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

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

Many people understand the importance of updating their will and other estate planning documents when important life events occur, such as when there is a marriage, birth, death or major falling out or formation of new romantic ties. Wills can be updated and recipients of certain assets can be modified. That’s why it’s not unheard of to have two or more versions of the same will. The problem with having numerous wills is that it can ultimately result in the assets of the testator (creator of the will) not being distributed according to his or her desires. A Fort Lauderdale probate lawyer can explain in more detail, but generally, the courts will seize on the most recent version of the will. Ideally, all copies of the previous version of the will would be destroyed and the updated version should distributed to all concerned so there is no confusion. Of course, real life is rarely so tidy, and Florida will contests are fairly common.

These were the facts of the case in a matter before Florida’s 4th District Court of Appeal, though the exact issue before the court was whether a plaintiff’s claim should be dismissed for a technical defect. (This is another reason you should have a Fort Lauderdale probate lawyer on board – to ensure you don’t miss any key filing deadlines and that all claims are properly pleaded.)more Plaintiff’s Florida Probate Lawyer Secures Right to Have Case Heard

In the case of Winslow v. Deck, the live-in partner of a man who died in 2015 sought to have a more recent version of his will (drafted in 2014) recognized, while his daughter wanted the probate court to establish that her version, drafted in 1991, was the one that held the greater legal weight.

According to court records, the testator left his entire estate to his two adult children in the earlier version of the will. Several years after that, however, he befriended a woman and they soon began living together. After this, he drafted a second will that contained language indicating all prior wills were revoked and leaving his entire estate to her.

Shortly after decedent died, his daughter was successful in petitioning the probate court to admit the first will and also to name her as personal representative of his estate. A few weeks later, however, decedent’s surviving partner filed the second will. A couple days after that, she filed several more documents, including an emergency petition to revoke letters of administration, a counterpetition for administration with the second will attached, an objection to the daughter’s petition and her appointment as personal representative of decedent’s estate and a declaration that this was an adversary probate proceeding. (Within adversary probate proceedings, Florida Rules of Civil Procedure apply, and the case proceeds essentially as if this was a civil lawsuit, meaning parties can conduct discovery, make requests for production of derogatories, interrogatories and depositions. Rule 5.025(a) spells out the details of when the court can find a probate proceeding adversarial.)

The probate court denied the emergency petition and dismissed it without prejudice, recognizing instead the administration of the first will.

More than a year passed, and the daughter moved to dismiss the counterpetition with prejudice, arguing the partner lacked standing to contest the first will. She pointed out that the partner had three months from the date of notice that the first will was being recognized to take action, and while she did file an emergency petition, she failed to file any paperwork asking the court to revoke the first will. The partner asked the court to either deny her motion to dismiss or else grant her leave to amend.

The court dismissed the counterpetition with prejudice (meaning she couldn’t file it again) and issued a final order, finding she had failed to meet the statutory requirements as set forth in F.S. 733.212(3) to adequately request relief. On appeal, the 4th DCA reversed, concluding courts as a general rule shouldn’t prevent a petitioner from challenging a will just because of a technical flaw without offering a reasonable opportunity to fix it. The court held that while neither of counterpetitioner’s filings were “models of clarity,” they were nevertheless sufficient to assert that that the first will wasn’t the last or valid will and that the estate should have an independent executor.

If you run into a situation where there is a dispute among family or loved ones regarding two or more wills left by a decedent, a probate lawyer should be contacted for help with these proceedings. Initial consultations are free.

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

Additional Resources:

Winslow v. Deck, Aug. 2, 2017, Fla. 4th DCA

More Blog Entries:

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