Common Questions About Florida Law
It is natural to have many questions and worries when faced with a legal issue or litigation. The experienced lawyers at DeLoach, Hofstra & Cavonis, P.A., ask many common legal questions and provide useful answers to help get you in making the best decisions for you and your family.
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How can I accurately estimate the value of my loved one’s belongings?
Probate can be incredibly stressful for estate executors, known in Florida as "personal representatives", whose responsibilities range from filing time-sensitive paperwork to inventorying the entirety of a decedent’s remaining possessions. However, settling disputes among heirs and ensuring that creditors receive outstanding debts could seem an especially arduous undertaking. If the deceased person left behind assets of uncertain value, executors may have to seek an appraisal to ensure that the estate is divided fairly and in accordance with Florida state law.
The Different Types of Property in Florida Probate
Personal representatives are typically responsible for the administration of the following types of property:
- Real property
- Tangible personal property (such as household items)
- Intangible personal property (such as bank accounts)
- Intellectual property
Certain types of property, such as real property and tangible personal property, may require appraisals. However, real properties are relatively simple to appraise, insofar as they are customarily appraised at their fair-market value at the time of the decedent’s death.
Tangible personal property, in contrast, may pose additional challenges for personal representatives, as its fair-market value or intrinsic properties may be difficult to gauge, especially when considering beneficiaries oft-divergent interests.
Tangible Personal Property in Probate
The Florida Probate Code offers no single definition of what could be considered tangible personal property. In estate law, tangible personal property, or TPP, refers to physical assets that exist in the real world and can be relocated.
The following types of assets could be considered tangible personal property:
- Motor vehicles, including cars, motorcycles, and motor homes
- Household appliances
- Jewelry and artwork
- Personal collections, such as coin collections, postage stamp collections, and model train collections
Under certain, limited circumstances, even a family pet could be considered tangible personal property during probate and estate administration.
How to Appraise Tangible Personal Property
Tangible personal property can usually be appraised using any one of the following three methods for assessing fair market value:
- The Market Approach. The market approach determines the value of assets based on comparable sale prices for the same type or class of assets. In general, the market approach uses readily-available data to assess how much an item of comparable age and condition would be worth on the open market.
- The Income Approach. If an asset generates a profit, then its fair market value could be assessed by calculating how much income the asset produces and could be reasonably expected to produce in the future.
- The Cost Approach. Some rare or irreplaceable items can be appraised using the cost method, which determines an asset’s fair market value based on how much it would cost to reproduce, replicate, or replace an item. The cost approach may be used to appraise assets that are no longer produced, manufactured, or in common use.
Most tangible personal property, such as motor vehicles, electronics, and furniture, can be appraised using the market approach. Oftentimes, executors only need to run a comprehensive set of internet searches to estimate an asset’s value.
However, comparably complex assets—such as a revenue-earning real property—may require a professional evaluation.
When You Might Require an Appraisal
Certain types of rare, collectible, or complex assets may not have any clear-cut or easily calculable market value.
In general, you may need an appraisal for the following categories of assets:
- Real properties
Any jewelry or artwork that has an appraised or probable value of $50,000 or more should be assessed by a qualified professional, as it may be subject to additional review by the Internal Revenue Service’s Art Advisory Panel.
Contact a Probate Attorney Today
Ensuring that estate assets are properly appraised and assigned a fair market value is critical to avoiding conflict between heirs, creditors, and other interested parties. DeLoach, Hofstra & Cavonis, P.A., has been helping Floridians navigate the complexities of probate since 1976. If you need assistance executing or administering a Sunshine State estate, please send us a message online or call us at 727-397-5571 to speak to a legal professional and schedule your initial consultation as soon as possible.
What happens if one or more beneficiaries of a will cannot be located?
Florida probate can be a tedious undertaking. However, probate—time-consuming as it may be—serves several critical purposes. When probate is initiated, the estate’s personal representative must account for the deceased person’s assets, notify creditors of the death, and inform beneficiaries of their rights in the estate. Ordinarily, the personal representative’s responsibilities, while taxing, are straightforward and fairly predictable. Unfortunately, complications may arise if the personal representative cannot locate the decedent’s heirs.
Florida’s Formal Notice Requirements
Probate is the multi-step process of formally settling a deceased person’s estate. For most families, probate involves the following formalities:
- The deceased person’s personal representative files a petition to initiate probate in the county where the decedent resided.
- The personal representative sends formal notice of the probate proceedings to the deceased person’s surviving spouse, named beneficiaries or heirs, and others as enumerated by Florida Statute.
- After sending notice, the personal representative must gather and inventory the decedent’s assets.
- Once assets have been marshalled, the personal representative may pay the estate’s creditors and disburse inheritances.
However, the relative linearity of probate may be complicated by the absence of named beneficiaries or heirs. Florida law explicitly requires that beneficiaries or heirs be served formal notice of probate through any of the following means:
- Sending a copy of the petition to the beneficiary’s last known address using a delivery service that requires a signature upon receipt.
- Sending a copy of the petition to the beneficiary’s attorney.
- Send a copy to the beneficiary’s guardian or caretaker, if the beneficiary is underage or incapacitated.
- Send a copy as otherwise provided by the rules of Formal Notice.
If the beneficiary cannot be located, or does not respond to the notice of probate, the personal representative and their attorney may be required to proactively search for the beneficiary.
Addressing the Absence of a Beneficiary
If the personal representative cannot locate a beneficiary, they may be able to serve notice of probate by publishing a notice in a local newspaper or other media outlet. However, before the personal representative may publish a notice in a newspaper, they must receive the court’s permission. Under most circumstances, the court will only grant permission if it has been provided an “affidavit of diligent inquiry.” The purpose of this affidavit is to ensure that the personal representative made a good-faith effort to locate the beneficiary.
If the beneficiary fails to respond to the notice, then the personal representative may be able to take the following actions:
- Petition the court to recognize the beneficiary as legally deceased, if there is reasonable cause to believe that the beneficiary has passed away.
- Petition the court to appoint a Guardian Ad Litem who can "stand in the shoes" of the beneficiary.
- Petition the court for a preliminary distribution of the remaining assets to other beneficiaries.
- Place the beneficiary's assets in a trust for a pre-determined period of time.
If the beneficiary’s assets are placed in a trust, the estate’s other beneficiaries may petition the court to release and redistribute the assets after the pre-determined period of time has elapsed.
In a worst-case scenario—such as when the decedent died intestate and has no locatable beneficiaries or heirs—the remaining assets may “escheat” to Florida, becoming property of the state. Unclaimed assets will be transferred to the control of the Florida Chief Financial Officer and placed in the State School Fund.
Should the funds remain unclaimed for a period of 10 or more years, they will escheat to the state and be used for public educational purposes.
Contact an Attorney Today
When a Floridian passes away, their estate plan forms the basis of their legacy. If you have been appointed as an estate executor and cannot locate a missing heir, DeLoach Hofstra & Cavonis, P.A., could assist you in protecting a loved one’s last wishes. Please send us a message online or call us at 727-397-5571 to schedule your initial consultation as soon as possible.
Can I challenge a trust if I was cut out of the family business?
Family businesses are often passed from one generation to the next. However, promising a profitable enterprise to loved ones is not without risk—a risk that owners often try to mitigate by transferring their business interest to a trust. While a trust-based succession could spare heirs the rigors of Florida probate, beneficiaries may find themselves at the mercy of an untrustworthy, incompetent, or otherwise negligent trustee.
Trust-Based Business Successions
An unfortunate percentage of family-owned businesses perish within a generation.
Since succession can complicate an enterprise’s day-to-day operations, forward-thinking entrepreneurs may create comprehensive estate plans to accommodate their financial interests. Trusts—legal vessels that can own, maintain, and redistribute a variety of tangible and intangible assets—are often used to facilitate the intergenerational transfer of wealth.
Business owners would generally be advised to establish a revocable living trust. Small business owners may elect to fund a revocable living trust, which allows its founder—the settlor—to retain control over the trust’s assets while they are still alive. Once the settlor passes away, their designated successor trustee will manage the trust on their behalf, delegate roles, and distribute inheritances.
Challenging the Conditions of a Trust
Anyone seeking to challenge the terms of a trust must be able to establish that they have the standing to file a trust contest. In legal parlance, “standing” refers to a petitioner’s capacity to file a lawsuit or other claim. Under Florida law, qualified trust beneficiaries typically have the requisite standing to contest a trust.
However, a beneficiary cannot challenge a trust simply because they believe they were unfairly deprived of an inheritance. A trust could be contested if an heir believes that:
- The trust is invalid. Florida laws require that trust documents be signed by the trustor and at least two impartial witnesses. If a trust was not properly executed, then its existence could be challenged. However, beneficiaries should exercise some caution when contesting the validity of a trust. If the court finds that the trust is not valid, then its assets could be redistributed in a manner that does not favor the heirs.
- The trustor was subject to undue influence. If the trustor was coerced or fraudulently induced to make certain estate planning decisions, then the trust—or elements thereof—could be found invalid by a Florida court.
- The trustor lacked the legal capacity to make estate planning decisions. Florida law requires that the trustor have the mental capacity to understand not only that they are forming a trust but how the formation of the trust will affect their assets and heirs.
Since trust contests are a form of probate litigation—or lawsuit—they should be considered with care and initiated only after consulting an experienced Florida probate litigation attorney.
Challenging the Decisions of a Trustee
The successor trustee appointed to manage the trust after the grantor’s death is considered a fiduciary. In other words, they have a moral and legal obligation to act in the trust’s best interest. If a trustee is negligent, self-serving, or otherwise incompetent, they could breach their “fiduciary duty” and be subject to removal.
A trust contest could remove a trustee if the trustee has breached their fiduciary duty by:
- Failing to properly manage the trust’s assets
- Failing to protect the trust’s interests
- Misusing the trust’s assets to better themselves or their loved ones
Trustees have other obligations that go beyond the administration of the trust—they must keep a detailed accounting of the trust’s expenses and actions and provide records to beneficiaries upon request.
When trustees fail to fulfill their duties, whether by creating a conflict of interest or depriving an heir of a deserved inheritance, they could be removed from their position by the court.
Contact an Experienced Probate Litigation Attorney Today
If you believe that the execution of an invalid trust or a trustee’s misconduct has deprived you of your right to inherit a Florida business, please send DeLoach Hofstra & Cavonis, PA, a message online or call us at 727-397-5571 to speak to an attorney and schedule your initial consultation as soon as possible.
What happens when a beneficiary dies during probate?
Probate administration is the rigorous and often time-consuming process of dissolving an estate. While probate can be emotionally exhausting, it is often a relatively straightforward affair. However, the disbursement of inheritances could be significantly disrupted if a named beneficiary or heir passes away before probate is complete.
What Happens When a Beneficiary Passes Away Before Receiving an Inheritance
If the heir to an estate passes away before receiving their inheritance, then the gifted assets will remain with the heir's own probate estate.
Under ordinary circumstances, a living testator could simply amend or re-write their will to reflect the beneficiary’s death. However, complications could arise if the testator is already deceased. But if the heirs survives the testator, even for a day, the heir's own inheritance now must be paid to the heir's probate estate for distribution under the terms thereof.
The Perils of Probate for Payable-on-Death Accounts (PODs)
Certain assets—such as bank accounts, investment retirement accounts, and 401(k)s—are typically excluded from probate if and when they include a so-called “beneficiary designation.” If an account has a beneficiary designation, the account’s assets are transferrable to the named heir upon the original account holder’s death.
Unfortunately, these otherwise non-probatable assets could be subject to probate administration if the beneficiary dies before probate administration is complete. In a worst-case scenario, this could lead to a favored heir losing their rights to an inheritance, with the court instead ordering that the assets be distributed in accordance with the state’s intestate succession law.
Contact an Attorney Today
An intestate succession could endanger the decedent’s legacy and deprive worthy heirs of their inheritance. If you, or a loved one, are struggling to make sense of Florida’s complicated probate proceedings, please send DeLoach, Hofstra & Cavonis, PA, a message online or call us at 727-777-6842 to schedule your initial consultation.
What if my loved one’s will included a testamentary trust?
A testamentary trust is trust created in someone's last will and testament. While many trusts are established during the grantor’s (creator's) lifetime, a testamentary trust goes into effect only upon death.
Understanding Florida Trusts
A trust is a special sort of fiduciary relationship, in which the grantor (i.e, trust creator) grants another party—known as the trustee—the right and duty to hold property for the benefit of a third party. Trusts can receive and retain ownership of almost any sort of asset, including but not limited to:
- Real property
- Motor vehicles
- Cash accounts
- Investment portfolios
In estate planning, trusts are often used to:
- Avoid probate. If a Florida resident passes away without a trust, their assets will usually be subject to probate, the time-consuming process whereby a court oversees the payment of the estate’s debts and the distribution of assets from the estate to heirs and beneficiaries.
- Exercise control over assets. Some trusts allow for the trustor to transfer assets into the trust’s possession while they are still alive, allowing them to retain partial or total control over the assets until they pass away.
- Protect privacy. Probate proceedings take place in court, which means they become part of the public record. Since most trust transactions take place behind closed doors, a trust can help protect heirs’ privacy.
However, unlike conventional living trusts, testamentary trusts are still subject to probate.
People often believe that wills and trusts are mutually exclusive. However, the testamentary trust provides something of a common ground between these two popular estate planning instruments.
Specifically, Florida law allows for living persons to sanction the creation of a trust in their last will and testament. If done correctly, the will allots certain assets to the trust’s care. Once the trustor passes away, the designated assets are transferred to the trust.
People sometimes create testamentary trusts because:
- Testamentary trusts seem simple. People may establish testamentary trusts because they seem simple. After all: the trust is established by the will, allowing the grantor to create a trust without drawing up separate documents.
- Testamentary trusts are controllable. Although conventional living trusts still allow the trustor to retain rights of access to any assets they transfer to the trust, they still necessitate a change in ownership. However, testamentary trusts allow the grantor to keep assets titled in their own name.
Why Testamentary Trusts Can Be Problematic
Since testamentary trusts are created by the provisions of a will, a probate is needed to admit the will to probate. In Florida, probate is the process that:
- Recognizes a will and establishes its validity
- Accounts for the entirety of the estate’s asset
- Pays the deceased person’s remaining debts
- Oversees the distribution of assets in accordance with the terms of the will, if any exists
Under most circumstances, probate is overseen by the court and carried out by a personal representative (or executor) named in the will. However, probate can present unexpected challenges—for the executor, and for heirs—if the deceased person sought to establish a testamentary trust. This is because the trust necessitates a second level of administration above and beyond probate.
If the grantor’s last will and testament was not recently revised, or was written without the assistance of an estate planning attorney, the personal representative may struggle to complete the transfer of assets into the trust’s care, especially if the deceased person did not clearly explain the conditions of the trust or nominate presumptive trustees.
When to Use Testamentary Trusts
We typically use testamentary trusts in more simple estate planning situations, such as where someone wants to leave assets to a minor beneficiary. Here, the trust would typically say "I give my assets to my child/children." If, however, this child is under a certain age (like 25), then his or her share is held by someone trustworthy until that child reaches an older age. This trust is known as a testamentary trust as it only comes about once the testator dies.
Contact an Attorney Today
If your loved one’s will includes a testamentary trust, DeLoach Hofstra & Cavonis P.A. could help you navigate the complexities of Florida probate to receive a hassle-free inheritance. Please send us a message online or call us at 727-777-6842 to schedule your consultation as soon as possible.
I received a notice of probate. Does that mean I'm getting an inheritance?
It’s possible that your probate notice signals inheritance, but it’s not a guarantee. Each state’s probate laws require certain parties to be notified when a person passes away. In Florida, the personal representative of a deceased person’s estate is required to issue an official Notice of Administration to all beneficiaries.
Who Must Be Sent a Notice of Administration in Florida?
Florida clearly distinguishes between heirs (surviving family members) and beneficiaries (those who stand to inherit). Of the two groups, only beneficiaries must be notified of probate proceedings. Not all heirs are entitled to a Notice of Administration—and those who are notified are not necessarily going to inherit anything.
A Notice of Administration generally needs to be issued to:
- The surviving spouse of the person who passed away
- Beneficiaries named in the deceased person’s will
- Beneficiaries of a person who died without a will
- Any interested party potentially entitled to property from the estate
Why Did I Get a Notice of Probate?
Personal representatives are not required to state the reason why each person is notified in the official Notice of Administration. As a result, you may not know precisely why you were notified of a loved one’s probate until the proceedings have begun. The four categories above encompass a wide range of circumstances, so it’s best to get your questions answered by a Florida probate attorney to see what the future holds.
For example, you should receive a Notice of Administration if you are:
- A named beneficiary. If your loved one died with a will, the representative must notify all people named as beneficiaries. This can include the deceased’s family, friends, acquaintances, charitable organizations, and anyone else to whom the deceased left property. The personal representative must make every attempt to contact named beneficiaries and heirs-at-law, including posting a notice in local newspapers.
- An heir-at-law. If a person dies without a will (intestate), the law outlines a specific order in which their close relatives inherit their property. If your loved one died intestate, their property would pass to their spouses, children, grandchildren, the deceased’s parents, and finally the decedent's siblings. If none of the heirs-at-law are still living, then other descendants may have a claim to the estate. We have the rules of intestacy on this page of our website.
- The trustee or beneficiary of a trust. If the person who passed away created a revocable living trust, those named successor trustees or beneficiaries of those funds should be notified of estate administration.
- The parent or guardian of a minor. If one of the deceased’s beneficiaries is under 18 years old, the minor’s natural parent, custodian, or appointed guardian must be given notice of probate. In addition, any person named as the deceased minor child’s new legal guardian must be notified. Learn more about Florida guardianships here.
- Legally within your rights to object to a provision of the will. An interested party is someone who has the legal standing to challenge the terms of a will and assert their rights to an inheritance. If you’re an interested party, you have the right to receive an inventory and accounting of the estate assets, a copy of the will or trust, and statements of payments to creditors.
- Disinherited by the will. If you have been intentionally disinherited, you should still be notified of administration so that you have a chance to object during probate proceedings. Notification is vital in these situations because of the time limit to challenge a will.
Let Our Probate Attorneys Explain Your Options
If you’ve been issued a Notice of Administration, you have a limited window of time to challenge the will's validity. For this reason, it’s a good idea to consult with a probate attorney at DeLoach, Hofstra & Cavonis, P.A. to understand your rights. Contact us today to set up a consultation and get answers to your questions, or read through our free book, Navigating the Florida Probate Process, to learn from our years of experience helping relatives through estate administration.
What are my rights as a beneficiary of a Florida trust?
There are several reasons why beneficiaries, heirs, and family members disagree with how a trust is administered. One of the most critical rights beneficiaries have is the ability to challenge the trustee’s actions in court proceedings or through estate litigation.
Beneficiary Rights Under the Florida Trust Code
In legal matters, there’s a difference between an heir and a beneficiary. An heir is a relative or next of kin who stands to inherit after a family member passes away without a will. A beneficiary is a named party in a legal document (such as a will or trust) who has a right to receive a deceased person’s property. There are several tiers of beneficiaries to a trust, the most senior being a qualified beneficiary.
Under the Florida Trust Code, beneficiaries of a trust have the right to expect certain actions and behaviors of the trustee, including:
- Proper administration of the trust according to the document instructions and Florida law. The trust document should clearly state the testator’s intentions and which state’s laws apply to the provisions. If there’s no mention of the governing location, courts may determine jurisdiction based on where the trust was created or where the testator lived at the time of its creation.
- Acting solely for the interests of the beneficiaries. The trustee must place the interests of the trust beneficiaries above all others, including their own.
- Performing all duties in good faith. Everything a trustee does in administering a trust should be done to the best of their ability and without self-dealing and conflicts of interest.
- Impartiality. Florida law requires trustees to treat all beneficiaries the same, showing no preference or applying different standards among beneficiaries.
- Protection and defense of the trust. Trustees should take steps to defend claims made against trust property or enforce claims of the trust, such as using trust funds to secure an asset for the trust or filing lawsuits against someone to defend the trust in court. It also includes dealing with former trustees and collecting trust property and records from prior trustees.
- Prudent use and investment of trust assets. There are strict rules for the holding, investing, and spending of trust assets. Trust property such as cash, stocks, bonds, and real estate, should be held and titled in the name of the trust. There must be no commingling of the trust property with the trustee’s own. Any expenses incurred by the trustee should be limited, reasonable, and documented. You also have a right to object to any professionals paid using trust money, such as brokers, accountants, realtors, or other third parties employed by the trust.
- Timely communication and distribution. Trustees should not hold distributions or inheritances for any longer or any reason than legally necessary. All trust distributions should be made as soon as outstanding issues are resolved. If a beneficiary makes a request regarding the trust, the trustee should respond with a decision and a clear reason for the decision in a reasonable period.
- Providing relevant information about the trust. Florida law requires trustees to keep qualified beneficiaries reasonably informed of the trust and its administration. This includes providing a complete copy of the trust document (including amendments) and an annual accounting showing all trust gains, losses, and distributions.
If You Suspect Mishandling of a Trust, We Can Help
A trustee is considered a trusted agent, or fiduciary, to the heirs. This title carries legal responsibilities and consequences, including being held personally liable for breach of duty. If your trustee has engaged in self-dealing or has conflicts of interest, these transactions could be voided, and your trustee may be removed.
At DeLoach, Hofstra & Cavonis, P.A., we have helped clients across Florida with various estate litigation matters. To learn more about your case, please call us at (727) 397-5571 or use our quick contact form so we can discuss all of your options under the law.
There was ambiguous wording in my relative’s will. How will the court decide what it means?
Language that may be interpreted in different ways by different people can cause confusion, but in a last will and testament, it can also lead to costly estate litigation. When a certain word, phrase, or provision of a will could be taken in two or more different ways, there’s a strict process for determining the creator’s intent.
How Courts Decide the Meaning of Ambiguities in a Will
Unlike contesting a will in Florida, there’s no need to declare the entire will invalid if there’s an ambiguity in the document. Instead, the probate court will make a ruling on the intended meaning based on the deceased’s other provisions and overall disposition.
The court will have to determine:
- Whether an ambiguity exists. A will is not necessarily ambiguous just because two opposing parties interpret the will differently. The court will have to examine the document to determine whether the language in the will could be interpreted multiple ways. If the court finds that the creator’s intent can be determined as a matter of law, it will rule that no ambiguity exists and no additional evidence will be admitted.
- What type of ambiguity exists. There are two kinds of ambiguities in these proceedings: patent and latent. A patent ambiguity is apparent on its face, or an easily identifiable error—for example, a will that leaves assets to the “grandchild” when there are multiple grandchildren. A latent ambiguity happens when the words of the will could be applied in multiple ways. For example, a will that leaves “all of mother’s possessions” to one heir, but leaves “mother’s engagement ring” to another heir.
- How to reconcile inconsistent provisions. Even if an error exists in a single clause, the court will assess the document as a whole to determine the creator’s true intent. If the court cannot make a determination, it may allow both parties to submit outside evidence (such as the deceased’s personal letters or diary) to resolve the matter.
If you believe there is a mistake in your relative’s will, the Florida estate litigation attorneys at DeLoach, Hofstra & Cavonis are standing by to explain your legal options. Simply fill out the quick contact form on this page to set up a consultation and get answers to your questions.
How can I prove undue influence in a will contest case?
Ill or elderly people are at high risk of being taken advantage of by scammers, petty thieves, or even those closest to them. Sometimes, an individual may manipulate a senior into changing their will, rerouting assets to the individual instead of the senior's proper heirs. When this happens, relatives may contest the will in probate court after a senior's death in order to have the will ruled invalid.
What Is Undue Influence?
Physical or mental incapacity can make a loved one extremely susceptible to elder exploitation. If someone unethically pressures a senior into changing their will for personal gain, the will can be contested based on undue influence.
In general, a successful undue influence case proves that:
- The will left property in an unexpected way. This usually means that close family members have been cut out of the will to the benefit of another party. As you may imagine, it can be difficult to prove what your loved one’s wishes are after their death. Correspondence from your loved one referring to certain items (such as “when you have my engagement ring,” or “I want that house to stay in the family”) or similar testimony can help prove true intent.
- The influencer had a confidential relationship with your loved one. Anyone who has close contact with a senior could build a bond of trust to exert influence, such as a former spouse, distant relative, or a caretaker. Testimony from doctors, lawyers, relatives, and others can be helpful in demonstrating the nature of the relationship between the influencer and the deceased.
- Your loved one was in a vulnerable position. In many cases, a loved one may be suffering from dementia or other condition that impairs their mental capacity. An influencer may further alienate a victim by preventing other family members from visiting or lying to nursing home staff.
- The influencer improperly benefited from the will. Not all influences qualify as improper influences. An attorney may suggest certain changes to a will for the benefit of the heirs, and a spouse might push a dying loved one to alter an out-of-date will. The court will have to decide whether the influence caused an unfair distribution of assets.
If you suspect your departed relative was pressured to change their will, Florida estate litigation attorneys at DeLoach, Hofstra & Cavonis can explain your legal options. Simply fill out the quick contact form on this page to set up a consultation and get answers to your questions.
What is will reformation?
Florida law sets strict rules about who may contest a Last Will and Testament, as well as the reasons a Will can be legally challenged in court. However, not all errors in a Will call for the revocation of the entire document. The Florida probate court may reform a portion of the Will to correct mistakes—even mistakes are not blatantly obvious.
When Can Florida Residents Reform a Will?
As of 2011, Florida law allows for modification of a Last Will and Testament to correct a mistake of fact or law in the written Will. If you suspect that there is an error in the probated Will, you will have to provide sufficient proof that the mistaken provision doesn't reflect the testator's intent.
Will reformations typically involve:
- Interested persons. Any "interested person" under the Florida probate code may petition the court to reform or modify a Last Will and Testament. These persons usually include spouses, beneficiaries, heirs, and creditors.
- Discovery. The court requires clear and convincing evidence that a written portion of the Will conflicts with the testator's original intent. Interestingly, the court may consider evidence in its decision that contradicts the apparent plain meaning of the Will. For example, imagine a grandmother's Will is deposited with the probate court and provides $1000 to each of her three children. However, a written draft of the will leaves each of her children $100,000. It may take physical evidence or witness testimony to determine which Will contains the mistake of law or fact.
- Tax concerns. The updated statute allows heirs to modify the terms of a Last Will and Testament to achieve tax objectives after a loved one's death. The court will only allow these modifications if evidence shows that modification does not contradict other terms of the Will.
If you have questions about the terms of your loved one's Will, the Florida estate litigation attorneys at DeLoach, Hofstra & Cavonis can explain your legal options. Simply fill out the quick contact form on this page to set up a consultation and get answers to your questions.
Do bank accounts go through probate in Florida?
The easiest way to tell if an asset must go through probate is whether it was held in your loved one's name only. Generally, any property under the sole ownership of someone who has passed away will have to go through probate, regardless of whether they had a will or died intestate. However, there are a few exceptions for bank accounts that could allow them to pass outside of probate.
How Bank Accounts Are Treated During Florida Probate
Probate is used to gather, record, and retitle assets owned by a deceased person so they can legally be passed on to new owners. Probate assets generally include assets that are in the decedent's own, individual name, and that account does not have a beneficiary designation. That said, the ownership documents of some properties—including bank accounts—allow another person to inherit directly if the principal owner dies without the necessity of probate.
Bank accounts that could avoid probate in Florida include:
- Accounts with a named beneficiary. When you open a bank account, you can add a payable on death (POD) designations to your bank account so that when you die, the asset is distributed to that beneficiary upon your death. This avoids probate.
- Shared accounts between spouses. Florida probate laws give married couples the "right of survivorship" on jointly-held assets, meaning any property held in both spouses' names will pass to the remaining spouse without probate.
- Joint accounts. A bank account can be opened that allows people to own it as "joint tenants with rights of survivorship." If one co-owner, the asset is owned by the survivor, all without probate.
- Accounts naming a trust as beneficiary. If the deceased person set up a trust during their lifetime, they may have named the trust as a beneficiary on bank accounts, retirement accounts, life insurance, or other assets. If done correctly, all assets poured into the trust would pass outside of probate and into the immediate control of the successor trustee. We generally prefer to have assets flow to a living trust under most circumstances.
Should All of My Accounts Have Joint Owners?
A good estate planning attorney can discuss account ownership, jointly held beneficiaries, and more, in order to make sure your assets go to the right place upon your death. We usually DO NOT want all assets jointly held with someone else unless very specific reasons exist. Avoiding probate is generally a good goal, but there are good ways and bad ways to avoid probate!
Let Us Guide You Through Estate Administration
At DeLoach, Hofstra & Cavonis, P.A., we know how complex probate can be and the complications that make the process longer and more costly. Our Florida probate attorneys have years of experience helping relatives through estate administration as quickly and efficiently as possible.
To learn more, contact us today to set up a consultation and get answers to your questions, or read through our free book, Navigating the Florida Probate Process.
What is fraud and duress, and how can I prove it in court?
There are only a handful of reasons a person may contest a relative's will under Florida law. One of them is inappropriate or illegal third-party involvement that causes a person (testator) to change the terms of their will in the third-party's favor. Depending on the circumstances, these actions are known as undue influence, fraud, or duress.
Requirements for Fraud and Duress in a Florida Will Contest
Although fraud, duress, and undue influence are often used interchangeably, there are subtle differences. Undue influence involves isolating the testator (either physically or emotionally) and using fear and intimidation to get them to change their will. On the other hand, a testator may be manipulated by:
- Fraud. Fraud involves intentional attempt(s) to deceive or mislead the testator, making them believe false statements that spur them to change their will. In this way, the testator is making the changes of their own free will, but doing so under false impression or incorrect information.
- Duress. Duress is the use of coercion or force to make a testator alter their will. In these cases, the third party often has physical control (or access) to the testator, and threatens physical harm to the testator or someone the testator loves. Under duress, the testator is aware of their actions, but is not making them of their own free will.
- Active procurement. Third parties may involve themselves in the testator's estate planning process to make sure certain changes are made. A third-party's attempts to facilitate the making or rewriting of a will is called active procurement, and could be evidence of undue influence. Common forms of active procurement include a third-party's presence when the testator expressed the desire to make a will, securing of the attorney who drafted the will, obtaining the witnesses to the will, giving instructions on the will's contents to the drafting attorney, knowledge of the contents of the will prior to signing, presence at the execution of the will, and keeping the will in their possession after its execution.
While a will that was made with a lack of testamentary capacity can be declared completely void, a will written with undue influence, fraud, or duress may only have certain portions declared void. For this reason, it's vital to speak with estate litigation attorneys who can piece together the evidence and fight for your inheritance in court.
Contact the attorneys at DeLoach, Hofstra & Cavonis today by filling out our quick contact form to get your questions answered.
Are there alternatives to contesting a Florida trust in court?
Trusts are a common way for people to pass on their property while saving their heirs time, money, and the need to go through probate. However, this doesn't mean that trusts are guaranteed to avoid the courtroom. The good news is that if an interested party has grounds for contesting the trust, there may be a way to resolve the problem without the need to file a lawsuit.
Alternatives to Filing a Lawsuit to Contest a Trust
One of the easiest ways to clear up confusion surrounding a trust is to request a thorough accounting from the trustee. Beneficiaries have the right to see the financial actions taken by a trustee on behalf of the trust and heirs. If the trustee refuses to provide an accounting, the court may compel the trustee to do so.
If the accounting provided doesn't account for all trust assets or contains objectionable transactions, beneficiaries can ask the court for a more detailed accounting. If the beneficiaries are not satisfied, they may enter trust litigation to remove the trustee.
If parties to the trust wish to question the terms or a trust, the actions of a trustee, or the validity of the trust itself, the matter can be resolved without litigation through:
- Settlement Agreement. Nearly any trust matter can be resolved through a binding, non-judicial settlement agreement. All parties work to find an equitable remedy for the problem, giving them more control over the result while preventing the loss of trust assets in litigation.
- Trust Modification. A trust dispute may only need clarification or modification of one or more terms of the trust. Trust modification is allowed only if the effects of the change are consistent with the settlor's purpose for the trust.
- Termination of Uneconomic Trusts. A trustee has the authority to terminate a trust with a total value under $50,000 that contains insufficient assets to justify the cost of administration. If the trustee doesn't terminate an uneconomic trust, the court has the power to modify or terminate the trust, as well as the power to remove and appoint trustees. Once the trust is terminated, the trustee must distribute the trust property in a manner consistent with the settlor's purpose for the trust.
- Trust Reformation. Any interested party may petition the court to reform the trust if certain terms don't conform to the settlor's overall intentions. This is typically done in cases of typos, unclear designations, or other errors that make the instructions significantly different from the settlor's intent. The interested party will need to provide clear and convincing evidence the terms of the trust were created by a mistake.
- Trustee Removal. Co-trustees or beneficiaries may request court removal of a trustee, or the court may remove a trustee on its own initiative. A trustee may be removed for several reasons, including breach of trust, breach of fiduciary duty, or failure to effectively administer the trust. As long as the removal is in the best interests of all beneficiaries, is consistent with the purpose of the trust, and is followed by the appointment of a suitable successor trustee, interested parties don't need extensive proof of malfeasance to remove a trustee.
- Trustee Resignation. A trustee may resign their duties with court approval or resign without court approval long as the settlor (if living), co-trustees (if any), and beneficiaries have been given 30 days notice of the intent to resign.
Let Us Advise You on Your Next Steps
In order for any of these actions to avoid ending up in litigation, it will take an experienced probate and estate lawyer to advise you every step of the way. If you are the trustee or a beneficiary of a trust, we can answer your questions and work to resolve your dispute as efficiently as possible. Contact DeLoach, Hofstra & Cavonis, P.A. to set up a consultation through our quick contact form, or start reading our free guide, The Top 20 Rules for Protecting Your Florida Estate.
What should I do if someone interferes with my inheritance?
If you were unsuccessful in challenging a loved one's will in court, there are other legal options available to you. One of these is to file a tort action, or lawsuit for a wrongful act that caused you economic harm, under the theory of tortious interference with an expectancy.
What Is Tortious Interference With an Expectancy?
Tortious interference was first recognized in a 1966 court case in Florida, and focuses on protecting the rights of the person who created the will rather than the rights of the person bringing the case. If someone used fraud, duress, undue influence, or other independent tortious conduct to deprive your loved one of the right to dispose of property freely, a beneficiary (you) has the right to seek compensation on your loved one's behalf.
There are a number of requirements needed to establish a claim for tortious interference. For example, you must be able to prove:
- Your loved one had a specific intention to leave a portion of their estate to you
- A third party (the defendant) did or said something to your loved one to reduce or eliminate your share of the estate
- There was a strong probability that your loved one would have carried out their intentions if the wrongful acts of the defendant had not occurred
- The defendant's interference was intentional
- The defendant benefitted by receiving estate assets contrary to the testator's intent, by redirecting your inheritance to benefit someone else, or by depriving you of your portion of the estate
- The defendant's wrongful interference was the reason your inheritance was reduced
- The defendant's wrongful interference caused you to suffer actual monetary damages
Unlike other forms of estate litigation, these actions seek compensation from the defendant personally rather than through funds in the estate. A successful judgment of tortious interference is paid from the defendant's personal assets and could include both compensatory and punitive damages.
Could I File a Tortious Interference Lawsuit?
This type of lawsuit is only available if you were not able to get an adequate remedy for the wrongdoing in probate court. Generally, this means you must have attempted a will contest or other action during probate to get your inheritance reinstated. However, the law doesn't require your attempt to contest the will to be successful, only that you exhausted your options in probate before making a tortious interference claim.
You may also be barred from bringing this lawsuit if:
- Your loved one is still alive. Since tortious interference involves pressing the rights of another person, you can only do so if the other person is unable to assert those rights. Florida Courts will not recognize a tortious interference case before the death of the person who created the will.
- You had a fair opportunity to contest the will. It's understandable for the court to bar a claim because you chose not to seek relief in probate. However, if you did not have a fair chance to file a will contest (you were not properly notified of the death, etc), you may still be able to file a lawsuit.
- You turned down a remedy during probate. The court may decide not to hear your case if there was an adequate and alternative solution offered during probate, but you chose not to take it.
Let Us Help You Through Your Next Steps
It takes an experienced probate and estate lawyer to succeed in a tortious interference with an expectancy claim. At DeLoach, Hofstra & Cavonis, P.A., we carefully examine the circumstances of your loved one's last will and testament, including whether they had the valid testamentary capacity or were unduly influenced by a third party.
Whether you're considering contesting a will or are looking for ways to prove someone placed pressure on your loved one, we can help present your case and makes sure your loved one's true intentions are honored. Set up your consultation today through our quick contact form, or start reading our free guide, The Top 20 Rules for Protecting Your Florida Estate.
What is wire fraud?
Wire fraud is a type of fraud that involves the use of telecommunications or the internet. Criminals may commit wire fraud with phone calls, faxes, emails, text messages, social media contact, or other online platforms. In many cases, hackers monitor activity for weeks after breaking into company systems to determine the best way to steal money.
Steps to Take After You Are Victimized by a Fraudulent Wire Transfer
Wire fraud is commonly used to illegally redirect funds during business transactions, such as completing real estate sales or making large payments to vendors. If you have reason to believe a wire transfer fraud has occurred, it is vital that you:
- Call the bank(s). If the transaction took place just hours ago, you may be able to stop the transfer of funds from one financial institution to another. Contact both the sending bank the recipient bank to request a stop payment at both ends of the transaction. Even if the funds can’t be recovered, the banks may be able to help the authorities in tracing the money.
- Report the incident to the FBI. The faster you file a complaint with the U.S. Internet Crime Complaint Center (IC3), the sooner your local FBI field office can start a Financial Fraud Kill Chain to stop the transfer of funds.
- Talk to an attorney. A lawyer with experience in business email compromise greatly improves your chances of seeing a recovery on your losses. Our legal team can determine what actions you should take, who may be liable, and how to prevent these actions from happening in the future.
- Investigate the breach. Your employer may need to evaluate your emails and computer systems to determine how the hackers got access to the company, both to determine liability and improve online security.
- Evaluate third-party actions. There is often more a bank, contractor, or business could have done to prevent the security breach from happening. We can examine whether the actions or omissions of a holding company, financial institution, vendor, title company, or other participant could have allowed the hacker to gain access.
- Examine your insurance policies. Companies and individuals may have insurance coverage to pay for wire fraud losses, but it may take the help of an attorney to get the payment you need.
The attorneys at DeLoach, Hofstra & Cavonis, P.A. offer free case evaluations for victims of wire fraud. Contact us today to set up a consultation and see how we can help you.