Florida Probate Legal Questions

The length of time that a beneficiary may file a challenge for a trust depends on the nature of the challenge, i.e., whether the challenge is to the accounting, or whether it is to an issue relating to the validity, enforceability, or interpretation of the trust document. Florida Statutes, Section 736.1008, provides the limitations periods for proceedings by a beneficiary against the trustee of the trust.  For issues related to accountings, Section 736.1008(2) provides that "a beneficiary is barred from bringing an action against a trustee for breach of trust with respect to a matter that was adequately disclosed in a trust disclosure document unless a proceeding to assert the claim is commenced within 6 months after receipt from the trustee of the trust disclosure document or a limitation notice that applies to that disclosure document. If there is a challenge to a trustee's actions and the trustee has not issued a final accounting for the trust, or provided the trust beneficiaries with access to the trust records for examination, and the claim is based on a matter that was not adequately disclosed by the Trustee, then the limitations periods provided by Florida Statutes, Chapter 95 will control the period of time within which the claim must be brought.  Generally speaking, those limitations periods will be either 4 years or 5 years from the occurrence of the claim, depending on the nature of the claim.... Read More

When you need to revise or replace your estate planning documents, the most appropriate course of action is to consult with an experienced estate planning attorney.  Estate planning is a complex area of the law and depending on your family's circumstances, easy and cheap at the beginning could result in expensive and difficult at the end. An experienced estate planning attorney may be critical to your planning if you have a blended family, special needs family members, young family member(less than 18 years of age), if you have a taxable estate (effective January 1, 2013 that will be an estate in excess of $1 million), or if there are family members who may not agree on how things should be done. With respect to a durable power of attorney, there are a number of issues involved with the powers that are to be conferred upon the person you name as your agent, or attorney in fact.  Florida has a new durable power of attorney statute that must be properly followed so the power of attorney will be valid.  A power of attorney that does not comply with the new power of attorney statute will be void and of no value to you or your loved ones when it is needed. If you have a home and other assets, you may want to consider the use of a revocable living trust.  A properly drafted and funded revocable living trust can allow you to avoid probate.  The cost and ease of administering a revocable living trust after the death of the trustmaker can be significant compared to the cost and difficulty of probate. I encourage you to seek the counsel of an experienced estate planning attorney.... Read More

Your father should seek  the advice of an experienced litigation attorney as soon as possible.  As a beneficiary of your grandmother's estate, he is entitled to full disclosure of all financial activities in the probate estate.  There are statutes of limitations that could affect his rights as a beneficiary.  The sooner your father consults with counsel the more likely he is to be able to preserve his interest in whatever assets remain in the estate, or to recover any assets that were not properly distributed to him.... Read More

When you have concerns about the conduct of the personal representative of an estate, and you are a beneficiary of the estate, you have the right to obtain access to all documents, the estate inventory, and a full accounting.  You should retain an experienced probate litigation attorney to represent your interest based on the information you have provided in your question.  ... Read More

You need to hire an attorney who practices in the field of probate in the county where the property is located. He or she can assist you with opening an Ancillary Administration. Depending on the facts of the case you may be able to do a short form of probate. If the property is located in Volusia County, feel free to contact my office at (386) 736-1223. Astrid de Parry, P.A. 107 E. Church St. DeLand, FL 32724... Read More

It depends. I suggest you contacted the attorney who represents the Personal Representative of the estate. He or she will be able to give you a time frame for distribution. The Personal Representative is entitled to take a fee for administering the estate. The Personal Representative, and the attorney representing the Personal Representative are paid first.... Read More

In Florida, the assets of a deceased person will be distributed in one of four ways, depending on how title was held to the specific assets involved. If assets (bank accounts, marketable securities, personal property, real property) are owned by the deceased person and another person or persons, with the right of survivorship, then immediately at the death of the deceased person the asset legally transfers to the surviving owner(s) by operation of law. If an asset has a beneficiary designation (such a life insurance, or retirement plans) or has a payable on death designation (such as bank accounts or certificates of deposit), the asset will be paid directly to the beneficiary who is designated. If an asset is owned by a trust, it is distributed to the beneficiaries named in the trust document. If an asset is owned individually by the person who died, the asset will be distributed to the beneficiaries named in the will, if there is a will, and if there is no will the asset will be distributed as provided by the Florida intestacy statute.  In either case, it will be necessary to open a probate estate in the Florida probate courts to administer the probate. If there is no will, the Florida intestacy statute provides the manner in which the assets of the probate estate are to be distributed.  You can review the Florida intestacy statute at this site:  http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0732/0732PartIContentsIndex.html&StatuteYear=2012&Title=%2D%3E2012%2D%3EChapter%20732%2D%3EPart%20I If a probate is required, you or your sister will need to hire a Florida probate lawyer to assist you with the probate.  If there is a will, the will designates who should be appointed as the personal representative.  If there is no will, the probate judge will appoint someone as personal representative based on the priority set forth in the probate statutes.... Read More

To challenge a will you must have a valid reason supported by evidence. You can challenge a will for the following reasons: 1) lack of proper formalities or execution, 2) lack of capacity and 3) undue influence. Proper execution of a will requires that the will be signed by the testator and witnessed and signed by two witnesses. Pursuant to Florida law, a testator is required to understand the nature of his or her assets, and to whom the assets are going to be distributed.  Undue influence occurs when the testator is pressured into executing a will.... Read More

Florida statutes require that the last will and testament of a deceased person be filed with the court within 10 days of the death.  If the will has already been filed with the court, you can obtain a copy of it from the probate clerk of the court. If the will has not been filed with the court, you can request that your uncle immediately file it so that he is in compliance with the statutory requirements. The following description is of the typical probate administration process according to Florida probate law and the Florida Rules of Probate Procedure.  There are many exceptions to the following process depending on the different facts and circumstances of each individual probate estate. When the petition for probate administration has been filed with the probate court, your uncle will be obligated to provide you notice that the petition for administration has been filed, and should provide you with a copy of the will at that time.  Obviously, the will should provide you with the information about your share of the estate, or the specific gifts that the deceased person made to you. Your uncle will have approximately 60 days after filing the petition for probate administration within which to file an inventory of the estate, showing all of the assets that belonged to the deceased person. Creditors of the deceased person will have approximately 90 days from the filing of the petition for probate administration within which to file any claims against the deceased person's estate.  Any claims that are filed by creditors must be dealt with by the personal representative before a complete distribution of the estate's assets can occur. After all of the creditors' claims, if any, are dealt with, either by paying the claims or objecting to the claims, the personal representative will distribute the assets of the estate to the appropriate beneficiaries. After all of the assets of the estate have been distributed the personal representative will be required to provide each beneficiary a full accounting of all of the assets that were a part of the probate estate.  The beneficiaries will be given an opportunity to object to any parts of the accounting with which they disagree or have questions.  Alternatively, if all of the beneficiaries are satisfied with the distributions they have received they can waive their right to the accounting to save the estate the cost of having the accounting prepared.  ... Read More

Usually a will will identify all those that are takers under the will.  When discussing children, it will say something to the effect of "all those born unto me", and then allow for any inheritance to be split among those takers.  If the will only mentions one child and doesn't have language to include other children not yet born when the will was made, those children may be out of luck.  However, any will can be challenged.... Read More

If you have questions regarding probate pleadings, you should have an attorney who practices in the field of probate review the pleadings. If you sign the Waiver, you will waive your right to notice of the proceedings and a hearing. Often, Waivers are used to expedite the probate process. The Last Will and Testament of a decedent is required to be deposited with the Clerk of the COurt within 10 days after the decedent's passing. Therefore, if the proceedings are testate, meaning the decedent had a Will; the Will should be on file with the Clerk. Additionally, a copy of the Will is typically sent to beneficiaries with the Petition for Administration or Summary Administration. Astrid de Parry, P.A.... Read More

No. The state cannot take the home if your mother marks on her nursing home application that she has an intent to return home. Additionally, your mother could execute an Enhanced Life Estate Deed to protect her home from a Medicaid lien. An attorney who practices in the field of estate planning or elder law could assist you with determining whether or not an Enhanced Life Estate Deed is necessary.... Read More