Florida Probate Legal Questions

Although no one can tell for sure without seeing the document, from your description, it does appear that you were both left a specific bequest and named beneficiary of a trust.  Many states require that the trustee provide an annual accounting to beneficiaries 25 or older.  But if the trust is created by the Will, no one can tell how much the trust will hold until probate is completed:  until your grandmother's assets are collected, her debts paid (including filing her most recent income tax return and paying any property taxes) and the remainder distributed according to her Will.  While there is substantial variation, the average time required for this is two years.... Read More

The distributions of assets in a probate estate in Florida, if the designated beneficiary dies prior to the death of the will maker, depends on the type of interest the deceased beneficiary was given through the will.  If the distribution to the deceased beneficiary was "per stirpes," then the distribution will be to the childrend of the deceased beneficiary in equal shares for each of the descendants, or their heirs.   If the distribution to the deceased beneficiary was dependent on the deceased beneficiary surviving the decedent who signed the will, then the deceased beneficiary's interest will lapse, and the assets that are the subject of that distribution will be distributed as otherwise provided in the will.  If the will does not otherwise provide for the distribution of assets when the beneficiary dies, then most probably the distribution will be to the legal heirs of the person who created the will.  In Florida, the legal heirs are determined by the intestacy statute, which is Chapter 732, Florida Statutes. There may be other factors that might change the distribution of the assets.  For instance, if the will contains a "power of appointment" to one or more people, those persons appointed may have the power to cause the assets to be distributed to other persons not even named in the will. All of the distribution discussion above, is subject to the fact that creditors have a priority claim against the assets of the estate.  Also, the costs of the funeral and burial expenses should be borne by the probate estate, and the costs of administration (i.e., personal representative (executor) fees, attorney's fees, tax return preparer fees, and other fees associated with the administration of the estate). You should consult with an experienced probate attorney to determine the specific interests of the varioust beneficiaries, creditors, and administrators of the particular estate involved to get precise answers to your question. Good luck!... Read More

If it was your mother's homestead property, then you will have to pursue a homestead determination action as part of a summary administration. If this was not your mother's homestead property, then a formal administration would have to be commenced. You should truly consult with a probate attorney so that all the pertinent facts can be addressed and a course of action determined. All the best.... Read More

Pursuant to Section 732.502(2) of the Florida Statutes, "[a]ny will, other than a holographic or nuncupative will, executed by a nonresident of Florida, either before or after this law takes effect, is valid as a will in this state if valid under the laws of the state or country where the will was executed." However, I still suggest that you have a Florida estate planning attorney review it to make sure it properly addresses your current estate planning goals. All the best.... Read More

Generally, an out of state will is valid in Florida provided it met all the execution requirements for a valid will in N.Y.S. So if it was valid in N.Y.S., it will be valid in Florida, with two exceptions. Pursuant to Section 732.502(2) of the Florida Statutes, a holographic will (one that is handwritten without witnesses) and a nuncupative will (a verbal/oral will) are not recognized in Florida and are considered invalid wills. At the same time, "[a] will in the testator’s handwriting that has been executed [with all the requisite formalities is] not ... considered a holographic will." However, even if your N.Y.S. will would be recognized in Florida, it would still be best to have a Florida estate planning attorney review that will and determine if a new will should still be prepared in light of the Florida's specific inheritance laws regarding the spouse's elective share and the descent of the homestead, among others. Good luck.... Read More

It is best to name all of your children, identify them as your children and then include language how you recognize you have other children whom you have not forgotten but have chosen to disinherit for certain reasons and that you are leaving everything to just one child. It is best to have an attorney draft your last will to ensure that everything is done right. All the best.... Read More

Based on what you wish to accomplish, it is not a living will but a last will that you would want to have prepared. However, you should be aware that there are other estate planning tools in addition to a last will that can be employed to pass property to your children. It would truly serve your interests to consult with an estate planning attorney to explore all your options. All the best.... Read More

Based on the facts you offer, it sounds like he may have.  I first would research in the Registry of Deeds to see if title of the property was transferered after your grandfather's death.  If not, it is still owned by his estate.  A Florida real estate attorney could advise you how to transfer title.  Florida's law of intestacy determines how probate assets are distributed when someone dies without a Will. You also may find that your grandfather and uncle were joint owners of the property, or that the property is owned by a trust.  Florida also has a homestead law that limits how property can be inherited in some cases; again, a Florida attorney could help with this. ... Read More

If the mortgage is in your husband's name only and encumbers land that he owned only in his name, you are not personally liable for the mortgage.  His estate is liable, and the mortgagee could put a lien on the land and eventually force its sale if the mortgage is not paid. It sounds like he gave you a life estate, which usually means you have the right to live on the property for your lifetime but must pay its expenses.  If you do not want to do this, you can disclaim the life estate, which should be done in writing.  Given that a mortgagee is involved, I would provide them with the written disclaimer.  You may want to have an attorney draft this for you, or ask the mortgagee if they have a form and then have an attorney review it for you.  ... Read More

I am not sure what you mean by "broken".  You can revoke your own Will at any time.  Once you have passed away, your Will must be administered as it is written unless its provisions are found to be illegal or invalid by a court.  Someone entitled to estate assets can challenge the legality or validity of a Will.... Read More

Yes, this is a court form by which a named executor can renounce their right to the position and nominate someone else.  All others with a greater or equal right to be named also would need to renounce their rights and nominate you, or a hearing would be held and the court would determine who should be appointed. ... Read More

I'm so sorry for your loss.  The answer to your question depends on what assets they owned.  To answer this question, you should look at their important papers at home, their mail, and their tax returns.  In general, the law of intestacy applies when someone dies without a Will.  Intestacy provides for estate assets to go to the parents of a deceased person unless the deceased person had children, in which case assets go to the children.  Some assets are distributed by a court-appointed personal representative, so someone needs to apply to probate court for his appointment.  There is an exemption is the deceased person's assets are not worth more than a certain amount (I believe it is $20,000 in Florida) in which case you can use a "small estate affidavit" to transfer title of assets to whomever is entitled to them under the intestacy law.  These forms are available online and probably from the probate court.  Appointment as a personal representative or a small estate affidavit also will gain you access to the safe deposit box, if any, where important papers may be stored and the ability to talk to financial entities about their accounts so that you can figure out what they owned and how they owned it.  Other assets like life insurance, retirement funds, and pay-on-death accounts, are not part of the probate process - you would need to contact the entities holding those assets direclty and provide them with a death certificate.  They then will send claim forms to the named beneficiary and pay that person directly.  If your son and his wife died at roughly the same time, Florida's simultaneous death statute will apply and will divide their probate and jointly owned assets between their estates so that his estate (and so his heirs) will get half as will hers.   I hope the process goes well for you.   ... Read More

Hi - I am not a Florida attorney but I found a citation to a Florida law, FS 732.901, that states that a Will must be filed within 10 days of the date of death.  I'm not sure whether this is correct as it seems onerous to me, but I would suggest that you write to the attorney (and so have proof of the request) and request that the Will be filed by a certain date.  If it is not, you can petition the probate court for formal probate.  A hearing will be scheduled and thus should prompt the attorney to file the Will and your father's significant other to appear.  If he or she does not, you can seek to be appointed personal representative of the estate.  You also could request that the court order your father's significant other or the attorney to file the Will.  Even if the significant other is named in the Will to serve as personal representative, you could argue that her or his failure to file the Will is evidence that he or she will not be a fit personal representative and you should be appointed instead.  However, I would counsel you to seek cooperation before resorting to filing in court.  If you do file in court, an attorney would be helpful. ... Read More

Yes, there is a time limit for contesting a Will.  In most states, it is three years.  Contesting a Will means that you are challenging the validity of a Will, and that's probably not what you want to do.  But estates generally have this time limit so that there is some finality rather than people having to give back inheritances years after receiving them.  It would be worth checking to see whether your father's estate was distributed.  If his Will was probated, the information is public and available at the probate court for the county where he lived at the time of his death.  There also may be a trust, which is not probated, so it would be worth finding out whether that is the case.  Trusts are private so can be difficult to get access to, but a probate attorney may be able to assist you in that regard or you can try contacting your father's heirs, if you know them.  Good luck. ... Read More

Hi - I'm sorry for your loss.  You have rights as a beneficiary of your father's estate.  You are entitled to notice of any probate filings in connection with your father's estate, an inventory of estate assets, an accounting once all assets have been distributed, and the prompt and fair administration of your father's estate according to his Will.  Your brother is responsible to safeguard assets, make sure any of your father's creditors are paid, and otherwise distirbuting your father's assets in accordance with this Will.   Your father died only a few weeks ago and these things can take some time. You probably have talked to your brother, but I would suggest that as a first step.  Everyone processes grief differently and he may be taking these actions on his own as a way of dealing with his father's death.  He may even feel that he is protecting his siblings by taking it on himself.  It is my experience that providing full information is best, but he might not be thinking that way.  It is usually better for fmaily relationships to settle things among yourselves rather than resorting to court.   That said, you can use the probate court to enforce your rights as a beneficiary.  You can petition the court to supervise your brother's actions, or require him to do something in particular such as sell your father's car rather than driving it himself.  You can even have him removed as executor if he is not acting in the interests of the beneficiaries.  If you think you will have to involve the court, I would advise making requests for information and certain actions to your brother in writing so that you have evidence of your efforts and your brother's response or lack of response.   Good luck!  ... Read More

Signing a waiver of accounting means that you have released the personal representative from her or his legal responsibility to provide you with an accounting of the estate.  If you do not sign the waiver, the personal representative is required by Florida probate law to provide all beneficiaries with a full accounting.  You then would have 30 days to object, in writing, to this accounting.  In sum, you have a right to receive an accounting.  If you do not trust the personal representative, it may not make sense to waive this right.  Waivers are used most commonly when beneficiaries have all of the information they need already and want to save the time and expense of preparing an accounting.  Good luck!... Read More