for the decedent’s motor vehicle from being required to pay sales tax. The Personal Representative has to file an Application for Certificate of Title With/Without Registration and complete its “certification of exemption from sales tax when the transfer results from inheritance”.

What Should You Do?

In some Florida probate matters, things can become unfriendly and tense. For instance, some family members may not understand why they can’t use the decedent’s car or truck. What’s taking so long? Or, the Personal Representative may not be moving as fast as others would like in clearing up problems with the vehicle that he or she has discovered. How can things get moving and the car released to the named beneficiary so it can be used and driven?

Having an experienced Florida probate lawyer in these situations can be helpful both to beneficiaries as well as the Personal Representative. And, the cost of enlisting the help of a probate attorney here may be surprisingly less than you assume. Most probate lawyers, like Larry Tolchinsky, offer a free initial consultation (either over phone or in person, whichever you prefer) to answer your questions.


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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Choosing The Correct Probate Court: Venue For Probate Proceedings

Posted By on January 6, 2016

In Florida, things can — and often do — get interesting in probate matters. Unlike other states where matters can be more routine, Florida is known to deliver on the drama.  That is because we have tourists, snowbirds, retirees, long-term vacationers, as well as non-citizens, spouses married to non-citizens, a disproportionate amount of fraudsters and illegals, and others who may pass away here and have a probate matter to resolve — in addition to residents of our state.

One of these interesting complications for Florida probate proceedings is something that is decided early on in any probate matter, which is the question of which probate court is proper under Florida law to handle things for the decedent’s estate.  Where does the Last Will and Testament get filed?

1. The Question of Venue

What location is proper for the filing of the Last Will and Testament and the administration of a decedent’s estate is defined as the proper “venue” for the case. Venue is dependent on different things, and it is not always easy to figure out which Florida probate court has venue, legally, over an estate here in Florida.

Venue can be an important issue and something that people who try and handle a probate matter without legal help may not understand. What if they make a mistake?

If you file in the wrong probate court, then your bad venue decision means your case can get challenged and moved. It will be re-filed in the proper county, with the proper probate court. Could be days, weeks, or months after the probate has been filed in the wrong place.

And don’t expect the clerk who takes your filing in the clerk’s office to make that decision for you. That’s not their job. If you make a mistake, that’s not for the clerk to say. It’s for the judge to rule upon when the matter is placed before the bench.

Additionally, whenever a proceeding is filed in the wrong venue the probate judge may transfer the case on his or her order, and anything that occurred before the transfer will not be voided because of the improper venue.

2. Florida Probate Court System

Each county in the State of Florida has its own probate court. Some of the bigger counties, like Miami-Dade County, have more than one. These counties are organized within the Florida justice system into “judicial circuits.”

If there is an appeal from a probate court, it will move forward to the reviewing court for its particular judicial circuit. That reviewing court’s (the appeals court) decision is subject to review by the Florida Supreme Court.

Here are the probate courts for our part of South Florida as an example:

Broward County (Seventeenth Circuit)

Probate Judges: Hon. KENNETH GILLESPIE, Hon. CHARLES M. GREENE (Admin. Judge Probate), Hon. JEFFREY R. LEVENSON

Miami-Dade County (Eleventh Circuit)

Probate Judges: Colodny, Yvonne Hon. – Cueto, Jorge E. Hon. – Eig, Spencer Hon. – Hirsch, Milton Hon. – Soto, Bertila Hon.

3. Factors in Probate Court Venue

There are different situations that will decide venue under Florida law.  Four factors come into play to decide proper venue of a probate proceeding.

  1. Domicile.

Under Florida Statute 733.101, venue of probate matters is determined primarily according to the decedent’s domicile. “Domicile” is a legal term. It means “a person’s usual place of dwelling and shall be synonymous with residence.” Florida Statute 732.201 (13).

In other words, the key factor for venue is where the person who has passed away was living at the time of their death. That’s easy enough.

2.  Real Estate Holdings.  

However, there are lots of people who invest here in Florida but don’t live in our state (or even in our country) but they own property here. Florida is a mecca for lots of people who come and enjoy our sunny beaches but don’t establish a formal residence or domicile here.  What happens then, if there’s no legal Florida residence for the decedent?

Then venue will be decided based upon land ownership. The proper probate court will be in the county where the person owned real estate here in Florida. If there were several real estate properties owned by the decedent, then the probate matter can be filed in any county where the decedent owned property. None of these counties get preferential treatment; the person filing the probate matter must choose one.

3. Debts.

Next scenario. What if they died here in Florida but they did not live here, and didn’t own any real estate here, then what happens?

Then the law looks to debts. Probate can be filed in any Florida county where a debtor of the decedent resides.

4. Married Women.

Finally, married women get a special provision for purposes of probate venue here. Under Florida Statute 733.101, “[a] married woman may establish a separate domicile in this state for this purpose [venue], even though her husband is an alien or nonresident of Florida.”

What Should You Do?

Here in Florida, it’s encouraged by the Florida Bar and the Florida Courts for people to file their own probate matters when things are simple and fit easily into a standardized probate process.  The Miami-Dade County Clerk’s Office, for instance, provides help and forms for you to do this.  And it makes sense for lots of people — it saves time and lessens stress in a difficult time.

However, all too often those simple probate matters may hide complexity or a conundrum where an experienced Florida probate lawyer can be of great help.  It’s not as expensive or complicated as many think: often, a simple telephone conference can resolve things.  Like a venue question.  So, if you have a concern about filing a probate matter, don’t hesitate to reach out and get legal help: it may be much less painless than you assume and very helpful to you in the long run.

A good piece of advice is to talk with a Florida probate lawyer to learn about your rights.  Most probate lawyers, like Larry Tolchinsky, offer a free initial consultation (either over the phone or in person, whichever you prefer) to answer your questions.


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.



If you found this information helpful, please share this article and bookmark it for your future reference.

Who Makes the Funeral Decisions and What if There’s a Disagreement Over Them?

Posted By on January 1, 2016

When a loved one passes away, it is a very emotional time for family and friends. Grief and sadness are fresh. It’s a horrible time. If the death was unexpected, there is also the shock and angst that comes with an untimely passing.

These are difficult days and weeks in anyone’s life – but it’s especially hard when there are questions and issues about the funeral arrangements and the manner in which the loved one’s remains should be handled. It is not unexpected that sometimes controversies between family members and close friends result in an emergency trip to the courthouse for a legal fight over what should be done.

Angelo Dall'Oca Bianca - Dor

Image: “Pain” After the Funeral by Angelo Dall’Oca Bianca (1876)


Florida Law and Funeral Arrangements and Disposition of Decedent’s Remains

For many years, there was little guidance given in Florida statutes in these matters. You couldn’t look to a provision of the Florida Probate Code and find the answer. Judges had to make these decisions as best they could with what was presented to them by parties on both sides of the conflict.

There were, and are, some places for families (and judges) to look for the last wishes of the decedent. This includes guidance provided by:

  • provisions found in the language of the Last Will and Testament;
  • an informal document like a letter or note;
  • insurance policies and funeral plans that gave instructions on what to do insofar as the funeral service and disposition of the body itself;
  • religious tenets may guide everyone on what to do; and
  • other documents, like donor cards for organ donation and transplant can help here.

However, what if the family members cannot agree on what to do, even if there is some guidance provided? Family members can find themselves at loggerheads over these decisions.

When the decedent has failed to make funeral arrangements in advance as part of their estate planning, families are left to make these decisions — that often means that probate lawyers are asked to get involved. Which means the application of Florida law and going before the Florida probate court to make the determination.

Florida Law and Funeral Arrangements / Disposition of Decedent’s Remains

There are some laws passed by the Florida Legislature that can help in these conflicts. Among them are the following:

1. Florida Statute 497.002(2) which provides that “[s]ubject to certain interests of society, the Legislature finds that every competent adult has the right to control the decisions relating to her or his own funeral arrangements.”

2. Florida Statute 497.005 which provides that if there is more than one legally authorized person who can claim a body for interment, then requests shall be prioritized by the medical examiner in accordance with the Florida intestacy statute that gives the order of family members who inherit if the person dies without a will.

However, there is little case law from the Florida courts to give precedent and guidance in how these laws are to be applied here. The court cases that are on the books have judges disagreeing on how these statutes are to be applied and when they are to be used.

One of the biggest legal controversies remains deciding how much the decedent has the right to decide how his or her remains will be handled upon her death. Another big open issue, decided differently depending upon which Florida judicial region you reference, is who gets to make these kinds of decisions when the decedent has died without leaving any written instructions.

The Anna Nicole Smith Case As An Example

In the case of Arthur v. Milstein, 949 So. 2d 1163 (Fla. Dist. Ct. App. 2007), Vergie Arthur as natural mother and next of kin of the decedent, Vickie Lynn Marshall a/k/a Anna Nicole Smith, and Howard K. Stern as the person named Personal Representative in her Last Will and Testament, could not agree on where Anna Nicole should be buried.

Another player in this controversy was Richard Milstein, who had been appointed by the court as the guardian ad litem of Dannielynn Hope Marshall Stern, the daughter and minor child of the decedent. He spoke on behalf of Anna Nicole’s daughter.

As her mother, Vergie argued that she had the decision-making power because of Florida Statute 497.005(37). Mr. Milstein, on behalf of Anna Nicole’s only living child, argued that he had the right to make the decision based upon Florida Statute 406.50 because the body had been kept at the Medical Examiner’s Office and the Medical Examiner’s Act therefore controlled.

The Florida trial court judge ruled in Dannielynn’s favor. So Vergie filed an emergency request with the First District Court of Appeals, asking that the lower court’s decision be reviewed and reversed in her favor.

The appeals court came at the problem from another direction. It ruled that neither mother nor daughter had a winning argument insofar as who was the “legally authorized person” to make the decision about where to bury Anna Nicole Smith.  Legally, the court held that “… neither section 497.005(37), nor section 406.50, control the outcome of this case.”

Instead, the court found the case to be where private parties were in a dispute as to the decedent’s remains; there was no funeral home nor medical examiner as a party asking for the court’s help. The statutes referenced by Vergie and Dannielynn dealt with funeral homes and medical examiners, so they didn’t apply.

The Florida appeals court made its decision based upon past court decisions, not looking at any statutes. Specifically, three cases: Kirksey v. Jernigan, 45 So.2d 188, 189 (Fla.1950); Cohen v. Guardianship of Cohen, 896 So.2d 950 (Fla. 4th DCA 2005); and Leadingham v. Wallace, 691 So.2d 1162 (Fla. 5th DCA 1997).

Looking at these past case decisions for guidance, it was decided that there was evidence presented at trial that “… Anna Nicole Smith’s last ascertainable wish with respect to the disposition of her remains was that she be buried in the Bahamas next to her son Daniel Wayne Smith.

Neither Vergie nor Dannielynn ever disputed this evidence. Therefore, Anna Nicole Smith’s body would be buried in the Bahamas, as Dannielynn (through her guardian) had requested.


For Reference:

Florida Statute 497.005 – Legally Authorized Person Priority List

Under the current version of Florida Statute 497.005 (39) “legally authorized person” is prioritized as follows:

(a) The decedent, when written inter vivos authorizations and directions are provided by the decedent;

(b) The person designated by the decedent as authorized to direct disposition pursuant to Pub. L. No. 109-163, s. 564, as listed on the decedent’s United States Department of Defense Record of Emergency Data, DD Form 93, or its successor form, if the decedent died while in military service as described in 10 U.S.C. s. 1481(a)(1)-(8) in any branch of the United States Armed Forces, United States Reserve Forces, or National Guard;

(c) The surviving spouse, unless the spouse has been arrested for committing against the deceased an act of domestic violence as defined in s. 741.28 that resulted in or contributed to the death of the deceased;

(d) A son or daughter who is 18 years of age or older;
(e) A parent;
(f) A brother or sister who is 18 years of age or older;
(g) A grandchild who is 18 years of age or older;
(h) A grandparent; or
(i) Any person in the next degree of kinship.

In addition, the term may include, if no family member exists or is available, the guardian of the dead person at the time of death; the personal representative of the deceased; the attorney in fact of the dead person at the time of death; the health surrogate of the dead person at the time of death; a public health officer; the medical examiner, county commission, or administrator acting under part II of chapter 406 or other public administrator; a representative of a nursing home or other health care institution in charge of final disposition; or a friend or other person not listed in this subsection who is willing to assume the responsibility as the legally authorized person. Where there is a person in any priority class listed in this subsection, the funeral establishment shall rely upon the authorization of any one legally authorized person of that class if that person represents that she or he is not aware of any objection to the cremation of the deceased’s human remains by others in the same class of the person making the representation or of any person in a higher priority class.

What Should You Do?

A good piece of advice is to talk with a Florida probate lawyer to learn about your rights.  Most probate lawyers, like Larry Tolchinsky, offer a free initial consultation (either over phone or in person, whichever you prefer) to answer your questions.


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.



If you found this information helpful, please share this article and bookmark it for your future reference.

Surviving Spouse’s Rights In A Florida Probate

Posted By on December 24, 2015

When a husband or wife passes away in Florida, they have specific legal rights that are different from other loved ones who are grieving over the passing of the decedent. As the widow or widower, they are considered under Florida probate law to be the “surviving spouse” with special legal rights regarding property and the decedent’s estate.


Two golden wedding rings


1. Is Florida A “Community Property” State?

Generally speaking, Florida is not a community property state.  However, Florida does recognize the property rights of a married person when either the husband or wife passes away as a form of “community property” if, for example, the property, wherever located, was acquired as, or became and remained, community property under the laws of another jurisdiction. (see Florida Statute 732.217)

Community property has to be specifically defined as protected property under the law or it will not be included. Florida law must define it as “community” and if it’s not defined, then it is considered separate property of the decedent. Separate property of the decedent is overseen and distributed by the Personal Representative in accordance with the Will and the Florida Probate Code.

Community property isn’t part of the probate at all. It’s owned by the widow or widower.

For instance, under Florida law anything owned by the husband or wife before they got married is not part of the community property unless they take steps to make it so. That property (land, boats, jewelry, etc.) is their separate property and just because they got married, their spouse doesn’t get any ownership interest.

However, any property that either spouse acquires while they are married to each other is community property. It can be real property (land) or it can be any kind of personal property (furniture, pets, cars, etc.). An exception here: gifts or inheritances aren’t considered community property in Florida.

  • Life insurance and profit-sharing plans? They can be community property as long as the benefits are originally acquired while the individual resides in a community property state.
  • Property that has a land title in the deceased spouse’s name only? If the other requirements of community property are met, then the surviving spouse has an interest in it as community property. It won’t matter that their name isn’t on the title deed.
  • Moved to a state that doesn’t have community property laws? Florida law provides that just changing your domicile doesn’t change the nature of the Florida property interest from community property. See Florida Statutes 732.217, 732.218.

2. Florida Community Property Rights at Death Act

The Florida Legislature has passed the Florida Uniform Disposition of Community Property Rights at Death Act (Florida Statutes 732.216 – 732. 228) (CPRDA) to define certain property rights of a widow or widower in Florida after their spouse passes away. It was passed by the Florida Legislature several years ago.

It is not new policy or new law, but a series of laws that basically organized existing Florida law found both in the Florida Constitution and in court cases. Protecting widows and widowers after they have lost their spouse has been a concern of Florida law for a very long time.

Traditionally, Florida is a “community property state.” This means that the State of Florida has historically viewed the property rights of the surviving spouse as “community property” that are to be vigorously protected as vested property rights.

The Act was passed to protect widows and widowers. It helps by organizing the law in the statutes. Another way it does this is to provide clear guidance on what their rights are in the property held by their deceased husband or wife.

It does this not only by defining specifically what property is considered “community” and what is considered “separate,” but it also provides protection for the widow or widower when there is a question.

Under Florida Statute 732.217, the widow or widower is given an assumption that a questioned piece of property will be “community” in what is called a “rebuttable presumption.” In other words, the surviving spouse is assumed to have a community property interest in that piece of property unless and until that is legally rebutted with sufficient evidence to show otherwise.

3. Half of the Property

What property of the decedent’s estate is involved here?  In CPRDA, Florida law defines what the rights of the surviving spouse are for both real property located in Florida and the personal property of a person domiciled in Florida. It does not impact land or property outside of the State of Florida.

Under the CPRDA, when a married person passes away, one half (50%) of the property to which the Act applies becomes the property of the surviving spouse. It is not subject to probate. It is not part of the decedent’s estate. It does not pass by will or by intestacy statute because it is considered to be owned by the widow or widower — the surviving spouse.

4. Property Covered Under CPRDA

The following property that was acquired by a married person before their death comes under the provisions of CPRDA:

(1) all personal property no matter where it is located, which

A. was acquired as, or became and remained, community property under the laws of another jurisdiction;
B. was acquired with the rents, issues, or income of, or the proceeds from, or in exchange for community property; or
C. is traceable to that community property; and

(2) all real property (land) located in Florida that was

A. was acquired with the rents, issues, or income of, or the proceeds from, or in exchange for property acquired as, or that became and remained, community property under the laws of another jurisdiction; or
B. is traceable to that community property.
(Exception here: Florida land that is held as tenants in the entirety.)

5. Personal Representative Duty to Find Community Property

Under the CPRDA (Florida Statute 732.221), the widow or widower can get the help of their deceased spouse estate’s Personal Representative to clear the title to the community property. Here, the widow or widower has within 3 months from the Notice of Administration to ask that the Personal Representative investigate the community property status of any assets or property held just in the name of the decedent. The Personal Representative has a fiduciary duty to do this if asked by the surviving spouse. The decedent’s personal representative does not have to do this investigation into solely-titled assets otherwise.

Community Property Controversies

In some Florida probate matters, things are complicated. The surviving spouse may not get along with her step-children. The widower may get along fine with the kids, but the Personal Representative has a concern that the widower is keeping property that rightfully belongs to the estate’s beneficiaries.

Having the CPRDA is helpful in solving problems of what the widow or widower rightfully owns after their spouse passes away. The Act’s language as well as investigation into property issues like title conveyance and more can be tricky. An experienced Florida probate lawyer can be helpful both to the surviving spouse as well as the estate’s beneficiaries in determining who owns what as community property after a spouse has passed away.

What Should You Do?

If you believe you have an issue with the rights to property owned by your deceased spouse, a good piece of advice is to at least talk with a Florida probate lawyer to learn about your rights.  Most probate lawyers, like Larry Tolchinsky, offer a free initial consultation (either over phone or in person, whichever you prefer) to answer your questions.


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 Is A Personal Representative’s Probate Bond?

Posted By on December 17, 2015

Bond Requirements For A Personal Representative

According to Florida’s probate law, when a loved one passes away, a probate “estate” is created as the interim legal owner of the decedent’s assets and debts until the estate can be administrated in accordance with the wishes set forth in the decedent’s Last Will And Testament (if there is no will, the estate is distributed under Florida’s intestacy law).

The party who is responsible for the actual oversight and distribution of the estate is called the Personal Representative. This can be a person named in the Last Will and Testament and appointed by the Court, if there is a Will (and if that Will names a qualified, living P.R.), or the Court can appoint any qualified person upon a petition by an interested party, as is the case with intestate estates (when there is no Will).  Alternatively, the Court can appoint a Curator (usually an attorney) to carry out the duties until a qualified P.R. is appointed.  Regardless of who is appointed or how they secure the appointment, the P.R. represents the estate and is tasked with notifying creditors, gathering assets, and eventually distributing those assets to the people or entities who stand to inherit them.

Upon their appointment, the Personal Representative may act with great power over the property — sometimes, in ways that the beneficiaries or heirs don’t like or find suspicious or wrong.

So, what protects the beneficiaries from the bad acts or mistakes of a Personal Representative? Financially, that protection can come via a personal representative’s bond.

What is a Bond?

A bond is essentially an insurance policy. It is provided by a “surety company” to cover a set amount. The bond is a guarantee provided by the surety company that certain tasks will be completed by their client, the “principal” who is purchasing the bond from the surety company. The bond acts an insurance policy protecting those who might be hurt if the principal fails in some way.

Those being protected are the “obligees” on the bond. If there is harm, the obligees make a claim on the bond. The insurance company, or surety, pays their claim. Then the surety seeks reimbursement from the principal for the claims paid.

Personal Representative Bond Under Florida Statute 733.402

Florida law requires that a personal representative post a bond as a general rule. This is true whether the person died leaving a Last Will and Testament or not. Even if the Will has a provision that waives the bond requirement for the personal representative, Florida Statute 733.402 mandates that a bond may still be required if the probate judge decides one is needed.

The exception? If the personal representative is a bank or trust company, the financial institution is specifically exempt from a bond requirement under Florida Statute 733.402(3).

However, bonds are not always required from a Florida personal representative. The judge may decide a bond isn’t required for some reason. The beneficiaries may file a motion arguing that the bond requirement be waived, and the judge may agree. The decedent may also provide in the Last Will and Testament that there should be no bond required of the Personal Representative named in the will.

How Much Is A Bond?

If a bond is required of the Personal Representative, the next question is how much should the bond amount be — what should the insurance policy cover? Usually, a personal representative’s bond will be in the amount that covers both the cash held by the estate as well as its liquid assets. The total amount of the bond, as a general rule, will not include the fair market value of real estate.

It is up to the probate judge to figure out what the proper bond amount should be. There is no statute that demands a set procedure here. Some Florida probate judges, for example, will handle bond amounts over the phone without any hearing.

Is There An Alternative To A Personal Representative’s Bond?

Recognizing that these bonds can be costly for the personal representative (those premiums aren’t cheap!), the probate judge may opt for a different route. Under Florida Statute 69.031, the judge can decide to protect the estate assets by ordering the intangible assets deposited with a bank, trust company, or other financial institution for safekeeping.

The personal representative can still make decisions about those assets, but removing them from safekeeping will require not only the personal representative’s direction but the court’s okay.

This procedure can sometimes protect the estate’s assets while also protecting the personal representative from the expense of the bond. This is important in situations where the Personal Representative is trustworthy but not with great financial recourse, and someone that the decedent wished to handle the distribution of his or her estate.

To keep track of those assets, the judge will require a report (called an “accounting”) from the personal representative at “reasonably frequent intervals” per Florida Statute 69.031. As for any interest that accumulates on these assets while they are held in the financial institution, they are to be included in the reports as an estate asset, too.

What Happens If You Suspect Mistake or Bad Acts by Personal Representative?

If you or a loved one are a beneficiary to an estate that is in the process of being probated, then you are subject to the actions of the Personal Representative who has been appointed to oversee the administration and distribution of that estate.

What if you think that the Personal Representative is making mistakes that is harming your inheritance — or even worse, doing bad things like keeping things for himself or selling stuff unnecessarily?

The Personal Representative owes you the utmost duty under the law, that of a fiduciary.

You must, however, voice your concerns formally to the probate judge in order for anything to be investigated.  This means having an experienced Florida probate lawyer to help you voice your concerns and protect your inheritance.

If negligence or bad acts like fraud are found, then the losses that have resulted can be covered by the surety company who issued the bond for the Personal Representative. If there is no bond, then the personal assets of the Personal Representative can be made the subject of a judgment in your favor.

What Should You Do?

If you believe you have an issue with a personal representative, a good piece of advice is to at least talk with a Florida probate lawyer to learn about your rights.  Most probate lawyers, like Larry Tolchinsky, offer a free initial consultation to answer your questions.


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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How Does A Personal Representative Handle An Outstanding Check When Someone Dies?

Posted By on December 9, 2015

When someone passes away, particularly when it is a sudden or an unexpected death, it can be a shocking and chaotic time for their family and friends. Fortunately, Florida Probate Law affords protection for the decedent’s interests immediately upon their passing.

Under the law, as soon as a personal representative is appointed by a probate judge, the “P.R.” is then authorized (and obligated) to immediately begin gathering the assets of the decedent and determining the debts that are due and owing by and to the estate.

For more on the Personal Representative’s duties, check out our earlier post detailing their many responsibilities.

The first few days or weeks after appointment can be extremely busy for the personal representative, including dealing with the checks and payments that were in process at the time of the decedent’s death (the personal representative will also be publishing in the local paper a notice to creditors and sending a notice to creditors to any known creditors informing them to file a claim before the deadline).

Which begs the question – What does the personal representative do about outstanding checks? And what does the bank have to say about it?


Florida Statute 674.405 and the Personal Representative of a Florida Estate

The Florida Legislature has passed a law that controls in this situation. Florida Statute 674.405 states:

Death or incompetence of customer.—

(1) A payor or collecting bank’s authority to accept, pay, or collect an item or to account for proceeds of its collection, if otherwise effective, is not rendered ineffective by incompetence of a customer of either bank existing at the time the item is issued or its collection is undertaken if the bank does not know of an adjudication of incompetence. Neither death nor incompetence of a customer revokes the authority to accept, pay, collect, or account until the bank knows of the fact of death or of an adjudication of incompetence and has reasonable opportunity to act on it.
(2) Even with knowledge, a bank may for 10 days after the date of death pay or certify checks drawn on or before that date unless ordered to stop payment by a person claiming an interest in the account.

Here, the law is clear that when a bank customer passes away, both the payor on the check and the bank still have the right to “accept, pay, collect, or account for proceeds of its collection until the bank knows of the fact of death . . . and has reasonable opportunity to act on it.” Thus, the check can still be taken in payment if there has not been notification of the death of the payee.

What About After There Is Notice Of Death?

Even if the bank is aware of the person’s passing, it has 10 days after the date of death to pay or certify checks drawn on or before the date of death. There is an exception here: the bank cannot process that check if it has been ordered to “stop payment” by the personal representative, as “a person claiming an interest in the account.”

Personal Representative and the Decedent’s Bank

As soon as possible after being appointed to the job, a prudent personal representative will investigate what checking accounts and savings accounts were held by the decedent. Going through personal files both on paper and online will be necessary here to make sure all the accounts are found. It’s not surprising for folk to have dormant accounts or rarely used bank accounts with substantial sums in them.

After finding the decedent’s accounts, the personal representative needs to notify all the financial institutions of their customer’s passing. An official notice of the death with a date of death will be sent to them.

A cautious personal representative, concerned that there may be a missing bank account out there, may go one step further. She may send letters to all the local financial institutions notifying them of the decedent’s passing and the date of death. This letter will include a request that if the bank or credit union does have an account with the decedent, that it notify the personal representative of the account and its current balance.

Stopping Payment on Uncleared Checks

This is the point where the personal representative of the estate may order the bank to stop payment on an uncleared check. As explained above, that order must be respected by the financial institution. Which will leave that debt unpaid, even if the decedent wrote a check with every intention of making that payment.

If the personal representative does order an uncleared check to not be paid, what happens to that creditor? That creditor must file a claim against the estate for payment.

The “stop payment” does not mean the creditor is disrespected. It means that the personal representative is trying to get a handle on the estate’s assets and shutting the lid on the bank account is a step in that direction. It’s important in finalizing the estate’s inventory to have a bottom line for each of the decedent’s bank accounts.

Moreover, since the personal representative owes a fiduciary duty to the decedent’s creditors as well as the beneficiaries of the estate, he or she cannot just “stop payment” on every check out there. A “stop payment” order is usually issued only in situations where the personal representative is concerned there may not be enough cash in the estate to cover its debts (it’s possibly insolvent) or where there is something fishy or unusual about the payment that needs further investigation by the personal representative.

What About the Interest on the Account?

The amount of interest on the bank account is important both for probate reasons and in some cases where an estate tax may apply. The personal representative needs to make sure that the bank account is paid the proper amount of interest due, regardless of the death of the account holder. Here, the personal representative must figure out the amount of interest due on the account as of the date of death. This is recorded as an asset in the estate’s inventory.

What Should You Do?

If you believe you have an issue with a personal representative related to an outstanding check, a good piece of advice is to at least talk with a Florida probate lawyer to learn about your rights.  Most probate lawyers, like Larry Tolchinsky, offer a free initial consultation to answer your questions.


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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Does A Personal Representative Have A Duty To Continue The Decedent’s Business?

Posted By on December 3, 2015

Last Update: 8/9/20

In Florida, the Personal Representative of an estate has great power (as well as great responsibility) as he or she oversees the distribution and compromise of an estate’s assets and liabilities. Beneficiaries, heirs, and creditors all rely upon the personal representative to do the job of maximizing the value of the estate’s assets while paying all of the valid estate debts that are due and owing. To this end, assets of the estate are sometimes liquidated and sold to satisfy debts and provide liquidity in order to fulfill bequests.

Is A Personal Representative Obligated To Keep The Decedent’s Business A Going Concern?

As we have discussed before, in addition to the language of the Last Will and Testament, Florida law controls what the Personal Representative can and cannot do. In addition to the orders issued by the Florida probate judge, and the Florida Rules Of Probate Procedure, there are legislated laws like Florida Statute 733.612(22), which states, in part:

Except as otherwise provided … without court order, a personal representative, acting reasonably for the benefit of the interested persons, may properly:

convey the real property for cash payment of all sums remaining due or for the purchaser’s note for the sum remaining due, secured by a mortgage on the property.
acquire or dispose of an asset, excluding real property in this or another state, for cash or on credit and at public or private sale, and manage, develop, improve, exchange, partition, or change the character of an estate asset.

Which means that a Personal Representative has the authority to sell both land and personal property held by the state if he or she believes this to be the right thing to do. And one of the situations where a Personal Representative may sell assets is when the estate includes an unincorporated business that the decedent was actively operating at the time of his or her passing. (Even thought the p.r. may have the authority under the law to sell assets, the probate judge may restrict the letters of administration to require a court order before any assets may be sold.)

(If the business was incorporated, meaning a corporation or LLC, then the corporation’s officers, directors or members have the right, not the personal representative of the decedent’s estate, to liquidate the entity.  Unless, of course, the decedent was the sole shareholder or member of the company)


505px Closed Sign

If the Personal Representative can’t keep operating the business, it might shut down – leaving the interested parties with less of an inheritance than if the business remains operating.

Under Florida Statute 733.612(22), the Personal Representative has the power to keep an unincorporated business or venture going for a limited time period of up to four months. That four month time period starts its countdown on the date that he or she was appointed (i.e., signature date on the probate judge’s appointment order). If more time is needed, then the judge can extend the 4-month time period as the judge believes is warranted.

Why is this allowed? Everything that the Personal Representative does is designed to protect those interested in the estate. If the person who passed away was making money in a commercial venture, then the Personal Representative has the duty to take the helm of the decedent’s business venture because doing so will keep up the value of that business and the assets it holds.

If keeping up the viability of the business means that the Personal Representative has to sell assets owned by the estate, then the Personal Representative not only has the power to do so, but the duty to sell them.

Decedent Leaves Behind His Dog Racing and Horse Breeding Business

In the case of Beck v. Beck, 383 So. 2d 268, 272 (Fla. 3d DCA 1980)), Vincent Pinto and his wife Selma passed away, each leaving a Last Will and Testament that named Howard Beck as Personal Representative of their estates. Mr. Beck and his daughter, Dawn, were also the heirs and residual beneficiaries of both estates. Since Dawn was a minor, Mr. Beck was named guardian of her inheritance. Her inheritance was set aside in a guardianship estate since she was a minor child.

Part of Howard Beck’s job — as defined by Vincent Pinto in the will — was to continue operating Vincent Pintos’ businesses. These involved breeding horses, training horses, and racing greyhounds. Howard Beck ran the businesses as instructed by the will. Both Vincent and Selma’s estates were probated and closed within two years of their deaths.

After Dawn became a legal adult, she asked the probate court to re-open the estates. She wanted final accountings done in both of the Pintos’ estates as well as her guardianship estate. This was done. Dawn then objected formally in probate court to what she discovered in these accountings, arguing that her father had mismanaged her inheritance. Both the probate judge and the reviewing court agreed with her.

While Howard Beck had the authority as Personal Representative to continue operating the Pintos’ businesses, it was found that he did so inappropriately. He was ordered to reimburse his daughter’s guardianship estate for the assets he used to defray the operating costs of Mr. Pinto’s businesses.

It’s important to note that Mr. Beck’s use and sale of assets held for Dawn to keep up the businesses was held to be mismanagement of Dawn’s guardianship was not because he didn’t have the power to do so as a Personal Representative of the estates. In this case, it was because the probate court had ordered regarding Dawn’s guardianship that no property held for her could be sold without a special court order. Howard Beck had not gone to the judge for written approval of his actions, so he was held personally liable to his daughter for over $75,000.

What Should You Do About The Decedent’s Business?

If you have lost a loved one who left behind an ongoing business operation, then it is reasonable to be concerned about how the venture is going to be administrated. Usually, Personal Representatives do not have the expertise, knowledge or desire to run an unfamiliar business.

However, there are steps that can be taken by a personal representative. For instance, a “curator” can be appointed by the probate judge to handle the business concern. This person would presumably be someone knowledgeable about the particular type of business and thus be better suited to handle the day-to-day operations.

If faced with this situation, a good piece of advice is to at least talk with a Florida probate lawyer to learn if adequate steps are being taken to prevent the assets from being wasted.  Most probate lawyers, like Larry Tolchinsky, offer a free initial consultation to answer your questions.


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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Can Creditors Force The Sale Of The Decedent’s Home In A Florida Probate?

Posted By on November 25, 2015

When a parent passes away, it’s a major life event for the children of the deceased person, no matter their age. The grief they experience can be overwhelming.  So much so that it can take time for a child’s life to return to normal.

Unfortunately, the parent’s creditors can be impatient. As the children are dealing with things like planning funerals and trying to sort out their parent’s affairs the creditors are simply wondering when they will get paid.


Past Due Bills


Which means, creditors will continue to act as they always do; sending bills and late notices.

Once a personal representative is appointed to administrate an estate, one of their responsibilities is to send a notice to all known or reasonably ascertainable creditors advising them to file a claim against the estate or their claim will be forever barred (see our creditor claim article explaining the process in more detail, including the statutory time periods within which creditors must act).

During the time the creditors are being notified of their right to file a claim, the Personal Representative will also be trying to locate and gather all of the assets of the estate.  Once they have completed the task of locating assets, he or she will then file an inventory with the probate court detailing the nature and value of the estate assets.  Thereafter, the personal representative files a statement regarding creditors, which includes, among other things, the names and address of all creditors ascertained to have a claim against the estate and who have not timely filed a claim.

One of the many issue that can arise during this time period, relates to what happens when there’s not enough money to pay all the estate’s debts. We’ve written about that problem here.

For some creditors, sitting back and waiting for the Personal Representative to do something about their outstanding balance isn’t enough. They may decide to get proactive. They may try to claim rights to assets, or to demand specific steps be taken by the personal representative to satisfy their claim.

Can creditors try and force the sale of assets in a probate case to get their bills paid?

Consider the situation where an elderly parent has passed away and leaves behind some significant debts. Like medical bills. There is no widow or widower; no one needs to worry about providing for minor children because everyone is grown up. For an unsophisticated creditor, they may see the decedent’s home as an asset that can be used to pay its debt. For the family, the home is where countless holiday memories were created. There’s no way that they want that home sold to pay off debts of any creditor.

So what happens? In Florida, even when there is no surviving spouse or minor children — and even even if the parent didn’t have a will — the family homestead is not available to pay creditors’ claims. Florida law protects the parent’s homestead from a creditor’s claim. See, Fla. Const. Article X, Section 4; Florida Statutes 732.4015; Public Health Tr. of Dade Cty. v. Lopez, 531 So. 2d 946 (Fla. 1988).

The Case of the Lopez Kids, Their Mother’s House, and Her Medical Bills

Several years ago, Florida widow Nerieda Lopez was living here in Miami with one of her three kids when she passed away. She left behind no grieving widower; she didn’t have any kids under the age of adulthood living with her.

Nerieda Lopez had significant medical debts with Public Health Trust, a creditor that really wanted to be paid. So, when Mrs. Lopez’s probate was opened, the creditor quickly wen to the probate court and filed a petition to get itself paid. The creditor asked that Ms. Lopez’s home be sold to pay off its debt.

The Personal Representative for Nerieda Lopez’s estate and her kids fought back. They argued against the creditor’s request — taking the case all the way to the Florida Supreme Court. And they won.

The court explained that it is longstanding Florida law that the decedent’s home is exempt from the claims of creditors. This protection, after all, is even written in the Florida Constitution.

Why? Florida law considers the best interests of the public, and public policy benefits from “… securing to the householder a home, so that the homeowner and his or her heirs may live beyond the reach of financial misfortune and the demands of creditors….”

The court confirmed that it is not required that the heirs be dependent upon their parent to have the homestead protected from a creditor’s claim. Meaning, the Lopez children would inherit the family home free and clear of this creditor’s claim.

Go here to read the full case of Public Health Tr. of Dade Cty. v. Lopez, 531 So. 2d 946 (Fla. 1988).

What Do You Do Now?

If you or a loved one have recently lost a parent and fear that the assets of their estate are going to be dissipated by creditor claims, then you may want to seek the guidance of a Florida probate lawyer to determine your rights and remedies. This is especially true if the deceased had a home in another state or country besides Florida (the concern being whether or not the Florida property qualifies as the deceased person’s Florida homestead exempt from creditor claims under Florida’s Constitution). Most probate lawyers, like Larry Tolchinsky, will offer a free initial consultation to review your case and answer your questions.


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 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.

Clipboard Silhouette R


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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