WAIVER OF SPOUSAL RIGHTS UNDER FLORIDA PROBATE LAW Florida probate law contains numerous protections for a surviving spouse. These interests include what is referred to as an Elective Share (a…
FLORIDA LAW: WHO TAKES CARE OF MY CHILDREN IF I DIE? Not surprisingly a common concern among our Clients is the care and wellbeing of their minor children in the…
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…)
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…)
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…)
Florida probate administration has statutory rules governing what should happen if there are simply not enough assets to pay all the distributions identified in an estate. These statutory rules are known as the rules of abatement. These statutory rules will control unless the Last Will and Testament admitted to probate Court in Florida has a specific set of rules for which property should be satisfied or liquidated to pay an expense of administration.
STEP 1 – IDENTIFY THE CLASS OF GIFTS IN YOUR LAST WILL AND TESTAMENT
Florida law recognizes different categories of gifts. They are as follows
a) Specific gift: As the name implies, this is a specific asset of the decedent devised to a beneficiary. These gifts can only be satisfied by giving the person the specific item of property. If the item does not exist at the time of the death of the decedent, that gift or devise fails, meaning that the provision is not enforceable and the beneficiary is not entitled to an item of equivalent value.
Example: To my daughter Angelina, I give my engraved hunting rifle
b) Demonstrative Gift: A bit of a hybrid of the previous two, a demonstrative gift is a gift payable out of a particular source, but if not available then out of the general assets of the estate.
Example: I give 200 shares of Z Corp to my daughter Angelina if she survives me. This is to be paid from my Z Corp shares which I have at death if it exists, otherwise my Personal Representative shall make provision for payment of the equivalent value of 200 shares of Z Corp from other assets in my estate then existing at my death.
c) General Gift: General gifts are payable from the general assets of the property and may be satisfied from a range of assets in the estate. Importantly, unlike a specific gift, if this item does not fail if it does not exist at the time of death.
Example: To my daughter Angelina, I give a 2016 Nissan Rogue, if I do not own such a vehicle at my death I direct my Personal Representative to purchase one and provide it to her.
d) Residuary Gifts: The term residue, or “rest, residue and remainder” of an estate is the catch all for the remaining assets after all specific assets have been distributed.
Example: “I give the rest, residue and remainder of my estate wherever situated whether it be personal or real property to my wife.” (more…)
A recurring problem in Florida real estate transactions is an invalid conveyance or sale because of the failure to understand Florida’s restrictions as to the sale of a homestead property as to a married couple. In Florida if your married the State of Florida, via its constitutional protections for its citizens imposes some restrictions on the sale of “homestead property” (ie your domicile) so as to advance the public policy interest of not leaving spouses or minor children without a home. Those protections are derived from Fla. Const. Art. X 4(c) which provides the following language:
SECTION 4. Homestead; exemptions.—
(a) There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on the realty, the following property owned by a natural person:
(1) a homestead, if located outside a municipality, to the extent of one hundred sixty acres of contiguous land and improvements thereon, which shall not be reduced without the owner’s consent by reason of subsequent inclusion in a municipality; or if located within a municipality, to the extent of one-half acre of contiguous land, upon which the exemption shall be limited to the residence of the owner or the owner’s family;
(2) personal property to the value of one thousand dollars.
(b) These exemptions shall inure to the surviving spouse or heirs of the owner.
(c) The homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner’s spouse if there be no minor child. The owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift and, if married, may by deed transfer the title to an estate by the entirety with the spouse. If the owner or spouse is incompetent, the method of alienation or encumbrance shall be as provided by law. (more…)
Many of our Clients have loved ones who have passed away in Florida but they themselves are residents of a foreign state. In this type of scenario, it is important to consider how to effectively probate an estate in Florida if you reside somewhere else.
A. If your Primary Proceedings will be in Florida:
If the deceased was a resident of Florida then primary probate proceedings should occur within the State of Florida:
Fla. Stat. 733.101 provides:
733.101 Venue of probate proceedings.—
(1) The venue for probate of wills and granting letters shall be:
(a) In the county in this state where the decedent was domiciled.
(b) If the decedent had no domicile in this state, then in any county where the decedent’s property is located.
(c) If the decedent had no domicile in this state and possessed no property in this state, then in the county where any debtor of the decedent resides.
(2) For the purpose of this section, a married woman whose husband is an alien or a nonresident of Florida may establish or designate a separate domicile in this state.
(3) Whenever a proceeding is filed laying venue in an improper county, the court may transfer the action in the same manner as provided in the Florida Rules of Civil Procedure. Any action taken by the court or the parties before the transfer is not affected by the improper venue.
So typically we will initiate the probate proceedings in the County in Florida the decedent was domiciled. If you are a non-resident and looking to become the appointed Personal Representative (aka the Executor) then you can be a nonresident subject to he restrictions of Fla. Stat. 733.304 which provide: (more…)
The creation of a Last Will and Testament is a tool to alter your estate plan from the default rules of succession. If you happen to pass away without having…
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…)