Search Results: heirs

Surviving Spouses, Heirs, and Next of Kin Inheritance Law in Florida refers to the rights of individuals to receive money and property upon the death of a Florida citizen. Under Florida probate law, also referred to as Florida estate law, there are many valuable property rights created for beneficiaries, heirs, next of kin, widows, and loved ones. The Florida probate code, as well as Florida statutes, as well as decisions by appellate courts, serve as the foundation of Florida inheritance law or commonly called “Surviving Spouse Law”. It is these statutes, these cases, which give beneficiaries and family members their rights to inherit money and property from a Florida citizen who has passed away. You can think of Florida inheritance law as being in two camps. One camp includes all the rights of family members created by Florida probate law. Secondly, Florida inheritances are created by the intent of a Florida resident who decides to leave money or property to you when he or she dies. The Florida resident, such as a mom or dad, may intend to leave you a bank account by a right of survivorship, or may intend to leave you half of their estate, under a Florida will, or under a Florida revocable trust. Florida inheritance law creates very, very valuable property rights for a widow. If you are a surviving husband or a surviving wife, often referred to as a “surviving spouse”, of a now deceased Florida citizen, you have many valuable property rights to […]

Your family will – literally, this is true in many cases – count your money in the limo, on the way to bury you. They’ll hire advisors, lawyers, and even litigators to battle over it, if necessary. Many clients underestimate two important things: first, the greed or desire for money, property, and “stuff” exhibited by your family members. The second is the lengths to which your loved ones or beneficiaries will go, to fight over that money, property, and “stuff.” You know who benefits a lot from family fights and probate litigation? I do. I and other probate litigators and trial lawyers make a very good living from this sort of thing. This greed, anger, avarice, and desire to control your estate, trust, and property often leads to an un-intended consequence which your estate planning lawyers don’t tell you about: estate litigation lawyers end up being unintended beneficiaries of your estate. Are there ways to minimize, or to try and control, the estate litigation? Yes. Are there ways to defend an anticipated attack by heirs, in-laws, outlaws, former spouses, and step-children? Certainly. Mistake: letting lawyers inherit your estate. Pankauski’s Bottom Line: if you want to get serious about trying to minimize possible family litigation after you die, thwarting a possible attack, talk to your probate lawyer now about anticipated probate litigation and what you can do. Don’t think your family is different. It probably isn’t. You’re leaving it all wrong Mistake: thinking that your beneficiaries want specific property, or can […]

What is a Marital Trust? You really never know someone until you share an inheritance with them. In this section from his book, “Pankauski’s Probate Litigation: Top 10 Estate Mistakes Revealed”, John Pankauski explains. Mistake: putting your last spouse and your other beneficiaries in the same trust If marital trusts were written as a piece of legislation by Congress, instead of a document written by a trust lawyer, the title would be: The Probate Litigators’ Full Employment Act. What is a marital trust? The marital trust is a trust which is typically created for the benefit of a surviving spouse and other family members. For example, the typical marital trust may provide for all the income to be distributed to the surviving spouse during his or her lifetime. The trustee may also distribute trust principal and make distributions of money or property to, or for the benefit of, the surviving spouse (widow), during the surviving spouse’s lifetime. In this example, the marital trust doesn’t permit distributions to anyone but the surviving spouse during his or her lifetime. After the death of the surviving spouse, if there is any money left in the trust, the residue – or trust remainder – “goes to” the trust creator’s children, heirs, or other beneficiaries. So, in Palm Beach, a wealthy 70-year-old gentleman might create a marital trust upon his demise. That marital trust would provide income and principal distributions to his 35-year-old third spouse, with the trust remainder going to his 40-year-old son from his […]

Florida Estate Law & Widow’s Guaranteed Inheritances “Florida Estate Law” refers to the rules, and legal guidelines, statutes and procedures which relate to a Florida resident who has passed away, or a deceased Florida resident’s property. Put another way, Florida estate law includes how the property of a dead Florida citizen will be distributed after that Florida resident dies. Florida Estate Law include such matters as the rights of beneficiaries, widows, family members, heirs, people who are owed money. So, while Florida Estate Law includes who inherits property, and when an inheritance may be received, and the inheritance rights of family members regarding money, real estate, bank accounts and financial assets, Florida Estate Law is not limited to just inheriting property from somebody who died in Florida. Widow’s Inheritances Florida estate law also includes very specific Florida statutory rights with regards to distributing property after someone dies in Florida. For example, Florida Estate Law provides that you cannot disinherit your wife or husband, unless they consent. If someone dies in Florida, and he or she was married at the time of death, providing there is no prenuptial agreement, then that widow, also called a surviving spouse, has lots of rights. A widow has a right to a 30% of elective share of the dead Florida resident’s estate. The widow share of a Florida Estate may actually increase to 50% depending on a number of factors. Heirs, sometimes referred to as kin, or descendants, or issue, really meaning certain family members, […]

Estate Planning Basics |The Dirty Truth About Estate Planning In this section from his book, “Pankauski’s Probate Litigation: Top 10 Estate Mistakes Revealed”, John Pankauski explains why taking the time to plan your estate as soon as possible can be extremely beneficial in the long term. Mistake: spending oodles and oodles of cash to get a“top notch,” “state of the art,” high dollar, big ticket, e-plan. A will, a revocable trust, POA (Power of Attorney), and a set of health care and guardianship documents will work just fine. They also let you keep your money and control – as best as you can. The real challenge is determining whether you care about what happens to your money when you’re gone and, if so, how you set up your estate plan, to manage and distribute that money. This is all about wealth administration after you’re no longer around. Who needs complex or sophisticated estate planning any more? For 99% of Americans, a trumped-up, complex estate plan with lots of bells and whistles – or large legal bills from your probate lawyer – is totally unnecessary. The truth is that each American can give away $5.4 Million completely free of the dreaded US estate tax, so often feared, hated, and written about with unbridled despair. That’s right – in one sense, the US estate tax does not apply to most Americans – the vast majority of us can avoid it fairly easily. The days of needing complex estate plans, or sophisticated tax planning […]

Suing the Executor of a Florida Probate — Will Litigation Involving the Personal Representative Under Florida law, the executor of a decedent’s estate is known as the personal representative. The personal representative is the legal representative of the estate, and is issued letters of administration which empower the individual to act on behalf of the estate. The personal representative may be nominated by a will, or in the absence of a will (intestacy) preference is given to the surviving spouse followed by the person selected by a majority in interest of the heirs followed by the heir nearest in degree. F.S. 733.301. The individual entitled to preference must be appointed unless the court finds that individual otherwise disqualified. Stalley v. Williford, 50 So. 3d 680 (Fla. 2d DCA 2010); but see Long v. Willis, 100 So. 3d 4 (Fla. 2d DCA 2011) (holding that although the probate court almost always appoints as personal representative the person entitled to statutory preference, in exceptional circumstances where the heirs are essentially members of two distinct families with adverse interests, the court has the discretion to refuse to make the appointment if the record supports the conclusion that the person with statutory preference lacks the necessary qualities and characteristics). Once the personal representative is granted the authority by letters of administration, he or she can be sued in that capacity. There are many reasons that one may bring suit against a personal representative, which include claims by creditors (if a statement of claim filed […]

Knowing how to proceed at a trial for a Florida probate or trust matter, as well as guardianship lawsuits, is important. After all, if you win at trial, you don’t want the victory to overturned on appeal. Likewise, if you are losing at trial, or if your Florida estate or inheritance case does not go your way, is your probate litigation law firm prepared with an appeal strategy? Hint: waiting for the end of trial to see if someone files an appeal is NO strategy at all. Have you identified the issues during your trial? Better yet, before the trial? Have you anticipated what may lie ahead for appeals of probate and trust lawsuits? In short, are you prepared for a Florida probate or trust appeal? Under Florida law, a final judgment is an order from the trial court which may be appealed. An appeal, with some exception, is to be taken from a final judgment. Appellate review of interlocutory orders can also be sought where the Florida Rules of Appellate Procedure (Fla. R. App. P.) so provide. So, can you appeal your estate or probate issue now, or must you wait until the end of your trial to appeal the final judgment? Fla. R. App. P. 9.170 (“Appeal Proceedings in Probate and Guardianship Cases”) became effective on January 1, 2012. The rule itself reads as follows: (a) Applicability. Appeal proceedings in probate and guardianship cases shall be as in civil cases, except as modified by this rule. (b) Appealable […]

Powers of attorney are incredibly useful documents, which allow an individual to delegate decision-making to another. Durable powers of attorney are a common component to a Florida estate plan. However, a POA can also be the most “dangerous” document in the world. Why? Because sometimes bad people do bad things with a durable power of attorney in Florida and take money. You mean that people who are the power of attorney steal money in Florida? Sadly, the answer is “yes.” Just ask any Florida guardianship attorney or probate litigator. Many times, a senior citizen or elderly person who may have dementia ,or need a guardianship, is taken advantage of by one who gets a power of attorney. Yes, while a power of attorney document is an important part of your estate plan, when a POA is in the wrong hands, Florida probate litigation law firms have witnessed civil theft, financial exploitation and elder financial abuse. Family members have experienced loss of money, bank accounts and real estate when a power of attorney falls into the wrong hands. How can a Florida legal document be so good and possible dangerous or bad at the same time? POA’s can be mis-used and abused, and used fraudulently. Bad powers of attorney engage in acts of self-dealing, when they are really supposed to serve the person they agreed to help. A power of attorney in Florida is a fiduciary who is supposed to use the POA only for the purpose of helping the person […]

Florida law provides a handful of benefits and rights to a surviving spouse. Yes, widows have very valuable inheritance rights in Florida probates. That said, there are short deadlines associated with the benefits and rights in which a surviving spouse’s rights must be exercised and otherwise protected. Some of these rights include: Homestead (See Article 10, Section 4(c) of the Florida Constitution). A surviving spouse gets a life estate with a vested remainder to the descendants. Fla. Stat. 732.401. An election to take a one half interest as a tenant in common may be exercised as well, see Fla. Stat. 732.401(2), if filed within the short statutory time frame. The Second District Court of Appeal, in Friscia v. Friscia, 161 So. 2d 513 (Fla. 2d DCA 2014), explained the constitutional provisions in concise format:§ 4. Homestead; exemptions(a) There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, … the following property owned by a natural person:(1) a homestead, if located outside a municipality, to the extent of one hundred sixty acres of contiguous land and improvements thereon …; or if located within a municipality, to the extent of one-half acre of contiguous land, upon which the exemption shall be limited to the residence of the owner or the owner’s family;….(b) These exemptions shall inure to the surviving spouse or heirs of the owner.Interestingly, and importantly, the Friscia court explained that a homestead that qualifies for these exemptions […]

Objecting to Probate One can bring an objection in the probate as to the will’s validity, including grounds of duress or undue influence, fraud, mistake, that the will was signed when the decedent lacked mental capacity, or even that there are defects in the execution of the will itself. Fla. Stat. §732.5165. Of course, a will cannot be contested until after the death of a testator. Fla. Stat. §732.518. Objections to a will in this instance are evidentiary in nature and conducted by way of a bench trial (a trial with the finder of fact being the judge, not a jury). What if there is no will? Parties can object in the probate proceedings as to who the presumed heirs are under intestacy, as to a surviving spouse’s elective share, or even as to inheritance to children born out of wedlock. If there is no will, then Florida probate laws tell us who inherits: the heirs. The heirs include the spouse and descendants. Parties can also object to who the estate’s fiduciary is. In Florida, the personal representative is the executor of the probate. But, as most Florida estate lawyers will tell you, there should be good cause. Generally speaking, a written objection can be filed with the probate based on the qualifications of the person to be the personal representative (and “run” the estate.) If the person who is the probate executor is mentally or physically unable to perform the duties of personal representative, is under the age of […]