These cases can be tough to prove, but some are occasionally successful. Perhaps the most infamous of these cases was that of Marshall v. Marshall, a U.S. Supreme Court case that involved the estate of an elderly billionaire, of which his son was executor, and his much younger wife, former Playboy Playmate Anna Nicole Smith.

It was difficult not to see the fact pattern in that case and jump to the conclusion that Smith had married the 89-year-old oil tycoon for his riches. But state law gives spouses broad legal powers over one’s estate and assets after they die. Proving that they shouldn’t receive it can be difficult, though not impossible.more

Marshall v. Marshall

The Marshall case was a rare example of a probate litigation case that was weighed in federal courts. Most are considered in state courts. The federal court may have jurisdiction in some disputes where federal matters are at issue or, as in this case, a substantial amount of money is involved.

Smith had married the elder Marshall just one year before his death, and sought to obtain half of his estate.

However, the specific question before the U.S. Supreme Court in 2006 was whether a federal court in California had jurisdiction of a probate matter out of Texas. In other words, the matter before the Supreme Court wasn’t whether Anna Nicole Smith was entitled to a share of her late husband’s estate, but rather which court was best to decide it. As far as that, the SCOTUS sided unanimously with Smith, allowing her to continue to pursuit of her case.

Just one month later, the billionaire’s son, executor of his estate, died. Smith herself died six months later. However, both parties’ estates continued warring. In 2011, the parties were back before the U.S. Supreme Court, with the son’s estate challenging a bankruptcy court’s award of hundreds of millions of dollars in damages. The U.S. Supreme Court in that matter ruled against Smith, finding the bankruptcy court lacked the jurisdiction to enter a final judgment on the matter because it wasn’t a core bankruptcy proceeding related to the underlying Title 11 filing. Smith’s counterclaim, on which the award was based, was not a core proceeding. This was an affirmation of the lower appellate court’s reversal of her damages award.

Proving a Marriage is Really an Elder Abuse Scam

Although a belief that Smith’s marriage to Marshall was merely a ploy for his money was at the center of the case, that fact was never the biggest issue litigated.

In truth, marriage scams often occur without many legal repercussions. That’s because they are difficult to prove, which is likely why Fort Lauderdale probate litigation lawyers are seeing it happen more often.

In a fair number of cases, caregivers are forcing elders with limited mental capacity into a late-in-life marriages for purposes of taking advantage of them financially. One can challenge asset distribution in such a case if one is able to prove fraud, coercion or undue influence.Both men and women can be victims of this type of elder financial abuse, sometimes referred to as “sweetheart scams.” They are most often carried out when the elder has suffered some deep personal loss (i.e., death of a spouse) and is left feeling isolated and lonely.

Although other loved ones may not have a problem with their parents spending money on a younger romantic interest later in life if that is what makes them happy. However, the concern is if that person ends up scamming the elder and leaving them destitute in their last days.

A probate litigation attorney can help prevent this by helping to protect certain assets from being taken by putting them into a trust. It is important to take action before the elder person becomes too vulnerable.

If you think your loved one married while lacking the mental capacity to consent to such a contract, talk with an estate attorney. There is a low capacity bar to enter into marriage, so such a case can be difficult, but that doesn’t mean it’s impossible. Marriages can’t be voided post-death, legally speaking, unless you can show coercion, fraud or undue influence.

Call Fort Lauderdale Probate Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Stern v. Marshall, June 23, 2011, U.S. Supreme Court

The primary account holder can still access the money while they’re alive, and the recipient will receive whatever still remains in that account after the account holder’s death.

Payable on death accounts, as spelled out in F.S. 655.82 are sometimes the subject of inquiry to our Fort Lauderdale probate litigation attorneys. Let’s say you are the sole surviving heir of a parent. Their spouse has died. They have no other children. You might assume yourself the sole recipient of any of their assets, aside any creditors. However, that may not be the case if your parent had a payable on death account that named someone else the beneficiary.

Payable on death accounts – sometimes referred to as informal trusts, revocable bank account trusts or tentative trusts – are financial tools commonly used to keep sums of money out of the probate system.

Totten trusts are also sometimes considered payable on death accounts.

Can I Challenge a Payable on Death Account?

Payable on death accounts are similar to life estates and trusts in that none of these can be subjected to probate. Because these accounts aren’t part of the probate estate, the estate executor has no jurisdiction over it.

Upon the account holder’s death, the payable on death account becomes immediately the property of the beneficiary. All that person must do must have the bank re-title the account into her name upon presentation of the death certificate to the bank, along with a transfer request.

It may be possible to assert that the assets contained in a payable on death account should be made part of the probate estate. However, doing so would require the estate to prove the beneficiary’s designation as such was because of that person’s wrongdoing, typically by undue influence or fraud.

Undue Influence and Fraud

In order to establish undue influence, one must prove the decedent was induced to act in a manner that wasn’t of their own free will or without adequate attention to the consequences. It can be difficult to prove undue influence against a spouse or sole surviving child, but our probate litigation attorneys can help you determine if you have grounds to assert a claim of undue influence on payable on death account assets.

Then there is fraud, of which there are two different types.

• Fraud by inducement;
• Fraud in execution.

Fraud by inducement occurs when someone tries to convince the decedent (or “testator”) to act by means of deception.

Fraud in execution happens when the beneficiary misrepresents a document in order to compel the testator to sign a payable on death account over to them.

Payable on death accounts are fairly easy to create, and free. Because the process is so accessible, it can be vulnerable to fraud or undue influence. Working with an experienced probate litigation attorney, you’ll be able to determine whether you have adequate evidence to challenge the beneficiary’s right to those funds.

Call Fort Lauderdale Probate Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

F.S. 655.82, Florida’s Payable on Death Accounts Statute

With so many competing claims, the case is likely headed for a protected and messy contested probate amid an ongoing federal investigation into the activities of Epstein and purported co-conspirators. It will be imperative for each of those staking a claim to work with a civil injury lawyer who has extensive experience with probate litigation, as The Ansara Law Firm does.

Although the Epstein case is unfolding on a stunning scale, it is not so uncommon for probate litigation cases to involve decedents who had been embroiled in legal trouble. That’s often a big part of what leads their estate to probate in the first place.more

The question is generally who gets to seize a bigger slice of the pie. In the Epstein case, it’s a very long line – with a pie likely to be sliced many times. Complicating matters is that Epstein reportedly went to great lengths to hide assets. Untangling that could take extensive time and financial detective work.

Representatives of several high-profile, wealthy individuals, speaking on the condition of anonymity to The Washington Post, revealed Epstein had solicited their business, offering to move their accounts offshore to shelter them from U.S. taxes. This would indicate Epstein was aware of how to move large assets around undetected or where the laws are very averse to creditors. There is little reason to think he wouldn’t have done the same with his own considerable wealth.

Complications With Dispersing Epstein’s Estate

Numerous civil claims asserting wrongdoing by Epstein have been filed, withdrawn, refiled and settled. Some are still pending. More are planned. Yet most of his victims are likely to have to wait for the U.S. government to get its take first. The IRS is expected to audit the estate, which isn’t a fast process – especially considering the twists and turns of Epstein’s financial records. As a Fort Lauderdale probate lawyer can explain, only what is left behind from the IRS will be available for division among claimants.

The executive of the estate is likely to be Epstein’s younger brother, a real estate investor believed to be his only living relative. The brother reportedly sought to put up his own home to help his brother make bail when he was arrested in July. However, the judge decided to hold Epstein without bail, deeming him a flight risk ahead of a trial that was to take place next year.

Epstein signed a will just two days before his death that could further complicate these claims. That will reportedly indicates that his estate is to be placed in a private trust, presumably to make it tougher for accusers to seize his assets. Although it’s unlikely to work, it could result in a protracted legal battle.

Call Fort Lauderdale Probate Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

What Jeffrey Epstein’s Last-Minute Will Means for Accusers Trying to Recover Money From His Estate, Aug. 20, 2019, TIME Magazine

A Fort Lauderdale guardianship attorney can assist individuals looking to intervene in a potentially damaging guardianship arrangement. Although Florida law requires a three-person committee (at least one a physician or psychiatrist) be responsible to examine a person before he/she can be deemed incapacitated, that exam is all it takes before a guardian is suddenly granted broad powers over their ward. Almost every decision in their life can be controlled by a guardian.

What is being discovered in some of these cases is that there is lack of transparency and impartiality. for example, in a case out of Central Florida reported by The Orlando Sentinel, in the case of an elderly man whose sons pushed for guardianship under the care of a “professional guardian” – one whose attorney is not only the son-in-law of a panel doctor who declared numerous individuals incapacitated. The son-in-law also works at the law practice the doctor (who is also a lawyer) founded, the same one at which his wife and daughter still work.

This, ethics experts say, simply “doesn’t pass the smell test.” Is the system designed for the protection of Florida’s elderly and vulnerable people? Or for the benefit of a small group of insiders?more

The guardian in that case later resigned all her cases after it was revealed as part of a criminal investigation that she’d filed do not resuscitate orders orders on numerous clients who said this was expressly against their wishes.

Cases like this underscore a key flaw in the entire guardianship program, which is that enormous power over the affairs of vulnerable adults lies in determinations made by a very small pool of people in a system that lacks any substantial oversight.

As Fort Lauderdale guardianship attorneys can explain, there are state statutes that exist to prevent major conflicts of interests, but those with ties to the guardianship industry and court system say the circles are small. For example, the physician examiner in the recent Central Florida case conducts guardianship examinations in 10 Florida counties.

Florida Unique on Guardianship Issue

Although states vary in the ways they handle guardianship, Florida is the only state that allows a three-person examining committee in order to declare incapacity. In other states, such petitions usually involve a full medical assessment from a family neurologist and/or physician – often someone who has a prior relationship with the individual.

Although Florida law does ban people who make decisions about a person being incapacitated later being appointed as that individual’s guardian, there is no requirement that the physician making the call have any expertise in mental disorders, which are often at issue in guardianship matters. In fact, there have been reports of retired urologists or oncologists making these calls.

There is also the fact that those conducting these exams are making these conclusions without the benefit of the patient’s history. Without this, there may be no way to know whether a person on psychotropic medication is indeed mentally incapacitated or if certain symptoms are the result of excess use of those drugs.

(It used to be that committee members were members were only paid if they found the ward incapacitated, but now they are paid regardless.)

And while state law prohibits committee members and guardians and attorneys from being related or associated, the trouble is that what information is shared – and with whom – can vary greatly, and sometimes it’s difficult even for those involved to determine whether there’s a conflict.

The judges involved in guardianship cases are responsible to appoint the committee members.

Call Fort Lauderdale Probate Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Florida’s troubled guardianship system riddled with conflicts of interest, critics claim | Special Report, Aug. 17, 2019, By Monivette Cordeiro, Orlando Sentinel

In reality, there isn’t any legal mandate requiring said records to be read aloud. Rather, what happens is a Florida wills and trusts attorney will review these records to ascertain who is entitled by law to receive a copy of the trust – and who probably should be sent a copy even if state law doesn’t require it.

Trusts aren’t considered public record, and thus trustees may deny a contesting party’s request to review certain records. However, that decision could be challenged in court, particularly when those documents are central to the basis of the will contest.

In plain English: If the named trustee refuses to produce copies of the will and documents pertaining to the trust, you can take it to a judge.

A Challenge to Withholding Florida Trust Documents

Last year, for instance, in the case of Boren v. Rogers, the adult child of an elderly woman who bequeathed the bulk of her estate to a woman who was not family and whom she befriended later in life while her health was failing sought production of the will and trust from the beneficiary’s attorney/trustee. When those records were refused, she sued.

The trial court, after conducting an in camera review of the requested records, denied contestor’s request without explanation beyond asserting the documents in question “weren’t relevant.” Florida’s Fifth District Court of Appeal reversed, finding the documents central to plaintiff’s standing as a prior beneficiary, and that without those records, her case would be altogether eviscerated.

Parties to Whom Trust Record Copies are Required/Recommended

Generally speaking, those who would have a legal and/or vested interest in reviewing copies of will and trust documents would be:

• Successors. These are individuals named to serve as the successor trustee, or the person designated responsible for settling the trust. He/she will need a copy of the trust agreement in order to ascertain who the beneficiaries are and whether there were any special instructions or restrictions about each beneficiary’s shares.
• Beneficiaries. These would be individuals named in the trust agreement who would be entitled to receive some distribution of the estate. Obviously, they’ll need to know what the trust or will says about what they’re entitled to receive and how. Secondary beneficiaries – those entitled to inherit estate property after the initial beneficiary’s death – would also be entitled to receive copies of those records. In the case of under-18 beneficiaries, those copies would go to the child’s legal or natural guardian.
• Prior beneficiaries/heirs. These would be individuals who either aren’t named in the trust as a beneficiary (but whom one might generally expect to be) or those previously named in it but were removed at some point prior to the testator’s death. Sending these records may not be required, but your Fort Lauderdale wills and trust attorney can explain it’s often a smart idea if one expects the validity of the trust agreement to be challenged by one or more of these individuals.
• Trust accountant. The person designated as the trust accountant will need these records to understand the precise instructions for payoff of debts, the actual size of the trust, income tax filings and allocating elements of the estate to beneficiaries.
• Personal representative. If the trust wasn’t fully funded before decedent passed away, it’s likely the matter will need to go to probate for resolution. In that case, the personal representative of the estate (named in the will) needs to get a copy of the trust.
• Government taxing authority. This could be either the Internal Revenue Service or the Florida Department of Revenue.

Questions about who is entitled to such records or how you can go about formally requesting a review yourself should be directed to your Fort Lauderdale wills and trust attorney.

Call Fort Lauderdale Probate Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Boren v. Rogers, Feb. 2, 2018, Fla. 5th DCA

HB 409 amended numerous sections of the state probate code pertaining to wills. Florida’s e-will law:

• Redefines the term “will” to conform to the changes made in the act;
• Exempts e-wills from provisions that govern revocation of wills and codicils;
• Lays out the manner by which e-wills and codicils can be revoked;
• Defining e-wills and establishing how it has to be executed;
• Outlining the requirements and duties necessary to serving as a qualified custodian of an electronic will.

Undoubtedly, there will be concerns about vulnerable adults, and it will be imperative for Floridians to contact an experienced probate litigation attorney regarding their rights and responsibilities where electronic wills are concerned.more

Why E-Wills Will be the Future Nationally

Nevada was the very first state to pass an electronic will law back in 2001, requiring some kind of authentication characteristic, such as a fingerprint or retinal scan. Since then, aside from most recently Florida, Arizona and Indiana are the only other states to do so. Still, it’s something that was practically an inevitability, considering that (according to Pew Research Center):

• More than 8 in 10 Americans own a smartphone;
• Three-fourths own a computer of some kind;
• Half pay their bills online;
• Almost everyone uses the internet to shop.

Probate litigation attorneys know the field of law tends to lag behind the trends and times, but always catches up eventually.

As noted by the Harvard Law Review, courts and lawmakers have a number of options for fairly dealing with the facilitation of e-wills. When Congress passed the Electronic Signatures in Global and National Commerce (also known as the E-Sign Act) in 2000, it legalized electronic signatures in the use of interstate and international commerce. There was also the Uniform Electronic Transactions Act the year before to establish uniform practices. State-level legal reform, though, has been slower, and as probate is a state-level function, only a smattering of states will accept electronically-signed records.

Two years ago, the the Uniform Law Commission formed a committee charged with drafting a model law for states to follow in establishing the formation, validity and recognition of electronic wills. Florida lawmakers have tried for the last several years to get such legislation of the ground – including a bill last year that passed legislature, but was vetoed by then-Gov. Rick Scott.

Part of the concern was over the potential for coercion and undue influence for elder and vulnerable adults. Members of the Florida Bar’s Elder Law Section say they believe the issues have been addressed.

Concerns Regarding Electronic Wills

The process of drafting, executing and challenging wills has always been laden with legal formalities, which is to ensure integrity throughout the entire process.

The main reason e-wills have been the subject of such controversy is there is concern over protection of the testator’s intent and protect against fraud and undue influence – particularly of elder and vulnerable adults. This group may be especially at a unique disadvantage because they are more likely to be among those whose use or even exposure to electronics will have been more limited. It’s imperative that the law ensure their rights are protected.

Many of us use electronic signatures to make transactions, but the process of passing wealth from one generation to the next is undoubtedly a more weighty matter than buying a new set of dish towels next day from an online retailer.

E-will ease-of-use may have one important advantage: more people drafting wills. The AARP reports only about 40 percent of Americans have done any kind of estate planning. One of the main reasons people cite is lack of time and resources. With e-wills touted for convenience, it could mean more people make their end-of-life desires known. It is, however, imperative to ensure they do so with the assistance of an experienced Fort Lauderdale probate litigation attorney.

Call Fort Lauderdale Probate Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

CHAPTER 2019-71, Committee Substitute for, Committee Substitute for House Bill No. 409, June 7, 2019

There are a lot of areas of state law that allow a fair amount of judicial discretion. Florida will execution is one area where judges don’t have a lot of wiggle room.

Wills that do not strictly comply with Fla. Stat. § 732.502(1) or other provisions of that statute will likely be deemed void. There has been ample case law on this issue because disputes have arisen on almost every detail:

• “Can a will be signed with a mark rather than a signature?” (Yes.)
• “Does the testator’s signature need to be on every single page of the will?” (No.)
• “Does it matter in which order the witnesses sign the will?” (No.)

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Recently, in a probate litigation dispute before Florida’s Second District Court of Appeals, the question was whether the half-signature of a testator – halted mid-sign after being told (erroneously) he needed a notary for the will to be valid – was valid. The 2nd DCA answered negative, reversing the lower court. Had he simply completed his signature, it likely would be.

Half-Signed Will Did Not Strictly Comply With Statute, Court Rules

Here’s what happened: Decedent died two years ago, at which point his grandson was named personal representative of his estate and petitioned for administration of a will that was dated 2013. However, the man’s daughter filed a petition, alleging that will could not be legally executed it failed the test of strict compliance with regard to her father’s signature.

The court held a hearing to weigh the evidence the decedent was working to have his will executed in September 2013 at his home, where present were his wife, two witnesses (a family friend and pastor who joined the couple weekly for breakfast). The friend testified he signed the will as the first witness, the pastor did so next and then decedent began to sign. But he got as far as his first name when his wife interceded and told him to stop because she believed he had to sign the document in front of a notary. Only decedent’s first name appeared on the signature line of that will, though he wrote his whole name when asked to sign formal documents.

Decedent and his wife went to a notary the very next day, but they didn’t bring the will. They did bring another document, which was an affidavit of subscribing witnesses, which under certain directives allows wills to be self-proved. Decedent had signed this and the notary stamped it, but this would indicate decedent was his own witness to execution of his own will. Signatures of the other two men aren’t on that affidavit.

In response to the daughter’s will contest, probate court decided the document was in compliance with state statute and that it was the intent of the testator to execute the will as he’d started to sign it and – by account of three witnesses – only stopped because his wife gave him erroneous information about needing a notary. That he then went to a notary the next day further underscored his intent, the court found, even if he notarized his name on the wrong document.

Decedent’s daughter appealed, still arguing the signature did not comply with statutes. The appellate court agreed, noting decedent did not fully sign the end of the will and the fact that he later signed a different document in itself was not sufficient evidence to rectify the fact that his signature was not complete.

But What About Decedent’s Intent?

The very biggest consideration the court has in interpreting a will is the intention of the testator (per the 2002 Florida Supreme Court ruling in Allen v. Dalk). However, when the intention of the will is contained therein, the only way that will is going to be honored is if its execution has been valid – which means strict compliance with F.S. 732.502. The part of that statute relevant here pertains to the signature, which notes in order for a will to be properly executed, the testator must sign at the end or else have his or her name written at the end for them by another person in their presence and at their direction.

That’s not what happened here, which is why the 2nd DCA ruled the evidence fails to show decedent signed his name to the end of the will or had anyone do it for him. This means the will was not in strict compliance with Florida law.

Call Fort Lauderdale Probate Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Bitetzakis v. Bitezakis, Feb. 1, 2019, Florida Court of Appeals for the Second Circuit

More Blog Entries:

Florida Probate Litigation Statute of Limitations May Not Be Settled, March 31, 2019, Probate Litigation Lawyer Blog

The AARP reports roughly 3.5 percent of all older adults suffer some form of financial exploitation (actual numbers likely higher as not all cases are reported) costing more than $2 billion annually. (The Elder Financial Protection Network puts it at closer to 10 percent.)

It’s worth consulting with a probate attorney, even if you don’t plan on hiring one. It’s essential because your time to legally act and contest a will is very brief, so it’s best to preserve your challenge to a will early on if there is any chance you might do so. In the case of elder financial exploitation prior to death, your attorney will most likely assert some form of undue influence as grounds for contesting a will.

What is Elder Financial Exploitation?

The Older Americans Act of 1965 defines exploitation of an elder as:

“The fraudulent or otherwise illegal, unauthorized, or improper act or process of an individual, including a caregiver or fiduciary, that uses the resources of an older individual for monetary or personal benefit, profit or gain, or that results in depriving an older individual of rightful access to, or use of, benefits, resources, belongings, or assets.”

Key risk factors include:

• Dementia
• Low social support
• Functional impairment
• Bereavement
• Living with a large number of family members without spouse
• Low income/poverty
• Being female

A 2014 study published in the Journal of General Internal Medicine revealed that in a study of nearly 4,200 adults who had suffered financial exploitation, family members were the most common perpetrators (58 percent), followed by friends and neighbors (17 percent) and home care aides (15 percent).

Any time a family member becomes secretive about a parent’s finances or the family member living with a parent depends on him/her for financial support, these can be red flags. A sibling or caregiver who insists on being present for any interaction with the elder is another. A sudden change in any estate planning document should set off alarm bells.

Adult protective services should be contacted if the financial exploitation is currently ongoing.

If your loved one has already passed, you must act as quickly as possible to preserve your right to a challenge asserting undue influence.

Undue Influence After Financial Exploitation

As a Fort Lauderdale probate litigation attorney can explain, contesting a will of a recently-deceased parent or other loved one requires swift action.

Undue influence is defined as when someone close to the elder person pressures or manipulates that person in a way that has legal significance. It’s basically a type of fraud that occurs when someone is either entering a contract or drafting a will.

Understand can generally happen to any adult – even one who has the capacity to make decisions – can be a victim of under influence. However, as previously mentioned, certain situations can increase the likelihood that one will be vulnerable to it.

F.S. 733.107 explains the burden of proof in will contests and the presumption of undue influence under certain circumstances. These include the beneficiary being present when the elder person expressed a desire to make the will, recommending an attorney to draft the will, knowledge of the will’s contents prior to it being executed, giving instructions on preparing the will, securing witnesses for will and being the one to hold the will in safekeeping.

Contact our probate litigation law office in Fort Lauderdale if you are concerned your loved one may have been exploited in the creation of their will or certain benefits meted out therein.

Call Fort Lauderdale Probate Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

TWELVE WAYS OF PROVING THE NEGATIVE AND OVERCOMING THE CARPENTER PRESUMPTION OF UNDUE INFLUENCE, Feb. 12, 2019, Florida Bar Journal

More Blog Entries:

Estate Lawyer Answers: Can Adult Children be Disinherited in Florida? April 27, 2019, Fort Lauderdale Probate Litigation Attorney Blog

The fact of a biological tie is not necessarily a guarantee that one will be entitled to an inheritance in Florida. The first question will be whether the decedent had a will.

As noted in Part 1 of Chapter 732 of Florida Statutes on Wills and Succession, if a person dies intestate (with no will), biological children are among the first in line to collect an inheritance, aside from one’s surviving spouse.

Florida Inheritance Rights of a Biological/Adopted Child: Limited

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There is no law that says a parent MUST include a child in his/her will. Almost anyone (aside from a spouse) can be excluded from a will entirely for virtually any reason. It is only when there is no will that issue of statutory succession of inheritance arises.

The portion of the estate to which a qualifying child is entitled in the case of an estate with no will depends on whether the estranged parent had a surviving spouse and/or other biological or legally adopted children. If there was a surviving spouse – AND that spouse is not the child’s other parent – the spouse gets half while the rest is divvied up equally among the children. In the case of no surviving spouse and one biological/adopted child, the adult child (barring some possible exceptions and exemptions) would inherit the entire estate. If in that scenario there are other biological/adopted children, the estate would be divided equally among them.

However, there is no law that says parents MUST pass part or any of their estate to an adult child. If you are the parent who is estranged from your adult child and wish to ensure he or she does not have a claim to your estate, that must be expressly documented (advisably with the assistance of a South Florida estate lawyer) in your will. This can go the other way too. If you are an adult child with no spouse or children yourself, know that your parents are the next in line to collect on your estate. You may not be planning to die anytime soon, but if you don’t want that to happen, you’ll want to draft a will to make it clear.

I Was Disinherited From My Estranged Parent’s Will in Florida. Can I Fight It?

In most cases, if a parent does not want his or her adult child to inherit from their estate – whether due to estrangement or some other reason – typically a court will respect that desire and affirm it. If a person does not have a will, it would be rare for the court to deny inheritance to a biological/adopted child.

You will want to talk to a Fort Lauderdale probate litigation attorney about contesting a will from which you were disinherited. These cases are considered by Florida courts on the basis of the specific facts at hand. Note that sate law governs here, and some states have different approaches when it comes to disputing a disinheritance. The state law that will be applicable is likely to be the one where the decedent had domicile (lived).

The truth of the matter is that successful contest of a will can be an uphill battle in Florida. One has to first show the child who was disinherited had a direct financial interest and that this would be affected if the probate is allowed to move forward. Then, the child will need to make a case – on the basis of specific facts (not just general conclusions) – laying out the legal grounds for why the disinheritance should not be honored.

Some of the grounds on which a person can challenge a disinheritance in Florida include:

• Improper execution of a will.
• Undue influence by another person.
• Fraud or Duress.
• Person lacked mental/physical capacity to make the will.

It’s important to note your deadline is short here. In Florida, you have just three months to file a will contest. Discussing your options with an attorney as soon as possible is in your best interest.

Call Fort Lauderdale Probate Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Consumer Pamphlet: Probate In Florida, The Florida Bar

More Blog Entries:

Fort Lauderdale Probate Lawyers: Time Window to Contest Florida Will is VERY Short, Feb. 22, 2019, Fort Lauderdale Probate Litigation Lawyer Blog

Equitable strives for equal, but in the case of some breach of trust cases, our Fort Lauderdale probate litigation attorneys have seen this mean as little as 6 months… Or it could mean you have as many as 40 years.

In the case of undue influence, however (which is the most common grounds for a Florida will contest), your limitations period again is usually four years. At most, however, it can be up to 12 years. This is thanks to something called the “delayed discovery doctrine.”more Delayed Discovery Doctrine in Florida Probate Litigation

If a person’s knowledge of a wrongdoing (or the point at which one reasonably could have known about it) occurs after the statute of limitations has run out, F.S. 95.031(2)(a) holds that a cause of action (in this example, grounds for a Florida probate litigation lawsuit) could be delayed beyond the four-year statute of limitations that might normally be the deadline in an undue influence case.

Delayed discovery typically must be proven by showing that there was some type of fraud or concealment that prevented the person from knowing about the undue influence – or even possibly discovering it. Nonetheless in no case can you bring a case for undue influence by asserting fraud past 12 years from the alleged commission of that fraud – even if it couldn’t have been discovered before that.

The delayed discovery doctrine is applied usually only as the exception to the rule. For the most part, this statute refers only to claims of product liability. However, there was a case of alleged undue before Florida’s Second District Court of Appeal two years ago that asked whether one might apply the delayed discovery doctrine.

Delayed Discovery and Florida Undue Influence Lawsuit

In the 2017 case, the issue involved a philanthropic irrevocable trust. As a Fort Lauderdale undue influence probate attorney can explain, a revocable trust can’t be litigated until it becomes irrevocable. This usually happens when the settlor dies. In this case, however, the trust in question was always an irrevocable trust, meaning it was subject to challenge from the day of its inception, which would have been in 2005.

However, it wasn’t until 10 years after its inception, after the wife’s 2015 death, that the pair’s daughter sought to challenge the validity of that trust (which named the couple’s long-time doctor and attorney/accountant as trustees).

Most everyone involved agreed that the statute of limitations that applied was four years.

BUT… That is absent the assertion of the delayed discovery doctrine, which is what claimant alleged. This would have extended the filing deadline on the undue influence claim from four years (time-barring the claim as of 2009) to 12 years (through 2017). But as noted in Florida statute, this 12-year statute of limitations would only apply in the case of fraud.The trial court judge ruled undue influence cases are not founded upon fraud. However, this ruling was reversed by the 2nd District Court of Appeals.

In its reversal, the appellate panel sided with plaintiff in finding that undue influence is a type of fraud. The trustees in the case argue that fraud and undue influence have distinct elements and are not the same (and thus not subject to the delayed discovery doctrine). Justices found that while undue influence and fraud are indeed separate and distinct causes of action, but that undue influence basically asserts a type of fraud, assuming the facts of the case meet the elements necessary to prove fraud.

That didn’t mean plaintiff won her case, however. (In fact, she later lost.) But it did firmly establish that claims of undue influence asserting fraud can be subject to the longer 12-year statute of limitations.

Call Fort Lauderdale Probate Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Flanzer v. Kaplan, Nov. 29, 2017, Florida Second District Court of Appeal

More Blog Entries:

Florida Probate Dispute: Prenuptial Agreement Enforcement After Spouse Dies, Dec. 15, 2019, Fort Lauderdale Undue Influence Probate Litigation Attorney Blog

If you have a child – minor or adult – who is physically or mentally impaired and therefore cannot earn an income and be self-sufficient, it is in their best interest for you to establish for them a special needs trust. This ensures they will receive Supplemental Security Income (SSI), SSDI, Medicaid, Medicare and other support programs when you die and are no longer able to provide daily care and support.

It is imperative to discuss these elements with a South Florida estate attorney because the reality is, if you – with the best of intentions – leave your child with more than a certain amount of assets, either in your will or through a trust – you might inadvertently disqualify him or her from eligibility to receive public benefits. If you have a substantial estate to allow your special needs child or loved one to live comfortably – and also cover medically necessary treatment – this may result in your child ending up in a difficult situation. As our Fort Lauderdale probate litigation attorneys can explain, even a relatively small inheritance from you could result in your adult child becoming ineligible to receive government benefits that may otherwise better cover their needs. Protecting Your Child With Special Needs With a Special Needs Trust

Concerns regarding the well-being of a child or dependent with special needs are valid, and our Fort Lauderdale estate attorneys can help. Generally we recommend establishing a Florida Special Needs Trust. This is also sometimes referred to as a Supplemental Needs Trust.

This is a form of irrevocable trust providing for both supplemental care as well as life-enhancing services and equipment beyond what the government generally provides. It can also sometimes be established as a revocable trust. They aren’t considered “countable assets,” so they won’t bar a person’s eligibility for the type of needs-based government services that will consider one’s assets. These would include SSI as well as Medicaid, subsidized housing and vocational rehabilitation.

Types of Special Needs Trusts in Florida

If you established a special needs trust prior to 2016, note that there is a new federal law – the Special Needs Trust Fairness Act – wherein Congress decided that a beneficiary of SSI (someone under 65 and defined as “disabled” per the Social Security Act) can set up a special needs trust for themselves. So you may want to revisit this if your plan was mapped out prior to 2016. It can also be established through a parent, grandparent or legal guardian.

Your Fort Lauderdale special needs trust attorney can explain in greater detail (this article should not be construed as legal advice), but with that in mind, there are two basic types of special needs trusts. These include:

Third-party special needs trust. This is a type of special needs trust that is usually established by a family member of the beneficiary of that trust. It allows the transfer of assets to the trustee. The goal is to allow transfer of assets without disqualifying the recipient from need-based government aid. This is spelled out in F.S. 732.2025(8).

First-party special needs trust. This is typically established when a person has his or her own assets (unlike a child) such as an inheritance, divorce settlement, etc.

Both are designed to allow the individual not to jeopardize the “supplemental needs” that are not covered by government benefits. Because there are fine-line differences between the two, it’s imperative to consult with an experienced Fort Lauderdale special needs trust attorney. Ideally this would be done at the time the trust is established, but it should also be done promptly if there is any dispute as to the distribution of these assets.

Call Fort Lauderdale Probate Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Implications of the Cures Act for Special Needs Trusts, Aug. 2, 2017, CMS

More Blog Entries:

Fort Lauderdale Probate Lawyers: Time Window to Contest Florida Will is VERY Short, Feb. 22, 2019, Fort Lauderdale Special Needs Trust Attorney Blog

In many cases, to contest a will in Florida, you will have just three months (90 days) from the time you receive a document called a “Notice of Administration.” This document is most often served on surviving spouses, beneficiaries trustees (if there is a trust) or those who may be entitled to exempt property under state law. This is outlined in F.S. 733.212(3). Failure to file an objection within that three month window means those claims will thereafter be forever barred. This usually applies to cases pertaining to will contests challenging the validity on the basis of lacking mental capacity or undue influence.

Further, all objections to a will’s validity – for any reason – must be filed no later than one year of the entry of an order of final discharge of the personal representative or one year after service of notice of administration. The only circumstances under which this timeline can be extended is if you assert misconduct, fraud or misrepresentation. What if the Estate Wasn’t Administered Fairly?

Fair administration of an estate is one of the key duties of the personal representative. There may be numerous heirs, but a personal representative can be designated by the court to ensure decedent’s intent is followed. There have been numerous probate litigation cases in Florida where a personal representative does not properly administer the estate, and other beneficiaries or heirs don’t learn until later they were deprived of their rightful share of total assets.

Florida Rule of Civil Procedure 1.54(b) is a provision that outlines relief one can obtain from final judgments, decrees or orders when there are:

• Mistakes
• Inadvertence
• Excusable neglect
• Newly-discovered evidence
• Fraud

This provision states that a motion for relief from a final judgment, decree or order needs to be filed “within a reasonable time” and only for the aforementioned reasons and within a time frame that is not more than one year after the judgment was entered. Findings of fraud upon the court may in some cases allow for a slightly longer timeline.

“Fraud upon the court” can include cases where a personal representative made the required Petition for Discharge asserting the estate has been fully and properly administered – when in fact that was not true and they knew it. Those cases may allow for a statute of limitations that extends beyond one year, but it will depend on the exact circumstances and individual facts of the case, but that will depend on the exact circumstances of the individual facts of the case.

F.S. 733.903 under the Florida Probate Code states the final settlement of an estate and discharge of a personal representative won’t prevent further administration of the estate. However, the discharge order won’t be revoked simply because someone found a will or discovered a new will at a later time (assuming no fraud was involved).

Tight Timelines Mean Florida Probate Lawyers Should Be Contacted Immediately

Fort Lauderdale probate lawyers can explain the reason for these stringent timelines is that legislators did not intend to reward anyone for sitting on their rights. That means if you want to avail yourself of them, you need to act very quickly.

If you aren’t 100 percent certain whether there was an error or someone intentionally acted to subvert the testator’s intention, it’s a smart idea to consult with an attorney just to explore your options.

Call Fort Lauderdale Probate Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Florida Rule of Civil Procedure 1.54(b)

More Blog Entries:

Florida Early Inheritance Might Lower Heir’s Tax Burden, But May Leave Benefactor Vulnerable, Jan. 15, 2019, Fort Lauderdale Probate Litigation Attorney Blog

Most people assume that any kind of estate planning solely involves the creation of wills and trusts and that probate litigation involves parties warring over who-gets-what. However, a fair amount of cases that wind up in probate involve some type of bank account or retirement account that didn’t list any designated beneficiary. Determining who has access to those accounts can be dicey.

A designated beneficiary on one of these forms is critical because not a will or even a court order will trump it. The accounts will be distributed according to the decedent’s designated beneficiary form.

How does this happen? The designated beneficiary forms are typically buried in the paperwork you sign when you open a checking account, IRA or 401(k). If you opened these accounts before you got married or got divorced or had a child yet failed to update those forms, your loved ones/heirs may need to go through probate litigation to receive the full contents of those accounts. In cases where an ex-spouse is designated as a beneficiary, it can spark a dispute between that person decedent’s new spouse, children or other heirs. There are, however, some protections written into federal law for 401(k)s.

ERISA, also known as the Employee Retirement Income Security Act, typically governs retirement and pension accounts and stipulates that if the owner of a retirement account was married when he or she died, that spouse is automatically going to receive half of whatever money is in that account. This is true regardless of the beneficiary designation on the account. So let’s say an ex-spouse is listed on a retirement account but decedent had remarried and simply forgotten to update the form. Decedent’s spouse will be entitled to 50 percent of the contents of that account no matter what. Spouses can in some cases waive their right to the contents of an account, but there are some cases where that’s not allowed under ERISA.

IRAs, meanwhile, are state-controlled, meaning individuals have more flexibility to name whomever they choose as a beneficiary, regardless of whether a spouse concedes.

It’s important to update your designated beneficiary form after significant life events. For example, if you divorce, your ex may agree in a court order to forego any right to your future retirement accounts. However, if you don’t update the designated beneficiary form, that order from the divorce court won’t matter.

Proper designation of a beneficiary is imperative if you want to make sure the contents of those accounts is available right away to those whom you have designated and that they will not need to go through the process of probate litigation to obtain it.

If you are an heir who has come up against this legal roadblock, our Fort Lauderdale probate lawyers can help.

Call Fort Lauderdale Probate Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Beware the Beneficiary Form, July 6, 2011, By Carolyn T. Geer, The Wall Street Journal

More Blog Entries:

Florida Estate Lawyer: What You Need to Know About Electronic Wills, Jan. 3, 2019, Fort Lauderdale Probate Lawyers Blog

Electronic wills, or e-wills, are boilerplate legal documents purchased online, electronically signed and for a fraction of the cost of visiting an estate planning attorney. (These documents also exist for things like Florida power of attorney, health care power of attorney and even prenuptial agreements, but each is a separate discussion).

The presumption is estate attorneys may have their feathers ruffled that potential business is going to a bot. However, the real reason so many Florida estate attorneys are concerned about the prospect of widespread e-wills is their potential for serious error, abuse and fraud.

The worry is that this could lead to a substantial uptick in otherwise preventable Florida will contests (where the validity of a will is challenged on grounds like undue influence, fraud, lack of capacity or lack of formalities). Objectively by comparison, estate planning services are generally less expensive-time consuming. Electronic Wills Can’t Be All Bad – Right?

In defense of e-wills, people are busy and increasingly comfortable the breakneck pace of evolving technology. It’s cheaper and, at least in the short run, a bit more convenient – particularly for those “only making a few changes” to an existing will. It may increase the overall number of people with some type of will, which in some cases (not all) can help to clarify decedent’s wishes and expedite the process.

So no, the prospect isn’t all bad for consumers. You should know, however, that it’s not consumer advocates currently making such an aggressive push to move legislation on this front. It’s technology upstart venture capitalists.

It’s unclear to what extent consumers may be able to rely on electronic will technology systems to meet minimum state formality requirements, verify authenticity, shield against fraud and retain records. These firms don’t provide legal advice and will likely state upfront any error you make – whether due to a typo or not fully understanding the question – it won’t be on them.

In light of this, it’s probably not a bad thing that the legal field of Wills, Trusts and Estates is a bit more resistant to change than even most other areas of law. Nevada is the only state as of this writing to adopt an electronic will statute, but more are likely to come – including in Florida.

Florida’s Flawed Electronic Will Proposal Vetoed

Two years ago, state lawmakers introduced the Florida Electronic Wills Act, which would have expressly allowed electronic wills in Florida. The measure passed muster with the majority of state senators and representatives – only to be vetoed by the governor.

Although careful not to foreclose completely on the possibility of e-wills in Florida, then-Gov. Rick Scott rejected the bill because of its:

• Failure to ensure authentication of parties’ identities;
• Potential for non-Florida residents to bring their electronic wills into Florida probate, potentially creating a bag log here with complicated cases if the testator (will creator’s) home state doesn’t accept electronic wills.
• Major potential for fraud with a provision that allowed “remote witnessing and notarization.” This perhaps was the most concerning provision, as it would have allowed testator – and the two mandated witnesses plus notary – permission to “sign” documents electronically simply by typing their name. No requirement was indicated for verification by a trusted encryption service. The bill would have even allowed video conference signatures.

That last provision alone would have opened the door to a lot of potential fraud – and likely a flood of Florida will contests.

It’s not that courts wouldn’t deem some of those wills valid, but a system that might allow alteration of one’s entire estate or inheritance just by typing another’s name – without so much as a PIN – would be rife for challenge.

Experienced Fort Lauderdale Estate Lawyers Working for You

It’s possible even today for those with smaller, uncomplicated estates with no warring relatives to have a DIY will conforming to all existing statutory requirements recognized and affirmed by a Florida court. The problem is people don’t realize how complicated their “small” estate is all the potential pitfalls that come along with making your own amendments to an existing document.

Ensuring your will has the right combination of technical legal terms on a page is only a small part of what Fort Lauderdale estate attorneys do. We’re ensuring it meets your wishes, advising on the best estate structures to make that happen.

Call Fort Lauderdale Probate Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

The Future of Electronic Wills, Oct. 15, 2018, By Dan Denicuolo, ABA Journal

More Blog Entries:

Florida Probate Lawyer: How Much Time Do I Have to File a Will Contest?, Oct. 30, 2018, Fort Lauderdale Estate Lawyer Blog

Occasionally our Fort Lauderdale probate attorneys are queried about a the prudence of early inheritance, also referred to as pre-death transfers and gifts prior to death. The short answer is: It really depends, but it can be very risky.

There are a number of factors to consider when weighing early inheritance as an option. Let’s say we’re talking about transfer of your Florida home. The reason we’ve heard most commonly cited for sharing or transferring the deed of a Florida residence to children or grandchildren before death is that heirs are then spared cumbersome estate taxes and potentially draining probate litigation. Perhaps, the homeowner thinks, they can safely bypass Florida estate planning altogether with this option. However, early inheritances really should be avoided least until you’ve discussed it at-length privately with your own estate planning attorney. Get a second opinion if you still aren’t convinced. Because while savings for an heir could prove worth it, the elderly benefactor may be taking a major risk. Sometimes, even the most loyal, honest heirs can end up making a mess of things, even unintentionally.

Plus, transfers of large assets made before death can come under intense scrutiny just like those that occur at the time of death, landing the estate in probate anyway, incurring costs that might just as easily have been avoided.

Lady Bird Deeds in Florida

One of the most popular pre-death transfers is known as a “Lady Bird” deed. Sometimes called enhanced life estate deeds (it is one type), it’s a relatively new deed option recognized only in a few states. Although allowed, it’s not outlined clearly in Florida statutes. Your Fort Lauderdale probate or estate planning attorney can explain though that a Lady Bird deed allows the current owner retained control of the property until his or her death (including reservation of right to go back on the agreement). Then upon death, the property automatically transfers to the new owner without probate. It also allows retention of your homestead exemption and can ultimately save on taxes and legal fees, sometimes accomplishing generally the same effect as a living trust, but at a lower cost.

Sounds great, right? In some cases, they can be – especially as a form of asset protection if you need to apply for Medicaid. Just know upfront, though, that they are sometimes successfully challenged under provisions of Florida’s descent of homestead provision, F.S. 732.401, where the original owner has a surviving spouse. In that case, the spouse inherits the life estate in the property and lineal descendants receive a portion of the remaining interest.

Other times, Lady Bird deeds run aground when title companies refuse insure them because they’re written for the benefit one adult child to the exclusion of others, risking the odds the deed will be challenged and deemed invalid.

Special language is required, and you will absolutely want to have it reviewed by an estate lawyer to ensure it’s both in your best interest and valid.

Joint Ownership as Tenants-in-Common

Tenancy-in-common is a type of ownership wherein two people share joint interest in a real estate property. A joint tenancy with right of survivorship results in the joint survivor obtaining 100 percent of the asset upon the other’s death. A lot of aging Florida homeowners have done this, but not always with the best outcomes.

Fort Lauderdale probate attorneys can explain there are two big problems with this plan. The first is if one of the owners has any kind of debt that results in a lien against their interest in that property, the creditor can force the sale of the entire property to satisfy that lien – even if the debt-free owner wasn’t responsible. Let’s say you arrange this with your adult son, and it goes fine for years, but then he’s in a crash or is sued for some type of malpractice and doesn’t have insurance. Or he falls behind on federal student loans. You could both lose the house. This is an early inheritance risk to your financial future when you can least afford it. Not only is your son deprived of an inheritance, you lose your home (with the creditor then becoming the new “tenant in common”).

Another risk is a joint owner can transfer his or her interest without approval from the other, but can also stand in the way of a potentially good sale by refusing to transfer their share.

A Fort Lauderdale probate attorney may be able to help you negotiate a resolution in that case, but it’s always better if these contingencies are planned for in advance.

Call Fort Lauderdale Probate Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Florida Medicaid cannot recover mom’s home if kept out of probate, Dec. 22, 2016, Palm Beach Post

More Blog Entries:

New to Sunshine State? Have a Palm Beach Probate Lawyer Review Your Estate Plans, Dec. 28, 2018, Fort Lauderdale Probate Litigation Attorney Blog

As the new year kicks off, it’s a great time for all Floridians – but especially those who moved to Florida in 2018 or within the last couple years – to review their important documents, ensure personal representatives and powers of attorney are up-to-date and that wills and trusts reflect your true intentions and align with Florida law.

An analysis of U.S. Census data by the National Association of Realtors found the No. 1 most common migration pattern in the U.S. was New Yorkers moving to Florida – some 33,400 between 2011 and 2016. Another 16,400 moved from New Jersey, 12,500 from Pennsylvania, nearly 9,000 from Michigan and about 7,800 each from Ohio and Illinois. Many are lured not just by Florida’s beautiful beaches, but also the low personal income tax rate. It’s the most popular destination for people from northern East Coast and Midwest states. What New Florida Residents Should Review Estate Plans

Technically, as our Palm Beach probate attorneys can explain, you do not need to convert your estate planning documents to Florida documents when you move from out-of-state. Florida statutes provide that if your will was valid under the state laws of the place where it was executed, it will still be valid in Florida. However, there could be certain aspects of Florida law that may cause problems with an out-of-state will or other important estate planning documents, and a quick review by an estate planning attorney can help ensure your documents won’t cause you (or your family) any problems down the road.

For example, F.S. 732.503 requires any last will and testament to be “self-proved” by having the testator (the person making the will) add their signature before two witnesses as well as a Notary Public, and all three of those individuals must sign the document as well. Unfortunately, a fair amount of wills created out-of-state don’t have a self-proving will. Again, that doesn’t make it invalid, but that does mean that to be entered into Florida probate, at least one of the two people who witnessed the testator sign needs to be tracked down and agree to sign an affidavit attesting they were there when the will was signed. That could mean a lot of additional time and expense if those individuals are out-of-state.

Another element that may create issues is your named personal representative. In Florida, you can’t just choose whoever you want. Per F.S. 733.304, personal representatives can only be:

• A Florida resident OR
• A person related to you by blood or certain marital relationships OR
• A bank or trust company authorized to do business in Florida.

So if the personal representative you have currently named is a friend who lives up north or a bank in Ohio that doesn’t do business in Florida, this needs to be updated.

One more thing that comes up commonly is Florida homestead laws as they relate to revocable living trusts. Palm Beach probate attorneys know that many northerners buy a second home in South Florida, go a few seasons or more as snowbirds and then eventually decide to live here full-time, making their second home now their primary address. The trouble arises when you go to apply for the Florida homestead exemption and the revocable living trust you had drafted elsewhere makes no mention of Florida homestead statutes. In turn, the property appraiser here in Florida is going to reject your application for homestead exemption. It’s a quick fix though: Just have the trust amended with the appropriate language.

If you have questions about your estate planning documents after a recent move to Florida or are simply hoping a lawyer can review them to make certain everything is in proper order, call our offices today.

Call Fort Lauderdale Probate Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

American Migration, Exploring Where People Move Across America, July 2018, Porch.com

More Blog Entries:

A Tale of Two Wills: Fort Lauderdale Probate Lawyer Explains, Nov. 16, 2018, Palm Beach Probate Attorney Blog

The American Academy of Matrimonial Lawyers reported that in a national survey, more than 60 percent of top family law attorneys have seen an increase in the total number of prenuptial agreement requests over the last three years, many saying millennial newlyweds were a significant driver of the uptick, though older generations too are securing these agreements, particularly in second or subsequent marriages. The reason for the latter, the AAML noted, was because older couples have more assets to protect.

A recent Florida probate case involving a prenuptial agreement was weighed by Florida’s Fourth District Court of Appeal. The spat was between decedent’s son and his wife over the way the estate was administered.

The court noted a premarital agreement wherein decedent agreed to make a will favoring his wife. However, at some point after their marriage and prior to his death, decedent drafted a new will that excluded the wife in favor of his son. When her husband died and she learned of the new will, the widow filed a petition that sought admission of the will that favored her. The son promptly filed a counterpetition for the Florida probate court to instead admit the version of his father’s will that favored him. In challenging the son’s counterpetition, the widow alleged the will had been altered by way of undue influence.

Undue Influence in Florida Probate Disputes

As our Fort Lauderdale probate litigation attorneys can explain, undue influence involves someone close to the decedent – often a relative or caretaker – who manipulates or pressures the testator (person who wrote the will) into changing it in a way that has some degree of legal significance. That often means altering one’s will in order to favor one individual over another.

In the recent case before the 4th DCA, the lower court determined the wife was able to show substantial evidence raising a rebuttable presumption the son imposed undue influence on his father to disregard the will with language adhering to the prenuptial agreement and favoring the wife and write a new one that favored him. What that meant was the burden of proof shifted to the son to show he did NOT exert undue influence, and the lower court ruled he had not done that. Further, the court ruled the prenuptial agreement prevented decedent from revoking his earlier will in favor of his wife.

The 4th DCA agreed with the outcome, but wrote to clarify that a person always has the right to change their will. If that alteration breaches a contract – such as a prenuptial agreement – that becomes a separate issue. In this case, though, the error was harmless because the will presented by the son had already been invalidated on grounds of undue influence.

Call Fort Lauderdale Probate Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Kellar v. Estate of John W. Kellar, Oct. 24, 2018, Florida’s 4th District Court of Appeal

More Blog Entries:

Death of Ex Prompts Divorce Agreement on Marital Assets to Forefront in Florida Probate Dispute, Nov. 29, 2018, Fort Lauderdale Will Contest Attorney Blog

This was the case before a Florida probate court and later Florida’s Third District Court of Appeals, which was tasked settling issues that arose when a former wife and the estate of her recently-deceased (but long-time divorced) ex-husband disputed financial claims and rights to a residence in which they had both been long-time co-tenants. Both the estate and surviving ex-wife consulted with Miami probate lawyers to help them duke out the details.

Per court records, here’s what happened:

More than four decades ago, when the pair were still married, they purchased a property in Miami-Dade County and resided there together as husband-and-wife. Then, in 1986, the husband moved out of the residence, and the wife continued to live there. The marriage wasn’t legally dissolved until 10 years later, in 1996. The husband never moved back into the home, though he did occasionally come by for mail. But otherwise from that date until husband’s death in January 2010 in the Haitian earthquake, the exes held title as “tenants in common,” each having a 50 percent undivided interest in the property, though wife had exclusive occupancy. (In 2005 the wife’s mother also moved in, becoming a second occupant.)more Miami Probate Lawyers Ask: Does Co-Tenant Ex-Wife Owe Decedent’s Daughter Rent?

Documents filed by decedent’s daughter as personal representative of her father’s estate filed a motion requiring the former wife to pay rent. The ex-wife filed her own motion, asking the court to determine whether she was entitled to any offsets for money she’d already paid toward the mortgage, taxes and maintenance of the property. Fair market value of the property was determined the property had a fair market value of $160,000 and was held free and clear of any mortgage. The ex-wife didn’t dispute this, but did point out she’d spent nearly $315,000 on the property since the start of her exclusive occupancy – with no reimbursement from her ex. This, she said, entitled her to a set-off of half that money, or $157,000 – almost the full value of the home, against any rent she owed after her husband’s death and also against her own 50 percent interest in the place.

Miami probate lawyers argued the case, and the court held the reasonable rental value of the house was $2,100 monthly, the estate was entitled to one half that month, effective February 2010, and judgment for the estate’s share of past-due rent based on that amount (roughly $16,000) was due in 45 days, or else that would also count toward her offset (which it was).

The estate appealed.

Appellate Court Reverses Rental Payment Ruling, Stipulates Payment to Estate Possible in Event of Future Sale

It was noted that prior to decedent’s death, his former wife had exclusive possession of the home and no requirement to pay rent. The court did find that former wife’s arguments regarding an entitlement to a set-off in this Florida probate litigation were tough to address. The court pointed out that unless the final divorce agreement expressly imposed on the ex-spouse in possession of the property the obligation to pay rent without receiving any set-off credit in return (and there is a just legal basis for doing so), the right to credit for those payments made is one that is established by law. Property expenses can be included in this set-off amount, including those made for interests, insurance and taxes. It was well-established that the credits that had been presented likely exceed the agreed-upon $80,000 interest held by the estate. Further, wife presented evidence that she alone was the one to pay the mortgage from 1986 until several years ago, when the home was paid off, and that she’d spent a substantial amount in maintaining the property.

That said, the court indicated there could be some entitlement credits made in the future, if and when the home is ever sold. However, the court declined to find – as decedent’s daughter argued – that the former wife’s claims to credits from her ex-husband’s estate were extinguished by statute of limitations.

Thus, the appellate court reversed the order compelling the ex-wife to pay rent to the estate. To do so, the court held, would be to leave this woman and her elderly mother of any equity in the home before it could be realized.

This case reveals why if you still have property with an ex-spouse, you too may need to consult one of our Miami probate lawyers to protect your interests, even if you are long-divorced.

Call Miami Probate Lawyers at Richard Ansara Law Firm at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Joseph v. In re: Estate of Gerard Joseph, March 21, 2012, Fla. 3rd District Court of Appeal

More Blog Entries:

Create a Florida Living Trust to Make Life Easier for Family After You Die, Oct. 15, 2018, Miami Probate Lawyers Blog