Statewide Florida Probate Litigation
Alert: Deadlines To File Claim In A Florida Probate Case
Have you received a Notice of Administration from the Personal Representative (often called Executor) of an Estate? The Personal Representative is the person named in the Will whose job it is to make sure the wishes in the decedent’s will are carried out and all creditors are paid. If you receive a Notice of Administration and believe you are a beneficiary of an estate, you have 90 days to file a claim in the probate estate.
However, if you receive a Formal Notice of Administration your deadline for responding is likely 20 days. If you fail to respond or assert your claim within the 20 day window you may waive your right to pursue the claim.
Here is a big mistake many Will beneficiaries make: They fail to file a timely claim because the Personal Representative tells them verbally “don’t worry, we will take care of it” or “no problem, everything will work out in the end after we finish dealing with the creditors.” Do not rely upon such verbal promises: the safest path to protect your interest is to engage a Florida probate litigation attorney to file a claim with the court before the deadline.Three Common Grounds For Challenging a Will
- Undue Influence. Elder exploitation is a common problem in Florida that sometimes does not becomes evident until after a person’s death when a close family member or caregiver petitions to probate the elder person’s will and be named Personal Representative (or Executor) for the estate. The decedent must sign his or her Will voluntarily, freely and without being pressured to sign. However, did the caregiver isolate the decedent from family members? Did the caregiver select the attorney who drafted the Will and drive the decedent to the attorney’s office? Does the decedent’s will give part or all of his/her estate to the caregiver? Such facts and many more may indicate undue influence.
- Lack of Testamentary Capacity. This standard is lower than general competency. An elder person can have early dementia, periods of failing memory or irrational behavior and still have the requisite testamentary capacity to sign a Will if signed when the person is lucid. The initial burden of proof to show lack of testamentary capacity in on the person contesting the Will.
However, because of a weakened state of mind, this person can be more easily subject to undue influence – see above.
- Will Not Executed Correctly. Florida has strict requirements for signing a Will. A Will must: (1) be in writing; (2) signed by the testator in the presence of two witnesses; (3) acknowledged by the testator in the presence of two witnesses; and (4) the two witnesses must sign in the presence of each other and the testator. Failure to comply with any one of these four requirements can be grounds for contesting a Will in Florida. It is critical that these requirements be followed because the best witness – the decedent – will not be available to question when a person endeavors to prove to the court that the Will they have filed with the court is truly the valid, correct last Will of the decedent.
- Will Construction. Modern Wills often have complex tax terms and distribution requirements. Some have ambiguous terms; others may not properly dispose of the estate. Here are two examples:
Example #1: Husband is married and has a daughter who is 17 – and therefore a minor - and son who is 22. Husband’s Will transfers his Florida homestead to his son. This type of Will provision violates the Florida constitution, which does not allow devise of Florida homestead if the decedent is survived by a spouse or minor child.
Example #2: Under Larry’s Will, Jill, his niece, is to receive Property Z worth $200,000 but the property has a $50,000 mortgage balance. The Will fails to state whether the mortgage is to be paid by Jill or by the estate.
- Will Tax Construction. Wills often need to be interpreted through multiple tax lens, including income taxes, estate taxes, and generation skipping taxes. The burden for paying taxes falls upon the estate. However, depending on how the will is interpreted, the tax burden may fall more heavily upon residuary beneficiaries as opposed to specific beneficiaries. The bottom line is that the Personal Representative or beneficiary may need an experienced probate tax attorney to analyze the tax consequences of the proposed distribution.
- Elective Share Contest. Unless waived in a valid prenuptial agreement, a surviving spouse has a right to 30% of the estate regardless of what the decedent puts in his or her Will. Example: Husband has 3 children from a prior marriage. His will gives 90% to the three children and 10% to his surviving spouse. The surviving spouse can contest the Will and claim her full 30%.
Note: Florida’s 30% elective share covers the “augmented estate” and includes almost all interests the decedent has in property of any type. Transfers within one year of death are included in the augmented estate. See Florida’s Sweeping Elective Share.
- Breach of Fiduciary Duty. The Personal Representative must meet a high legal standard to administer a probate estate. He or she must administer the probate in strict compliance with Florida fiduciary law which is voluminous and complex. For example, the Personal Representative must make sure the decedent’s home and all property is secure. All funds owed to the estate must be deposited in a restricted account unless the Personal Representative posts a bond approved by the Court. The decedent’s final tax return and other tax returns for the estate’s busines entities must be timely filed. The Personal Representative can be required to pay a surcharge if he or she acts – or fails to act – in compliance with Florida probate law.
- Inventory and Final Accounting. The Personal Representative must file an Inventory of all property in the probate estate within 60 days after the Personal Representative receives Letters of Administration that give the Personal Representative powers to act on behalf of the estate. F.S. 733.604. This inventory must be disclosed to all “Interested Persons” which is anyone who may reasonably be affected by the outcome of the probate proceeding. Prior to closing the estate, unless waived, the Personal Representative must file a Final Accounting and send this accounting to all Interested Persons. The deadline for objecting to the Florida Probate Final Accounting is 30 days of receipt of the Accounting. Florida Probate Rule 5.401
Alert: It is a common practice for the Personal Representative to request that the interested persons sign a Waiver of Final Accounting. Before you sign such a waiver, it is strongly recommended that you consult a Florida probate attorney. Once you sign such a waiver, it is virtually impossible to rescind it absent fraud.