Florida Estate Planning Legal Questions

It depends on the language of the will. If the will does not name a beneficiary in the event the testator's daughter fails to survivor the testator, then you would look to the residual clause of the will. If there is no residual clause, then typically your daughter's estate would inherit. If your daughter did not have a will, then you would want to review Section 732.103 of the Florida Statutes. It would serve your interests to have an attorney review the will and advise you accordingly. All the best.... Read More

No, you do not have to do anything with property that is already in your name; you usually open a probate action to transfer property per the will or intestacy laws that is held in the decedent's name. Also, please be aware that the power of attorney expires upon the death of the principal.... Read More

Typically, if probate is required, creditors would learn of the death from a notice to creditors that has to be published in probate; some creditors get notified by the Clerk of the pending probate action. However, if the personal representative waits until two years from the decedent's death before probating the estate, then the creditors would be barred.... Read More

You can revoke the power of attorney by executing a revocation of the power of attorney and delivering it to your agent and other third parties that may have relied on it; you may also want to record the revocation. Another way to revoke the current power of attorney is by executing a new power of attorney and include language in the new instrument how it revokes all prior instruments. Section 709.2110 of the Florida Statutes addresses revocations. All the best.... Read More

I assume that there was no prior probate of her estate. If there was, then,you should have the estate re-opened. Otherwise, if you paid for any of your mom's last medical bills or funeral expense, you can usually go to the clerk of court Broward county with the reciepts and ask them to help you file for a disposition of personal property without administration. See FS Sec 735.310 If you didn't pay for any of these expenses, you'd probably have to file for a Summary Administration. ... Read More

As a life partner, you have no right to any of his property. However regardless of your relationship, you're owner of 1/2 of property that you bought together UNLESS it's property with express ownership, then the title or contract controls ownership (motor vehicles, bank accounts, etc. have express ownership). So if you bought a $5,000 living room suite together, you have the ownership of 1/2 of the items. This is referred to as "tenants in common". He used to own the other 1/2 now it's owned by his estate. The first problem is whether you or his mother, can prove who bought it. Obviously, if it's on your credit card statement it appears that you own it completely but if he wrote you a check the next day for 1/2 the purchase price, then that's evidence that it was bought together. Lay persons often say "Possession is nine-tenths of the law." That's not strictly true but lawyers say, "The possessor's claim is valid against everyone except the actual owner."The effect is that if you have possession, then the assumption is that you own it 100% until his mother can prove that her son owned it or it was jointly owned. With no receipt, that is a daunting prospect. There is often evidence that can be considered, did you have it insured? Did he have it insured? Is there written evidence which addresses ownership? For example, a letter or note? She can say that her son owned it, but you can say you owned it, so that won't settle anything. But insurance and belief that someone owned it only go so far, for example, if you now have a $10,000 Rolex, it was stolen from an unknown person and your partner paid $2,000 for it in a shady transaction. In that case, the true owner is unknown, so even if his mother can prove her son bought it, he wasn't the true owner, so she can't take it from you. My advise is change the locks and don't let them in to take anything. If the demand things, ask them to write a list that specifically identifies the items that they want (this has the advantage of 1. letting you know what they want and 2. anything they don't put on this is de facto yours, if they come back later and ask for other items, it looks like they're lying). Once you know what they are asking for, you can decide which things you're willing to give them (do you really want his old clothes, etc.?), which that you want things you can prove are yours and which things that you want but have no evidence for. Then tell them that you believe you own all the things you want and ask them why they think that he owned them. If the answer is "that clock is a family heirloom that grandfather built in 1932 and we've got pictures showing it in his house from the 1950s" then give up that item. Otherwise, tell them that they can see you in court.... Read More

Whether the authority provided to you by the power of attorney is sufficient to establish a foundation, or other wise make gifts, can only be determined through a review and evaluation of the power of attorney document, and depending on the language in the document, whether it was executed in accordance with the Florida Durable Power of Attorney statute. Generally speaking, a power of attorney does not include the authority to make gifts on behalf of the principal, unless that specific power is included in the power of attorney, and if the power of attorney was signed after October 1, 2011, the principal must have initialed the margin next to the paragraph that identifies that power. You should immediately seek counsel from an an attorney experienced in estate planning, elder law, guardianship and/or charitable planning. You can learn more about the authority provided by a durable power of attorney at our website:  www.thecolemanlawfirm.net\Powers_of_Attorney.php If the transfers are authorized by the power of attorney, the assets used to fund the charitable foundation will no longer be included in your friend's estate, and there will be no probate of those assets.  Any assets that remain in your friend's name will go through probate. I hope this helps. C. Randolph Coleman... Read More

Pursuant to the Florida Probate Code, personal representatives are entitled to compensation at the rate of 3% for the first $1 million. See Section 733.617 of the Florida Statutes. Florida Probate Code also contains an order of priority for paying Estate debts and specifically Section 733.707 of the Florida Statutes lists an order in which estate creditors get paid. You should really consult with a probate attorney on the specifics of your case. Good luck!... Read More

In Florida, wills must be probated. The will provides direction for how your assets are to be distributed at death.  The will is submitted to the probate court. The probate judge issues "letters of administration" to the personal representative. A will allows you to direct where your assets are to be distributed. With no will, the probate court must distribute assets according to the intestacy statute. Probate is avoided with beneficiary designations, owning property jointly with right of survivorship, or with payable on death designations.  Such assets pass automatically to the beneficiary, the joint owner, or the payable on death designee, by operation of law upon the death of the owner. You can also avoid probate through the use of a revocable living trust. A revocable living trust is established by a person while alive, and essentially all assets are retitled to the trust and beneficiary designations are made to the trust for life insurance policies and even retirement plans, if the trust has the proper language.  Through the use of the revocable living trust an individual can avoid probate, ensure that assets will go to the people who are desired to receive the assets, avoid issues with incapacity causing a loss of control over the assets, and avoid the issues that often arise when the owner of the account lives longer than the person designated as a beneficiary, as well as issues involving the designated beneficiary being incapacitated and unable to manage assets, or if the beneficiary has exposure to creditors when the asset is transferred.  Similar problems arise with joint ownership and payable on death designations. Discuss your options with an estate planning attorney before you rely on a will prepared online. An online will may seem cheaper, but often results in problems, and will often fail.  The following link is a Florida Supreme Court case decided this year where Justice Barbara Parente commented: "While I appreciate that there are many individuals in this state who might have difficulty affording a lawyer, this case does remind me of the old adage “penny-wise and pound-foolish.” Obviously, the cost of drafting a will through the use of a pre-printed form is likely substantially lower than the cost of hiring a knowledgeable lawyer. However, as illustrated by this case, the ultimate cost of utilizing such a form to draft one’s will has the potential to far surpass the cost of hiring a lawyer at the outset. In a case such as this, which involved a substantial sum of money, the time, effort, and expense of extensive litigation undertaken in order to prove a testator’s true intent after the testator’s death can necessitate the expenditure of much more substantial amounts in attorney’s fees than was avoided during the testator’s life by the use of a pre-printed form." http://www.floridasupremecourt.org/decisions/2014/sc11-2147.pdf  ... Read More

The custodian must deposit the will within 10 days after receiving information that the testator is dead with the Clerk of the Court where the testator died (in this case the Clerk of Palm Beach County). If the custodian fails to do so, an interested person may file a petition to compel the custodian to produce and deposit the will. A probate attorney should be able to determine if probate is necessary after an in-depth evaluation of all the pertinent factors. There are a lot of different variables to consider when determining whether probate is necessary, and if so, which proceeding must be commenced. Good luck!... Read More

If your father was not survived by a spouse, then you would be the legal heirs who would be entitled to those shares. It would be prudent to consult with a probate attorney for further guidance after an in-depth evaluation of all the pertinent factors. You may also want to contact the company directly. All the best.... Read More

Your ability to claim the burial plots as an heir, will depend in some way in they were titled, as well as many other factors. If you do not have the financial resources to hire an attorney for probate, try your local legal aid office. If they do not have an attorney experienced in probate, your case may be referred to an private attorney willing help you pro bono. You really need to reveal more of the facts in your situation, before a qualified answer can be given.... Read More

Technically the lender required both borrowers to be owners if the property at the time the loan was approved and there is typically a clause in the mortgage that says that if the property is transferred to someone other than the borrowers, then the mortgage is due in full. Moreover, the second borrower is still on the hook for the loan, even if you transfer ownership completely to yourself. From a practical point, the lender typically will not default the loan upon transfer as long as it remains current.... Read More

You need to pursue a petition to determine homestead status of real property (if the property was your parents' homestead). The Order determining homestead status would then transfer title to the house to you. It would serve your interests to consult with a probate attorney in your area to ensure that the conveyance is done right.... Read More

If your mother was entitled to a share of your grandmothers estate, and your mother is deceased then you and your siblings would be entitled to divide that share. You could request a copy of that will or if an estate has been filed you could get a copy from the court where filed. However the will might say that your mother has to survive for her to be entitled to a share.... Read More

You should have an attorney review the deed to determine ownership as there may be variables as to ownership. It would appear if both of you were the only persons on the deed and neither are remarried and there are no minor children and this is not homestead, then it may be your property. Again, you need to have the deed reviewed and an attorney consulted to make a better determination.... Read More