Basic Methods to Avoid Probate in Florida: Enhanced Life Estate or “Lady Bird” Deeds

A common question presented to our office during Estate planning consultations is how to avoid probate in Florida.  Complicated and high value estates may benefit from the creation of a Trust and the management of assets into a trust to avoid the costs and expenses of a probate administration.

Often the only asset or major asset subject to probate will be a home.  A very simple and cost-effective method to avoid the costs associated with a Florida probate proceeding related to a property is accomplished through the implementation of an Enhanced Life Estate Deed or “Lady Bird” Deed.   The deed is executed by the current owner of the property and provides that the owner will retain the ability to use the property and continue to have unrestricted ownership and upon the death of the owner it will pass automatically to the designated person called the remainder. (more…)

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How to Force the Sale of Real Estate in Florida

Often because of an inheritance or a change in circumstances, two unmarried people end up jointly owning real estate.  This can create all sorts of problems for issues like rental income, responsibility for expenses (mortgage, taxes, property insurance etc…).  If you own a property in Florida with someone and you are not getting the fair value of rental income, paying too much for expenses or simply need to liquidate the property a Partition Action may be appropriate for you. 

Florida Statutes 64.011-64.091 codify the right of Partition, which is a division of property among co-owners.  It is an equitable action aimed at restoring the interest of parties to property to arrive at a fair and equitable result.   (more…)

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What Happens When You Get Divorced and Fail to Update Your Last Will and Testament or Estate Planning Documents in Florida

In a Florida Probate proceeding one of the principal guiding aspects of the law is to give meaning and intent to the desires or wishes of the decedent.  Therefore the case law interpreting will provisions in Florida is construed to favor the intent of the decedent where possible.  One challenge that occurs is when a testator (person writing will) fails to update their estate planning documents to account for a divorce.   Florida Stat. 732.507 of the Florida Probate code provides some guidance:

732.507 Effect of subsequent marriage, birth, adoption, or dissolution of marriage.—

(1) Neither subsequent marriage, birth, nor adoption of descendants shall revoke the prior will of any person, but the pretermitted child or spouse shall inherit as set forth in ss. 732.301 and 732.302, regardless of the prior will.

(2) Any provision of a will executed by a married person that affects the spouse of that person shall become void upon the divorce of that person or upon the dissolution or annulment of the marriage. After the dissolution, divorce, or annulment, the will shall be administered and construed as if the former spouse had died at the time of the dissolution, divorce, or annulment of the marriage, unless the will or the dissolution or divorce judgment expressly provides otherwise.

The failure to update your estate plan after divorce will thus automatically create a scenario where the named spouse is artificially treated as though he or she has predeceased the decedent.  This may or may not completely alter the intended distribution scheme in the Last Will and Testament so understanding how your documents will be construed or simply drafting a codicil to clearly specify your intent is crucial and can save your family the expense of unnecessary probate litigation. (more…)

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