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

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

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

Legally, this is referred to as intestate property. In Florida, we has a statutorily established intestate succession procedure, as outlined in Chapter 732 of Florida Statutes. It’s basically a default guideline for how ones property can lawfully be distributed when someone either dies without a will or whose will has been deemed improperly devised. An individual’s right to the estate and in what proportion is specified based on his or her relationship to the decedent, as well as those of other claimant. It’s important to point out that Florida intestacy could be either partial or whole, depending on whether a person’s will is non-existent/ invalid OR whether only some portions were generated/ validated.

There are a lot of scenarios outlined in an effort to make the process as streamlined as possible. However, if you are a claimant in an intestate property case, it’s wise to have a Fort Lauderdale probate attorney who can help you navigate it with more ease and ensure you receive your fair share. Florida probate litigation laws are lengthy and complex and/ or subjective in several areas, so it’s best to have someone advocating for you in proving your claim is best aligned with your loved one’s wishes.

In the case of Aretha Franklin, the New York Times reported documents filed in a probate court noted her four sons had listed themselves as interested parties, with one indicating Franklin had died intestate. The four nominated one of Franklin’s nieces to be the personal representative of her estate. In Michigan, where these records were filed, the assets of an unmarried person who dies absent a will should be divided equally among all decedent’s children. Although Franklin was twice married, she’d been divorced the last time for many years.

It’s well known that high-profile probate litigation can drag on for many years, often leading to bitter infighting. This is especially true when dealing with something as complicated and potentially difficult to value as music rights. (This is the exact scenario we saw when Prince died two years ago without a will, spawning several familial disputes and the revocation of a music deal worth many millions of dollars.)

Our probate attorneys in Broward County know that while intestate succession is unfortunately fairly common among those who aren’t famous singers, it’s a little puzzling to imagine why people who do have such large estates with potentially conflicting heir agendas haven’t had one generated. It’s been reported that Franklin routinely demanded cash before live performances and kept hear earnings in a bag near her as she sang on stage.

The reality is everyone – regardless of pay grade or fame – should have a will. It will save your family a great deal of time, expense and often heartache, as well as the lingering haunted feeling they may carry of never knowing whether the end result was one you truly would have wanted. Those who wish to keep their finances private can sidestep the probate process entirely by creating a revocable trust for their estate.

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

Additional Resources:

Aretha Franklin Died Without a Will, and Estate Issues Loom, Aug. 22, 2018, By Ben Sisario, The New York Times

More Blog Entries:

When Siblings Fight Over a Parent’s Will in Florida, Aug. 30, 2018, Fort Lauderdale Probate Attorney Blog

What Drives a Florida Will Contest?

While there are those who may feel unjustly entitled, another catalyst setting the stage for significant fights over inheritance is the fact that many adult children and grandchildren have not been able to save sufficiently for their own retirement. Some may have been living under the assumption that an inheritance will fund their retirement, while others, thanks to stagnant wages and student loan debt, have simply not been able to scrounge enough together to live beyond paycheck-to-paycheck. Also contributing is the fact that those who were raised between the 1960s and 1990s are increasingly having to take on caretaking responsibilities of dependent parents, which can also sap their financial resources.

Elder adults may wish to help ward off some of these conflicts by having frank discussions with their children and grandchildren about what is available and the plans for distribution. Exact dollar amounts and an itemized breakdown aren’t necessary, but it’s important to make your wishes clear.more

For example, if you intend to leave a fair amount to charities or individuals other than your children, those are details that should be made known ahead of time, so there is less chance of dispute after your passing. We get that such conversations aren’t especially comfortable (some even consider them improper or impolite, and heirs may be hesitant to bring it up for fear of sounding callous). But the more that can be laid out clearly while one is of sound mind and body, the lower the chances that one’s estate will end up the subject of probate litigation.

Such discussions should include encompass their health, finances and estate planning. The reality is that by the time these discussions become relevant, it’s often too late because the elderly adult is suffering from a major illness, incapacity or even death.

What Happens if You Contest a Will in Florida?

First it’s important to point out that no one can contest a will before the death of the testator (person who wrote it), per F.S. 732.518.

There are tight deadlines for contesting a will. Florida statute gives a claimant just 90 days to weigh their options, gather the proper supporting documentation, hire an attorney and file a formal lawsuit contesting the will. If a Formal Notice of Administration was received before the will was entered into probate, that timeline gets shortened to just 20 days.

Grounds on which a will may be successfully contested in Florida include:

• Was the will properly executed? This is a technical challenge, but it can be easier/ cheaper than challenging on merit. To be properly executed, the person making the will must be of sound mind and at least 18-years-old. The document itself must conform to F.S. 732.502, which requires it to be in writing, signed by the testator (or at his/ her direction) in the presence of two witnesses in the presence of each other and the testator.
• Lack of capacity. The Florida Supreme Court has held that generally this means one understands the nature/ extent of his property, the relationship of the heirs who would receive it and the practical effect of a will. This could apply to someone whose will was created while he/she suffered from dementia or Alzheimer’s disease, but it could also be one who was under the influence of strong medication.
• Undue influence. This alleges the testator’s mind was controlled by such pressure/ outside influences that the will was not created voluntarily.

If you are considering whether to contest a will, it’s important to contact an experienced Fort Lauderdale probate litigation attorney as soon as possible, given the deadlines and possible complexity of your case.

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

Additional Resources:

The Shocking Reason Why Siblings Squabble Over Inheritance And How To Prevent It, Nov. 14, 2016, By Kerri Zane, Forbes

More Blog Entries:

Family Conflicts Are Top Threat to Your Inheritance, Estate Planning Key, May 14, 2018, Fort Lauderdale Probate Litigation Attorney Blog

As noted by the Florida Bar, any adult can petition the court to decide the incapacity of another person, establishing their case with factual information. As the case proceeds, the court will appoint a three-member committee (typically two doctors and some other expert, depending on the nature of the case). There is usually some type of examination of physical health and mental health as well as an assessment of one’s ability to function. The person alleged to be incapacitated will have an attorney appointed to represent them during these proceedings (though they are free to hire their own, if they choose). After analysis, the panel will submit their own report of findings to the court.

If two of three panel members conclude the individual isn’t incapacitated at all, the judge has to dismiss the petition. However, if the majority finds the person can’t exercise certain rights on their own, the court will schedule another hearing to determine whether the individual is partially or totally incapacitated. At the end of those proceedings, a guardian will be appointed at another hearing, unless there is some other alternative that is less restrictive.

The guardianship process has come under fire in recent years due to allegations that some have been abused and exploited under the system. For instance, last year The New Yorker published an investigation detailing one extreme example. It involved a Nevada couple who came under the control of a public guardian – who was also a guardian for hundreds of other wards over the course of a dozen years. She allegedly built relationships with medical providers and hospitals who referred patients to her, found physicians willing to declare elderly patients incompetent and families often didn’t learn until it was too late that their loved one was under her guardianship and control. She was later removed from the couple’s case after it was discovered she sold their belongings and charged their estates hundreds of dollars an hour. This particular couple ended up losing their home and freedom as they were moved to numerous assisted living facilities and heavily medicated. It wasn’t until the couple’s daughter reached out to media that the guardian was removed, eventually indicted for perjury and theft.

As our Fort Lauderdale guardianship attorneys can explain, there are legitimate reasons why family members should examine whether to seek a guardianship role of a loved one. These can include:

• Lack of access/ ability to manage finances;
• Refusal to receive appropriate care;
• Need for creation or amendment of trusts;
• Vulnerability to financial exploitation.

It can be difficult to identify whether someone with nefarious intent has set their sights on financially exploiting your loved one, but establishing power of attorney may help avoid this (it may even eliminate the need for a guardianship in some cases). One may seek to remove a guardianship by providing a court with prove of undue influence.

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

Additional Resources:

How the Elderly Lose Their Rights, Oct. 9, 2017, By Rachel Aviv, The New Yorker

More Blog Entries:

South Florida Attorney Battling Siblings in Fight Over Father’s Estate, May 25, 2018, Fort Lauderdale Guardianship Lawyer

Proving undue influence is not a simple matter or low bar. One has to prove that the victim’s mind was “so controlled or affected by persuasion or pressure, artful or fraudulent contrivances or by the insidious influences of persons in close confidential relations” that he or she isn’t knowingly or voluntarily acting of their own accord, but instead carrying out the will of someone else. This was outlined in the precedential 1925 Florida Supreme Court case of Peacock v. Dubois.

In most cases, it is the plaintiff asserting undue influence who typically has the burden of poof. Prior to 1971, the burden of proof in these cases was reached with enough evidence to raise the undue influence presumption, at which point the proof burden shifted to the defendant, who then had to prove it didn’t occur. Then there was the key Florida Supreme Court case of Carpenter v. Carpenter, justices ruled that even the establishment of an undue influence presumption didn’t shift the proof burden to the defendant, at least as it pertained to will contests. About a decade later, the court decided the same rule in cases alleging inter vivos transfers.more

In 2002, legislators approved F.S. 733.107, which further clarifies the burden of proof in contesting wills and undue influence presumption.

Despite this guidance, our probate lawyers in Fort Lauderdale recognize that case of undue influence are rarely cut-and-dried. If you believe that your loved one’s will has some peculiarities or deviates from what you were told or led to believe about it, it’s usually worth meeting with a probate litigation attorney to determine whether contesting the will is worth your while.

The Carpenter case outlined seven signs (not all-encompassing, depending on the case) that tended to indicate undue influence. Those were to assess whether the person accused of undue influence was:

• Present when the decedent made their will or trust;
• Present at times when decedent talked about creating their will or trust;
• The one who recommended a lawyer to handle decedent’s estate work;
• The one who knew the contents of the will or trust before it was completed;
• The one who instructed the attorney on how to complete the trust or will;
• The one who found witnesses to the will;
• In physical possession of the will after it was executed.

These can make a strong case for undue influence when contesting a Florida will, but other factors may prove just as if not more important. For example, there have been later will contest cases in Florida that didn’t focus much on the Carpenter factors at all, but still managed to prove undue influence on things like isolation of the decedent prior to death.

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

Additional Resources:

In Re Estate of Carpenter, 1971, Florida Supreme Court

More Blog Entries:

Family Conflicts Are Top Threat to Your Inheritance, Estate Planning Key, May 14, 2018, Fort Lauderdale Probate Attorney Blog

A recent poll by TD Wealth revealed 44 percent of attorneys, accountants and trust officers in Florida indicated family conflicts were the biggest snag when it comes to estate planning. Part of the problem is people have unrealistic expectations. While most expect to inherit more than $100,000, Ameriprise Financial reports most people receive less than that. Almost 7 in 10 of those expecting an inheritence were never told how much they should expect, which led to substantial confusion and conflict.

Another issue is people increasingly have multiple ex-spouses, one or both my have children from prior unions and one spouse may be much younger than the other. These are fact patterns we know have the potential to lead to trouble. Such is the case in probate litigation conflict in Indiana that the state supreme court in Indiana has just agreed to consider. In Gittings v. Deal, an adult woman claims she was removed from her father’s estate by her stepmother, and subsequently her stepbrother raked in more than $3 million in profits on property she claims they should have shared.

Here, the father/ decedent established trusts in 1985, along with his wife (plaintiff’s stepmother), indicating that when they died, a third of each estate would go to plaintiff, her stepbrother and then to any children they had.

The father died 10 years later, and plaintiff says her stepmother eliminated her as a beneficiary and trustee and didn’t tell her. Plaintiff talked to a lawyer and agreed to sign amendments transferring the properties in question to her stepmother’s trust. However, her lawyer was never given a copy of that trust showing plaintiff was removed as a beneficiary. When the stepmother died two years after her father, a second change to her trust left the remainder of what was left only to her son and his children. When plaintiff learned she and her son had been eliminated as beneficiaries, her stepbrother told her there was nothing left of the inheritance after medical bills, nursing home expenses and funeral costs. She believed him. But it wasn’t true. What she didn’t know was her stepbrother deeded several properties from that trust to himself. Within 13 years, he’d raked in more than $3 million in gas and oil royalties, lease payments and rental payments.

Plaintiff was in the dark about all of this until 2011, when an attorney contacted her to tell her.

Plaintiff filed a counterclaim, asserting breach of mutual estate plan/ implied trust, self-dealing, conversion and breach of fiduciary duty. However, the trial court ruled in favor of plaintiff and appellate court affirmed. The primary issue was that the statute of limitations had already passed, despite an additional finding that the conduct underlying her claims was improper and perhaps illegal. The court of appeals noted its reservations, but it felt it had no choice but to rule in stepson’s favor.

It remains to be seen whether that ruling will be upheld, now that the Indiana Supreme Court has granted transfer.

As our Fort Lauderdale probate litigation attorneys know, typically the best way for your relatives to avoid probate is to be meticulous with your estate planning efforts. It’s also important to communicate your plans to family members so there are no surprises upon death, and beneficiaries can understand the how and the why and everyone’s on the same page.

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

Additional Resources:

Say hello to the No. 1 threat to your $11 million inheritance, April 11, 21018, By Darla Mercado, CNBC

More Blog Entries:

Does Florida Probate Court Require Families to Pay Decedent’s Debts? March 28, 2018, Fort Lauderdale Estate Planning Attorney Blog

In general, no person is responsible for the debts of another while the debtor is alive – or dead. There are exceptions to this, though. For instance, spouses are often held accountable for each other’s medical debts in life. Relatives who co-sign or are also listed on loans may be responsible – that goes for student loans, car payments, mortgages, credit cards, etc. In death, a debtor’s outstanding obligations typically become the responsibility of “the estate.” The estate consists of all property, savings and debts. The process is much easier if there is a living trust in place, but if not, probate is the process of sorting through how those debts will be paid off and how property will be transferred to living beneficiaries.

To protect their inheritance, family members may need to start dealing with debts before probate has officially opened. That means keeping current on those administrative bills (i.e., mortgage, HOA fees, property taxes, utility bills, storage fees, etc.) until the probate estate is opened, and sometimes until the estate closes. Then there are the “final bills,” which can include income taxes, cell phones bills, credit card bills and retirement accounts. Beneficiaries of an estate probably should not pay out these final bills until the personal estate representative/ executor has settled the estate. A probate litigation attorney can help you sort through the details and determine the best way to protect your inheritance while still ensuring the estate meets its obligations.more

In situations where beneficiaries pay some or all of decedent’s bills prior tot he opening of the estate, the personal representative can later reimburse them – unless the beneficiary assumes mortgage payments on a property that beneficiary will inherit or refinance (as allowable under the Garn-St. Germain Depository Institutions Act of 1982).

For the most part, though, once a person’s estate is in probate, creditors will have a chance to file a claim against the estate. So assuming you never co-signed or guaranteed any of that debt (and assuming you aren’t married) chances are slim-to-none you will be responsible for it. That means if there isn’t enough money in the decedent’s estate to pay those outstanding debts, they will generally remain unpaid, and family members won’t be responsible for them.

A probate attorney can help individuals in mapping out their will and give testators and beneficiaries a strong sense of what the obligations will be and which assets will be remaining – prior to testator’s passing (assuming a major illness, long-term care requirement or other issue doesn’t eat into those savings or expand that debt).

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

Additional Resources:

Is My Family Responsible for My Debts? January 2013, By Lynnette Khalfani-Cox, AARP

More Blog Entries:

Florida Probate Litigation Alleging Elder Financial Exploitation Results in $34M Damage Award to Estate, Feb. 13, 2018, Fort Lauderdale Probate Litigation Attorney Blog

Because contesting a will in Florida can be successful under a number of circumstances, ensuring your wishes will be followed as you have outlined requires working closely with a probate lawyer in drafting these changes.

Recently, the passing of a popular South Florida sports broadcaster sparked a fierce – and sadly public – feud between his adult children and his wife/ mother of his two youngest children, both minors. According to The News-Press in Fort Myers, the broadcaster wrote his oldest son and daughters from his first marriage out of his will in June 2015 – the day after receiving a stem cell transplant from his oldest son. He died about 1.5 years later, though his oldest didn’t learn of the change in his will until this past December, when his stepmother asked them to sign formal documents promising not to contest the will.

His inheritance was instead left to his wife of 13 years. The older siblings say they do not plan to contest the will, but garnered headlines by publicly expressing their emotional sadness over the situation. Under Georgia law (where the will was written), heirs must be given the opportunity to contest a will if they are not beneficiaries. However, the siblings have been quoted as saying they resent having to hire attorneys to be involved in a legal drama in which they want no part.

In general, spouses and minor children cannot be disavowed or disinherited from one’s will. However, adult children and other relatives may have lesser grounds on which to contest.

As cruel as it might sound to disinherit a child, even an adult one, our probate litigation attorneys in Fort Lauderdale know there are circumstances under which it makes sense. In some cases, there is no relationship. In other instances, parents may feel certain children are more well-off than others and thus don’t have as much need for the money or assets. Often, though, the way it’s worded matters. Using emotional verbiage in the legal document could increase the chances an heir will contest the will. Omissions might not be a better bet, considering some judges may consider the omission an error and the court will generally shy away from keeping someone from getting assets it might seem the deceased would have wanted them to have.

In some cases, if your estate is large enough, it can be smart to leave token amounts to estranged relatives, just to abate the infighting and lessen the chances of them contesting the will.

Some of the grounds under which Florida probate laws allow a contested will include:

• Lack of capacity. The person contesting the will can assert the testator lacked mental capacity to make the will and/ or understand the nature of how the assets were being distributed. This is often established with a diagnosis of psychosis or dementia or through witness testimony of irrational conduct.
• Undue influence. This could be asserted if there is evidence someone (friend, relative, adviser, health care worker, etc.) improperly exerted pressure on the testator, compelling or coercing them to execute the will in a manner they otherwise might not have.
• Fraud. This occurs when changes to the will were based on misrepresentation. For instance, if an adult child lies to a parent about the actions of a sibling, causing the parent to disinherit that sibling, the will may be successfully contested.

Again, having an experienced probate lawyer help you draft your will can help avoid these potential problems from arising after your death.

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

Additional Resources:

Craig Sager Jr., 29, shares emotions over Craig Sager Sr. excluding him from will, Jan. 12, 2018, By David Dorsey, The News-Press

More Blog Entries:

“The Evil Stepmother”: A Stereotypical – But Common – Dynamic in Florida Probate Litigation, Trust and Estate Disputes, Feb. 25, 2018, Fort Lauderdale Probate Litigation Lawyer Blog

This is certainly not to say that stepmothers are “evil” in all or even most of these scenarios. What it does highlight is the fact that so many conflicts in matters of estate involve this dynamic and it’s indicative of the fact that an increasing number of families are blended and this inevitably can create long-simmering tension that can spill over into disputes over estate property, beneficiary rights to a trust or an inheritance.

The Pew Research Center reported just a couple years ago that in 1960, 73 percent of children were living in two-parent family households. By 2014, that figure dropped to 46 percent. The number of single-parent households rose from 9 percent to 26 percent during that time. Sixteen percent of children live in so-called “blended families,” with a stepparent, step-sibling or half-sibling. And of course, these figures reflect family structures in childhood; those single parents often go on to get married as the children get older or reach adulthood. There is also an increasing trend toward cohabitation among elderly paramours, which might further complicate matters legally.more

What further explains the stepmother-stepchildren conflicts in Florida probate litigation is the biological reality that women tend to outlive men. As noted recently in a report by The Scientific American, women outlive men in the U.S. by about 6.7 years (males have a life expectancy of 73.4 years while women have a life expectancy of 80.1 years). Women have a biological advantage, but there are also a number of environmental factors too (men tend to take more risks, avoid seeing doctors, have more dangerous jobs and tend to suffer higher rates of conditions like heart disease – and at a younger age). All of this means that widowed females are inevitably going to outnumber widowed males – as MarketWatch notes, from 11.2 million to 2.9 million. When these spouses have children from previous marriages and relationships, it seems obvious that more often than not (barring a same-sex relationship), the “surviving spouse” is going to be the female.

Escalating these points of contention is the fact that only a fraction of adult stepchildren say they feel close to their stepmothers, and many don’t grow much closer over time. There could be many reasons for this, but this estrangement or even general indifference toward an elderly parent’s spouse can create heightened conflict when that parent dies. This can sometimes be especially exacerbated when the stepparent was only married to decedent for a relatively short time before death. That doesn’t necessarily mean the updated wills or estate plans are invalid, but it can spark allegations of undue influence, particularly if decedent suffered from dementia. So too can evidence of favorable treatment of a stepmother’s own children over a decedent father’s biological children.

If you have a conflict over a loved one’s estate or need more information about estate planning, our probate litigation attorneys in Fort Lauderdale can help.

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

Additional Resources:

Why stepmothers are so often the villains at the heart of estate fights, Jan. 30, 2018, MarketWatch

More Blog Entries:

New Year, New Florida Estate Planning Considerations, Jan. 6, 2018, Fort Lauderdale Probate Litigation Attorney Blog