No Contest Clauses are Unenforceable in Florida
Sometimes testators include no contest clauses in their estate planning documents, thinking that these will help ensure their wishes will be honored after their death. No contest clauses, or “in terrorem clauses”, basically serve as a deterrent to a beneficiary of a will or trust, who might otherwise seek to challenge the terms of the […]
Annual Guardianship Accountings
One requirement in serving as a guardian for a ward, particularly a guardian of the property, is the annual filing of an accounting. Annual guardianship accountings are required pursuant to Fla. Stat. 744.3678 and Fla. Prob. R. 5.695. The Rules also set forth the requirements for the contents of the guardianship accounting and provide a […]
What to do about Retrieving Digital Assets – Particularly Apple iCloud Stored Information
One often wonders what happens with our social media accounts and digital information, such as photos, after death. Photographs used to be kept in physical photo albums, but now they are kept on our phones, posted on social media, and/or stored in “the cloud.” Our social media accounts are used to keep track of milestones, […]
The Last Phases of a Probate Administration: The Petition for Discharge and Final Accounting
After the personal representative has discharged their fiduciary duties in the probate administration, including locating the estate’s assets, noticing the creditors, providing an inventory, paying any creditors or debts of the decedent, and selling or distributing the assets to the beneficiaries, it is then time to proceed the last part of the probate process, which […]
Potential Problems with Siblings as Trustees
When parents create trusts, they often consider appointing one or more of their children as trustees. On the surface, it may seem like the best way to protect their legacy is to keep trust management within the family. However, this plan may backfire due to practicality or family dynamics. Appointing two or more siblings as […]
Why Filing a Caveat in a Florida Probate Court is Important
While you may not want to commence a probate proceeding yourself, you still may have concerns about someone else getting the jump on you by secretly probating a will that is invalid. In those instances, you would want to file a “caveat,” as authorized by Fla. Stat. §731.110 and Fla. Prob. R. 5.260. Assuming you […]
New Statutory Requirements for an Attorney Serving as Personal Representative or Trustee
The new changes to Fla. Stat. 733.617 of Florida’s Probate Code and Fla. Stat. 736.0708 of Florida’s Trust Code now require a written statement by the testator of a will or settlor of a trust, acknowledging that the attorney made certain disclosures to them before the will or trust was signed. These changes became effective […]
Reimbursement for Estate Related Expenses: Negedly v. Smith, 286 So. 3d 341 (Fla. 5th DCA 2019)
After the proper presentation of claims against a decedent’s estate, it is then a personal representative’s duty to pay valid claims to the extent of the funds and assets of the estate which he or she has in his or her hands, subject, of course, to the decedent’s debts. It is a personal representative’s obligation […]
Florida’s Homestead Waiver
Florida Statute 732.7025, effective July 1, 2018, set forth language to include in a deed for a spouse to waive his or her Florida homestead rights: Section 732.7025(1) provides the following language: “By executing or joining this deed, I intend to waive homestead rights that would otherwise prevent my spouse from devising the homestead property […]
Contracts to Make a Will
A will must be the result of a person’s free will. It must be signed voluntarily and not under threat or duress, or it could be deemed invalid, which issue is often the bread and butter of a typical probate litigator’s case work. However, a person may execute a contract during their lifetime to include […]