Florida Probate Basics: Should You Object to a Petition for Administration?

What is a Petition for Administration

In a Florida probate proceeding if you have not initiated the case, you may be surprised to receive, typically via US certified mail return receipt requested, a document called a Petition for Administration.  Florida law requires that this document be served in a manner with delivery tracking or in any other method of service acceptable under the Florida Rules of Civil Procedure (ie a process server).

The Petition for Administration is meant to set forth the basic information regarding the decedent, including his or her residence, date of death and basic family structure (if no will) or intestacy structure if there is a will.  This document starts a probate proceeding.  The document will also identify the venue (ie the county) where the proceeding shall take place.   Importantly it will also contain the Petitioner’s (the person executing the document) best guess as to the assets in the estate.  If the assets end up being less or more than initially anticipated in the Petition, the probate administration simply adjusts to encompass these changes through a later filing called an inventory.  The Petition will also identify either the beneficiaries in the estate (if there is a will) or the heirs entitled to a share in the probate assets by virtue of the family structure and rules of intestate succession.  Finally and importantly, this document is typically filed by a Petitioner seeking to become the Personal Representative of the Estate.  (more…)

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Tools to Prevent and Pursue Recovery for Elder Abuse in Florida

During the course of handling probate administrations, estate planning and contested adversarial probate cases throughout Florida, one dark and recurring theme has continued to arise.  Claims of exploitation and elderly abuse are rampant in our nation, and especially so in Florida.  The prominence of elder abuse in Florida may be in part due to the unique demographics of our state but sadly it is also in part caused by either indifference or willful ignorance of the problem.  This article is meant to provide a brief overview of the available tools in Florida to prevent elder exploitation and if you are unfortunate enough to be dealing with recovering from such abuse, a basic road map of some of your available remedies under current Florida law.

BE PROACTIVE TO PREVENT ELDER ABUSE IN FLORIDA (more…)

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How to Get the Most from Your Hurricane Irma Claim

Although Hurricane Irma was less damaging than first anticipated, it has caused major damage throughout the state.  Many families were left with property damage and no power.   Tree limbs, heavy wind driven rain and flooding have destroyed businesses and residential properties throughout the state.  Dealing with an insurance company after a loss can make a bad situation worse if you’re not adequately prepared.  Our office has handled and litigated hundreds of property insurance disputes, here is what we recommend: (more…)

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Establishing Paternity in Florida Probate Litigation Disputes

Florida Law has a mechanism for the establishment of paternity testing.  Fla. Stat. §742.12 provides a framework for the evidentiary use of paternity testing.  Importantly, Florida law requires a written sworn statement alleging the facts establishing the conflict or question regarding paternity.  Fla. Stat. 742.12 also provides the framework for the Court’s evidentiary analysis by specifically acknowledging that test results shall be filed with the Court and are admissible evidence and that certain statistical probabilities carry evidentiary presumptions.

In order to qualify to obtain DNA evidence from the relevant parties in a Probate Proceeding you must establish a discovery request under Fla. R. Civ. P. 1.360, “examination of persons.”  The rule provides as follows: (more…)

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Florida “As Is” Real Estate Contracts and the Duty to Disclose in Residential Home Sales

A recurring source of litigation in Florida revolves around the rights of buyers and sellers operating under an “As Is” contract for sale of residential property.

          A. The Seller’s Obligations to Disclose Under Florida Law

Despite the existence of contractual language excusing a seller of a property from representations (ie the “AS IS” language), Florida law provides a separate independent duty to disclose material facts that would substantially affect the value of a piece of property.  Johnson v. Davis, 480 So.2d 625 (Fla. 1985).   Importantly, the test for determining the materiality of a fact in a transaction of this nature is whether the fact “substantially affects the value of the property.”  Dorton v. Jensen, 676 So.2d 437 (Fla. 2nd DCA 1996). That means that when a seller of a home knows of facts materially affecting the value of the property which are not readily observable and are not known to the buyer, the seller is under a duty to disclose them to the buyer.  Johnson, 480 So. 2d at 629.   The examples of such factors are endless but often include things like prior insurance claims, roof conditions, floods, construction defects, mold, termites, and septic/sewer system issues.  Ultimately, the determination of whether the defect or issue if established is material would be question for the jury.  A non-disclosure case requires the Plaintiff to establish the following elements: (more…)

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What is an Examination Under Oath in Florida?

Most insurance policies provide that an insurance company maintains the right to take an “Examination Under Oath” or EUO of its insured(s) as a pre-condition to extending coverage. The Examinations Under Oath are handled by Insurance company attorneys and can serve as the basis for denying insurance claims if damaging testimony or documents are obtained.  Many times the Examination Under Oath will provide a request for a production of documents to occur simultaneously during the Examination Under Oath.  The Examination Under Oath typically takes several hours and can be very intensive.  These proceedings are very similar to depositions and are typically taken in the presence of a Court Reporter who will then maintain a written transcript of the proceeding for future use.    (more…)

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Objections to the Final Accounting of a Personal Representative in Florida

Pursuant to the Florida Rules of Probate Procedure an interested person has 30 days to object to a Final Accounting and Petition for Discharge within thirty (30) days after service of the documents.  Importantly, written objections must state with particularity the items to which the objections are directed and must state the specific grounds upon which the objections are based.  Finally, procedurally all objections must be served on the Personal Representative and interested persons no later than 30 days from the date of service of the Petition for Discharge or Final Accounting.   Then the objecting party must set a hearing on the objection and that Notice of Hearing must also be heard.  If you fail to serve the Notice of Hearing within 90 days, your objection will be deemed abandoned and the Personal Representative may make distributions. (more…)

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Basic Florida Will Construction

Obviously the words contained in a last will and testament have significant impact.   Countless books in law libraries are filled with cases centered on determining the intent of the deceased or through the application of specific language in a Will.  In Florida, we generally recognize several different categories of testamentary gifts: (1) pecuniary (2) specific (3) demonstrative (4) general or (5) residuary.  (more…)

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Dealing with Landlords and Rental Property in a Florida Probate

40521412 - lease agreement with pen document is mockupIn Florida, if a loved one has passed away while residing in a rental property, the heirs of the estate and surviving family members may be frustrated to learn that Florida Law does not provide a mechanism for easy access to the rental unit to retrieve the deceased’s personal belongings.  Unless the person attempting to gain access to the property is listed on the lease, the landlord is prohibited by Florida law from providing access.

The Florida Landlord Tenant Act sets forth the relationship or rights between a landlord and tenant, and it contains a provision especially important for this scenario.  Florida Statute 83.59 provides: (more…)

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