Rules of Procedure Update:

On September 2, 2010 the Supreme Court of Florida provided amendments to the Florida Probate Rules to include that the Inventory for an estate does not need to be served on the Department of Revenue and does not need to be served on non-residuary beneficiaries. However, a non-residuary beneficiary can request a copy of the Inventory. Rule 5.340 of the Florida Probate Rules. What is the significance of the change? First off, a non-residuary beneficiary (one who receives a specific item or money from a specific fund in the estate but not a share of what is left over in the estate) now will not be informed as a matter of course about all of the assets in the estate. Without knowledge regarding the value of assets in the estate that beneficiary cannot make decisions about his or her inheritance until it is actually received (or possibly even thereafter until the estate is closed if the beneficiary receives the inheritance prior to the closing of the estate). There may be creditors of the estate for which the personal representative of the estate could have to expend all of the residue of the estate and then require the specifically gifted item(s) from the non-residuary beneficiary to pay the remainder of the debt owed. If the beneficiary does not know of the estate's liquidity to pay all the debts, the beneficiary may make significant expenditures with the expectation of receiving a significant inheritance only to discover that the residuary of the estate was not sufficient to pay the creditors of the estate so the beneficiary has to surrender the inheritance to the creditor. Also, a beneficiary who does not receive the Inventory may have an expectation of receiving a certain percentage of the estate and may be duped into believing that his share is extensive when actually the beneficiary may have been disinherited significantly. If the disinheritance was from undue influence or while the deceased was incapacitated, the beneficiary may have lost an opportunity to challenge a will and get a greater share from the estate. The aforementioned revision to the Florida Probate Rules should make it even more apparent to beneficiaries that they should be represented in estate matters to get the knowledge that they need to make proper decisions and to assure their inheritance.

Legislative Update:


Imagine this scenario. A father is elderly and in dementia. A short-term girlfriend of the father's arranges a quickie marriage and has the father's attorney prepare a new will and trust granting most of the decision making authority to the bride. The children lose most of their father's business and property that for decades had been promised to them.  The legislature has attempted to give some recourse to children  from this scenario by enacting Florida Statutes section 732.805 to challenge and deny certain rights to a surviving spouse who arranges a marriage by fraud, duress, or undue influence. If you have lived in Florida for any length of time, you have probably heard of this scenario playing out. Engage a lawyer to fight for justice.

Caselaw Update:


Will you be able to find the witness to your last will and testament 5, 10, 15, or 20 years after you sign your will? This case is a stark reminder to safeguard the original of your last will and testament in a safe deposit box or with your attorney in a fire-proof file cabinet. A lost or destroyed will is presumed destroyed with the intention to revoke the will (frustrating the intention of the deceased if the deceased did not intend to revoke the will). This court case determined that a written affidavit (a document signed under oath in front of a notary) of a witness to the signing of the will along with a copy of the will is not sufficient to get the lost will admitted to probate (the process to determine how the property of the deceased is paid to the heirs and creditors of the deceased). The court determined that there must be live testimony by a disinterested witness. Will any of the witnesses still be living in the local area where the deceased lived allowing for their testimony?  Brennan v. Estate of Brennan (5th DCA Florida 2010)

LEGISLATIVE UPDATE:

The surviving spouse may take the homestead as tenants in common rather than as a life estate if decedent tries to disinherit the surviving spouse in his or her will or trust. (This can amount to a huge boon to the step-children of the deceased person if the surviving spouse is elderly or also this can harm the surviving spouse if children of the deceased person pursue court process to force the sale of the home.)

Section 7. Section 732.401, Florida Statutes, is amended to read:

732.401 Descent of homestead.—

(1) If not devised as authorized permitted by law and the Florida

constitution, the homestead shall descend in the same manner as other

intestate property; but if the decedent is survived by a spouse and one or

more descendants, the surviving spouse shall take a life estate in the

homestead, with a vested remainder to the descendants in being at the time

of the decedent’s death per stirpes.

(2) In lieu of a life estate under subsection (1), the surviving spouse may

elect to take an undivided one-half interest in the homestead as a tenant in

common, with the remaining undivided one-half interest vesting in the

decedent’s descendants in being at the time of the decedent’s death, per

stirpes.

(a) The right of election may be exercised:

1. By the surviving spouse; or

2. With the approval of a court having jurisdiction of the real property, by

an attorney in fact or guardian of the property of the surviving spouse. Before

approving the election, the court shall determine that the election is in the

best interests of the surviving spouse during the spouse’s probable lifetime.

(b) The election must be made within 6 months after the decedent’s death

and during the surviving spouse’s lifetime. The time for making the election

may not be extended except as provided in paragraph (c).

(c) A petition by an attorney in fact or guardian of the property for

approval to make the election tolls the time for making the election until 6

months after the decedent’s death or 30 days after the rendition of an order

authorizing the election, whichever occurs last.

(d) Once made, the election is irrevocable.

(e) The election shall be made by filing a notice of election containing the

legal description of the homestead property for recording in the official record

books of the county or counties where the homestead property is located. The

notice must be in substantially the following form: