Frequently asked questions:

If you have questions regarding a trust or if you are trying to deal with the Florida probate process, visit this page of our website to find the answers to frequently asked questions.  Contact a Fort Myers probate lawyer today at the Linde Law Group to get your questions answered.

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  • Why should I hire an estate planning attorney instead of using an online kit to write my will?

    Florida Bar Board Certified wills, trust and estates expert Matthew Linde can provide valuable guidance that you cannot get in an online kit. When you hire legal counsel, you get control over your estate planning and can make informed decisions.  This means you will understand the options available to accomplish a goal and the pros and cons of various options.  

    With an online kit you will get a cookie cutter version of a document that may not apply to you.  Imagine a bell shaped curve.  Now image where the few Florida Bar Board Certified wills, trust and estates experts are on that curve (about 337 out of over 85,000 licensed).  Now imagine some struggling attonrey fresh out of law school doing anything to make a buck.  Which type of attorney do you think you are likely to get through a referral from a online will factory (hint:  its not the Florida Bar Board Certified wills, trust and estates expert)?

    Your estate must be properly planned in order for you to predetermine how and when it will be distributed. Just having a will isn't good enough. It should be drafted by a Board Certified attorney who has knowledge of ever-changing tax laws and handles estate cases on a daily basis.

    Florida Estate Planning When Children are Involved

    Additionally, if you have children, you will likely be tasked with setting up trusts or naming guardians.

    You should consider:  

    • who will control your children's money until they are of age;
    • whether they should get a lump sum or staggered payments; and
    • how to proceed if one child is a reckless spender. If you have a blended family, you may run into even more difficulties. 

    An estate planning attorney can even set up trusts that direct assets to someone other than family in a way that ensures your family has access to the money when that non-family member no longer needs it.

    However, with the help of an estate planning attorney you can draft a will that addresses your concerns and meets your wishes. An attorney can also serve as a counselor and recommend customized trusts, which can help you protect your children and spouse on several levels, and help you take steps to avoid tax liability.

    Help from an Estate Planning Attorney in Fort Myers is a Phone Call Away

    Florida Bar Board Certified wills, trust and estates expert Matthew Linde, understands firsthand the importance of careful estate planning and the complexities of financial legal matters, such as probate, tax litigation and guardianship. For help with your Florida estate planning concerns, contact our Fort Myers office to schedule a one-on-one meeting with a professional who can answer your questions - 239-939-7100 or 844-357-0572.

  • What happens if someone dies in Florida without a will?

    If someone dies in Florida with no will, the distribution of the deceased's estate will be subject to rules set forth in Chapter 732 of the Florida Probate Code. To prevent htis you should consult with Florida Bar Board Certified wills, trusts and estates expert Matthew A. Linde.

    Distributing a Florida Estate without a Will for Guidance

    In cases in which the deceased has a living spouse but no descendants, the spouse will be entitled to 100% of the estate. 

    Where there is no will and the living spouse has descendants who are also descendants of the deceased, the living spouse will still be entitled to 100% of the estate. Now, suppose the deceased had descendants but were not descendants of the living spouse. In cases such as this, the living spouse would be entitled to 50% of the probate estate and the deceased's descendants would equally share the remainder of the estate.

    When the individual dies without a will and there is no living spouse but there are descendants, equal shares of the estate will be split up amongst them. Any children of a deceased child will get the share that was entitled to the deceased parent.

    If the deceased was not married and had no descendants, the estate will be distributed to the decedent's grandparents (who are very likely deceased) and then down to the issue (children) of those grandparents.  It can get quite complicated You may have heard the phrase "laughing heirs," which refers to relatives of a deceased person who inherit assets from someone they never knew personally.

    Help from an Estate Planning Attorney in Fort Myers is Just a Phone Call Away

    Florida Bar Board Certified wills, trusts and estates expert Matthew A. Linde understands firsthand the importance of careful estate planning and the complexities of financial legal matters, such as probate, tax litigation and guardianship. For help with your estate planning concerns, contact our Fort Myers office to schedule a one-on-one meeting with a professional who can answer your questions - 239-939-7100 or 844-357-0572.

  • Who can serve as a personal representative in a Florida probate case?

    There are several individuals or entities that could serve as a personal representative in a Florida probate case. If you're having trouble with a probate case you should schedule a consultation with Florida Bar Board Certified wills, trusts and estates expert Matthew A. Linde.

    Requirements for a Personal Representative

    A personal representative could be:

    • a trust company or bank with operations in Florida;
    • anyone who is a resident of Florida; or
    • a close relative or spouse (doesn't have to reside in Florida).  
    • The requirements are located in Florida Statutes 733.302. 733.303 and 733.304.

    On the other hand, a personal representative cannot be a non-relative who doesn't reside in Florida.

    As long as the decedent had a will, the personal representative named in the will must serve as long as eligibility requirements are met. If that person or entity is unable to serve or doesn't want to serve as the personal representative, then the beneficiaries will choose a personal representative.

    If the deceased did not have a will, then Florida law provides that the deceased's surviving spouse may serve as personal representative. In cases in which the deceased was not married, or if the spouse is unwilling or unable to serve, then someone chosen by a majority of the beneficiaries will serve.

    Since a Florida probate case can be very complex, it would be in your best interest to have an attorney review your case. An attorney who handles probate cases on a day-to-day basis can help you cut through the red tape and make the probate process as less stressful possible.

    Help from an Estate Planning Attorney in Fort Myers is Just a Phone Call Away

    Florida Bar Board Certified wills, trusts and estates expert Matthew A. Linde understands first hand the importance of careful estate planning and the complexities of financial legal matters, such as probate, tax litigation and guardianship. For help with your estate planning concerns, contact our Fort Myers office to schedule a one-on-one meeting with a professional who can answer your questions - 239-939-7100 or 844-357-0572.

  • In a will contest alleging undue influence how do courts interpret the term "active procurement?"


    (a) Presumption of Undue Influence

    In undue influence cases, there is a presumption that undue influence occurred if the proponent of a will or other document (it could be a deed or a check) had a confidential relationship with the author of the document and actively procured the document.  You can still prevail on an undue influence claim without a presumption of undue influence, but only if prove that a defendant actively influenced the document author to the point that it was really the defendant that was acting and not your loved one.  It is much harder to prove your claim if you do not have the benefit of the presumption because what a defendant does is usually done when only the defendant and the document author were present.  Further, to validly assert the legal doctrine of undue influence, the contestant must focus more upon the weak mental orientation of the testator than the motives of beneficiary.  See In re Estate of McClenahen, 476 So. 2d 1289 (Fla. 2d DCA 1985).

     

    (b) Active Procurement

    When a confidential relationship exists between the beneficiary and the testator, a presumption of undue influence may arise if it can be shown that the beneficiary actively procured the will. The leading case in this respect is In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971) .


    The Carpenter case defined active procurement as follows:

    "Several criteria to be considered in determining active procurement emerge from a study of these cases: (a) presence of the beneficiary at the execution of the will; (b) presence of the beneficiary on those occasions when the testator expressed a desire to make a will; (c) recommendation by the beneficiary of an attorney to draw the will; (d) knowledge of the contents of the will by the beneficiary prior to execution; (e) giving of instructions on preparation of the will by the beneficiary to the attorney drawing the will; (f) securing of witnesses to the will by the beneficiary; and (g) safekeeping of the will by the beneficiary subsequent to execution.  We recognize that each case involving active procurement must be decided with reference to its particular facts. Therefore, the criteria we have set out cannot be considered exclusive; and we may expect supplementation by other relevant considerations appearing in subsequent cases. Moreover, we do not determine that contestants should be required to prove all the listed criteria to show active procurement. We assume that in the future, as in the past, it will be the rare case in which all the criteria will be present. We have troubled to set them out primarily in the hope that they will aid trial judges in looking for those warning signals pointing to active procurement of a will by beneficiary."   See Carpenter at 702.


    Other examples of active procurement can be found in In re Estate of Smith 212 So.2d 74, 76 (Fla. 4th DCA 1968): 

    We are concerned with the proper construction to be put on the phrase "active in procuring the will" so as to raise the presumption of undue influence.


    In re Peters' Estate, 1945, 155 Fla. 453, 20 So.2d 487, was a case in which the principal beneficiary was a physician and a long-time friend of a 77-year-old widow. Her physical strength was reduced in keeping with her years but her mentality was not shown to have declined. The only connection which the physician had with the procuring of the will was in being present  on the occasions when the testatrix expressed her desire to make a will and when she gave here attorney instructions on making the will. The court stated that the law should require a more active or definite participation than this in order to raise the presumption.


    In Sturm v. Gibson, Fla.App.1966, 185 So.2d 732, the beneficiary had been a ranch foreman for the testatrix and had occupied the same dwelling house with the deceased for some time prior to her death. His activity consisted of recommending the attorney who drew the will and driving the testatrix to the lawyer's office, but he was not present when the will was executed nor did he know its contents until the death of the testatrix. The court held that this activity was not active procurement of the execution of the will.


    In re Knight's Estate, Fla.App.1959, 108 So.2d 629, involved the testator's wife and brother as the principal beneficiaries. Before the testator went to the hospital he informed the brother of his wishes as to the contents of his proposed will, after which the brother consulted a firm of attorneys, gave them the instructions for the preparation of the will, received the draft thereof and kept it in his possession until it was presented to the testator at the hospital. The brother assisted in procuring the formal witnesses to the will, was present when it was executed, received it from the testator and kept it in his possession until it was presented for probate. The court held that this was active procurement of the execution of the will sufficient to raise the presumption of undue influence.



    In re Estate of MacPhee, Fla.App.1966, 187 So.2d 679, concerned a testatrix who was 88 years of age when she executed her will five days prior to her death. The principal beneficiary, Rast, held her power of attorney and was her business adviser. Some of these transactions were between the testatrix and Rast, most of which were to the personal benefit of Rast. Mr. Rast carried to the attorneys information as to what the will was to contain, brought the will to Mrs. MacPhee for execution, and secured the necessary witnesses. The court held that this was an active procurement of the will.

    Contact Florida Bar Board Certified wills, trusts and estates expert Matthew A. Linde today at 239.939.7100 or 844.357.0572 for more information!

  • What is a personal representative?

    This is a defined term under the Florida Probate Code: Section 731.201:

     (28) "Personal representative" means the fiduciary appointed by the court to administer the estate and refers to what has been known as an administrator, administrator cum testamento annexo, administrator de bonis non, ancillary administrator, ancillary executor, or executor.

    Now that you know what the terms means, contact Florida Bar Board Certified wills, trusts and estates expert Matthew A. Linde today at 239.939.7100 to assist you with understanding what that means in your situation.

  • What does a Florida probate case entail?

    A Florida probate case generally involves, appointing a personal representative (referred to as an executor in some states).  The personal representative ("PR") is appointed because he/she was named in the will or in an intestate intestate estate (intestate means without a will) the person who the courts appoints as PR.  Once a PR is appointed, the PR collects assets, notices creditors and pays valid creditor claims and distributes the assets according to the will or in accordance with the Florida intestacy statues.  If you have any concerns regarding a probate matter you should contact Florida Bar Board Certified wills, trusts and estates expert Matthew Linde.  

    The probate system in Lee County is conducted in a division of Circuit Court in the majority of Florida counties, and at least one probate judge is tasked with overseeing the court.

    Any creditor or beneficiary can start the probate process, but it's usually the executor or personal representative, who initiates the process. This person will file the original will and a petition for administration. If the deceased did not have a will, one of the descendant's close relatives who expects an inheritance will file the petition for administration

    As long as you have a valid will, it will determine how and to whom your estate is transferred. In the absence of a will, or if your estate is just partially covered by a will, Florida laws will mandate how your estate will be distributed.

    Generally, the Florida court follows the same process:

    • admitting the will and appointing the personal representative;
    • notifying the public, creditors, heirs that the  decedent has died;
    • taking inventory on the decedent's property; and
    • distributing the property.

    If you find yourself amidst a Florida probate case and have run into any complicated factors, you can get help from an estate attorney in Fort Myers.

    Help from an Estate Planning Attorney in Fort Myers is Just a Phone Call Away

    Fort Myers estate planning attorney Matthew A. Linde understands firsthand the importance of careful estate planning and the complexities of financial legal matters, such as probate, tax litigation and guardianship. For help with your estate planning concerns, contact our Fort Myers office to schedule a one-on-one meeting with a professional who can answer your questions - 239-939-7100 or 844-357-0572.

  • Under what circumstances can a will be challenged in Florida?

    There are several circumstances under which a will can be challenged in Florida, but you should first know that a other than in a guardianship, a will can be challenged only after the testator/testatrix has died. Since it can be very difficult to challenge a will, you should seek the guidance of Florida Bar Board Certified wills, trusts and estates expert Matthew A. Linde to assist you. 

    Before the testator/testatrix  has died, any facts regarding the document can be preserved for future litigation. Once the individual dies, the designated personal representative will be responsible for issuing a notice of administration. Once you receive that, you will have three months to challenge the will.

    Grounds under Which a Will Can Be Challenged in Florida 

    Undue influence (my favorite if you have the right facts).

    If a will wasn't properly signed, drafted, or witnessed, it can be contested. For example, if a so-called witness was in another room at time of the signing of the will, the will could be declared invalid. It's imperative that the witness be in direct presence of the testator.

    A will can also be tossed out if forgery can be proven or if there's solid evidence that someone tampered with it. Additionally, when a will is made, the testator must be of sound mind. If not, a will can be voided.

    However, to prove lack of capacity, there must be evidence of psychosis, dementia, delirium which is normally defined to me that the testator/testatrix did not understand, in a general way, the nature of the assets in his or her possession, the natural objects of his or her bounty, and the consequences of the instrument he or she is signing. 

     

    Florida Bar Board Certified wills, trusts and estates expert Matthew A. Linde understands first hand the importance of careful estate planning and the complexities of financial legal matters, such as probate, tax litigation and guardianship. For help with your estate planning concerns, contact our Fort Myers office to schedule a one-on-one meeting with a professional who can answer your questions - 239-939-7100 or 844-357-0572.

  • I received an estate accounting from the personal representative. How much time do I have to object to the accounting?

    Whenever you receive something from the personal representative's attorney you need to be aware of timing issues.  Virtually everything in probate is on a time table.  If you receive an accounting, other than a final accounting, then under Probate Rule 5.345(c), you have 30 days from the date or receipt to object to the accounting.  If you do not object, then you are deemed to have waived your objections.  

     

    The same time frame applies to objections for final accountings pursuant to Florida Probate Rule 5.401(d).  If you have any questions related to the accounting, then your rights are waived it you don't act.  For additional information, contact Florida Bar Board certified wills, trusts and estates attorney Linde Law Group today at 239.939.7100!  

     

  • How can Florida homestead law affect estate distribution?

    Florida homestead statutes are laws that govern how homestead property will be distributed upon your death. According to the Florida Constitution, there are limits on who is entitled to homestead property when the owner dies if survivors include a spouse or minor child. To get a thorough understanding of homestead statutes, you should consult with a Florida Bar Board Certified wills, trusts and estates expert Matthew A. Linde.

    A Closer Look at Florida Homestead Statutes

    According to Florida Statute 732.401, for example, if the deceased is survived by at least one descendant and a spouse, the surviving spouse will be entitled to a life estate in the home, and a vested remainder will go to the descendants.  This can be a trap.  If you deed your house to child A (assume you have two children), but you are survived by a spouse, then under this statute your spouse takes a life estate and the remainder interest in the homestead passes to your two children equally  - oops and a possible malpractice action against the estate planning attorney.  

    Based on that same statute, the surviving spouse can elect to take a 50% interest as a tenant in common in the property rather than a life estate. This would give that spouse some ownership interest, allowing him or her to set in motion the process of selling the property. Consequently, if the home is sold, that spouse will typically be entitled to 50% of the proceeds. 

    The aforementioned election can be exercised by the surviving spouse or, with a court's approval, an attorney in fact or guardian of the surviving spouse's property. Before the election can be approved, however, the court must decide if the election will be in the best interests of the surviving spouse.

    It's obvious that Florida Homestead statutes are very complex and may be difficult to understand if you don't handle homestead cases on a daily basis. To ensure that your legal rights are protected, you should discuss any concerns you may have with a Fort Myers, Florida attorney.Top of FormBottom of Form

    Help from an Estate Planning Attorney in Fort Myers is Just a Phone Call Away

    Fort Myers estate planning attorney Matthew A. Linde understands firsthand the importance of careful estate planning and the complexities of financial legal matters, such as probate, tax litigation and guardianship. For help with your estate planning concerns, contact our Fort Myers office to schedule a one-on-one meeting with a professional who can answer your questions - 239-939-7100 or 844-357-0572.

  • Are there any limitations that govern when I can attempt to remove a personal representative who was not qualified to serve under Florida law?

    In any probate litigation (as with any litigation) one of the first questions that I ask individuals who call me is: "(1) were you served with a Notice of Administration, and (2) if the answer is yes, when where you served with a Notice of Administration?"

    Florida Statute §733.212(3) reads as follows: 

    (3) Any interested person on whom a copy of the notice of administration is served must object to the validity of the will, the qualifications of the personal representative, the venue, or the jurisdiction of the court by filing a petition or other pleading requesting relief in accordance with the Florida Probate Rules on or before the date that is 3 months after the date of service of a copy of the notice of administration on the objecting person, or those objections are forever barred.

     I cannot stress how important it is to file objections within the three month period is the objection related to any issues listed above.  Concerning personal representatives, the Florida Supreme Court recently held: 
    For the reasons explained below, we hold that section 733.212(3) bars an objection to the qualifications of a personal representative, including an objection that the personal representative was never qualified to serve, if the objection is not timely filed under this statute, except where fraud, misrepresentation, or misconduct with regard to the qualifications is not apparent on the face of the petition or discovered within the statutory time frame.
    See Hill v. Davis 2011 Fla. Lexis 2048, 36 Fla. L. Weekly S 487 (Fla. 2011). 

    This is signification decision because Fla. Stat. 733.3101 reads: 

    Any time a personal representative knows or should have known that he or she would not be qualified for appointment if application for appointment were then made, the personal representative shall promptly file and serve a notice setting forth the reasons. A personal representative who fails to comply with this section shall be personally liable for costs, including attorney's fees, incurred in any removal proceeding, if the personal representative is removed. This liability shall be cumulative to any other provided by law.

    So what happens if a personal representative knows or should know that he or she is not qualified but the reason for the lack of qualification was clear on the face of the Notice of Administration?  The Florida Supreme Court decision above appears to foreclose a challenge to the personal representative.  The lesson here is that when you receive mail from a law firm in a probate matter if you don't understand what it means YOU MUST CONTACT AN ATTORNEY OR RISK LOSING IMPORTANT RIGHTS.  For more information contact Florida Bar Board Certified wills, trusts and estates expert Linde Law Group today at 239.939.7100.