How many of you have stepbrothers or stepsisters who you might share an inheritance or a trust with in Florida? Is your mother or father married to a second or third spouse ? Does your mother or father have children from another marriage or relationship? Final question which Florida probate litigators want to know the answer to: do you believe that your mother or father treats your step-brother or step-sisterbetter than you? Well, if you expect to inherit from your mom or dad’s Florida estate, or Broward County real estate, or even a revocable trust, you may want to read about a transfer of 7 pieces of real estate to a step-son, and to a Florida company, all done 15 days before dad died. Ask your estate lawyer Boca Raton about how families can sue each other after dad or mom dies, over real estate and so called deathbed transfers. This real estate appeal Florida case may be described as asking the question: what do I have to do if dad gave away everything just before he died and a lot of assets are now out of the estate? Isn’t that a recurring problem or legal issue between siblings and step children after mom or dad dies? They learn that, even though dad or mom had a great Boca Raton estate plan, he or she supposedly gave away assets or money or real estate RIGHT BEFORE THEY DIED, favoring one child or step child, over others. Florida probate attorneys know this type of case all too well.
Can you get the real estate back if it was transferred out of the estate when dad had a terminal condition?
- What do you do if dad has a terminal condition or Alzheimers or dementia and he transfers 7 pieces of real estate 15 days before he dies?
- Probate lawyers Florida would call this filing an inheritance lawsuit to set aside the conveyances of real property
- What if dad creates a company, or Florida LLC, 15 days before he dies and then transfers the real estate to one son, and the new company?
- Florida probate litigators and business lawyers are always interested in fact patterns like this one
- So, you can read this February 3, 2016 4th DCA inheritance appeal about a family, called Parker, which is embroiled in post death, probate litigation and real estate litigation Florida, out of Broward County
- The big question on this probate appeal is whether or not siblings who sued mother ,and also one son, and a Florida company, had to name, or sue, dad’s estate
- If, after the death of the owner, you are seeking to void deeds of real estate, or set aside conveyance of Florida real property, do you have to name the owner’s estate, or his or her personal representative, in your Florida real estate or inheritance lawsuit? The 4th DCA is saying “no” since the transfers of the real estate were done BEFORE dad died.
- Does this make sense? What about a rescission action to rescind the deed and go back to the status quo? Wouldn’t that put the asset or real estate back into dad’s estate? Florida estate lawyers often bring a cause of action, in an inheritance lawsuit or a will contest, to set aside a transfer or a deed based upon the legal principle ofrescission. To rescind the deed, or cancel the Florida deed, or the transfer of money, or the will signing, and go back to what it was before. But, what if the personal representative of the Florida estate did not want rescission or did not want the asset or real estate to come back to the estate?
- You see, dad owned some real estate before he died.
- 15 days before he died, he created a company and then transferred the real estate to one son and this new company
- So, what did step brothers and step sisters do? They hired a commercial litigator or an estate litigator Florida to try to unwind the deeds or unwind the transfers of the real estate
What is an indespensible party in Florida probate lawsuits?
- This Parker case, at the 4th DCA, repeated what an indispensible party is for Florida inheritance lawsuits
- In Florida, an indispensible party is a necessary party so essential to a suit that no final decision can be rendered without their joinder. See also the case of Citibank, N.A. v. Villanueva, 174 So. 3d. 612, 613 (Fla. 4th DCA 2015).
- The opinion on this Florida appeal also referenced Florida Probate Code 733.607which references the decedent’s property
- The point that the Palm Beach appeals court made here is that since the transfer of the real estate was done, the decedent didn’t own it any more, so there was no decedent’s property to marshal or get by the personal representative of the Florida probate
- Now, this case does reiterate or repeateFlorida probate law that says a person’s adult children may pursue claims or lawsuits to set aside so called lifetime inter vivos conveyances or transfers based upon undue influence, without–without– the estate being named a party
Here is a copy of the Parker case to read, which dealt with a motion to dismiss for failure to join an indispensable party, notably the Florida personal representative of an estate: http://4dca.org/opinions/Feb%202016/02-03-16/4D14-666.op.pdf
This estate litigation appeal case from Broward County, Florida, made its way to the Palm Beach appeals court, the 4th District Court of Appeal, which hears appeals of probate, estate, guardianship & trust matters.